United States v. Fago, 371

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation319 F.2d 791
Docket NumberDocket 27815.,No. 371,371
PartiesUNITED STATES of America, Appellee, v. Dominick S. FAGO, Appellant.
Decision Date28 June 1963

Herald P. Fahringer, Jr., Buffalo, N. Y. (Lipsitz, Green & Fahringer, Buffalo, N. Y.), for appellant.

Edmund F. Maxwell, Buffalo, N. Y. (John T. Curtin, U. S. Atty., Buffalo, N. Y.), for appellee.

Before CLARK and FRIENDLY, Circuit Judges, and ZAVATT, District Judge.*


Dominick Fago appeals from a judgment of the District Court for the Western District of New York convicting him, after a verdict, of violating 26 U.S.C. § 7201 by filing false and fraudulent income tax returns for 1954 and 1955 and of violating 26 U.S.C. § 7203 in failing, as principal officer of John B. Schultz Contracting Co., Inc. and of Nottingham Contracting Corporation, to file six specified withholding tax returns due in 1955 and 1956. Although Fago's brief urged that the evidence was insufficient to warrant a conviction, this point was not pursued in argument and is wholly without merit. The claim seriously pressed on us was that the convictions were obtained in violation of Fago's rights to be secure against unreasonable searches and seizures and not to be compelled to be a witness against himself, guaranteed by the Fourth and Fifth Amendments.

The claim is that Fago turned his personal and corporate records over to the District Attorney of Erie County, New York, for examination in the latter's investigation of corruption in the City of Lackawanna, under a state grant of immunity; that the state officials permitted the Internal Revenue Service to examine these records; and that thereafter the state officials turned the records over, pursuant to an administrative summons, to the federal authorities investigating Fago's tax liabilities. We are invited to consider large and interesting constitutional questions in regard to cooperation between state and federal officials enabling the latter to obtain indirectly evidentiary material which the Fifth Amendment would prevent them from obtaining directly. We must decline the invitation. For, apart from the fact that the records came into the possession of the New York authorities for a purpose wholly unrelated to the subsequently initiated federal inquiry, Fago failed to show that the documents were his personal papers rather than records of the corporations, which he could himself have been compelled to produce. The only...

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  • United States v. Gel Spice Co., Inc., 80 CR 650.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 28, 1985
    ...record may be obtained even in situations where the corporation is closely held or the "alter ego" of the owner. United States v. Fago, 319 F.2d 791, 793 (2d Cir.1963). Other issues to be addressed at the evidentiary hearing include (11) whether statements made by the defendants during the ......
  • United States v. Culver, Cr. No. 26195.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • October 3, 1963
    ...the opinion to indicate that the Court intended to overrule Lagow and Guterma, and other cases to the same effect. See United States v. Fago, 2 Cir., 319 F.2d 791 (1963), decided after Defendants' claim of standing in the instant case is not supported by Silverthorne Lumber Co. v. United St......
  • United States v. Kane
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 9, 1965
    ...(1960). 16 15 U.S.C. § 77v(c). 17 United States v. White, 322 U.S. 694, 698-700, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); United States v. Fago, 319 F.2d 791 (2d Cir. 1963); United States v. Guterma, 272 F.2d 344 (2d Cir. 1959). Cf. United States v. Epstein, 240 F.Supp. 84, 85 & n. 2 (S.D.N.Y.1......
  • People ex rel. Scott v. Pintozzi, 43012
    • United States
    • Supreme Court of Illinois
    • November 24, 1971
    ...the corporation is his mere alter ego. (Hair Industry Ltd. v. United States (2d cir.), 340 F.2d 510; United States v. Fago (2d cir.), 319 F.2d 791; United States v. Guterma (2d cir.), 272 F.2d 344; Lagow v. United States (2d cir.), 159 F.2d 245.) We adopt the rule announced in these [50 Ill......
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