355 U.S.

339
78 S.Ct. 311
2 L.Ed.2d 321

Howard LAWN, Petitioner,

v.
UNITED STATES of America. William GIGLIO and Frank
Livorsi, Petitioners, v. UNITED STATES of America.
Nos. 9, 10.
Argued Oct. 14, 15, 1957.
Decided Jan. 13, 1958.
Rehearing Denied March 3, 1958.

See 355 U.S. 967, 78 S.Ct. 529.

[Syllabus from pages 339-341 intentionally omitted]
Mr. Milton Pollack, New York City, for petitioner Lawn.
Mr. Joseph Leary Delaney, New York City, for petitioners Giglio and
Livorsi.
Mr. Roger D. Fisher, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.

On July 23, 1953, a 10-count indictment was returned in the United States
District Court for the Southern District of New York charging petitioners and
others with evading, and conspiring to evade, assessment and payment of a
large amount of federal income taxes for the year 1946 in violation of the
internal revenue laws ( 145(b) and 3793(b) of the Internal Revenue Code of
1939)1 and of the general conspiracy statute (18 U.S.C. 371, 18 U.S.C.A.
371). After a protracted trial before a jury petitioners were found guilty as
charged.2 On appeal the Court of Appeals found that there was substantial
evidence that petitioners, operating through the media of several partnerships
and corporations,3 conspired to evade, and by a variety of means did evade,
both the assessment4 and the payment5 of more than $800,000 of individual and

corporate federal income taxes for the year 19466 upon income derived from
the World War II black market in sugar and that petitioners Giglio and Livorsi,
who owned equal interests in the several enterprises of which Giglio was the
chief executive, were the principals in the conspiracy, but Roth, an accountant,
and Lawn, a lawyer,7 provided the accounting and legal services required to
carry out the conspiracy. It found that the evidence amply sustained the
verdicts and that no prejudicial error was committed at the trial, and it affirmed
the judgments of conviction. United States v. Giglio, 2 Cir., 232 F.2d 589.
Upon petition by Lawn in No. 9, and by Giglio and Livorsi in No. 10, we
granted certiorari. 352 U.S. 865, 77 S.Ct. 91, 1 L.Ed.2d 74. Because the
challenged convictions resulted from a common trial at which petitioners were
represented by the same counsel, and because several of the questions
presented in each case are similar, the two cases will be decided in one opinion.
2

Petitioners ask this Court to reverse their convictions upon four main grounds.
First, they contend, Lawn only tangentially, that they were deprived of due
process in violation of the Fifth Amendment by the refusal of the District Court
to conduct a full-dress hearing to determine whether testimony or documents
obtained from them in a prior grand jury investigation, or evidence derived
from leads and clues furnished thereby, was considered by the grand jury that
returned the present indictment. Second, petitioner Lawn contends that receipt
in evidence at the trial of a photostatic copy of a canceled check and its
corresponding check stub, obtained from him in a prior grand jury
investigation, deprived him of due process in violation of the Fifth Amendment.
Third, petitioners contend they were denied an opportunity to examine and
cross-examine witnesses at the trial to determine whether evidence derived
from leads and clues furnished by testimony and documents obtained from
petitioners in a prior grand jury investigation was used by the prosecution at the
trial, and that this deprived them of due process in violation of the Fifth
Amendment. And fourth, petitioners Lawn and Livorsi contend that the
evidence does not support their convictions.

Understanding of petitioners' first and second contentions, and to a lesser extent

their third contention, requires a review of the underlying facts upon which
they are based. Revenue agents began an investigation in 1948 of petitioners'
income tax liabilities, and on September 14, 1950, three criminal informations
were filed charging them with violation of the federal income tax laws. Those
informations were not brought to trial because the Government had not
completed its investigation and later concluded that 'much more serious crimes
(were) involved.' In early July 1952, petitioners and Roth were served with
subpoenas duces tecum commanding them to appear and testify before a grand
jury on July 14, 1952, and to produce certain partnership and corporate records

of the Giglio and Livorsi enterprises. They appeared and testified, but were not
warned of their constitutional privilege against self-incrimination. Lawn
produced three canceled checks made by Tavern Fruit Juice Co. payable to his
order and the checkbook stub corresponding to the second check. Those
instruments were there marked 'G.J. Ex. (1, 2, 3 and 4, respectively) 7/15/52
L.F.G.' and were photostated by the United States Attorney and returned to
Lawn. Giglio produced a quantity of records, including some partnership
records, but stated that 'practically all of these companies and corporations
turned over the books and records to the Internal Revenue Department on some
date in 1949.' On October 20, 1952, the grand jury returned six indictments
against petitioners charging them with offenses similar to those charged in the
present indictment. Petitioners moved to dismiss those indictments upon the
ground that they had been procured, in part at least, upon evidence obtained
from petitioners in violation of their Fifth Amendment rights. The District Court
held that to require petitioners to testify and produce partnership and personal
records before the grand jury, while criminal informations charging tax
evasions were pending against them, without warning them of their
constitutional privilege against self-incrimination, violated their Fifth
Amendment rights. It therefore dismissed the indictments and directed the
Government 'to return, to the respective defendants, the partnership and
personal records produced by them in response to the subpoenas.' United States
v. Lawn, D.C., 115 F.Supp. 674, 678. The Government appealed from that
order but the appeal was dismissed as untimely on October 19, 1953. United
States v. Roth, 2 Cir., 208 F.2d 467.8 While that appeal was pending the
Government caused a new investigation to be made of petitioners' federal
income tax liabilities by another grand jury, before whom petitioners did not
appear, and on July 23, 1953, that grand jury returned the present indictment
which was sealed. After the Government's appeal from the order dismissing the
1952 indictment had been dismissed (United States v. Roth, supra) the new
sealed indictment was opened, and soon afterward petitioners moved (1) to
dismiss the indictment, and in that connection (2) to have a hearing to
determine whether the Government had used testimony given or documents
produced by petitioners before the 1952 grand jury, or evidence obtained
through leads and clues furnished thereby, in procuring the indictment, and (3)
to inspect he minutes of the grand jury and, if the motion to dismiss the
indictment be denied, (4) to suppress the use at the trial of all testimony and
documents procured from petitioners in the 1952 grand jury proceeding and all
evidence derived therefrom. These motions were submitted to the court upon
affidavits.9 After considering them and hearing extensive arguments of counsel,
the court found that the affidavits left no room for an inference that the
Government had used illegally obtained materials in securing the present
indictment, that petitioners' claim did not have the 'solidity' required to justify
the holding of such a hearing, and that to do so 'on the basis of the showing

