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United States v. Gengo

decided: December 22, 1986.

UNITED STATES OF AMERICA, APPELLEE,
v.
FRANK GENGO, DEFENDANT-APPELLANT



Gengo appeals from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Judge), following a jury trial convicting him of conspiracy to defraud the Internal Revenue Service, to attempt to evade federal income taxes, and to file a false return, in violation of 18 U.S.C. ยง 371, Affirmed.

Author: Kaufman

Before: KAUFMAN, WINTER and MAHONEY, Circuit Judges.

KAUFMAN, Circuit Judge:

As government prosecutors seek to bring defendants to trial on appropriately drawn charges, they frequently have need to revise their initial indictments. The law must seek to accommodate both the duty of the government to prosecute alleged criminal activities fully and the right of defendants to have timely notice of the charges against them to enable them to marshal a defense.

We are called upon to decide whether the conspiracy charge in the superseding indictment on which appellant Frank Gengo was tried was so substantially changed from the charge in the original indictment as to time-bar his prosecution for conspiracy to evade federal income taxes and to defraud the IRS. Additionally, appellant asks us to decide whether a defect in a supplemental jury instruction at the trial warrants reversal of his conviction.

FACTS

The original indictment against Gengo was filed in the Southern District of New York on April 11, 1985. Count One charged Gengo and Frank Maugeri with conspiracy to evade Maugeri's federal income taxes for 1977 and 1978. Count Two charged Maugeri with the substantive offense of attempting to evade his federal income taxes for 1978 by means of a fraudulent payment scheme, described in Count One, and by filing a fraudulent income tax return for 1978.

The conspiracy count identified Maugeri both as a sales representative for Spartan Health Care Products and as an independent hospital supplies salesperson. It described Gengo as a principal of Lennon-Peek Surgical Company, Inc. ("Lennon-Peek"), a hospital supplies distributor. This count also alleged that Gengo maintained a checking account in the name of G & S Supply Co. ("G & S").

The conspiracy count charged that Maugeri and Gengo carried out their plans in two ways. It alleged, first, that Gengo induced Lennon-Peek to issue checks to the order of fictitious payees. The checks were given to Maugeri as payments for hospital supplies. Maugeri then deposited them into his personal bank accounts or cashed them. The second allegation was that some of Maugeri's customers were induced to pay him in the form of checks made out to G & S, while Gengo provided G & S sales invoices to Maugeri. Gengo then deposited the checks, remitting 90% to 95% of the face amounts to Maugeri and retaining the rest as his "commission." By means of these two contrivances, Maugeri allegedly concealed over $92,000 in income on his returns for 1977 and 1978, thereby evading personal income taxes of more than $44,000.

The conspiracy count specified ten overt acts that allegedly furthered the conspiracy. Eight acts involved the signing by Gengo, and endorsement by Maugeri, of four Lennon Peek checks made to the order of fictitious parties between July 24, 1975 and June 17, 1978. The remaining two acts alleged were Maugeri's filing of his tax returns for 1977 and 1978.

On May 2, 1985, a superseding indictment was returned. It included a new substantive count charging Gengo with making false statements to the IRS in 1983 for the purpose of concealing the plan. In addition, these false statements became another conspiratorial means, and one of them became a new overt act. A new allegation about the conspiratorial objects charged that the defendants conspired to make false statements and to defraud the IRS (Count One, paragraphs 5(a) and (c)).

A second superseding indictment, returned on June 11, 1985, added a single overt act to the conspiracy count - Maugeri's negotiation of the Treasury check representing the refund he claimed on his false 1978 return.

A third superseding indictment, returned on July 2, 1985, added a new defendant to the conspiracy count, Maryann Maugeri, Frank's wife. It also corrected the commencement date of the alleged conspiracy. In the previous indictments, this had mistakenly been set in April, 1979, although those indictments included ten overt acts between July 24, 1975 and February 28, 1979.

On May 30, 1985, Gengo moved to dismiss the conspiracy count in the first superseding indictment. Subsequently, counsel agreed to direct the motion to the third superseding indictment. Gengo contended that his allegedly false statements to the IRS in 1983 were not part of the original conspiracy. Because the six-year statute of limitations on the original conspiracy had run by ...


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