United States v. Waldin, Crim. No. 18412
| Decision Date | 16 February 1956 |
| Docket Number | 18512.,Crim. No. 18412 |
| Citation | 138 F. Supp. 791 |
| Parties | UNITED STATES of America v. Ernest T. WALDIN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
W. Wilson White, Alan J. Swotes, Philadelphia, Pa., for plaintiff.
Benjamin R. Donolow, Philadelphia, Pa., for defendant.
This action is before the Court on Defendant's Motion to Dismiss Indictments 18412 and 18512.
The defendant was indicted on June 1, 1955 under indictment number 18412, with violation of 18 U.S.C.A. § 371 and 26 U.S.C.A. § 145(b). Subsequent to this, on September 20, 1955, a superseding indictment (indictment 18512) was returned by the grand jury. This latter indictment contained all the charges included in the former one; however, it also contained another offense, to wit, violation of 26 U.S.C.A. § 4047(e) (4).
Because of the overlapping of the two indictments and in the interests of brevity, I shall consider only indictment 18512 and the disposition accorded it will control both.
Indictment 18512 charges that the defendant was a Deputy Collector of Internal Revenue when the tax liability of one Francesco Mogavero was under investigation. Further, that defendant conspired with unknown persons to put Mogavero in fear of criminal prosecution and that defendant represented to Mogavero that their influence within the Internal Revenue was such that they could straighten out his difficulties by Mogavero paying defendant and his unknown associates $20,000.
The requisite overt acts charged in the indictment consisted of statements by both defendant and others to Mogavero that they could use their influence to procure termination of the investigation of his affairs and his tax liability reduced; demands by both defendant and another for the sum of $20,000 and finally receipt by defendant of that sum from Mogavero.
The issues raised by the briefs are:
1. Must an indictment charging a defendant with conspiracy in violation of 18 U.S.C.A. § 371, 26 U.S.C.A. § 145(b) and 26 U.S.C.A. § 4047(e) (4) allege an overt act to effect the object of said conspiracy?
2. Are the present indictments insufficient for failure to allege such an act?
3. Is indictment 18512 insufficient to charge a violation of 26 U.S.C.A. § 4047 (e) (4) by reason of its failure to allege that the defendant was acting under the authority of a revenue law?
I will consider the issues in that order.
The pertinent portions of 18 U.S.C.A. § 371 read as follows:
The legislative history of this statute was discussed by this Court in United States v. Tanz, 1955, D.C., 136 F.Supp. 404, and need not be repeated here. Suffice to say that section 371 is a general conspiracy statute and is applicable to any one who in any manner attempts to commit any offense against the United States.
It is expressly stated in section 371 that to have an actionable violation in the form of a conspiracy there must be an overt act in furtherance of the conspiracy thereby giving effect to the object of the conspiracy.
Title 26 U.S.C.A. § 145(b) invokes a penalty upon any individual who wilfully attempts in any manner to evade or defeat any tax. The pertinent portion of this section reads:
It is apparent that the wording and phrasing of this section is similar to that used in the general conspiracy statute, section 371. However, one difference should be noted. Title 18 U.S. C.A. § 371 finds its birth in the criminal code whereas 26 U.S.C.A. § 145(b) arises by virtue of the internal revenue code. It is too well settled to warrant citation of authority for the proposition that statutes imposing criminal liability are to be strictly construed. With this principle in mind, I am, by the very clear and express provisions of both sections, obliged to conclude that each section is applicable in its scope to any person who in any manner attempts to evade or defeat by fraud or otherwise taxes due the government.
The defendant has raised a question as to the applicable period of limitation. Section 3748 of 26 U.S.C.A. covers violations of the internal revenue laws of the United States and, in pertinent part, states:
Defendant agrees that the proper period of limitation is six years with respect to 18 U.S.C.A. § 371. However, he urges that for the six-year period to apply to 26 U.S.C.A. § 145(b) an act must be shown on the part of the defendant to effect the object of the conspiracy. This contention brings into consideration the second issue and the prerequisite overt acts necessary to sustain a violation of 18 U.S.C.A. § 371 (), as well as the applicable period of limitation to be applied to 26 U.S. C.A. § 145(b).
