Reply Brief — Maius v. United States

COT Oe

_ SUPREME CouRT. vu. & alice

In The ~ : JOHN F. DAVIS, CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1967

ABRAHAM MAIUS, .

: , Petitioner, .

vs.

UNITED STATES OF AMERICA.

On Petition for A Writ of Certiorari to The United States

Court of Appeals for The Sixth Circuit e

.

REPLY TO MEMORANDUM IN OPPOSITION

WILLIAM J. DAMMARELL

1304 Tri-State Bldg.

Cincinnati,, Ohio

“Attorney for Petitioner

THURGOOD MARSHALL

Solicitor General

MITCHELL ROGOVIN .

Assistant Solicitor Genera]

JOSEPH M. HOWARD

. DONALD A. HANSEN,

Attorneys,

Department of Justice

Washington, D.C. 20530 -

ee

COURT INDEX PRESS, INC. — Law Printers — 809 Walnut Street, Cincinnati, Ohio 45202

FEES LENIN A IERIE SIRES

oe

AUTHORITIES CITED

Miranda v. State of Arizona, 384 U. S. 436, 86 s. Ct.

Se Sdwanse ree ee ee ee

Moon v. Brennan (E.D. Wis.), November 21, 1966

C29 AcE Mee Be GEE) cc ccodascuscovbecveence

Russo v. United States (CA. 2 1957), 241 Fed. i2d ;

a. § Pee epee Wem eae

Stern v. Robinson (W.D. Tenn.) 262 E. Supp. | Pee

United States v. Bachman (W.D. Pa.), 267 F. Supp. 593

United States v. Carlson (E.D. N.Y.), 260 F. Supp. 423

United States v. Fiore (W.D. Pa.), 258 F. Supp. 435 . .

United States v. Gleason (S.D. N.Y.), 265 F. Supp. 880

United States v. Gower (Mid. D. Pa.), Jase 30, 1967, 7

United. States v. Nevés (SD. NY), April 98, 1967,

GFE UAE A. POE. GEER) ccvccnevcedsvesesses

United States v. Schlinsky (D. Mass.), June 6, (C.A. 1),

(19 A.F.T.R. 2d 1597, 1599) .......-2 sesso ees

United States v. Silverstein (C.A. 2 1968), 314 Fed.

DROIT oc oc snedecycocincTecececseceses

United States v. Turzynski (N.D. Ill), June 2, 1967

bea BEF As BAGO Secvcvescvcsdes deveves

In The’

Re catuy Court of the Unite States |

. ane Term, 1967 —

No. 372

ABRAHAM MAIUS, -

ft ines * Petitioner,

eo,

UNITED STATES OF AMERICA.

On Petition for A Writ of Certiorari to The United States . ’

Court of Appeals for The Sixth Circuit |

- REPLY TO MEMORANDUM IN OPPOSITION

This Reply Brief is addressed to, and restricted by, two

positions taken: in the Government’s Memorandum. in

Opposition, since both of these positions, we respectfully

suggest, are contrary to face. — |

L

The position taken in the declaration made in Footnote

3, page 5, that |

“The District Conic on wtidae the Petitioner relied

. (United States v. Turzynski (N.D. Ill.)), decided June

2, 1967 (20 AF.T.R. 2d. 5004) is an aberrant

ene.

2

In point of. fact, the reasoning in the Turzynski case

is quoted and supported by the position taken in the Excise |

Tax Case of U. S. v. Gower, decided June 30, 1967, (Dist.

Court, Middle Dist. Pa.) 67-2-U.S.T.C. 15,760.

The Gower case has been summarized in head : note as

follows: |

“Criminal Prosecution; Motion to Su; ppress Evi-

dence; Constitutional Safeguards — The defendant was

not adequately advised of his constitutional rights to

remain silent and to the assistance of counsel when a.

civil investigation becomes:a criminal investigation.

Therefore, evidence obtained at'a question and answer

session was suppressed because it was obtained in vio-°

_, lation of fundamental standards of fairness and did _

not represent a voluntary .action ‘on the part of the

defendant.”

