United States v. Parente

Decision Date20 April 1978
Docket NumberCrim. No. H-78-2.
CourtU.S. District Court — District of Connecticut
PartiesUNITED STATES of America v. Andrew J. PARENTE, Jr., Joseph Inturri and Charles Inturri.

M. Hatcher Norris, Asst. U.S. Atty., Hartford, Conn., for plaintiff.

A. Susan Peck, Hubert J. Santos, Buckley & Santos, Hartford, Conn., for defendant Andrew J. Parente, Jr.

RULING ON DEFENDANT PARENTE'S MOTION TO DISMISS

CLARIE, Chief Judge.

This case is currently before the court on the defendant's motion to dismiss. The defendant is charged in a two-count indictment with violating 26 U.S.C. § 5691 by carrying on the business of a retail dealer in liquors and willfully failing to pay the special tax as required by 26 U.S.C. § 5121 and with conspiracy. The defendant contends that the indictment should be dismissed because: (1) compliance with § 5121 would compel him to incriminate himself in contravention of his fifth amendment rights; and (2) the time periods set forth in the indictment are so broad and indefinite that the defendant is not adequately apprised of the charges against him, as required by the sixth amendment of the United States Constitution. The court finds that the defendant's privilege against compulsory self-incrimination does not provide a complete defense for his alleged failure to pay the special tax required by § 5121. The court also finds that, while the conspiracy count is sufficiently definite to advise the defendant of the date of the crime charged, the substantive count fails to specify adequately the time period within which the offense occurred. Accordingly, the motion to dismiss Count I of the indictment is denied, and the motion to dismiss Count II is granted.

Statement of the Facts

Count I of the indictment alleges that "from on or about January 1, 1974, to on or about December 31, 1974," the defendant conspired with a number of other individuals to carry on the business of a retail dealer in liquor while willfully failing to pay the special tax required by 26 U.S.C. § 5121. The indictment sketches out the following scenario of overt acts performed in furtherance of this conspiracy: sometime "during the summer months of 1974," the defendant drove a truck onto the premises of Heublein, Inc. in Hartford, Connecticut. Fifty-five cases of liquor were then loaded onto the truck by William Castro, one of the co-conspirators of the defendant. On or about November 21, 1974, the defendant discussed the theft of liquor by William Castro and another co-conspirator, Charles Thaxton. On or about December 20, 1974, Charles Thaxton and William Castro delivered 55 cases of liquor to the Riviera Lounge in Hartford.

Count II alleges "that during the summer months of 1974," the defendant "carried on the business of a retail dealer in liquors and did wilfully fail to pay the special tax as required by Title 26, United States Code, Section 5121. In violation of Title 26, United States Code, Section 5691."

Discussion of the Law
The Fifth Amendment Claim

The defendant argues that his failure to pay the special tax imposed by 26 U.S.C. § 5121 is privileged in that the payment of the tax would have been self-incriminating. In support of this claim, the defendant states in his brief that "the indictment alleges that he obtained the liquor in question by way of a larceny." While the indictment does not specifically state that the defendant procured the liquor in such a manner, this is certainly the theory of the government's case.

The fifth amendment of the United States Constitution provides, in part, that: "No person . . . shall be compelled in any criminal case to be a witness against himself." The question before the court is whether this amendment bars the criminal prosecution of the defendant for failure to pay the special tax imposed on retail dealers in liquors by 26 U.S.C. § 51211 when the payment of this tax by the defendant allegedly would have created a substantial risk of self-incrimination.

While it has been recognized that ". . . the primary context from which the privilege against self-incrimination emerges is that of the criminal process," California v. Byers, 402 U.S. 424, 440, 91 S.Ct. 1535, 1544, 29 L.Ed.2d 9 (1971) (Harlan, J., concurring), the privilege has been expanded beyond this limited sphere. Thus, a witness in a criminal,2 civil,3 grand jury,4 or legislative5 proceeding may decline to answer questions when to do so would involve substantial risks of self-incrimination.

The government often needs to elicit information from its citizens in situations other than the formal proceedings mentioned above. Thus, if the government is to effectuate its valid regulatory and taxing powers, it must often rely on compulsory self-reporting schemes in order to generate the information necessary to fulfill its responsibilities. If a person seeks to invoke the fifth amendment in the course of a formal court proceeding, the government is immediately apprised of the assertion and a prompt ruling on the validity of this claim of privilege can be obtained. On the other hand, when the government is seeking information through a self-reporting scheme, it will not be immediately informed of an individual's assertion of a fifth amendment privilege if this exercise of the claimed constitutional right is manifested by a complete failure to comply with the self-reporting plan of the statute. Thus, an individual's choice to ignore a self-reporting scheme of control over taxation carries with it the danger that the government is being deprived of useful information through the invalid exercise of the privilege against self-incrimination.