made by the defendants and the Government would indeed be subordinating

'the need for rigorous administration of justice to undue solicitude for potential
* * * disobedience of the law by the law's officers.' (Nardone v. United States,
308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307.)' United States v. Giglio,
D.C., 16 F.R.D. 268, 270. The court declined to hold the requested hearing and
denied the motion to inspect the grand jury minutes and the motion to dismiss
the indictment. The court also denied the motion to suppress,10 but in that
connection said: 'Of course, if during the course of the trial defendants have
reason to believe that illegally obtained material is being or may be used against
them, they can object at that time and it will be incumbent upon the trial judge
to rule on their objections.' United States v. Giglio, supra, 16 F.R.D. at page
271.
4

Pursuant to order of the court the Government produced for inspection by

petitioners, before the trial, the corporate records delivered by Giglio to the
1952 grand jury in compliance with its subpoena, the documents which had
been abandoned by petitioners and examined by the Government, and the
documents relating to petitioners' businesses obtained from the New Jersey
receiver. At the beginning of the trial petitioners renewed the above-mentioned
motions which were again denied. In the course of the trial the Government
furnished petitioners a transcript of their testimony before the 1952 grand jury.

I.
5

As stated, petitioners first contend that they were deprived of due process by
the refusal of the court to conduct the requested full-dress hearing to enable
them to attempt to determine whether materials obtained from them in the 1952
grand jury proceeding, or evidence derived therefrom, was considered by the
1953 grand jury. We believe there is no merit in this contention. The District
Court's order dismissing the 1952 indictments because of the use of such
evidence before that grand jury, though final, could not in any way determine
that any direct or derivative use of such evidence was made by the 1953 grand
jury that returned the present indictment. The affidavits submitted in support of
and in opposition to the motion for the requested hearing disclosed, as found by
the trial court and the Court of Appeals, with which findings we agree, that
petitioners had no reason, beyond suspicion, to believe that the 1953 grand jury
considered any of the materials produced by petitioners before the 1952 grand
jury. These facts make clear that petitioners laid no foundation for the holding
of a protracted preliminary hearing (at which they would, in effect, take the
depositions of the Government's witnesses) to determine whether there was any
substance to their suspicion that some direct or derivative use may have been
made by the 1953 grand jury of materials produced by petitioners before the

1952 grand jury.

6

Moreover, this Court has several times rule that one indictment returned by a
legally constituted nonbiased grand jury, like an information drawn by a
prosecutor, if valid on its face, is enough to call for a trial of the charge on the
merits and satisfies the requirements of the Fifth Amendment. In Holt v. United
States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, this Court was required to
decide whether an indictment should be quashed because procured in part by
incompetent evidence of an admission by the accused, aside from which 'there
was very little evidence against the accused.' Id., 218 U.S. at page 247, 31 S.Ct.
at page 4. This Court refused to hold that such an indictment should be quashed,
stating: 'The abuses of criminal practice would be enhanced if indictments
could be upset on such a ground.' Id., 218 U.S. at page 248, 31 S.Ct. at page 4.
In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 408, 100 L.Ed. 755,
this Court squarely faced and decided the question, saying:

'If indictments were to be held open to challenge on the ground that there was
inadequate or incompetent evidence before the grand jury, the resulting delay
would be great indeed. The result of such a rule would be that before trial on
the merits a defendant could always insist on a kind of preliminary trial to
determine the competency and adequacy of the evidence before the grand jury.
This is not required by the Fifth Amendment. An indictment returned by a
legally constituted and unbiased grand jury, like an information drawn by the
prosecutor, if valid on its face, is enough to call for trial of the charge on the
merits. The Fifth Amendment requires nothing more.' Id., 350 U.S. at page 363,
76 S.Ct. at page 409.

This Court was urged in that case to 'establish a rule permitting defendants to
challenge indictments on the ground that they are not supported by adequate or
competent evidence,' id., 350 U.S. at page 364, 76 S.Ct. at page 409, but the
Court declined to do so, saying:

'It would run counter to the whole history of the grand jury institution, in which
laymen conduct their inquiries unfettered by technical rules. Neither justice nor
the concept of a fair trial requires such a change. In a trial on the merits,
defendants are entitled to a strict observance of all the rules designed to bring
about a fair verdict. Defendants are not entitled, however, to a rule which would
result in interminable delay but add nothing to the assurance of a fair trial.' Ibid.

