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UNITED STATES v. LUBITSCH

January 30, 1967

United States of America
v.
Sol Lubitsch, Defendant


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

Memorandum

TENNEY, District Judge.

 Defendant moves herein, pursuant to Rules 41(e) and 12(b)(4) of the Federal Rules of Criminal Procedure: (1) to suppress as evidence any exculpating or inculpating statements made by defendant on the grounds that the same were obtained in violation of his rights under the fifth amendment; (2) for an order, pursuant to Rules 6(e) and 12(b)(4) of said Rules requiring submission of all grand jury proceedings in the case for inspection by the Court to ascertain whether the indictment in this case was obtained or procured by the use of unconstitutional and illegal evidence, and (3) for inspection, pursuant to Rules 16 and 17(c) of said Rules, of defendant's audit examination report of a certain income tax return and of said income tax return.

 The Government has consented to the discovery and inspection of the above-mentioned audit examination report and income tax return, and the Court has conducted a hearing with respect to the suppression of certain statements made by defendant to an Assistant United States Attorney and to Internal Revenue Service inspectors on November 18, 1964.

 Although the defendant's moving papers are not clear or specific, it would appear that the defendant's request for in camera examination of the Grand Jury minutes relates to his claim that his statements above referred to were illegally obtained and were the grounds for the return of the indictment by the Grand Jury, so that a finding against defendant on the motion to suppress would be determinative also of the motion for in camera inspection.

 It appears from the hearing held herein that defendant, on November 18, 1964, was served with a grand jury subpoena, returnable forthwith. Service of the subpoena was made in the Office of the District Director at the defendant's place of employment, the Brooklyn Office of the Internal Revenue Service, and was effected by Mr. Kincheloe, an inspector with the Internal Revenue Service, Inspection Service.

 Thereafter, defendant, accompanied by Inspector Kincheloe and Inspector Bright, also of the Internal Revenue Service, went to the United States Court House, Foley Square, in the Borough of Manhattan, New York City, and was interviewed briefly by Andrew J. Maloney, an Assistant United States Attorney.

 The circumstances relating to the service of the subpoena, defendant's subsequent appearance in the Office of the Assistant United States Attorney, and what occurred at that time as developed at the hearing held herein will be discussed in greater detail hereinafter.

 On November 23, 1964, five days after defendant's appearance at the United States Court House, a complaint was issued charging him with a violation of Title 18 U.S.C. § 201, and he was arraigned before the United States Commissioner on November 24, 1964, at which time he was represented by an attorney who has continued to represent him throughout these proceedings.

 On June 7, 1965, an indictment (65 Cr. 516, since superseded) was filed charging a violation of Section 201.

 On November 10, 1966, the present indictment (66 Cr. 917) was filed to supersede the prior one. The present indictment is in two counts and charges the defendant with violations of Title 18 U.S.C. §§ 201(c) and 201(g) in that on or about April 22, 1963, he received $200 from one Albert Goldstein in connection with defendant's official duty to conduct the audit examination of the 1960 income tax return of Dr. Robert and Mrs. Lillian Schwartz.

 Defendant has pleaded not guilty, and on November 22, 1966 filed the motions presently before the Court.

 Although, as already noted, the motion papers are deficient in that they do not specify in any detail the grounds on which the motion to suppress is made (other than a statement that it is made pursuant to Rule 41(e) and the fifth amendment), it appears clear from the evidence adduced that the essence of his claim is that any statements he made were not voluntarily given and were given without the benefit of counsel present (although he makes no reference to sixth amendment rights).

 According to the testimony of Inspectors Kincheloe and Bright, the inspectors on June 18, 1964 went to the District Director's Office in Brooklyn, New York, where defendant was employed as an office auditor. At that time, Inspector Kincheloe had a grand jury subpoena dated that date and returnable forthwith, calling for defendant's appearance before the Grand ...


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