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December 16, 1957

Frank COSTELLO, Defendant

The opinion of the court was delivered by: MCGOHEY

The defendant, who was convicted in May, 1954 for wilful attempts to evade income taxes, has moved to set aside the conviction and for a new trial, on the ground of newly discovered evidence. A hearing was held at which he introduced voluminous exhibits and the testimony of 29 witnesses in addition to his own. Upon the conclusion of his presentation, the Government moved that his motion be denied and his claims dismissed on the ground that he had failed to make a prima facie case. At the Government's request, the hearing was adjourned pending decision on its motion.

On the facts and conclusions hereafter set forth, the defendant's motion is in all respects denied.

 The defendant's motion, initially, was grounded on two claims: that at his trial the Government introduced material evidence which was the fruit of illegal wire taps; and that the Government 'had available to it the content of intercepted telephone conversations between (him) and his counsel concerning their preparation of his defense' thus denying him 'effective assistance of counsel and the fair administration of justice.'

 During the hearing the defendant twice requested and was granted leave to amend his motion by alleging additional claims. The first of these was that, at his trial, the Government introduced material evidence which was inadmissible because obtained through unlawful interference with his mail in violation of Title 18 U.S.C. §§ 1701, 1702, 1703; and the Fourth Amendment of the United States Constitution. The second was that, prior to his trial, Government agents had inspected the income tax returns of the persons on the panel of jurors drawn for the term of court during which he was tried; that this constituted a violation of the 'statutes and regulations dealing with the confidentiality of income tax returns' and resulted in a trial jury which did not represent a true cross-section of the community, thus depriving him of an impartial jury in violation of the Sixth Amendment of the United States Constitution.

 The indictment on which the defendant was tried was filed on March 11, 1953. It charged wilful attempts to evade payment of income taxes due in each of the years 1946 through 1949. After a trial which lasted from April 5 to May 13, 1954, the jury acquitted him on the first count, which related to the year 1946, and convicted him on the remaining counts, each of which related to a subsequent year. He was sentenced on May 17, 1954, to a term of five years on each count, to run concurrently, and to pay a fine of $ 10,000 on each count and the costs of prosecution. The Court of Appeals reversed as to the second count and affirmed as to the third and fourth counts. *fn1" The Supreme Court granted certiorari, but only to review the sufficiency of the evidence before the grand jury, and affirmed *fn2" on March 5, 1956. *fn3"

 The claims will be considered in order.


 Evidence Obtained Through Wire Taps.

 During the years from 1934 to 1937, Mellin, an Internal Revenue Agent, installed taps on the telephones of persons in New York who were believed to be associated with Costello. Of these persons he recalled but one, named Schlime, on whose telephone he installed a tap in 1937. Some time during that year he was sent to New Orleans where he worked for one week on an investigation which resulted, some years later, in an indictment in New Orleans charging Costello, his known business associate Kastel and others with conspiracy to evade wilfully, income taxes due from Kastel. *fn4" While there he installed taps on the telephones of two persons who were believed to be associated with Costello, and also on a telephone in a hotel room which he assumed was to be occupied by Kastel.

 Upon his return to New York, Mellin was assigned to assist in investigations involving several persons of whom Costello was one. He recalled but one tap, installed by him thereafter, which related to the investigation of Costello. That was in 1948, on the home telephone of an Internal Revenue Agent named Schoenbaum who was suspected of consorting with Costello. He installed this tap merely to ascertain if Schoenbaum was then at home, and promptly removed it when he learned Schoenbaum was out. This did not result in the interception of any conversation to which Costello was a party.

 There were two additional taps installed by Mellin which he did not mention. One of these was testified to by his former superior, Ronayne, at whose direction Mellin, in 1937 or 1938, installed a tap on the telephone of an unnamed person, other than Schlime, believed to be an associate of Costello. Ronayne did not listen in on this tap and did not recall what information, if any, was obtained through it. He could not recall ever receiving any purported transcription or recording of conversations intercepted through this tap. The second additional tap by Mellin was testified to by Agent Cheasty. This was installed in 1936 or 1937 on a telephone in a hotel room in New York City. It was made in the course of an investigation of one Seymour Weiss of New Orleans who, it was expected, would occupy the room with Costello and Kastel. This tap was so devised that the telephone instrument served as a dictagraph capable of picking up conversations within the room as well as those which passed over the telephone wire. Cheasty monitored this tap 'part of the time,' but did not overhear any conversation of or concerning Costello. The other agent who monitored it, one Dineen, was not called. Cheasty's recollection was that the tap 'didn't pick up much.'

 Mellin did only the mechanical work of connecting the wire for taps. He never listened in on any of the telephones he tapped, except Schoenbaum's. He did not know whether any conversation in which Costello participated was ever intercepted by means of any of the taps he installed.

 Mellin could not recall ever having been instructed by a superior to tap a telephone of Costello.

 When asked if he had ever installed a tap on a telephone of Costello, he answered 'I absolutely don't remember.' He kept a diary in which he had recorded all the taps he had ever installed. While this was not offered in evidence, he had consulted it shortly before testifying and did not find the name of Costello listed among those whose telephones he had tapped. Mellin was by no means a reticent or unwilling witness concerning his activities as a revenue agent. Indeed, shortly after his retirement he wrote an article concerning them which was published in a popular weekly of national circulation. While on the stand he was obviously anxious to tell of his activities in all the investigations of newsworthy persons in which he had participated. More than once he had to be admonished to answer responsively. It is to the last degree unlikely that he would have neither record nor recollection of tapping the telephone of a man as widely publicized as Costello, if he had ever done so. Under the circumstances there is no rational basis for an inference that he did so.

 Mellin, in the course of his investigations, regularly obtained from Capt. Grafenecker of the New York Police Department, information about Costello which Mellin brought back to his superiors. This practice began in 1934 and continued until Mellin's retirement in January, 1949. While still in service he introduced two of his superiors, Ronayne and Cordes to Capt. Grafenecker who, from time to time thereafter until he retired in February, 1954, was visited by these and other agents.

 Some, though not all, of Grafenecker's information had been secured through taps which the New York police had installed from time to time on Costello's home telephone and on telephones in restaurants and other places believed to be frequented by Costello and persons known or believed to be his associates. The New York police were conducting a continuing investigation begun during the early days of the prohibition era, of many persons including Costello. They had available, however, and they used, other sources of information besides wire taps. Capt. Grafenecker gave Mellin and the other Internal Revenue agents who sought his help, 'everything (he) had' regardless of its source and permitted them to read the transcriptions of intercepted conversations over Costello's telephone and to make notes of their contents.

 Ronayne received information directly from Grafenecker 'once or twice' in 1937, but this was in connection with the New Orleans case. The information was given to Ronayne orally and he could not recall what it was, or whether he had recorded it. He thought he had not. He ...

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