10

It should be unnecessary to say that we are not here dealing with the use of
incompetent or illegal evidence in a trial on the merits, nor with the right to

decline to give incriminating testimony in legal proceedings or to suppress the

direct or derivative use at the trial of evidence illegally obtained. We deal here
only with the question whether petitioners, in the circumstances of this case,
were entitled to a preliminary hearing to enable them to satisfy their
unsupported suspicions that the 1953 grand jury that returned this indictment
made direct or derivative use of the materials which they produced before the
1952 grand jury. We hold that they were not.
II.
11

We come now to petitioner Lawn's contention that receipt in evidence at the

trial of a photostatic copy of a canceled check and its corresponding check stub,
obtained from him in the 1952 grand jury proceeding, deprived him of due
process in violation of the Fifth Amendment. As earlier stated, Lawn, pursuant
to subpoena, produced before the 1952 grand jury a canceled check of Tavern
Fruit Juice Co. payable to his order in the amount of $15,000, endorsed by him,
and the corresponding stub, which were marked on their faces 'G.J. Ex. 2
7/15/52 L.F.G.' and 'G.J. Ex. 4 7/15/52 L.F.G.,' respectively, and were
photostated by the United States Attorney and returned to Lawn. Those
photostats were offered in evidenceit appears inadvertently by the
prosecution at the trial, as Exhibits 61A and 61B. However, before those
exhibits were offered, Exhibit 58A, being a statement of assets, liabilities,
income, profit and loss and supporting schedules of Tavern Fruit Juice
Company prepared some time after Tavern's fiscal year had ended on March
31, 1946, and Exhibit 7, being Tavern's information tax return for 1946 which
was filed on September 15, 1947, had been received in evidence without
objection. The former contained an item of 'legal expenses $16,600,' while the
latter recited 'legal fees $1,600.' Roth, in explanation, testified that 'sometime
during the operation of the partnership a check for $15,000 was drawn to
Howard Lawn,' and that a question had arisen about how to enter it on the
books. After discussing the matter with Giglio, Roth charged it to legal
expense. Months later Lawn asked Roth how the item was carried on Tavern's
books and Roth told him that it was carried as a legal expense. Lawn advised
Roth that this handling was incorrect, as the item was a loan from Giglio and
not a legal expense of Tavern. Thereupon, after consulting Giglio, Roth altered
Tavern's books by removing the item from legal expense and charging it to
Giglio. Roth did not remember just when the alteration of the books was made,
except that it was after the preparation of Exhibit 58A and prior to the filing
of Exhibit 7.

12

It is important to note that at this stage of the trial there was thus clear evidence
before the jury, corroborated by Exhibits 58A and 7, all admitted without

objection, showing that Lawn had received the $15,000 check from Tavern, but
an issue existed whether it was an innocent loan from Giglio or an
incriminatory payment by Tavern in the guise of a legal fee. The prosecution
then offered in evidence Exhibits 61A and 61B, being the $15,000 check
and corresponding stub. Petitioners' able and experienced counsel (now
deceased) then asked, and was granted, permission to examine the witness Roth
preparatory to a possible objection to those exhibits. He then questioned the
witness at some length about the handwriting on the check and stub,11 and
concluded by asking the witness: 'Q. And under that check stub or in that No.
640 (the number of the check stub), which corresponds with the check itself,
there is a parenthetical statements, 'Bill G'? A. Yes, sir. Q. Indicating it is for
Mr. Giglio's account? A. Yes, sir.' And petitioners' counsel then stated, 'No
objection,' and the exhibits were received. This examination and use of those
exhibits (showing on their face that they had been exhibits before the 1952
grand jury) by petitioners' able counsel to show that the check was an innocent
loan by Giglio and not an incriminatory payment by Tavern in the guise of a
legal feehis only opportunity to drive that point home to the jury if
petitioners were not to take the stand, as they did notand his affirmative
statement that he had 'no objection' to receipt of the exhibits show, we believe,
a conscious and intentional waiver of all objections to receipt of those
documents in evidence.
13

Lawn argues that the denial, before the trial, of petitioners' motion to suppress,
and the unequivocal affidavit of the United States Attorney in charge of the
case stating that materials obtained from petitioners pursuant to subpoena in the
1952 grand jury proceeding would not be used in the future course of the case,
preserved his objections to these exhibits and made it unnecessary again to
object to them at the trial. It is quite true generally that the overruling of a
pretrial motion to suppress the use at the trial of particular evidence preserves
the point and renders it unnecessary again to object when such evidence is
offered at the trial. Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118,
119, 73 L.Ed. 275; Gouled v. United States, 255 U.S. 298, 312, 313, 41 S.Ct.
261, 266, 65 L.Ed. 647; Waldron v. United States, 95 U.S.App.D.C. 66, 69
70, 219 F.2d 37, 41; and compare Keen v. Overseas Tankship Corp., 2 Cir., 194
F.2d 515. But the rule is one of practice and is not without exceptions, nor is it
to be applied as a hard-and-fast formula to every case regardless of its special
circumstances. Cogen v. United States, supra, 278 U.S. at pages 223, 224, 49
S.Ct. at page 119; Gouled v. United States, supra, 255 U.S. at pages 312, 313,
41 S.Ct. at page 266. It will be remembered that the court in passing on the
motion to suppress said, respecting the affidavit of the United States Attorney,
that 'at this stage of the proceedings, that oath is sufficient' (United States v.
Giglio, 16 F.R.D. at page 271), but he expressly left the matter of suppression

of evidence to the trial court and admonished petitioners that if during the
course of the trial they 'have reason to believe that illegally obtained material is
being or may be used against them, they can object at that time and it will be
incumbent upon the trial judge to rule on their objections.' Id., at page 271. The
record shows that petitioners' counsel was fully aware of all this when Exhibits
61A and 61B were offered in evidence, and when, after using them for his
purposes, he affirmatively said he had 'no objection' to them.
14

The Government argues that, had its attention been called to the fact that these
particular photostatic copies had been exhibits before the 1952 grand jury by an
objection to them, it could and would have produced other copies obtained
from other sources before the 1952 grand jury proceeding was commenced. In
that connection it has filed here what is said to be a transcript of a hearing
accorded to Lawn at his request on May 12, 1952, which it says contains
photostatic copies of the check and check stub in question voluntarily produced
by Lawn. Lawn has moved to strike that transcript and the portions of the
Government's brief relating thereto. That motion must be sustained as we must
look only to the certified record in deciding questions presented. McClellan v.
Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762.