It is not questioned that an overt act is a vital element when grounded in a general conspiracy statute as in the instant case. Nor is it disputed that a mere conspiracy, without an overt act done in pursuance thereof, is not criminally punishable. Hyde v. United States, 1911, 225 U.S. 347, 359, 32 S.Ct. 793, 56 L.Ed. 1114. However, the overt act need not be of itself a criminal act and still less need it constitute the very crime that is the object of the conspiracy. United States v. Holte, 1914, 236 U.S. 140, 144, 35 S.Ct. 271, 59 L.Ed. 504. Even though the conspiracy be fully formed, it may fail in its object and the contemplated crime may never be consummated, yet the conspiracy is none the less punishable. Williamson v. United States, 1907, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278.
It is submitted by the defendant that no such overt act is stated in either indictment and therefore the indictments fail to state facts sufficient to constitute an offense against the United States. The indictment alleges seven overt acts. The first act alleged that the defendant and one of his co-conspirators informed the taxpayer's attorney that a contemplated indictment against his client could be suppressed by certain persons providing Mogavero "put up" what money they would ask. The second alleged act was that defendant informed Mogavero that he has a "contact" who could "straighten out" Mogavero's tax affairs. Thirdly, that defendant and one of his co-conspirators informed Mogavero that he was in a lot of trouble, and was going to be indicted, but that it could all be "taken care of" and his tax liability reduced, if he would pay the sum of $20,000. The fourth, fifth and sixth acts consisted of the defendant's demand for the money. The seventh and final act charged was that defendant received from Mogavero the sum of $20,000, and at that time promised Mogavero that there would be no indictment and that his tax liability would be "cut down".
The defendant earnestly contends that "not one act of all of the seven alleged to have been committed bears the slightest relevancy to the evasion or defeat of any tax or the defrauding of the United States." With this I cannot agree. It is my opinion that the acts alleged are sufficient to support a charge of conspiring to defeat or defraud the United States of tax monies. In the instant case each act was a logical and necessary step in the carrying through of a carefully formulated scheme. The very first overt act alleged, i. e., defendant calling Mogavero's attorney and informing him of the contemplated indictment of Mogavero, is of such a nature that without it there could never be an achievement of the object of the conspiracy. This is not to say that the overt act must be in and of itself of such a character as to be an integral part of the conspiracy and that the failure of it would cause collapse of the planned object. United States v. Holte, supra. Indeed, the act itself may be lawful and of no particular significance by itself, yet if it be directed toward a desired object which is unlawful, it is punishable. By the second act, the defendant let it be known to the taxpayer directly that defendant could suppress the contemplated indictment if he, Mogavero, "put up" money. The third act was the demand for a stipulated sum, to wit, $20,000. The fourth, fifth and sixth acts flowed freely in the current of this scheme, they being the actual demands for the monies for the services rendered by the defendant and his...
To continue reading
Request your trial
-
United States v. Waldin, 12276.
...which we are now considering. Judge Lord, in an opinion rendered upon a motion to dismiss earlier in these proceedings (D.C.E.D.Pa.1956, 138 F. Supp. 791, 795-796), thought that the clause involved here was applicable to an agent whether he pretended to act in his capacity as agent or not a......
-
United States v. Rosario
...States v. Negro, 2 Cir., 164 F.2d 168, at page 173; United States v. Russo, 2 Cir., 1956, 235 F.2d 477; United States v. Waldin, D.C.E.D. Pa.1956, 138 F.Supp. 791, at page 794. ...
-
United States v. Waldin, Cr. No. 18512.
...the `zone' assigned could he be charged with violation of section 4047(a) (4). With this I cannot agree." United States v. Waldin, D.C.E.D.Pa.1956, 138 F.Supp. 791, at page 796. The indictment charged that the defendant violated not only the conspiracy provision of the Revenue Code, 26 U.S.......