United States v. Sherman

• Decision Date: 04 November 1976
• Docket Number: No. 76 Cr. 383 (HFW),76 Cr. 641 (HFW).,76 Cr. 383 (HFW)
• Parties: UNITED STATES of America v. Grace SHERMAN, Defendant.
• Court: U.S. District Court — Southern District of New York

426 F. Supp. 85

UNITED STATES of America v. Grace SHERMAN, Defendant.

Nos. 76 Cr. 383 (HFW), 76 Cr. 641 (HFW).

United States District Court, S. D. New York.

November 4, 1976.

COPYRIGHT MATERIAL OMITTED

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for the United States by Joel N. Rosenthal, Asst. U. S. Atty., New York City, of counsel.

Arnold D. Levine, Tampa, Fla., for petitioner Grace Sherman.

MEMORANDUM DECISION

WERKER, District Judge.

The defendant, Grace Sherman, is charged in two separate indictments, 76 Cr. 383, and 76 Cr. 641, with several counts of aiding and abetting William Sherman in the attempted evasion and defeating of income tax.

The court has before it a series of pretrial motions brought on by the defendant Grace Sherman seeking rulings on discovery requests as well as with regard to substantive matters.

MOTIONS TO COMPEL DISCLOSURE OF EVIDENCE FAVORABLE TO THE DEFENDANT

The government consents to the motion to compel the disclosure of all evidence favorable to the defendant.

MOTION FOR INQUIRY-ELECTRONIC SURVEILLANCE

The government opposes the motion for an inquiry to ascertain whether any mechanical or electronic surveillance was conducted by its various investigative agencies. The government indicates that it is unaware of any use of electronic surveillance. The Assistant United States Attorney further indicates that the IRS agents who investigated the case have assured him that they have no knowledge of any electronic surveillance of the defendant. The defendant's motion is devoid of any statement of facts which would serve as a basis for believing that Grace Sherman was the subject of electronic surveillance. The motion is therefore denied.

MOTION PURSUANT TO 18 U.S.C. § 3504

As to defendant's motion pursuant to 18 U.S.C. § 3504,¹ the government has denied it committed any unlawful act in the nature of electronic surveillance conducted with reference to this defendant. By inference, the government similarly denies that it has obtained inadmissible evidence as a product of such an act. The government's response therefore resolves this motion.

REQUEST FOR DISCOVERY AND INSPECTION

With respect to the defendant's motion requesting disclosure, the government consents to furnishing statements of the defendant within the possession of the government as requested in paragraph (a) of the motion. The government raises an objection however to the production of the substance of any witness's testimony on the grounds that this constitutes trial evidence. There is no disagreement on this point; the language used in the motion tracks the language of Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure exactly and, the defendant requests only the statements of the defendant, not those of any other witnesses.

The government declines to provide statements of the defendant made to persons not government agents on the grounds that such statements are the substance of the testimony of those persons and that the defendant is not entitled to discover evidentiary matter, citing United States v. Politi, 334 F.Supp. 1318, 1321 (S.D.N.Y.1971). That case stands for the proposition that the government is not compelled to produce statements of non-government agent witnesses if they are not written or recorded. However, the discovery requested by the defendant relates to statements which were made in response to interrogation either before or after arrest. This discovery request has not therefore been specifically addressed by the Assistant United States Attorney and citation to United States v. Politi is unilluminating. If such statements are in existence, the government is directed to produce them in accordance with Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure.

The government consents to furnishing a copy of the defendant's prior criminal record. It also consents to permit the inspection and copying of photograph books, papers, etc. within the possession of the government and which are material to the preparation of the defense or are intended for use by the government as evidence or were obtained from the defendant. The government further consents to the inspection and copying of the results of any examinations or scientific tests made in connection with the case.

