ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, January 4, 1996 TAG: 9601040056
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
The government will be allowed to use a Covington couple's bank records to try them on tax-evasion charges, a judge ruled, even though the records are ``tainted evidence.''
Investigators first saw most of the documents in question after seizing copies from the home, businesses and cars of Vittorio ``Victor'' and Janet Cucci during Victor Cucci's arrest for attempted cocaine trafficking in July 1991.
U.S. District Judge James Turk ruled last summer that the warrantless search was illegal and that the government could not use any evidence seized in its case against the couple for tax evasion.
But Assistant U.S. Attorney Hunter Smith of West Virginia argued in a hearing last week that much of the evidence still was admissible because it ``inevitably'' would have been found ``inevitably'' by subpoenaing banks where the Cuccis did business.
Higher courts have ruled that evidence tainted by police misconduct still can be used if it would have been found through legal means anyway and if police didn't use the illegal search to lead them to the evidence elsewhere.
Turk agreed that a preliminary IRS inquiry into the Cuccis' banking transactions and the fact that they had not filed tax returns since 1983 meant the government eventually would have looked into their financial records.
``The evidence and testimony presented by the government, although occasionally lacking in precision, made clear that the government's investigation of the defendants' bank records was not prompted by the fruits of the illegal search,'' Turk wrote after hearing testimony and evidence over two days. ``Excluding the lawfully gained bank records in this case would not clearly serve the purpose of discouraging police misconduct.''
The Cuccis' attorneys had argued that the prosecution would not have initiated its exhaustive investigation into their finances had investigators not seen the illegally seized records.
Victor Cucci is serving a 14-year sentence for helping a government informant buy about 41/2 pounds of cocaine. The informant befriended Cucci and persuaded the Sicilian immigrant over several months to connect him with a friend in New York who could supply him with the drug.
Trial is set for April on eight counts of tax evasion and filing false tax returns. Another charge, of structuring bank transactions to avoid having banks report them to the government, was severed from the other charges and Turk said he is considering dismissing it.
The West Virginia prosecutor is handling the tax case because the cocaine investigation began in that state.
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