United States v. Siegel, No. 78 CR 606.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation472 F. Supp. 440
Docket NumberNo. 78 CR 606.
PartiesUNITED STATES of America, Plaintiff, v. Joseph SIEGEL and Alvin Winograd, Defendants.
Decision Date27 June 1979

472 F. Supp. 440

UNITED STATES of America, Plaintiff,
v.
Joseph SIEGEL and Alvin Winograd, Defendants.

No. 78 CR 606.

United States District Court, N. D. Illinois, E. D.

June 27, 1979.


472 F. Supp. 441

Thomas P. Sullivan, U. S. Atty., Scott R. Lassar, Asst. U. S. Atty., Stephen P. Senderowitz, Asst. U. S. Atty., Chicago, Ill., for plaintiff.

Jeffrey N. Cole, Harvey M. Silets, Harris, Burman & Silets, Royal B. Martin, Jr., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

CROWLEY, District Judge.

The indictment charges defendants with entering into a conspiracy to defraud the United States by impairing the Department of the Treasury in its function of collecting income tax,1 aiding and assisting in the preparation of a fraudulent income tax return,2 and entering into certain commodity futures trades described as "fixed, rigged, prearranged, non-competitive and risk-free" and "wash sales".3

The defendants are floor brokers on the International Monetary Market. The indictment charges that the defendants and others entered into an agreement through which Harold Brady, now deceased, would realize certain losses during one taxable year and a corresponding amount of gains during the next year. The method allegedly used to achieve this objective was to institute a series of unlawful transactions on the commodities futures market. The indictment also charges that defendants transmitted the information concerning the various gains and losses to Harold Brady's accountants for use in the preparation of his income tax return; and that as a result of their participation in this scheme, defendants received substantial commissions.

The defendants' major challenge to the indictment is based upon United States v. LaMantia, 2 Comm.Fut.L.Rep. ¶ 20,667 (N.D.Ill.,1978). In LaMantia, Judge Marshall held that an indictment charging "fictitious sales" was unconstitutionally vague.

The defendants argue that although this indictment is different from that involved in LaMantia in form, the essence of the charges is identical. In support of their

472 F. Supp. 442
argument, defendants state that in an unsuccessful attempt to define "fictitious sales" in LaMantia, the government used virtually the same adjectives, i. e., fixed, rigged, non-competitive and prearranged, as were used to describe the acts resulting in this indictment. Therefore, defendants claim that the charge here amounts to no more than a prosecution for fictitious sales

Defendants further argue that, by bringing this indictment for conspiracy to defraud the United States, the government seeks to circumvent LaMantia which forecloses prosecution for conspiracy to commit an offense against the United States when the underlying offense is the participation in fictitious trades. To permit this indictment to stand is said to allow the government to charge as criminal, under the second portion of 18 U.S.C. § 371, conduct that is proscribed by a law that has been declared unconstitutionally vague and could not be prosecuted under the first prong of 18 U.S.C. § 371.4 Defendants' position is that since each count of the indictment hinges on these allegedly unlawful acts the entire indictment is tainted with the same defect.

At the outset it must be borne in mind that "the true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plea a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 89 L.Ed. 704." Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932). Thus, the form of the indictment, to the extent that it defines with adequate specificity, the crime charged may mean the difference between a sufficient and insufficient charge.

Their concern with the factual conduct rather than the language of the indictment underlies defendants' overly broad interpretation of LaMantia. The sole issue in that case was whether the term "fictitious sales" had acquired a meaning sufficiently clear to apprise a defendant of the conduct proscribed. The basis of that decision was the court's finding that neither the statute, courts nor the commodities trade itself had a common understanding of the type of conduct at which the statute was directed. Therefore, it was the language of the statute and the indictment rather than any underlying conduct that was deemed relevant.5

This indictment not only describes the transactions involved as fixed, rigged, prearranged, non-competitive and risk-free, but also characterizes them as "wash sales". Thus, the issue before this Court is not whether the term "fictitious sales" violates due process notice requirements,...

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23 practice notes
  • Levin v. Ligon, No. A109477.
    • United States
    • California Court of Appeals
    • June 30, 2006
    ...(See, e.g., Bates v. Cook, Inc. (M.D.Fla.1984) 615 F.Supp. 662, 672-673; United States v. Siegel (N.D.Ill. 140 Cal.App.4th 1469 1979) 472 F.Supp. 440, 442, fn. 4; United States v. Certain Land and Interests in Property (M.D.Tenn.1964) 225 F.Supp. 338, 341.) However, "[t]he greater weight of......
  • U.S. v. Hooks, No. 87-1007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 8, 1988
    ...of a scheme which results in the filing of a false return, whether or not those parties actually prepare it." United States v. Siegel, 472 F.Supp. 440, 444 (N.D.Ill.1979), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), citing United States v. Crum, 529 F.2d 1380, 1382 (9......
  • United States v. Kimble, Criminal No.: WDQ-13-035
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 8, 2015
    ...F.2d 716, 718 (6th Cir. 1967)("The fact that appellant did not sign or file the tax returns is not material."); United States v. Siegel, 472 F. Supp. 440, 443-44 (N.D. Ill. 1979)("[T]he scope of the statute extends to all parties of a scheme which results in the filing of a false return, wh......
  • Ceres Terminals, Inc. v. Chicago City Bank and Trust Co., No. 10062
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1994
    ...to support the invocation of the doctrine of judicial [259 Ill.App.3d 852] estoppel. (See United States v. Siegel (N.D.Ill.1979), 472 F.Supp. 440, 442 n. 4 (the doctrine of judicial estoppel "does not apply where the prior statement is merely an expression of opinion or legal conclusion"); ......
  • Request a trial to view additional results
23 cases
  • Levin v. Ligon, No. A109477.
    • United States
    • California Court of Appeals
    • June 30, 2006
    ...(See, e.g., Bates v. Cook, Inc. (M.D.Fla.1984) 615 F.Supp. 662, 672-673; United States v. Siegel (N.D.Ill. 140 Cal.App.4th 1469 1979) 472 F.Supp. 440, 442, fn. 4; United States v. Certain Land and Interests in Property (M.D.Tenn.1964) 225 F.Supp. 338, 341.) However, "[t]he greater weight of......
  • U.S. v. Hooks, No. 87-1007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 8, 1988
    ...of a scheme which results in the filing of a false return, whether or not those parties actually prepare it." United States v. Siegel, 472 F.Supp. 440, 444 (N.D.Ill.1979), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), citing United States v. Crum, 529 F.2d 1380, 1382 (9......
  • United States v. Kimble, Criminal No.: WDQ-13-035
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 8, 2015
    ...F.2d 716, 718 (6th Cir. 1967)("The fact that appellant did not sign or file the tax returns is not material."); United States v. Siegel, 472 F. Supp. 440, 443-44 (N.D. Ill. 1979)("[T]he scope of the statute extends to all parties of a scheme which results in the filing of a false return, wh......
  • Ceres Terminals, Inc. v. Chicago City Bank and Trust Co., No. 10062
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1994
    ...to support the invocation of the doctrine of judicial [259 Ill.App.3d 852] estoppel. (See United States v. Siegel (N.D.Ill.1979), 472 F.Supp. 440, 442 n. 4 (the doctrine of judicial estoppel "does not apply where the prior statement is merely an expression of opinion or legal conclusion"); ......
  • Request a trial to view additional results

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