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UNITED STATES v. MANNO

January 13, 1954

UNITED STATES
v.
MANNO ET AL. UNITED STATES V. PARDY ET AL.



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 1949.

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 administrative action.

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 outlined.

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 ...


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