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UNITED STATES v. BLACK

September 7, 1993

UNITED STATES OF AMERICA,
v.
MELVYN BLACK and SANFORD BLACK, Defendants.



The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 The government commenced this prosecution against two brothers, Melvyn Black and Sanford Black, who are charged with knowingly and willfully conspiring to defraud the United States by preventing the Internal Revenue Service from ascertaining and collecting income tax from the defendant Melvyn Black. Melvyn Black and Sanford Black are also charged with one count of filing a false tax return for the calendar year 1985 on behalf of Melvyn Black and his wife. Additionally, Melvyn Black is charged with three counts of filing a false tax return for the calendar years 1986, 1987, and 1988.

 The defendant Melvyn Black moved to dismiss the indictment on the ground that it was the product of an investigation and prosecution driven by a personalized, vindictive, and gender-based animus against him on the part of the IRS agent handling the case.

 In addressing a claim of selective prosecution, the Second Circuit has stated that:

 
"in order to support a defense of selective prosecution, the defendant must make at least a prima facie showing both '(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against [the defendant], he has been singled out for prosecution, and (2) that the government's discriminatory selection of [the defendant] for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.'" ( United States v. Fares, 978 F.2d 52, 59 [2d Cir. 1992] [quoting United States v. Moon, 718 F.2d 1210, 1229 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984) quoting United States v. Berrios, 501 F.2d 1207, 1211 [2d Cir. 1974], cert. denied, 466 U.S. 971 [1984])]).

 Since the Court initially determined that the defendant Melvyn Black made a prima facie showing of the two prongs set forth in Berrios, the Court directed that an evidentiary hearing be held before United States Magistrate Judge Orenstein.

 At the conclusion of the hearing on February 25, 1993, Magistrate Judge Orenstein rendered his report and recommendation on the record. This report and recommendation expressly stated that "this Court has not only considered this case under the terms of a claim of selective prosecution. This Court has also considered the claim of the defendant as a claim to dismiss the indictment based upon outrageous governmental conduct" (Tr. *fn1" at p. 4:208).

 In addressing the claim of selective prosecution and the allegation that Agent Paradiso "hates men", Magistrate Judge Orenstein stated:

 
"In this case this Court expressly finds that Agent Borakove on November 2, 1989, never stated that Special Agent Paradiso was a man-hater, recently divorced, a woman's libber and would stay on Black's case until she got him.
 
Two, that even if Agent Borakove did state it, there was not one shred or scintilla of proof . . . that has been introduced in this case, that Agent Paradiso is biased against males.
 
Third, the recommendation to prosecute . . . Mr. Melvyn Black was based upon objective views of the agent based upon the testimony of Dr. Koplewicz at the trial of the Black divorce action; the testimony of Dr. Block at the trial of the divorce action, other testimony that the agents sat in on at the divorce trial of the Blacks, the later interviews in 1991 of Dr. Koplewicz and Dr. Block, and the memorandum of testimony, which I think we heard as Defendant's Exhibit C of Dr. Koplewicz, of his testimony at the divorce trial.

 * * *

 
That under those circumstances there has been no proof whatsoever that Mr. Melvyn Black has been able to meet the first prong of the test with regard to selective prosecution, that others similarly situated have not been proceeded against for tax evasion, or that his selection as a male was invidious or in bad faith, or based upon any other ...

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