US v. Attanasio, 870 F. 2d 809 - Court of Appeals, 2nd Circuit 1989

Appellants Robert J. Mallon, Robert J. Attanasio and Francis S. LaMagra challenge their judgments of conviction entered in the United States District Court for the Eastern District of New York (Mishler, J.), following a jury trial. They were jointly tried, along with three other defendants, for two conspiracies to impede the Internal Revenue Service ( IRS ) in the ascertainment, computation, assessment and collection of income taxes and for various substantive counts, including submitting, and aiding and abetting the submission of, materially false income tax returns and obstructing justice. Because each appellant was charged with only one of the two conspiracies, each made a pretrial motion for severance. These motions were denied. Appellants here challenge those rulings, arguing, inter alia, that the conspiracies were separate and distinct. Robert Attanasio challenges, as well, the denial of his motion for severance made at the close of the government\u27s case; he contends that co-defendant Valentino would provide exculpatory testimony only at a separate trial. Additionally, LaMagra and Mallon contend that there was a constructive amendment of the indictment and that, as a result, the government did not prove the essential nature of the conspiracy with which they were charged. Appellants challenge also the two-inference jury charge given by the district court. For the reasons detailed below, we affirm the judgments of conviction