15

We believe that the facts from the certified record, above discussed, show that
petitioners' counsel, after using the check and check stub to make his point
before the jury that the check was an innocent loan from Giglio and not an
incriminatory payment by Tavern in the guise of a legal fee, wisely (as, we
believe, every impartial and experienced trial lawyer would agree) said that he
had 'no objection' to those exhibits, and thus consciously and intentionally
waived any objection to their receipt in evidence.

III.
16

Petitioners argue that they were denied an opportunity to examine and crossexamine witnesses at the trial to determine whether evidence derived from
leads and clues furnished by materials obtained from them in the 1952 grand
jury proceedings was used by the prosecution at the trial, and that this deprived
them of due process in violation of the Fifth Amendment. It cannot be doubted
that petitioners had that right in the circumstances of this case, Nardone v.
United States, 308 U.S. 338, 341, 342, 60 S.Ct. 266, 267, 268, 84 L.Ed. 307,
and the Government does not otherwise contend. Moreover, as earlier stated,
the District Court, in ruling the pretrial motion to suppress expressly left this
subject open to inquiry at the trial. United States v. Giglio, 16 F.R.D., at page
271. The contention is wholly factual, and a thorough study of the record
discloses that petitioners were accorded that right. The court did not sustain

objections to petitioners' examination or cross-examination of witnesses

attempting to show derivative use at the trial of any evidence produced by
petitioners before the 1952 grand jury, but only sustained objections to
questions attacking the procedural validity of the indictment.12 At no time did
counsel for petitioners point specifically to any evidence offered at the trial
which they claimed was derived from materials furnished by petitioners before
the 1952 grand jury. Near the close of the Government's case, the court stated
that, so far as he could detect, there had been no direct or derivative use of any
tainted evidence by the Government at the trial, and he requested counsel for
petitioners, on two occasions, to submit a memorandum of any evidence offered
by the Government which he believed was obtained through leads or clues from
materials produced by petitioners before the 1952 grand jury. No such
memorandum was ever furnished.
17

Petitioners point to three instances there they say the trial court denied them the
right to examine witnesses about the source of evidence offered by the
Government at the trial. First, they say that in cross-examining the
Government's witness Roth they sought to question him concerning an affidavit
he had made in support of the motion to dismiss the 1953 indictment, but the
court sustained an objection to the question. It is clear that the ruling was made
upon the ground, as petitioners' counsel stated at the time, that the purpose of
the interrogation was to 'go into the question of what evidence was used to
obtain this indictment,' rather than to show the use by the Government of
tainted evidence at the trial. Second, they point to the fact that during the
crossexamination of Treasury Agent Present, their counsel asked him whether,
in his audits, he had examined any other books or records about which counsel
had failed to ask; and they argue that the purpose of the question was to
determine whether tainted evidence had been or was being used by the
Government at the trial, and that they were denied an answer to the question.
But examination of the record discloses that counsel's announced purpose in
asking the question was not to determine whether wainted evidence had been or
was being used at the trial, but was, rather, to determine whether tained
evidence was 'used by the grand jury that found this indictment.'13 Third,
petitioners argue that in examining their own witness, former Assistant United
States Attorney Leone, they were denied an opportunity to show derivative use
of tainted evidence by the Government at the trial. The record shows that there
is no basis whatever for this contention.14

IV.
18

Petitioners Lawn and Livorsi argue that the evidence is insufficient to sustain
their convictions. In support of Count 10, the conspiracy count, the record

contains evidence tending to show that Lawn, formerly Chief of the Criminal
Division of the United States Attorney's Office for the District of New Jersey,
was employed by Giglio and Livorsi because 'he had a terrific entry with some
of the highest government offices,' 'was a part of the organization' and was
'there to prevent any trouble.' He was frequently in Giglio's private office,
which adjoined his own. Lawn was present in Giglio's office when it was
decided that Eatsum would purchase corn at blackmarket prices and have it
refined into syrup to be sold for overceiling prices, and Lubben began the
handling of those matters. But Lawn later told him that he 'had terrific
connections' with a syrup company and with a prominent political figure in the
midwest and that he could procure the corn and syrup more advantageously,
and Lawn then took over the handling of those matters. Lubben was called into
Giglio's office in September 1945, where Giglio, Roth and Lawn were present,
and Giglio stated 'that the profits from (Tavern's) candy business and primarily
(Eatsum's) corn syrup business were becoming terrific, and that he wasn't
interested in paying a lot of income tax and something had to be done, and done
quick'; that 'it had been decided to form a number of companies' to siphon off
the profits of the partnerships through 'phony invoices'; and that the companies
would 'be dissolved * * * before it came time to pay the income tax.' Soon
afterward Lawn was instrumental in the creation of a number of corporations
bearing in some combination the word 'American.' Lawn was an officer and
nominal stockholder in several of these corporations, and owned 25% of the
stock of one of them which had been given to him by Giglio and Livorsi, and
Lawn received substantial payments from the Giglio and Livorsi enterprises in
addition to his salary. In September 1947, near the time the delinquent income
tax returns were filed for the year 1946 by Giglio, Livorsi and their several
corporations, a meeting was held in Lawn's private office with Giglio and Roth
where it was agreed that Giglio would transfer his home to Roth so that the
Government would 'not be able to take the house,' and Lawn said the
arrangement 'would save Mr. Giglio's home.' Soon afterward the transfer was
made. There was other evidence tending to show Lawn's participation in the
conspiracy, but we believe the aboverecited evidence, with the legitimate
inferences that might be drawn therefrom by the jury, was clearly sufficient to
support the verdict on the conspiracy count.
19

