United States v. Salvatore James Pisello

Salvatore James Pisello appeals his conviction of two counts of tax evasion in violation of 26 U.S.C. § 7201 (1982). He argues that the district court erred by constructively amending his indictment, improperly allocating the burden of proof, convicting him with insufficient evidence, and refusing to order production of handwritten notes made by the government’s agents during interviews with witnesses. We affirm.

I.

FACTS AND PROCEEDINGS BELOW

Pisello worked in the phonograph record industry from 1983 to 1985. His precise role is unclear. During this time, however, he entered into transactions that are relevant to this case with MCA Records, Inc. (MCA), Sugar Hill Records,, Ltd. (Sugar Hill), and Betaco Enterprises (Betaco). A brief description of each follows.

A.MCA Transactions

In June 1984, MCA gave Pisello $30,000 to investigate the feasibility of establishing a “Latin record label.” Several factors make this payment look like a loan. The parties allegedly agreed that Pisello would return the money if MCA did not accept a proposal from him, MCA carried the payment on its books as an account receivable, and when Pisello failed to repay the money, the company wrote the sum…

dissenting:

I dissent. The Jencks Act requires the government to produce any witness’s statement related to his or her testimony at *769 trial. See 18 U.S.C. § 3500 (e) (1982); United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.1986). In the present case, the government produced typed memoranda in response to the district court's order that the government make available Jencks Act materials to the defendant. These typed memoranda were based on handwritten notes taken by government agents during interviews with potential witnesses. I find merit in Pisello’s argument that because the typed memoranda contain Jencks statements, the handwritten notes from which the memoranda derive also must contain Jencks statements. At the very least, this case should be remanded to the district court for an evidentiary hearing to determine whether the withheld notes qualify as Jencks Act materials. At such time, the district court could determine, based on an in camera inspection of the handwritten notes, whether the handwritten notes are Jencks Act materials. See United States v. Johnson, 521 F.2d 1318, 1320 (9th Cir.1975) (Sneed, J.) (holding that the district court erred in refusing to…

877 F.2d 762 89-1 USTC P 9365 UNITED STATES of America, Plaintiff-Appellee, v. Salvatore James PISELLO, Defendant-Appellant. No. 88-5156. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1989. Decided June 8, 1989. Irving Anolik, New York City, David R. Hinden, Glassman & Browning, Beverly Hills, Cal., for defendant-appellant. Alan Hechtkopf, Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before SNEED, FARRIS and PREGERSON, Circuit Judges. SNEED, Circuit Judge: 1 Salvatore James Pisello appeals his conviction of two counts of tax evasion in violation of 26 U.S.C. Sec. 7201 (1982). He argues that the district court erred by constructively amending his indictment, improperly allocating the burden of proof, convicting him with insufficient evidence, and refusing to order production of handwritten notes made by the government's agents during interviews with witnesses. We affirm. I. FACTS AND PROCEEDINGS BELOW 2 Pisello worked in the phonograph record industry from 1983 to 1985. His precise role is unclear. During this time, however, he entered…