# Opposition Brief — Roberts v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1061

## Text

meee; Suprise Ger, n oy
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JAN 29 1988

JR,
CLERK

In the Supreme Court of the

OCTOBER TERM, 1987

JOHN W. ROBERTS, PETITIONER
V.
UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

CHARLES FRIED
Solicitor General
Department of Justice
Washingion, D.C. 20530
(202) 633-2217

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TABLE OF AUTHORITIES

Cases:

Barney v. United States, 568 F.2d 116 (8th Cir. 1978) .... 5
Couch v. United States, 409 U.S. 322 (1973) ............ 6
DiBellav. United States, 369 U.S. 121 (1962) ........... 2
Gluck v. United States, 771 F.2d 750 (3d Cir. 1985) ...... 5.7
Grand Jury Proceedings, In re, 716 F.2d 493 (8th Cir.

| aaah ig ARE sy Ae eck Reg bE a pie Pa E te ae 3
Hillv. United States, 346 F.2d 175 (9th Cir.), cert. denied,

Se as bm tas 3
Imperial Distributors, Inc. v. United States, 617 F.2d 892

(Ist Cir.), cert. denied, 449 U.S. 891 (1980) ...........
Kurshan v. Riley, 484 F.2d 952 (4th Cir. 1973) ..........
Lawhon vy. United States, 390 F.2d 663 (Sth Cir. 1968) ...
Murphy v. Hunt, 455 U.S. 478 (1982) .................
St. Pierre v. United States, 319 U.S. 41 (1943) ..........
United States v. Aquinas College Credit Union, 635 F.2d

887 (6th Cir. 1980), cert. denied, 450 U.S. 1042 (1981) . 4-5
United States v. Arthur Andersen & Co., 623 F.2d 720

LDH nm Ww

(Ist Cir.), cert. denied, 449 U.S. 1021 (1980) .......... 5,6
United States v. Blue, 384 U.S. 251 (1966) ............. - ea
United States v. Deak-Perera Int’l Banking Corp., 610

fF. fe ot Me. RO none se ere ae 5
United States v. First American Bank, 649 F.2d 288 (Sth

gO ae Re ak ek wil race ae 4,5
United States v. First Family Mortgage Corp., 739 ¥.2d

NII Ti aie Stale nw pia Blah dkms 6
United States v. Kis, 658 F.2d 526 (7th Cir. 1981), cert.

CN er he PEO os esi cece se seicsinuces’s 4,5,6
United States v. Miller, 425 U.S. 435 (1976) ............ 6
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) .. 5

United States v. Premises Known as 608 Taylor Ave., 584

Pee ae POD os cy a oa cde ck tae bea ade kas 3
United States v. Regional Consulting Services, 766 .2d

eek wd ws 3
United States v. Ryan, 402 U.S. S530 (1971) 2.2.22 eee. 6
United States v. Sherlock, 756 F.2d 1145 (Sth Cir. 1985) .. 5

(1)

Cases — Continued: Page
United States v. Silva & Silva Accountancy Corp., 641
F.2d 710 (9th Cir. 1981)... 2... cece ee eee ee eee eee 4
United States v. Sweet, 655 F.2d 54 (Sth 5 oe |.) 6
United States v. Trails End Motel, 657 F.2d 1169 (10th
oe. (|) Eee eerre ye Cre Ty te 4
Vesco v. SEC, 462 F.2d 1350 (3d Cir. 1972) ......-----: 7
Warden v. Hayden, 387 U.S. 294 (1967) ...----. eee ees 3
Weinstein v. Bradford, 423 U.S. 147 SS cg iaeccas us asic 5
Rule:
Fed. R. Crim. P. 4ife) ... . 0... cos snc ccnee ce mnaees 1-2, 3, 4

Hn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-906
JOHN W. ROBERTS, PETITIONER
,.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner contends that the court of appeals had
jurisdiction over his appeals from an order dismissing his
action for the return of property and the suppression of
evidence and an order enforcing three IRS summonses. !

1. As part of an IRS investigation of petitioner,
Special Agent Randy Taylor visited the accounting firm of
Chapel & Ward, and requested access to documents
relating to petitioner. Chapel & Ward voluntarily gave
Agent Taylor workpapers, books and other records (Pet.
App. B11). The IRS made copies of those documents and
returned to the accountants all original documents except
a computer printout and a workpaper that belonged to the
accountants (id. at A3). Petitioner then filed an action in
the district court pursuant to Federal Rule of Criminal

' Petitioner Roberts was the only appellant in the court of appeals
(Pet. App. BI, C2), even though several of his controlled companies
were also plaintiffs in the action for the return of property and the
suppression of evidence (id. at B6).

(1)

2

Procedure 41(e) to have the copies delivered to him and to
suppress any use of the information by the IRS. The
district court dismissed, holding that petitioner had no
legitimate expectation of privacy in the records in the
hands of his accountants and that petitioner’s constitu-
tional rights had not been violated (Pet. App. B15, B20).