Lawn also contests the sufficiency of the evidence to support the verdicts
against him on Counts 7 and 9, but since the sentence upon those counts run
concurrently with the sentence on Count 10, which we have found sustained by
the evidence, it is unnecessary for us to consider those contentions. Sinclair v.
United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692; Hirabayashi
v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Pinkerton v.
United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489.15

20

Petitioner Livorsi argues that the evidence was not sufficient to support the
verdicts against him. As to Count 6, which charged him with attempting to
evade assessment of his income taxes for the year 1946 by filing a fraudulent
return, the record shows that his return disclosed income from Eatsum for that
year of $101,123.88. However, the Government introduced evidence showing
that his income from that source in that year was $228,288.58, and that his
income from Tavern for that year was understated by more than $40,000.
During the trial an issue arose concerning the proper 'distributive shares' of
Giglio and Livorsi in the profits of Eatsum for the year 1946, by reason of the
sale by Lubben of his 'distributive share' in the profits of that pertnership to
Giglio and Livorsi (on March 8, 1946) prior to the close of its accounting year
on May 31, 1946. Because of that complication the court, in an effort to
simplify the matter, gave a supplemental charge to the jury in which, among
other things, he said: '(W)hen you get to counts 5 and 6, where it was claimed
that the income received from Eatsum wasn't fully reported by the defendant
Giglio and by the defendant Livorsi, in connection with their individual returns,
I say because of that distributive share difficulty, don't consider Eatsum at all *
* *.' (Emphasis supplied.) Livorsi now contends that the effect of that charge
was to eliminate the $101,123.88 of income which he had reported in his sworn
return as received from that source in that year and to give him a credit in that
amount which more than offset his understatement of income from other
sources, and, thus, established that there was no deficiency in his reporting of
income. This contention need not detain us long. While, of course, a conviction
upon a charge of attempting to evade assessment of income taxes by the filing
of a fraudulent return cannot stand in the absence of proof of a deficiency, the
court's charge did not create the credit claimed by Livorsi. It only withdrew
from the jury's consideration the Government's claim that his income from
Eatsum in that year was $127,164.70 more than he had reported in his return.
That meaning of the charge could not have been misunderstood by the jury.

21

Count 9 charged Livorsi and others with attempting to evade payment of

income taxes of American Brands Corporation for the calendar year 1946 by
converting and diverting its assets. Livorsi argues that there is no evidence to
support his conviction on that count. We must disagree. The evidence disclosed
that Livorsi owned half of the capital stock of that corporation and frequently
conferred with Giglio, who owned the other half of its capital stock, concerning
the operations of the corporation and was familiar with its affaifs; that no
income tax was withheld by the corporation from his salary; and that from
January 1, 1946, to June 16, 1947, he withdrew from the corporation more than
$122,000, including salary, while the corporation had a federal income tax
liability for the year 1946 of more than $100,000, as shown by its own return,
of which only $300 had been paid. This evidence, with the legitimate inferences

that might be drawn therefrom be the jury, was clearly sufficient to support the
verdict on Count 9.
22

Livorsi's contention that there was not sufficient evidence to support the verdict
against him on Count 10, the conspiracy count, when viewed in the light of all
the foregoing facts, and those found by the Court of Appeals, which we find are
supported by the record, is entirely without merit.

23

Livorsi also contends that the evidence was not sufficient to support the verdict
against him on Count 8, but since the sentence on that count runs concurrently
with the sentence on Count 6, which we have affirmed, it is unnecessary to
consider his contentions concerning Count 8. Sinclair v. United States, supra;
Hirabayashi v. United States, supra; and Pinkerton v. United States, supra.16

24

Several other points raised by petitioners have been carefully considered and
are found to be without merit. The judgment in each case must be affirmed.

25

Affirmed.

26

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice
BRENNAN join, concurring in part and dissenting in part.

27

I agree with all of the Court's opinion except Part II relating to Government
exhibits 61A and 61B, which are the copies of the canceled check and
stub evidencing the $15,000 payment to Lawn. This leads me to concur in the
affirmance of the convictions of Giglio and Livorsi, but as to Lawn I think a
different result is required.

28

The Court appears to recognize that these exhibits were excludable as 'tainted'
evidence, since they were government-made copies of documents which, as
held in a prior decision, United States v. Lawn, D.C., 115 F.Supp. 674, had
been obtained from Lawn in violation of his constitutional rights. Nevertheless
the Court sustains their admissibility on the ground that Lawn's counsel
'consciously and intentionally' waived at trial any objection to them. This view I
cannot share, for it seems to me the Court's action falls short of what we should
do in holding the Government to the strictest measure of accountability on its
repeated representations to court and defense counsel that it was not using any
'tainted' evidence at the trial.