These considerations undoubtedly underlie the decision of Justice Holmes in United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Sullivan was a bootlegger who was convicted for failing to file income tax returns. Sullivan argued that his refusal to file a return was privileged under the fifth amendment because his income was gained unlawfully. The Supreme Court rejected this argument, stating:

"As the defendant's income was taxed, the statute of course required a return. See United States v. Sischo, 262 U.S. 165, 43 S.Ct. 511, 67 L.Ed. 925. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law." United States v. Sullivan, supra at 263-64, 47 S.Ct. at 607. (Emphasis added).

The Court indicated that the privilege against self-incrimination must be exercised as narrowly as possible, consistent with the demands of the fifth amendment. Thus, the defendant's failure to file the special tax return and pay the special tax must be considered to be an invalid exercise of the fifth amendment privilege if the privilege against self-incrimination could have been exercised in a less sweeping fashion.

Chief Justice Burger has stated that:

"Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is invariably a close one. Tension between the State's demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly." California v. Byers, supra, 402 U.S. at 427, 91 S.Ct. at 1537.

The most successful effort to develop an analytical framework with which to analyze these competing interests in situations involving the government's attempt to gain information, either through a taxing or regulatory scheme, was made by Justice Harlan in his concurring opinion in California v. Byers, supra, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9. He indicated that the fifth amendment has established that the government's interest in the enforcement of its criminal laws is insufficient, standing alone, to justify both the compulsion of self-incriminating evidence from an individual and its subsequent prosecutorial use against him. When the government is pursuing legitimate regulatory or taxing interests, however, Justice Harlan declared that the fifth amendment allows a balancing approach in which the competing interests of the government and the individual are assessed.

Justice Harlan identified three distinct interests which should be evaluated on a case by case basis. These interests have been described as follows:

"The first concern is the information provider's personal interest in his constitutional right against compulsory self-incrimination; Justice Harlan noted that this interest varies according to how explicitly incriminating is the information which would have to be provided in the given case. Second, Justice Harlan listed the government's nonprosecutorial interest in the success of its regulatory or information gathering scheme, consideration of which interest focuses not only on the nature of the government's objective, but also on the relative necessity of self-reporting to its nonprosecutorial aim. Third, Justice Harlan identified the government's
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4 cases
  • State v. Orsini
    • United States
    • Connecticut Supreme Court
    • June 1, 1982
    ...the time alleged has been far more indefinite than the expanded time period sanctioned by the trial court here. United States v. Parente, 449 F.Supp. 905, 914 (D.Conn.1978); Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888, 892 (1975). The defense in this case was not that the sale of the ......
  • US v. Premises Located at Highway 13/5
    • United States
    • U.S. District Court — Northern District of Alabama
    • September 12, 1990
    ...proceeding may decline to answer questions when to do so would involve substantial risks of self-incrimination." United States v. Parente, 449 F.Supp. 905, 907 (D.Conn.1978); Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1086 (5th Cir.1979). "Although the proceeding in which the p......
  • U.S. v. U.S. Currency
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 14, 1980
    .... proceeding may decline to answer questions when to do so would involve substantial risks of self-incrimination." United States v. Parente, 449 F.Supp. 905, 907 (D.Conn.1978); Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1086 (5th Cir. 1979). "Although the proceeding in which th......
  • State v. Ambrosia, L-88-058
    • United States
    • Ohio Court of Appeals
    • May 4, 1990
    ...Knight v. State (Fla.App.1987), 506 So.2d 1182; People v. MacAfee (1980), 76 App.Div.2d 157, 431 N.Y.S.2d 149; and United States v. Parente (D.Conn.1978), 449 F.Supp. 905. In order to determine what information must be included within an indictment under Ohio law, we look to R.C. 2941.01 et......
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    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...may decline to answer questions when to do so would involve substantial risks of self-incrimination.” United States v. Parente , 449 F. Supp. 905, 907, 908 (D. Conn. 1978). “Although the proceeding in which the privilege is asserted need not be criminal, the information for which the privil......

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