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UNITED STATES v. DI ORIO

August 1, 1979

UNITED STATES OF AMERICA
v.
CARMEN DI ORIO



The opinion of the court was delivered by: NEWCOMER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In this criminal tax case, the defendant has moved to suppress all evidence obtained by the government through use of summonses issued by Internal Revenue Service (IRS) agents pursuant to their authority under 26 U.S.C. § 7602. After conducting an evidentiary hearing and reviewing that testimony, as well as certain evidence that the Court subsequently ordered the government to produce, the Court denied the motion and files the following findings of fact and conclusions of law in support thereof.

 FINDINGS OF FACT

 1. In February 1975, the Chief of the Philadelphia Intelligence Division of the IRS received a memorandum from IRS agent Gerald J. Smith, who was the IRS representative to the Philadelphia Strike Force. *fn1" Financial and background information concerning the defendant was relayed through the memorandum, which was submitted to the Intelligence Division for evaluation as to a possible tax investigation. The memorandum neither mentioned the Strike Force attorneys nor their recommendations with regard to the information. This memorandum was obtained by the Court pursuant to its order of July 24, 1979, and has been marked by the Court as C-1, an exhibit of the suppression hearing.

 2. Upon receipt of the memorandum, the Chief of the Philadelphia Intelligence Division transmitted it to Special Agent Robert W. White, an agent assigned to the Intelligence Division's Strike Force group, for evaluation. After gathering background and tax related information about the defendant, Agent White concluded that a tax investigation for both criminal and civil purposes should be commenced. In an October 28, 1975 memorandum to the Chief of the Philadelphia Intelligence Division, White analyzed the information he had collected and requested that the defendant be approved as a Strike Force Target of the IRS and investigated for possible Title 26 violations in contravention of IRS laws. In accordance with its July 24, 1979 Order, the Court was furnished with this memorandum and it has been marked by the Court as suppression exhibit C-2.

 3. The investigation was approved in November 1975, and was aimed at determining the civil tax liability and criminal responsibility of the defendant. Besides Special Agent White, Revenue Agent Kane was assigned to the investigation to assist in its accounting and auditing aspects.

 4. Between February 1975, and February 1977, Special Agent White had six contacts with personnel or employees of the Philadelphia Strike Force which related to this case.

 5. The first was on January 8, 1976, when Agent White sought profile and background information regarding the defendant from an individual responsible for the racketeer profile system.

 6. At an August 24, 1976 meeting, White had his second contact with Strike Force personnel. Also present at that meeting were, among others, Revenue Agent Kane, the attorney in charge of the Philadelphia Strike Force, Joel Friedman, and an attorney on the Strike Force, Albert J. Wicks. Although background information concerning the defendant was discussed, the only new information that the IRS agents secured about the defendant was from an FBI memorandum which they were supplied. There is no evidence that any IRS agent disclosed information from their investigation to the Strike Force attorneys during the meeting, or that the attorneys in any way directed the agents as to how they should proceed in their tax investigation.

 7. Another meeting with members of the Philadelphia Strike Force was held on November 18, 1976. Agents White and Kane sought additional background information about the defendant, and advice from the Strike Force attorneys concerning problems that they were encountering in obtaining a case file from the IRS Inspection Division. Although the attorneys gave the agents advice as to how to secure this file, they did not direct them as to how they should proceed. When asked why they sought advice from the Strike Force attorneys, rather than from IRS Regional Counsel, Agent White replied that "it was not set up that way," and that the Strike Force was where the investigation was being monitored. He explained that since the defendant was a strike force target, there was a Strike Force attorney who had the case on his inventory; although the attorney did not direct the IRS investigation, he was the attorney that the IRS agent could contact concerning any legal problems. There is no direct evidence that at this meeting the IRS agents disclosed to the Philadelphia Strike Force attorneys information about the defendant discovered through their investigation, and Agent White has denied that any such information was revealed.

 8. The next encounter that Agent White had with the Philadelphia Strike Force was a brief one, occurring when on December 22, 1976, he telephoned attorney Albert J. Wicks and asked him to explain the difference between use and transactional immunity. The conversation lasted between one and two minutes.

 9. A fifth contact was made with the Strike Force on January 4, 1977, when Special Agent White again phoned Wicks to ask for advice on how to obtain and inspect the case file that was in the possession of the IRS Inspection Division, and which included, inter alia, information obtained during a prior grand jury investigation.

 10. Finally, on February 4, 1977, Agent White had his last contact with the Strike Force when he picked up the Inspection Division case file from the Strike Force which had obtained it for him. There was no ...


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