United States v. Sclafani, Cr. 43476.

Citation126 F. Supp. 654
Decision Date29 December 1954
Docket NumberCr. 43476.
PartiesUNITED STATES of America, v. Joseph L. SCLAFANI, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

Anthony A. Marcelle, New York City (Albert I. Schmalholz, New York City, of counsel), for the motions.

Leonard P. Moore, U. S. Atty., Brooklyn, N. Y. (Thomas C. Platt, Jr., Asst. U. S. Atty., Williston, N. Y., of counsel), in opposition.

RAYFIEL, District Judge.

On February 26, 1954, an eight-count information was filed against the defendant. The first three counts charge him, as president of Joseph L. Sclafani, Inc., a corporation, with wilfully and knowingly attempting to evade the payment of part of its income taxes for the years 1947 to 1949, inclusive, by filing with the Collector of Internal Revenue false and fraudulent tax returns for the said years. Counts 6 to 8, inclusive, charge him, a married man, with wilfully and knowingly attempting to evade the payment of part of the income taxes due from him and his wife for the years 1947 to 1949, inclusive, by filing with the Collector of Internal Revenue false and fraudulent income tax returns for himself and his wife for the said years. Counts 4 and 5 charge that on or about, and between June 21, 1950, and January 12, 1951, the defendant, a married man, wilfully and knowingly attempted to defeat and evade a part of the income taxes due from him and his wife for the years 1945 and 1946, respectively, by making, filing and causing to be filed with representatives of the United States Treasury Department certain false and fraudulent statements for the purpose of concealing additional unreported income.

On July 23, 1954, a subpoena duces tecum was served upon the defendant, directing him to appear before a Grand Jury and to bring certain books and records of the aforementioned corporation with him. On July 26, 1954, another subpoena was served upon him, directing him to appear before the said Grand Jury to give oral testimony relating to the affairs of the said corporation. Both subpoenas were returnable July 27, 1954, on which day the defendant appeared but declined to testify, claiming his constitutional privilege. On July 29th Judge Bruchhausen ordered him to appear and testify before the Grand Jury to the extent hereinafter indicated.

The defendant has moved before this Court for the following relief: —

(1) to dismiss the information on the ground that his constitutional rights have been infringed.

(2) to dismiss counts 4 and 5 of the information on the ground that prosecution thereunder is barred by the Statute of Limitations.

Judge Bruchhausen's aforementioned order of July 29th, 1954, directed the defendant, as an officer of Joseph L. Sclafani, Inc., to answer questions relating to the identification and authentication of the books and records of the said corporation, which were to be produced pursuant to the subpoena duces tecum, and to explain the absence or reveal the whereabouts of those not produced. That the defendant was clearly obliged to do on the authority of Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, and United States v. Field, 2 Cir., 193 F.2d 92, certiorari denied 342 U.S. 894, 72 S.Ct. 202, 96 L.Ed. 670.

Submitted in support of the first motion was the affidavit of Anthony A. Marcelle, Esq., his attorney, verified the 18th day of October, 1954. Nowhere in the affidavit does it appear that the defendant's constitutional rights were invaded. Nowhere is the claim made that the defendant was compelled or even asked to answer any question which constituted a deprivation of his constitutional privilege against self-incrimination. As a matter of fact the...

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3 cases
  • United States v. Shorter, Crim. No. 84-00421.
    • United States
    • U.S. District Court — District of Columbia
    • March 26, 1985
    ...United States v. Mousley, 194 F.Supp. 119 (E.D.Pa.1961), aff'd without opinion, 311 F.2d 795 (3d Cir.1963); United States v. Sclafani, 126 F.Supp. 654 (E.D.N.Y.1954), aff'd on other grounds, 265 F.2d 408 (2d Cir.1959); see also, United States v. Malnik, 348 F.Supp. 1273 (S.D.Fla.1972), aff'......
  • US v. Feldman, 89 Cr. 765 (CSH).
    • United States
    • U.S. District Court — Southern District of New York
    • March 2, 1990
    ...United States v. Mousley, 194 F.Supp. 119 (E.D.Pa.1961), aff'd without opinion, 311 F.2d 795 (3d Cir.1963); United States v. Sclafani, 126 F.Supp. 654 (E.D. N.Y.1954), aff'd on other grounds, 265 F.2d 408 (2d Cir.1959); see also, United States v. Malnik, 348 F.Supp. 1273 (S.D. Fla.1972), af......
  • United States v. Sclafani
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 30, 1959
    ...have been violated or that there was any impropriety in the proceedings leading up to the filing of the information." D.C.S. D.N.Y.1954, 126 F.Supp. 654, 655. During trial the matter was reopened before Judge Foley who, after inspection of the relevant Grand Jury minutes, declined to alter ......

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