United States v. Dominick S. Fago, 319 F.2d 791, 2d Cir. (1963)
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Scribd Government DocsUnited States v. Dominick S. Fago, 319 F.2d 791, 2d Cir. (1963)
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Scribd Government Docs319 F.
2d 791
UNITED STATES of America, Appellee,
v.
Dominick S. FAGO, Appellant.
No. 371.
Docket 27815.
United States Court of Appeals Second Circuit.
Argued June 6, 1963.
Decided June 28, 1963.
Herald P. Fahringer, Jr., Buffalo, N. Y. (Lipsitz, Green & Fahringer,
Buffalo, N. Y.), for appellant.
Edmund F. Maxwell, Buffalo, N. Y. (John T. Curtin, U. S. Atty., Buffalo,
N. Y.), for appellee.
Before CLARK and FRIENDLY, Circuit Judges, and ZAVATT, District
Judge.*
PER CURIAM.
Dominick Fago appeals from a judgment of the District Court for the Western
District of New York convicting him, after a verdict, of violating 26 U.S.C.
7201 by filing false and fraudulent income tax returns for 1954 and 1955 and of
violating 26 U.S.C. 7203 in failing, as principal officer of John B. Schultz
Contracting Co., Inc. and of Nottingham Contracting Corporation, to file six
specified withholding tax returns due in 1955 and 1956. Although Fago's brief
urged that the evidence was insufficient to warrant a conviction, this point was
not pursued in argument and is wholly without merit. The claim seriously
pressed on us was that the convictions were obtained in violation of Fago's
rights to be secure against unreasonable searches and seizures and not to be
compelled to be a witness against himself, guaranteed by the Fourth and Fifth
Amendments.
The claim is that Fago turned his personal and corporate records over to the
District Attorney of Erie County, New York, for examination in the latter's
investigation of corruption in the City of Lackawanna, under a state grant of
immunity; that the state officials permitted the Internal Revenue Service to
examine these records; and that thereafter the state officials turned the records
over, pursuant to an administrative summons, to the federal authorities
investigating Fago's tax liabilities. We are invited to consider large and
interesting constitutional questions in regard to cooperation between state and
federal officials enabling the latter to obtain indirectly evidentiary material
which the Fifth Amendment would prevent them from obtaining directly. We
must decline the invitation. For, apart from the fact that the records came into
the possession of the New York authorities for a purpose wholly unrelated to
the subsequently initiated federal inquiry, Fago failed to show that the
documents were his personal papers rather than records of the corporations,
which he could himself have been compelled to produce. The only item
seriously questioned on this score was a group of sheets setting forth data as to
employees of the Schultz and Nottingham companies for a particular week in
1955. But a compilation from the records of two corporations would seem,
prima facie, to be a record of the two corporations, and Fago offered nothing to
overcome this natural inference. His contention that an officer of a corporation
cannot be required to produce corporate records which are sought to prove a
crime against him runs counter to the teaching never since questioned by the
Supreme Court of Wilson v. United States, 221 U.S. 361, 385, 31 S.Ct. 538,
55 L.Ed. 771 (1911). His claim that the Wilson rule is inapplicable when a
corporation is a mere alter ego of its owner is answered by the portion of
United States v. Guterma, 272 F.2d 344, 346 (2 Cir., 1959), relating to Chatham
Corporation, and the authorities there cited.
3
Affirmed.
Notes:
*
