United States v. Romano

• Decision Date: 09 March 1962
• Docket Number: Cr. No. 10284.
• Citation: 203 F. Supp. 27
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Frank ROMANO, John Ottiano, Edward Romano, Antonio Vellucci, Samuel I. Cohen, Three John Does, Israel Yarchin, the Griswold Corporation of Jewett City, Connecticut.

203 F. Supp. 27

UNITED STATES of America v. Frank ROMANO, John Ottiano, Edward Romano, Antonio Vellucci, Samuel I. Cohen, Three John Does, Israel Yarchin, the Griswold Corporation of Jewett City, Connecticut.

Cr. No. 10284.

United States District Court D. Connecticut.

March 9, 1962.

Robert C. Zampano, U. S. Atty., New Haven, Conn., for plaintiff.

John L. Calvocoressi, Pelgrift, Dodd & Stoughton, Hartford, Conn., for defendants, Samuel I. Cohen and Griswold Corp. of Jewett City, Connecticut.

Jerome E. Caplan, Rogin, Nassau, Caplan & Lassman, Hartford, Conn., for defendant, Israel Yarchin.

CLARIE, District Judge.

Defendants, Yarchin, Cohen and The Griswold Corporation, were indicted on counts two (2) and three (3) of a three count indictment. The first count, not applicable to them, charges Frank Romano and three alleged associates with violation of § 5601(a) (1) of the Internal Revenue Code, 26 U.S.C.A. Counts two (2) and three (3) charge these defendants with violation of § 5601(a) (8) of the Internal Revenue Code, 26 U.S.C.A., and § 371 of the Criminal Code, 18 U.S. C.A., respectively; the former relates to the production of illegally distilled spirits and the latter to the conspiracy to produce the same.

Yarchin, Cohen and The Griswold Corporation, in support of their motion to dismiss the indictment, cite several grounds: (1) that the government has destroyed a substantial amount of evidence that would be beneficial to their respective defenses; (2) that the government procured certain information and evidence by trespass and illegal search and seizure. To support this assertion, the defendants claim that: a preliminary entry of October 10, 1960 upon the Aspinook Mill premises, made without a warrant, constituted a trespass; the subsequent warrant, procured for the entry of October 13, 1960 was thus founded upon illegally obtained information, and was improperly issued. Thus, any evidence seized from their alleged co-conspirators and/or any evidence, tangible or intangible, procured on the Aspinook Mill premises by search and seizure on October 10, 1960 without a warrant, and on October 13, 1960 with a warrant, is a nullity and cannot be used in a criminal prosecution against them; (3) that the said warrant was illegally executed.

The movants, Yarchin, Cohen and The Griswold Corporation, were granted a full hearing on their motion, at which time they examined several government witnesses. The evidence disclosed that a very substantial still apparatus, comprised of huge vats and a vast amount of accessory equipment, was seized by virtue of the execution of a search warrant. In fact, several truckloads of seized property were ultimately removed from the premises to a government warehouse. Among the many items at the time of seizure were included 407 empty 60-lb. (12-5 lb.) Domino sugar bags and 41 full 60-lb. (12-5 lb.) bags of Domino sugar.

It was revealed that all the full bags of sugar were available and intact; however, only 205 scalpings from the original 407 empty sugar bags were available for inspection; the remainder had been destroyed. These so-called scalpings were cut-out sections upon which the government claimed was inscribed all the printed matter appearing on the bags. The defendants claim: that they alone, for the purpose of preparing a proper defense, can properly evaluate the evidential significance of the articles destroyed; that the unilateral action of the government in destroying any of the evidence was prejudicial, hence the indictment should be dismissed. Yarchin, in that he is charged with supplying raw materials, more particularly sugar, for use in the distilling operation, claims special prejudice by the destruction of the empty sugar bags.

Considering first the destruction of the still and appurtenances, the destruction of such items is authorized by 26 U.S. C.A. § 5609, which provides:

"In the case of seizure elsewhere than on premises qualified under this chapter of any unregistered still, distilling or fermenting equipment or apparatus, or distilling or fermenting material, for any offense involving forfeiture of the same, where it shall be impracticable to remove the same to a place of safe storage from the place where seized, the seizing officer is authorized to destroy the same. * * * Any destruction under this subsection shall be in the presence of at least one credible witness. The seizing officer shall make such report of said seizure and destruction and take such samples as the Secretary or his delegate may require." See, Ramsey v. United States, 245 F.2d 295, 297 (9 Cir. 1957).