29

The Court justifies its finding of waiver by reasoning that the 'no objection'

remark of Lawn's counsel at the time these exhibits were introduced reflected
his deliberate choice between having these documents in, or securing their
exclusion from, the case. But to me this reasoning is quite unconvincing. At the
outset, it should be noted that the Court here assumes that counsel realized
these particular photostats of the original check and stub were 'tainted' copies.
That, in my opinion, is a hazardous assumption. It is true that each exhibit bore
the tell-tale 1952 grand jury markings, but assuming, as I do, that the
Government's use of these documents was the result of inadvertence, it is
equally true that this red light escaped the notice of the prosecutor as well as
that of the trial judge, who the record shows was constantly alert and sensitive
throughout the trial to the possibility of 'tainted' evidence filtering into the case.
I see no reason for attributing to defense counsel greater awareness on this
score than that possessed by the prosecutor and the judge.
30

Further, it is by no means as apparent to me as it is to the Court that counsel

wanted these exhibits in the case for the purpose of corroborating Lawn's
explanation of the $15,000 payment as being an innocent personal loan from
Giglio rather than, as claimed by the Government, an incriminatory payment
from the partnership.1 As I read the record on this episode, it seems just as
reasonable to suppose that counsel's voir dire examination of the witness
through whom these exhibits were introduced, ending with his 'no objection'
remark, was but the familiar kind of jury play which a good trial lawyer
sometimes uses to affect an appearance of unconcern towards damaging
evidence which he knows he cannot keep out of the case. It is of interest that
defense counsel did not even mention the loan theory in his summation; this
tends to show that, having done what he could with these exhibits at the time of
their receipt in evidence, his tactics were to leave well enough alone. On the
other hand, it can hardly be denied that from a jury's standpoint the actual
canceled check bearing Lawn's endorsement was of great value to the
Government. In a jury's eyes the canceled check would be apt to be considered
an instrument of crime implicating Lawn in the conspiracy, and so indeed the
prosecutor played it up with telling effect in his summation.

31

In short, I think the Court has viewed this episode in an unreal light. At least
there is much room for doubt as to what counsel actually intended. Where, as
here, we are dealing with exhibits whose use the Government can justify at all
only on a plea of good-faith inadvertence, I think the petitioner is entitled to the
benefit of that doubt, particularly in view of the Government's repeated
unequivocal representations that it would not use any of the 'tainted' evidence at
the trial. The Court's contrary view I deem inconsistent with the high standards
which past decisions have insisted be maintained in the conduct of federal
criminal trials. See McNabb v. United States, 318 U.S. 332, 340341, 63 S.Ct.

608, 612, 613, 87 L.Ed. 819. 'The dignity of the United States Government will
not permit the conviction of any person on tainted testimony.' Mesarosh v.
United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1.
32

In my opinion the admission of these exhibits was prejudicial error, and if

nothing further appeared I think we would be required to reverse for a new
trial. However, additional evidence now proffered by the Government indicates
that other 'innocent' copies of the same check and stub were in the hands of the
New Jersey federal authorities at the time of the New York trial.2 Had the
existence of such copies been known to the New York prosecutor, the error
arising from the use of the 'tainted' copies should be deemd harmless, for if
objection to these exhibits had been made the prosecutor could have substituted
'innocent' copies. If, on the other hand, the federal authorities in New Jersey
had no such copies or if in any event the New York prosecutor was unaware of
their possession of the copies, reversal would still be required on grounds of
prejudicial error, since the prosecutor would not have been in a position to
substitute 'innocent' copies had the 'tainted' copies been objected to and
excluded at the trial.

33

Although, as the Court properly holds, we cannot pass upon the accuracy of
this additional evidence in determining the issues before us, I think the
Government's proffer may properly be taken into account in deciding the nature
of the judgment we should enter. See 28 U.S.C. 2106, 28 U.S.C.A. 2106; cf.
United States v. Shotwell Manufacturing Co., 355 U.S. 233, 78 S.Ct. 245. The
petitioner, by making his specific objection to admission of the disputed
exhibits for the first time on appeal, gave the Government no occasion to
introduce the 'innocent' copies at the trial and thereby avoid error. He should
not now be permitted to preclude the Government from showing that the error
complained of was harmless. In these circumstances I think the proper course
for us is to vacate the judgment of the Court of Appeals as to Lawn, and to
remand the case to the District Court for the purpose of determining whether
'innocent' copies of these exhibits were within reach of the New York
prosecutor at the time of trial. If the court so finds, it should be instructed to let
Lawn's conviction stand, and if it finds otherwise, to grant him a new trial.

26 U.S.C. (1952 ed.) 145(b) and 3793(b), 26 U.S.C.A. 145(b), 3793(b).

The first five counts named only petitioner Giglio and Louis J. Roth as
defendants. Since Giglio does not here contest the adequacy of the evidence to
sustain those or any of the other counts against him, and since Roth pleaded
guilty to all counts of the indictment and was a principal witness for the

prosecution at the trial, those counts are not here summarized.

