The opinion of the court was delivered by: Hoffman, District Judge.
The defendant Thomas Manno has moved to dismiss indictment 53
CR 421. The defendants Thomas Manno and Samuel Pardy, by motion
and amended motion, have moved to dismiss indictment 53 CR 422.
The defendants Nick Manno, Sam Manno and Fred Manno have moved
to dismiss indictment 53 CR 421 and to suppress and order the
return of evidence.
The indictment in 53 CR 421 is against Nick, Sam, Fred and
Thomas Manno, containing 16 counts charging violation of Section
145(b), 26 U.S.C. This indictment was returned June 22, 1953. The
indictment in general charges wilful and fraudulent evasion of
income tax liability by understating net income and resultant
tax. The first three counts relate to Nick Manno and cover the
years 1947-1949. The second three counts relate to Sam Manno for
the same period. The third three counts pertain to Fred Manno for
the same period. The tenth count concerns Thomas Manno for the
year 1947. The eleventh count covers all four Mannos in
connection with the return of one Tremont for the year 1947. The
twelfth count concerns all Mannos in connection with the return
of one Manning for the year 1947. The thirteenth and fifteenth
counts concern Nick, Sam and Fred Manno in connection with
the returns of Tremont for the years 1948 and 1949. The
fourteenth and sixteenth counts concern Nick, Sam and Fred Manno
in connection with the return of Manning for the years 1948 and
The indictment in 53 CR 422, also returned on June 22, 1953,
charges a similar offense of income tax evasion in the first
three counts by Sam Pardy for the years 1948-1950, and in the
second three counts by Thomas Manno for the same three years.
The motion to dismiss, filed on behalf of Thomas Manno in 53 CR
421, urges (1) insufficiency of Counts 10, 11 and 12 for the
following reasons: (a) uncertainty of allegation of accusation;
(b) failure to state an offense; (c) insufficient averment of the
elements of a crime, thereby making it impossible for the
defendant to prepare a defense; and (d) vagueness of charge such
as to violate the Sixth Amendment to the Constitution; (2)
improper joinder and consolidation of charges against Thomas
Manno in Counts 10 to 12, with charges against others in Counts 1
to 9, in that the various offenses charged are distinct and
separate offenses committed by others than Thomas Manno; (3) the
large number of counts containing misjoinder of parties and
offenses results in the confusion of the Court and the defendant,
to his prejudice; (4) the indictment violates the provisions of
Rule 8 of the Federal Criminal Rules, 18 U.S.C.
The motions to dismiss, on behalf of the four Mannos, and the
motion to suppress concern these issues:
1. The Treasury officials have arbitrarily selected persons
they deem to be of the "racketeer" type to be prosecuted, and
have therefore unconstitutionally discriminated against them and
refused to use the authority to compromise given by Section 3761
of the Internal Revenue Code, 26 U.S.C. § 3761. It is claimed
also by the four Mannos that the Section itself is
unconstitutional inasmuch as it contains no standard of
2. The evidence — certain books and records of the
defendants — should be suppressed and the indictments based
on them quashed because they were obtained from the defendants by
the trickery of the Government officials, who stated their
investigation was for the determination of civil liability of the
defendants. The defendants therefore contend that the evidence
was obtained by unreasonable search and seizure.
The defendants also argue that the Government by a ruse
procured the defendants' signatures by requesting them to call in
person for registered mail. The defendants also complain that
they were subpoenaed before the Grand Jury and forced to appear
and that their claim of privilege inevitably resulted in their
testifying against themselves.
3. It is claimed further that there is a misjoinder of counts
in the indictment inasmuch as the indictment concerns different
persons, different tax years, with no allegation that the alleged
offenses arise out of the same act or transactions or
constituting part of a criminal scheme.
A separate motion to dismiss and an amendment thereto have been
filed on behalf of the defendants Samuel Pardy and Thomas Manno
in 53 CR 422, which raise substantially the same points above
The Government has filed answers to the motions to dismiss
based on misjoinder, alleging that as to indictment 53 CR 421 the
tax evasions charged were predicated upon unreported partnership
income for various firms in which the several defendants or some
of them were partners.
Extensive briefs have been filed by the respective defendants
and by the Government in support of their positions. Inasmuch as
the motions to dismiss and to suppress raise ...