In the Gower case, the court in granting a ‘motion to

suppress evidence taken in an interview between a taxpayer

and two Revenue Agents, in the absence of counsel, pointed

out that Miranda (Miranda v. State of Arizona, 384 U.S. 436,

86 S. Ct. 1602) recognized that coercion can be mental

~ as well as physical, that the tést for. coercion can be a

subjective one or determined by ‘its effect on a man possessed.

of average resistance. The court, in its five page opinion,

distinguished between preliminary’ questioning and the

_ turn the. case took when thé “defendant was taken into a

separate conference room in the presence of the two agents

ahd the stenographer, asked to stand and was sworn, and

‘then was subject to series of searching. questions, to which

he gave incriminating answers”.

Moreover, this Court need not be reminded ‘that the —

appellant in his Brief relied on considerably more than an

. alleged aberrant opinion. He relied on two factors ignored

completely i in the Government’s Memorandum i irr Opposi-

tion, namely: ©

Bor .

A, The: hiaaaiias of the Circuit | Cait s ein’ in-

_ viting this petition — (Is this also “Aberrant”, in ~

the Government’s eyes?) , and, oe

B. The real and pressing problem, attested to by an

Kh increasing recognition of the inequitable imbalance

_. which now exists against a taxpayer, when, without

benefit of counsel or warning of his right thereof, —

he is formally and ‘officially “invited” to an incrim- _

inating examination by an Intelligence Agent of the

Internal Revenue Service. In the present case this

imbalance reached an apogee of injustice because

of the accumulation of factors, detailed in appellant’s

———-— which placed-the-appellant- wr portion of

peril on multiple scores.

(Appellant’s Brief, Pages 2 and 3, Questions Pre- .

sented) © ,

iI.

The position taken by the Governenis, in the same foot-

note, i.e. that the listed cases cover thé facts in this case and —

therefore form an unbroken and formidable phalanx: in

oppostion to what the appellant herein is asking. In point.

of fact, not one case applies to the facts in this case.

The distinguishing facts of this case, having been set

forth in the appellant’s Brief, we shall not repeat them

here, but shall, instead, briefly point out the distinguishing

facts in the cases cited which make them utterly ia 5 salad

to the.case at bar: “

U.S. v. Gleason, 265 F. Supp. 880 (S.D. N.Y.) :

Inquiry involved two partners, their own returns; their -

own books and records, their books turned over by

their own accountant. One was interviewed in her own -

office; the other in a “Revenue Office”. No evidence

_of a double interview, the second one three years into

the investigation. |

ae, Hote Wa.

U.S.v. Piers, 958 F. Supp. 435, 440 (W.D. PA):

The defendant*herein, to quote the court (page 40) |

was standing “in the center of the inquiry from the

beginning, as the only possible suspect, while as in-~

vestigation proceed,’ the ring ‘or evidence expands

. and builds around him. For this reason, the dis-

_ _ tinction between ‘investigative’ and ‘accusatoreal’ states

may not be <— apposite to criminal tax Anvesti-

gations”.

U.S. v. Schlinsky, 261 F. Supp. 265 w, Mass.) , affirmed

June 6 (CA. I.) 19 AF.T.R. 2d, 1597, 1599: eae

An agent, assigned to audit returns of sites ex-

amined his books; and took an interview at his store, .

without “stealth, deceit or misrepresentation”.

'U. S. v. Hill, 260 F. Supp. 139 (S.D. Cal.).!

“Except for the. occasion on which the constitutional

-warning was given, all meetings were in the defendant’s —-—_—

offices” (page 142)-—‘“Fhere-was no stealth, misrepre-

sentation, fraud or deceit on the part of the agents.