The remaining counts in essence charged as follows:
Count 6 charged that Livorsi and Roth, on or about September 15, 1947,
willfully attempted to evade assessment of income taxes of Livorsi for the
calendar year 1946 by filing a fraudulent return.
Count 7 charged that Giglio, Lawn and Roth, from about September 1, 1947, to
the date of filing of the indictment, willfully attempted to evade payment of
Giglio's income taxes for the calendar year 1946 by concealing his assets.
Count 8 charged that Livorsi, from about September 1, 1947, to the date of
filing of the indictment, willfully attempted to evade payment of his income
taxes for the calendar year 1946 by concealing his assets.
Count 9 charged that Giglio, Livorsi, Lawn and Roth, from about January 1,
1946, to the date of filing of the indictment, willfully attempted to evade
payment of income taxes of American Brands Corporation for the calendar year
1946 by converting and diverting its assets.
Count 10 charged that Giglio, Livorsi, Lawn, Roth and American Brands
Corporation, from about July 1, 1945, to the date of filing of the indictment,
willfully conspired to commit the substantive offenses charged in Counts 1
through 9 of the indictment.
Count 10 of the indictment was dismissed by the court as to American Brands
Corporation after the jury failed to report as to it.
2

Lawn was sentenced to a year and a day on each of Counts 7, 9 and 10, the
sentences to run concurrently. Giglio was sentenced to a total of 15 years.
Livorsi was sentenced to 5 years on each of Counts 6, 9 and 10 to run
consecutively, and was sentenced to 5 years on Count 8 to run concurrently
with the sentence on Count 6.

The principal organizations were: Tavern Fruit Juice Company, a partnership

owned by Giglio and Livorsi; Eatsum Food Products Co., Ltd., a partnership
owned 25% by Giglio, 25% by Livorsi, and 50% by one Lubben until March 8,
1946, when he left the enterprise and sold his 'distributive share' in the profits
thereof to Giglio and Livorsi; and a series of corporations bearing in some
combination the word 'American' which were created in early 1946 to drain off
the profits of Eatsum through the use of fraudulent invoices and were to be
dissolved before their income taxes became due.

The Court of Appeals found that generally three means of evasion of tax
assessment were used: (1) the fraudulent allocation of income among the
various companies and individuals in the conspiracy; (2) the fraudulent
overstatement of expenses; and (3) the failure to disclose income.

The evasion of payment was in general accomplished by delaying disclosure of

income tax liabilities through the filing of returns from 5 to 15 months late; by
failing to withhold income taxes on salaries; by concealment of the individual
assets of Giglio and Livorsi; and by the misappropriation, conversion and
diversion of corporate assets.

Of the total, $573,683.73 was admitted to be owing by Giglio, Livorsi and

American Brands Corporation in the long-overdue returns they filed, and only
$16,735.95 was paid.

They were full-time employees of the several Giglio and Livorsi enterprises.

In their beief on that appeal petitioners had argued that the Government's notice
of appeal was not timely filed, but they did not move to dismiss the appeal until
after the period of limitations had run in late September 1953.

In support of their motions petitioners filed a number of affidavits reciting in

essence that the 1952 indictment was returned after the Government had
secured estimony and documents from petitioners in violation of their
constitutional rights; that the present indictment is very similar to the prior one,
and that a revenue agent had implied that some of his computations were based
on documents stored in a room in which the documents obtained from
petitioners were also kept.
In opposition to the motions the Government filed affidavits made by all of the
revenue agents who had conducted investigations leading to the indictment and
by all the United States Attorneys who had been responsible for the
prosecution of the case. In essence, they recited that after the District Court
dismissed the 1952 indictment a conference was called, by an assistant United
States Attorney, of all revenue agents who had conducted the investigations;
that they were there told that it would be necessary to obtain a new indictment
which was not to be based in any way, however remote, upon testimony or
personal or partnership documents obtained from petitioners in the 1952 grand
jury proceedings, and any doubts about the use of any evidence were to be
resolved in favor of exclusion; that none of the testimony or personal or
partnership records, produced by petitioners before the 1952 grand jury, was in
any way used in obtaining the present indictment; and that long before 1952 the
Government had in its possession copies and microfilm enlargements of bank
checks, bank statements and books and records pertaining to petitioners'

transactions, which had been secured from banks, third persons, a New Jersey
receiver, government agencies, and abandoned books and records relating to
petitioners' businesses. The affidavit of the Assistant United States Attorney in
charge of the case unequivocally recited that none of the materials obtained
from petitioners in the 1952 grand jury proceeding would be used in the future
course of the case.
10

11

The court stated as its reasons: 'The United States Attorney has sworn that this
material will not be used in the future course of this case, and at this stage of
the proceedings, that oath is sufficient. The granting of defendants' motion to
suppress at this time would necessitate an investigation of all of the
Government's evidence. Such an investigation would entail a great deal of
useless effort because much of this material, which has been collected since
1948, will not be used at the trial.' United States v. Giglio, D.C., 16 F.R.D., at
pages 270, 271.
'Q. In whose handwriting are the entries on Government's Exhibit 61B for
identification? I think you said it is the stub book. A. To the best of my
recollection, those are Mr. Cerone's.
'Q. How do you spell Cerone? A. C-e-r-o-n-e.
'Q. He was one of your employees, Mr. Roth? A. No, he was a bookkeeper
employed by Tavern Fruit Juice.
'Q. Would the same be true with regard to the check, the face of the check,
payee of the check? A. The payee of the check and the amount?
'Q. The handwriting is what I am asking about. A. The handwriting, that looks
like William Giglio's handwriting.
'Q. The maker of the check (for) the $15,000? A. Yes, the signature.
'Q. They look like his handwriting, do they? A. Yes, sir.
'Q. And this 61B for identification, you have told me that that looked like the
printing or the writing of Mr. Cerone, did you not? A. Yes, sir.'