In a separate action brought by petitioner, the district
court ordered enforcement of three IRS administrative
summonses that required the production of bank records
relating to petitioner and required accountants Chapel and
Ward to give testimony pertaining to petitioner’s tax
liabilities (Pet. App. C12-C15). Both the district court (id.
at C9) and the court of appeals (id. at C1) denied motions
for a stay of the district court’s enforcement order. Before
briefs were filed in the court of appeals, all three sum-
moned parties complied with the IRS summonses (/d. at
A2).

The court of appeals dismissed petitioner’s two appeals
(Pet. App. Al-A4). The court held that it had no jurisdic-
tion over petitioner’s appeal from the order dismissing his
Rule 41(e) action because an order denying the suppres-
sion of evidence is interlocutory. The court dismissed peti-
tioner’s appeal from the order enforcing the IRS sum-
monses on the ground of mootness; all summoned parties
had complied with the summonses.

2. The court of appeals correctly dismissed petitioner’s
appeal from the order dismissing his Rule 41(e) action, It
is well settled that the dismissal of a Rule 41(e) action is
immediately appealable “[o]nly if the [action] is solely for
return of property and is in no way tied to a criminal pros-
ecution in esse * * *.” Dibella v. United States, 369 U.S.
121, 131-132 (1962). Petitioner’s action failed the first part
of the two-part DiBella test because it sought the suppres-

ae,

3

sion of evidence and was thus not solely for the return of
property (Pet. App. A3-A4).

Petitioner maintains (Pet. 31-35) that there is a conflict
in the circuits over the precise meaning of the first part of
the DiBella test. Petitioner notes that some circuits inquire
into the motive underlying a Rule 41(e) action to deter-
'mine whether its “primary” purpose was to obtain the
return Of property (in which case its dismissal is ap-
pealable) or to suppress the government’s use of evidence.
See, e.g., United States v. Premises Known us 608 Taylor
Ave., 584 F.2d 1297, 1300 (3d Cir. 1978). Petitioner con- ‘
tends that these decisions conflict with the Fourth Circuit’s
opinion in United States v. Regional Consulting Services,
766 F.2d 870 (1985). The Fourth Circuit, however,
recognized no such conflict. It carefully noted in Regional
Consulting Services that the Rule 41(e) movants in that
case did not prove that “the primary purpose of their mo-
tion” (766 F.2d at 873 n.6) was the return of records. Thus
we believe that no conflict in the circuits has arisen with
respect to the first part of the DiBella test.

In any event, petitioner’s motion under Rule 41(e)
specifically requested suppression as a remedy (Pet.
21-22). Petitioner also sought to obtain copies of
documents that Agent Taylor obtained from and then
returned to Chapel & Ward. But a motion to obtain copies
of returned records is nothing more than a motion to sup-
press the contents of those records. See Warden v.
Hayden, 387 U.S. 294, 305 (1967); Imperial Distributors,
Inc. v. United States, 617 F.2d 892, 895-896 (Ist Cir.)
(dismissing appeal), cert. denied, 449 U.S. 891 (1980); Fiil/
v. United States, 346 F.2d 175 (9th Cir.) (dismissing ap-
peal), cert. denied, 382 U.S. 956 (1965). Compare Jn re
Grand Jury Proceedings, 716 F.2d 493 (8th Cir. 1983)
(denial of Rule 41(e) motion appealable because motion
primarily sought return of original documents that were

4

vital to movant’s operation of business). Accordingly,
petitioner’s Rule 41(e) action was primarily, if not solely,
designed to suppress the government’s use of evidence.
The district court’s dismissal of his action therefore was
not appealable under any circuit’s reasoning.

This case does not present any issue concerning the sec-
ond part of the DiBella test (Pet. 34-48). Petitioner does
not challenge the accepted view that the dismissal of a
Rule 41(e) action is appealable only if both parts of the test
are satisfied. Accordingly, because petitioner’s appeal
does not meet the first part of the test, the court of appeals
properly did not reach the question whether petitioner’s
Rule 41(e) action was tied to a criminal prosecution.

3. The court of appeals also correctly dismissed as
Moot petitioner’s appeal from the order enforcing the IRS
administrative summonses. A case becomes moot when
the controversy between the parties ceases to exist so that
the court may not grant effective relief. See, e.g., Sv.
Pierre v. United States, 319 U.S. 41 (1943). In a summons-
enforcement proceeding, the government seeks only to ob-
tain access to the summoned information; the party
challenging the summons hopes to prevent that access.
Once the summoned parties have complied, as in this case,
the government has achieved its objective and there is no
relief that a court can grant the opposing party. For that
reason, all but one of the courts of appeals that have con-
sidered the question have held that compliance with an
IRS summons renders moot an appeal from an order en-
forcing the summons.?

? See, e.g., United States \. Ais, 658 F.2d 526 (7th Cir. 1981), cert.
denied, 455 U.S. 1018 (1982); United States v. Trails End Motel, 657
F.2d 1169 (10th Cir. 1981); United States v. First American Bank, 649
F.2d 288 (Sth Cir. 1981); United States v. Silva & Silva Accountancy
Corp., 641 F.2d 710 (9th Cir. 1981); United States v. Aquinas College
Credit Union, 635 F.2d 887 (6th Cir. 1980), cert. denied, 450 U.S.