The magnitude of this distilling operation made it impracticable to remove the plant intact. It is the government's claim that all essential elements of the plant are in their original form and are available for inspection by the defendants; further, that photographs and movies were made prior to dismantling and that such are also available to the defendants. The court finds that the dismantling of the still and appurtenant apparatus was, in this case, an act consistent with the authority of the aforesaid statute, and that the defendants have not been prejudiced thereby.

The defendants claim that the failure of the government to produce, intact for defendants' inspection, all of the 407 empty sugar bags, is prejudicial. No evidence was offered to indicate that the 205 remaining bag scalpings are lacking in any essential which has any material bearing on the defendants' cases; nor was there any evidence to justify the claim that any dismantling or destruction of items of tangible property seized had any relationship to the defendants' preparation of their defense. In the absence of such showing, the motions to dismiss are denied as to all of said defendants.

Pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., defendants, Yarchin, Cohen, and The Griswold Corporation, moved to suppress the use of certain evidence. The basic grounds claimed are: (1) the search warrant by which the evidence was obtained was secured by the use of illegally acquired information; and (2) the search warrant was illegally executed.

The evidence disclosed that investigators of the Alcoholic Tax Unit of the United States Bureau of Internal Revenue received information from the Connecticut State Police that an illicit still was being operated on premises known as the Aspinook Mill in Jewett City, Connecticut. The State Police had received their information from an undisclosed "reliable source".

On the evening of October 10, 1960, in the course of investigating this complaint, two federal agents and a state policeman went to the site of the mill. This mill, a former textile plant, located on a 42-acre tract, is comprised of multiple buildings covering virtually the entire site area. The overall premises were enclosed on three sides by a wire fence; the remaining side fronted on the Quinebaug River. The gates at the several entrances to the premises were usually open during the day but normally locked during the evening hours; the evidence did not establish whether or not on October 10, 1960, all the gates were closed or locked.

The officers entered the enclosure through an opening in the fence; it required no force or moving of any part of the enclosure. After crossing a portion of open land adjacent to certain mill buildings, they entered a vacant structure, designated as building No. 10 on Exhibit A, known as the "old print building". The door to this building was closed but unlocked. The officers walked through this empty building to an open courtyard. The latter area can best be described as an alleyway or an open space between the "print building" and building No. 9a, otherwise described as the "white building". It was in the latter structure that the still was ultimately found. Upon entering this courtyard, a strong odor of fermenting mash was detected emanating from the "white building". The officers immediately left the premises via the route they had entered.

The following day, October 11, 1960, the federal officers obtained a Commissioner's warrant for search and seizure of the suspect premises, signed by a judge of this court. One of the facts recited in the affidavit to establish probable cause was that the officers had detected the unmistakable odor of fermenting mash emanating from the "white building".

On October 13, 1960 the warrant was executed; a search was made of the "white building" and an illegal still was found. Prior to the time of the search, the building was padlocked. The watchman for the owner-defendant, The Griswold Corporation, claimed that he did not have a key to the building; that it had been leased out prior to that date, and that he did not know of the contents of the building. The contents included a still, appurtenant apparatus, and material inventory ordinarily used in the distilling of alcoholic spirits. It is the presentation of these items in evidence which the movants now wish to suppress.

It is their claim that the police officers' entrance inside the fenced area and subsequent entrance into building No. 10, as they were proceeding to the courtyard area, constituted a trespass against the corporate owner-defendant, The Griswold Corporation; that said defendant was an alleged conspirator with the other defendants under count three (3) of the indictment and that they therefore have standing to claim prejudice by this original entrance of October 10, 1960 without a warrant, which unlawful entrance constituted an unreasonable search and seizure. Further, any information obtained by that entry was illegally obtained; its subsequent use in the procurement of the search warrant rendered such warrant invalid; thus the evidence obtained by this search warrant on October 13, 1960 should be suppressed.

The government contends that Yarchin and Cohen lack standing to make this motion, since they are not persons aggrieved by an unlawful search...