12

Though at times, in colloquies with the court, counsel for petitioners was
equivocal, the following is typical of the position taken by him:
Counsel: 'I really don't see how I can get adjudicated the question of the
illegality of the indictment before you without calling all these people who
made affidavits before Judge Palmieri. Now, that obviously would be, well,

very disruptive of your trial. I would never think of doing it if * * * it didn't

seem to me that was all I had. * * * Have I made it plain?
The Court: 'I think you have, but I want to be sure. Now, the whole purpose of
this is to go to the procedural validity of the indictment.
Council: 'That is it, yes, sir. That is it, that is just it exactly.
The Court: 'And it is a question, really, of what happened before the grand jury.
Counsel: 'That's it, really, just that.
The Court: 'Rather than its effect upon what you might call the substantive
issues of the case or the guilt or innocence of these defendants, let us say.
Counsel: 'My answer is an unequivocal yes, and I don't have to look at a record
to answer it.'
13

The record shows that, although there was no objection to the question, counsel
for the Government stated to the court, out of the hearing of the jury, that prior
to the dismissal of the 1952 indictment the witness had examined partnership
records produced by petitioners before the 1952 grand jury, and said: 'If
counsel elicits testimony now about those facts, there is going to be before this
court evidence which Judge Goddard held improper. * * * If counsel wishes to
examine into this field I think he should do it outside the presence of the jury,
because it might be prejudicial error even if he voluntarily does it.' Counsel for
petitioners then made plain that his purpose was to determine whether tainted
evidence was 'used by the grand jury that found this indictment,' and he further
said, 'I have no other way * * * than to do it here.' Counsel for the Government
then said to the court: 'Now, the question specifically presented to the witness
was broad and includes partnership records illegally produced and partnership
records legally obtained. There can't be objection to the second part, but the
question is too broad.' Counsel for petitioners replied: 'Well, I am not going into
something half-way. * * *' The court then said: 'All right, I think that is the way
I should rule.' It is obvious that none of this constitutes any support for
petitioners' claim that they were denied an opportunity to cross-examine the
witness to determine whether tainted evidence had been or was being used by
the Government at the trial.

14

In fact, all petitioners sought to show by this witness was that when he caused
petitioners to be subpoenaed to appear before the 1952 grand jury he knew that
criminal informations charging tax evasions were then pending against them,
and that these prosecutions were instituted in 'bad faith.'

15

Petitioner Lawn also contends that a statement made by the Government's

attorney in his closing summation to the jury, saying, in pertinent part, 'We
vouch for (Roth and Lubben) because we
think they are telling the truth,' deprived him of a fair trial. No objection was
made to the statement at the trial. The Government's attorney did not say nor
insinuate that the statement was based on personal knowledge or on anything
other than the testimony of those witnesses given before the jury, and therefore
it was not improper. Cf. Henderson v. United States, 6 Cir., 218 F.2d 14, 19;
United States v. Holt, 7 Cir., 108 F.2d 365, 370; Tuckerman v. United States, 6
Cir., 291 F. 958, 969. Moreover, petitioners' counsel in his summation to the
jury had argued that the Government's case was a persecution of petitioners,
had been instituted in bad faith at the instance of a group of revenue agent, and
was supported 'solely' by the testimony of Roth and Lubben who were admitted
perjurers, and counsel in his opening statement had said that the United States
Attorney and his assistant in charge of the case 'had been instructed, or in my
opinion they never would have done this.' These comments clearly invited the
reply which petitioner Lawn now attacks. Cf. Gridley v. United States, 6 Cir.,
44 F.2d 716, 739; United States v. Battiato, 7 Cir., 204 F.2d 717. In addition,
the court in his charge to the jury, after telling them that they were the sole
judges of the credibility of the witnesses, called particular attention to the fact
that Roth was an accomplice and said: 'You have got to be particularly careful
in scrutinizing his testimony to see whether to save his own skin he lied to hurt
somebody else or whether he had some other motive for lying to hurt
somebody else.' As to Lubben, the charge continued: 'I am going to tell you to
be just as careful with his testimony as you would with an accomplice, and look
and scrutinize it carefully.' We think the foregoing shows clearly that there is
no merit in Lawn's contention.

16

Petitioners Giglio and Livorsi contend that the trial court erred in refusing their
motion, made after several days of cross-examination of Lubben at the trial, for
production of Lubben's federal income tax return for 1946, all testimony given
by Lubben 'before the grand jury that found this indictment or found any other
indictment against these defendants,' and all written statements made by
Lubben to any agent of the Government. This issue was not raised in the Court
of Appeals. Only in exceptional cases will this Court review a question not
raised in the court below. Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct.
566, 568, 71 L.Ed. 996; Husty v. United States, 282 U.S. 694, 701, 702, 51
S.Ct. 240, 241, 242, 75 L.Ed. 629. There are no exceptional circumstances
here. Cf. United Brotherhood of Carpenters v. United States, 330 U.S. 395,
412, 67 S.Ct. 775, 784, 91 L.Ed. 973. Moreover, the question was not
mentioned in the petition for certiorari filed in this Court. Our Rule 23(1)(c), 28
U.S.C.A. provides, in pertinent part: 'Only the questions set forth in the petition

or fairly comprised therein will be considered by the court.' The question is not
properly here. Cf. Irvine v. California, 347 U.S. 128, 129, 74 S.Ct. 381, 98
L.Ed. 561.
1

It is difficult to believe that counsel could have found in these exhibits the
important corroborative value which the Court now attributes to them. The
original recording of the $15,000 payment as 'legal expense' on Tavern's books
had been made by the company accountant only after he had consulted Giglio,
and there is no dispute that the subsequent alteration in this entry to reflect the
payment as a transaction involving Giglio personally rather than the partnership
was urged by Lawn. Only because of Lawn's insistence did the $15,000
'payment' take on its subsequent guise as a loan from Giglio.

The Government asserts that such copies were voluntarily produced by Lawn at
a hearing with reference to his own income tax returns which was held in New
Jersey on May 12, 1952.