The Third Circuit’s decision in Gluck v. United States,
771 F.2d 750 (1985), is the only contrary circuit authority.
In Gluck, the Third Circuit reasoned that a case is not
moot after compliance with a summons because the court
can order the suppression of illegally obtained evidence in
any future civil or criminal proceeding. This reasoning is
faulty. See United States v. Sherlock, 756 F.2d 1145, 1147
(Sth Cir. 1985). As the Seventh Circuit correctly observed
in United States v. Kis, “{i}t would be highly speculative”
to rule on the legality of a summons “for there is no
guarantee that the Government will ever seek to use” the
summoned evidence (658 F.2d at 533). Thus a ruling on
the merits in this case would simply be an “advisory opin-
ion.”” Lawhon v. United States, 390 F.2d 663 (Sth Cir.
1968) (per curiam). Petitioner may obtain a ruling on the
legality of the IRS summonses by way of a suppression
motion in the event that there is a future trial. Cf. United
States v. Blue, 384 U.S. 251, 255 (1966).

1042 (1981); United States v. Arthur Andersen & Co., 623 F.2d 720
(ist Cir.), cert. denied, 449 U.S. 1021 (1980); United States v. Deak-
Perera Int'l Banking Corp., 610 F.2d 89 (2d Cir. 1979); Barney v.
United States, 568 F.2d 116 (8th Cir. 1978); Aurshan v. Riley, 484
F.2d 952 (4th Cir. 1973). Contrary to petitioner’s suggestion (Pet. 51),
these decisions are not limited to a case where a taxpayer, as
distinguished from a third party, complies with the summons. See,
e.g., United States v. First American Bank, supra; United States v.
Deak-Perera Int'l Banking Corp., supra; Barney v. United States,
supra.

3 Under settled precedent, the district court’s enforcement order in
this case will be vacated because the case became moot before the
court of appeals ruled on the merits. Such an order is required “to pre-
vent a judgment, unreviewable because of mootness, from spawning
any legal consequences[,]” and “clears the path for future relitigation
of the issues between the parties.” United States v. Munsingwear, Inc.,
340 U.S. 36, 40-41 (1950); see also Weinstein v. Bradford, 423 U.S.
147, 149 (1975).

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6

Petitioner’s appeal from the order enforcing the IRS
summonses does not remain justiciable under the doctrine
that claims remain alive if they are “capable of repetition,
yet evading review.” Murphy v. Hunt, 455 U.S. 478, 482
(1982); see United States v. Kis, 658 F.2d at 533. First,
there-is nothing in the record to support a finding that
“there [is] a reasonable expectation that the same com-
plaining party [will] be subjected to the same action again”
(Murphy v. Hunt, 455 U.S. at 482). Even if new sum-
monses are issued and enforced, the affected parties can
obtain full appellate review by obtaining a stay or by
means of a contempt citation. See United States v. First
Family Mortgage Corp., 739 F.2d 1275, 1277-1278 (7th
Cir. 1984); United States v. Kis, 658 F.2d at 533; United
States v. Sweet, 655 F.2d 54, 55 (Sth Cir. 1981). This
Court has recognized that a party’s risking contempt may,
at times, be the only way to obtain full appellate review of
an adverse order.* See, e.g., United States v. Ryan, 402
U.S. 530, 533 (1971). Accordingly, the court of appeals
correctly dismissed as moot petitioner’s appeal in the
summons-enforcement case.

Finally, we believe that this Court’s review of the circuit
conflict on the mootness question is not necessary at this

+ Petitioner cites United States v. Arthur Andersen & Co., 623 F.2d
720 (ist Cir.), cert. denied, 449 U.S. 1021 (1980), for the proposition
that accountants cannot reasonably be expected to risk contempt in a
summons-enforcement case (Pet. 60). In fact, the court noted in
Andersen (623 F.2d at 724) that an accounting firm has a “sufficient
incentive” to protect its client’s interests because unauthorized
disclosures hinder the firm’s ability to obtain information. In any
event, petitioner’s claims can be asserted when evidence its sought to be
used against him and provide no basis for interference with the IRS’s
investigation of third-party records. Cf. United States v. Miller, 425
U.S 435 (1976); Couch v. United States, 409 U.S. 322 (1973).

ee ee

time. As Judge Garth noted in dissent in Gluck (771 F.2d
at 759-760), the Third Circuit’s holding on mootness in
that case conflicts with the prior Third Circuit decision in
Vesco v. SEC, 462 F.2d 1350 (1972). Judge Garth has
urged that this intracircuit conflict be resolved by the court
en banc (771 F.2d at 761). There is substantial summons-
enforcement litigation within the Third Circuit, and the
government is interested in attempting to persuade that
court to agree with the unanimous view of other circuits.
Thus, the Third Circuit may well have an opportunity
soon to reconsider its mootness rule en banc.

lt is therefore respectfully submitted that the petition
for a writ of certiorari should be denied.

CHARLES FRIED
Solicitor General

JANUARY 1988

US GOVERNMENT PRINTING OFFICE 19868 202 05//b0262

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0490%3A2. Public record. Not legal advice.