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United States v. Trupin

May 20, 1999

UNITED STATES OF AMERICA,
v.
BARRY TRUPIN, DEFENDANT



The opinion of the court was delivered by: Mckenna, D.J.

MEMORANDUM AND ORDER

1.

Defendant's request for a suppression hearing regarding evidence obtained in Canada is denied.

Defendant has not shown that he has standing to challenge the manner in which evidence was obtained from Messrs. David and Ben Levinson, Koniczek or Parkinson.

"It has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81 (1993). See also United States v. Payner, 447 U.S. 727, 731 (1980). Nor does defendant have standing to challenge the complained of conduct by way of appeal to the Fifth Amendment's Due Process Clause, id. at 737 n. 9, or to the Court's supervisory power. Id. at 735-37. Nor, finally, will the violation of its own regulations by an executive agency-such as the Department of Justice or the Internal Revenue Service-lead to suppression in the absence of a constitutional violation (which, as noted, defendant does not have standing to assert). United States v. Caceres, 440 U.S. 741, 754-55 (1979).*fn1

That the conduct of the government is claimed to have violated one or both of two treaties between the United States and Canada-the Treaty on Mutual Legal Assistance and the United States-Canada Tax Convention-does not affect the result. A treaty, of course, is law, Const. Art. VI, and is therefore binding on the government. The Court is not aware, however, of any authority for the proposition that the requirement of standing to seek suppression is somehow relaxed when the government is claimed to have violated a treaty instead of a constitutional provision, nor can the Court perceive any reason why it should be. In Payner, the Supreme Court made it clear that the considerations underlying the requirement of standing to seek suppression are the same whether the illegality asserted involves a Fourth Amendment violation or a due process violation or "gross illegalities that did not infringe the defendant's constitutional rights," 447 U.S. at 733, as was the case in Payner. See 447 U.S. at 733-37 & n. 9. In view of the Supreme Court's analysis, this Court can only conclude, in absence of the citation of cases directly in point, that the Supreme Court would not make an exception to the standing requirement in a case where the request for suppression is premised on the violation of a treaty.

The argument made in defendant's counsel's letter to the Court dated May 12, 1999-that the Court should adopt, for purposes of the motion for suppression, the government's position that Moneyline, Inc. ("Moneyline") is the alter ego of defendant, so that defendant (who is thus Moneyline) has standing to seek suppression of documents illegally obtained from Moneyline's agents or employees (like David Levinson, according to the letter)-is not persuasive. Assuming, arguendo, that the Court could proceed in the hypothetical manner suggested ( but see In re Coppola, 810 F.Supp. 429, 433 (E.D.N.Y.1992)), defendant, even if Moneyline is his alter ego, "cannot object where corporate books and records are involved.") United States v. Neves, 269 F.Supp. 158, 161 (S.D.N.Y.1967). If, on the other hand, the documents sought to be suppressed are, as the letter suggests, defendant's personal records, then personal standing certainly must be shown.

2.

Defendant's motion for dismissal of the indictment, on the ground that the indictment was filed after the six-year statute of limitations had expired, is denied.

The indictment charges in Count One that defendant violated 26 U.S.C. § 7201 in that, "[c]ommencing in or about 1992," he executed a scheme designed to evade payment of more than $6,000,000 in personal income taxes that he owed for the years 1980 through 1986. (Indictment, ¶ 6.) The indictment, in Count One, charges, in other words, an attempt to "evade or defeat" the "payment" of tax. The indictment does not charge a failure to file a return or the filing of a false return.

Defendant relies on a dissenting opinion in a Sixth Circuit evasion of payment case. United States v. Hook, 781 F.2d 1166, 1174 (6th Cir.1986) (Merritt, J., dissenting), cert. denied, 479 U.S. 882 (1986). Judge Merritt there said that "under the general rule, the statute begins to run on the date the offense is first committed, i.e., whenever acts of affirmative concealment or willful nonpayment occur after the April 15 due date." 781 F.2d at 1174 (emphasis added).

Subsequently, in United States v. Dandy, 998 F.2d 1344 (6th Cir.1993), cert. denied, 510 U.S. 1163 (1994), the Sixth Circuit adopted the approach of the First and Eleventh Circuits, "that it is the date of the latest affirmative act of evasion that triggers the statute of limitations." 998 F.2d at 1355 (emphasis added) (citing United States v. Winfield, 960 F.2d 970, 973 (11th Cir.1992), and United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986), cert. denied, 480 U.S. 950 (1987)).

The Second Circuit (in dictum, perhaps) has adopted the same approach. United States v. DiPetto, 936 F.2d 96 (2d Cir.) ( per curiam ), cert. denied, 502 U.S. 866 (1991). "[W]e are in accord with several other courts which have held that a section 7201 prosecution involving the failure to file income taxes is timely if commenced within six years of the day of the last act of evasion, whether it is the failure to file a return or some other act in furtherance of the crime." 936 F.2d at 98 (emphasis added) (citing Ferris, 807 F.2d at 271; other citations omitted.).

In United States v. Trownsell, 367 F.2d 815 (7th Cir.1966) ( per curiam ), the Seventh Circuit decided a case reasonably analogous, on the limitations issue, to the present one. The defendant was charged, in an indictment returned in 1964, with an attempt to evade and defeat payment of taxes due for the years 1946-1953 by transferring funds to a Swiss bank in 1961. The court found that the statute of limitations had not run before the indictment was returned. "[The indictment] ...


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