WITNESS LIST

The defendant has sought a list of witnesses the government intends to call together with the addresses and records of felony convictions of these persons. The government's opposition to this request is based on the contention that there has been no showing of particularized need for this information and that there is a risk of harassment to these witnesses by the defendants or others. The government notes that these indictments arise out a massive narcotics operation and that William Sherman, a man with a history of violent crimes and narcotics offenses, may obtain this information and may threaten witnesses or that others of the many people involved in the alleged narcotics operation could try and affect the testimony of government witnesses. The government alleges that Grace Sherman has herself swayed the testimony of at least one grand jury witness — her sister — in the past. The basis for the final allegation is that when Ms. Sherman's sister was subpoenaed to testified before the grand jury in New York, that Grace Sherman accompanied her, consulted with her, and did in fact, in the opinion of the Assistant United States Attorney, cause an alteration in her sister's testimony.

It is within the court's discretion to grant or deny a request for the list of witnesses of the government. United States v. Payseur, 501 F.2d 966, 972 (9th Cir. 1974); United States v. Addonizio, 451 F.2d 49, 62 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972); United States v. Persico, 425 F.2d 1375, 1378 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970); Cf. 18 U.S.C. § 3432. The principle to be followed, however, is that the defendant be permitted a fair and reasonable opportunity to prepare his defense. United States v. Palmisano, 273 F.Supp. 750, 752 (E.D.Pa. 1967).

The defendant indicated that such information would enable a proper and intelligent preparation of the case and eliminate surprise at the trial. She also claims that she does not know the people whose names are reflected in the indictment nor the community in which they reside or how they may be contacted. In United States v. Cannone, 528 F.2d 296, 302 (2d Cir. 1975), cited by defendant, the Second Circuit noted that a mere abstract conclusory claim that such disclosure is necessary to the proper preparation for trial is not a basis for granting such discovery at least where the government advanced specific grounds (that the defendants had been indicted for obstruction of justice by beating a grand jury witness) for denying the discovery request. The defendant has made no showing of a particularized need for this information and has not met her burden of proof in this respect. United States v. Payseur, supra.

MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS

The defendant's contentions in her motion to dismiss on statute of limitations grounds is based on the contention that in order for a crime to constitute an offense under 26 U.S.C. § 7201 that there must be a positive act of evasion. Defendant therefore argues that the statute of limitations should run from the time of the commission of the affirmative act instead of from the date upon which a tax return for the year in question would have been due. The cases do indicate that in order for there to be a crime in the nature of attempting to defeat or evade taxes that there must be an affirmative act of evasion aside from an omission of the duty to make a return. United States v. Ming, 466 F.2d 1000, 1004 (7th Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972); United States v. Mesheski, 286 F.2d 345, 346 (7th Cir. 1961); United States v. Jannuzzio, 184 F.Supp. 460, 464 (D.Del.1960). However, in a case cited by the government, United States v. Myerson, 368 F.2d 393, 395 (2d Cir. 1966) (per curiam), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967), the Second Circuit, in calculating the running of the statute of limitations on a crime charged under 26 U.S.C. § 7201 noted that the six year statute of limitations as provided in 26 U.S.C. § 6531 runs from the last date upon which the tax return was due. It seems clear that the completion of the offense of attempting to defeat and evade taxes necessitates the filing of the return and thus depends upon the day when the return is in fact due. Cf. United States v. Kafes, 214 F.2d 887, 890 (3d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954) (the statute of limitations for this offense under the predecessor statute to § 6531 commenced running the day when payment became due). In United States v. Mahler, 181 F.Supp. 900 (S.D.N.Y.1960) (Weinfeld, J.), moreover, the defendants were charged with conspiracy to willfully evade taxes, and as one of the overt acts the filing of a tax return was alleged. The issue in part was whether the date of mailing or the date of receipt of the tax return was the relevant date for the commencement of the running of the statute of limitations. The court determined that the relevant date was the date of receipt of the return. One of the acts which is alleged in the case at bar to be the violation of the tax statute is the failure to make an income tax return. Thus, the evasion of taxes would have been completed with the failure to make the income tax return, and the relevant date for the commencement of the running of the statute of limitations should be April 15, 1970. The filing of the indictment on April 15, 1976 was thus within the statute of limitations.

MISCELLANEOUS MOTIONS TO DISMISS

Without addressing the manner in which the indictments in this case are specifically defective the...