They told.the defendant that they wished to examine

his financial records i in order to effectively investigate

his tax returns”. (page 143) “He voluntarily. pro-

duced_his-records — - (page 143) — time between first ~

call “in making a civil Sudit” of defendant’s return

and last interview: 8 months. ia emphasis vacscate in

U.S. v. Carlson, 260 F. Supp. 423 (ED. N.Y.) :

- Actually, the court in this case said: “Whether a person

is in custody or not, he is entitled to the assistance of

counsel if he is facing an explicit or imminent crim-

inal charge.” (Emphasis added) “It is logically diffi-

cult to determine whether anything more is necessary

to ripen the rights to the assistance of counsel and to

a warning to that effect than the mere fact that the

government is the interrogator and is conducting the

5

interrogation in the perspective of criminal law en- .

forcement, whether or not it has already resolved to

go forward: The cases do. not indicate that the

standard is the standard applicable to protect persons in.

custody. United States v. Silverstein, 2d Cir. 1963, 314 .

Fed. 2d 789, 890, treats an appearance before a special

or. the ‘Intelligence Division as in the nature -of an

appearance in a criminal investigation and it says that

a claim of privilege against.a summons directing pro-

duction of individual papers would be sustained-in

that context. Russo v. United States, 2d Cir. 1957,

_ 241 F.2d 285, 287, may assume, though without com-

ment, the inadmissibility of disclosures obtained by

Treasury Agents by meanis of deceiving a tax payer

into thinking an examination was. for the purpose of

a routine civil audit rather than for the purpose of a

criminal charge”. (page 427) |

Stern v. Robinson, 262 F. Supp. 13 (W.D. Tenn.) :

—~A civil action to enjoin presentation of evidence to a

grand jury refused because plaintiff did not allege

_ records were not freely given or not obtained by fraud;

therefore, he had to convince the court that Escobedo . -

and Miranda applied. . |

(Present case: Appellant had no records to give and

he was lulled into believing he was describing the

operation of a former job, — his own returns not

being challenged.) — 7

U.S. v. Bachman, 267 F. Supp. 593 (W.D. Pa.) :

Inquiry involved defendant’s personal bank accounts :

and “‘the last interview .was held on November 12,

1963, at the defendant’s home in the presence of: his

accountant, Mr. David Greenblatt, where questions

and answers. were récorded and (later . transcribed.

During this interview.the defendant was advised \of

his constitutional rights”. Ge ace a

(pages 593 and 594, quoting from the opinion)

6

OB. nite, (S.D. — decided April 98, 1967 1 (63

US.T.C. par. 9412) : etl :

__—Defendant, president of a corporation, gave to Revenue _

; ” pea books under his.control and later appeared |

with his attorney at offices of Internal Revenue Service,

when he gave additional testimony, ‘signed transcripts. _

of are: and answers.

4

.Moon v. Siena (. D. Wis) decided November 21, |

1966 (19 A.F.T.R. 2d ves

\

‘An action to enjoin a District Attorney before evidence

ov to a grand jury. The Court said “At the

t development of the law, the rules‘of Miranda,

prciep require that a — in essence, a citizen who is. :

. in custody. be advised: of ‘his constitutional rights, that

‘these have not been expanded to apply to the — to

Internal Revenue Agents who are investigating cases”. ©

It is to the fact situation involved herein that this appel-

lant. directs this petition. In this case there exists, in an

‘acute form, examples of a widespread condition which is

causing increasing alarm. This condition merits the con-

sideration of this Court, because it is a condition so basically

unjust that it should be corrected wherever it is uncovered,

whether it be before Miranda or ‘after Miranda.

Hypocracy by Internal Revenue Agents who draw out

taxpayers into making incriminating statements under the

impression that they are giving “explanations” or “cooper-

ating”, should not be” permitted to carry the official sanc-

- tion of this Court. Neither should this Court ignore that

an official Government letter, with official Government |

| seal on its letter-head, directing. a citizen to appear for an

<9 al on onendatde s an

“August ........., 1967.

official interview at a Government office, is to that average

citizen an instrument of force which he fears to. refuse.

and which he obeys under the — of that fear.

submitted,

WILLIAM J. DAMMARELL

Counsel for re