tBrief in Opposition to Petition for Writ Certiorari — Schlinsky v. United States

& te : Sei Court of the Cnited Sis

OcroBER TERM, 1967

‘we 436,

‘Leo J. SCHLINSKY, PETITIONER

Vv. : ccf ‘y 3 %

Unrrep States or AMERICA |

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST OIROUIT. —

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION ©

A jury convicted petitioner of wilfully attempting. ©

to evade his income taxes for 1958, 1959 and 1960, ©

in violation of Section 7201 of the Internal Revenue

‘Code of 1954. He was sentenced to five months im-

prisonment and a $25,000 fine (R. 426-427): °

‘The evidence showed that petitioner’ s tax returns. .

omitted receipts from a drug and liquor store (R..117,

338-339) and interest on savings accounts (R. 336-

338, 434). It was stipulated, subject to reversal of the

district court’s denial of a motion to suppress, that

the taxable income of petitioner was understated in

the amount of $10,660.03 on the. 1958 return, $13,-

881.34 on the 1959 return and $12, 510.45 on the 1960

; return (R. 89, 433- ash |

(1)

274-974—67-—1

Bach week. shiitiinias orally gave his bookkeeper

a figure, purporting to be the receipts. of the store

for the preceding week, which the bookkeeper ‘re-

| corded in’ the books from which the returns were

prepared (R. 95, 96). The bookkeeper believed that

_ this represented the store’s total receipts for the week

(R. -109). Petitioner testified, however, that he did

not give the bookkeeper the total weekly -receipts, but -

- only those attributable to profitable or “regular” sales.

“Convenience’’: sales at little or no profit were not

included in the figure given the bookkeeper, although _

the cost, of the goods so sold were included in. peti-

tioner’s calculations of his taxable income - (R. 335- |

338). a ;

‘Prior to trial’ petitioner moved for suppression of

evidence on the ground that Treasury agents investigat-

ing the case had obtained such evidence in violation of

his rights under the Fourth, Fifth and Sixth Amend-

ments to. the Constitution (R. 6-10). “After an evi- -

dentiary hearing the district court.made findings of

fact that may be summarized as follows (R. 77-80) :

On September 11, 1961, Revenue Agent Thomas

Murphy, who had been assigned to audit petitioner’s

tax returns for the years 1958, 1959 and 1960, by tele-

phone made an appointinent to meet. petitioner in his

dfug store the following day. They met there and

diseussed the nature of the books and records main-.

tained by petitioner, who granted Murphy permission

to examine them. Murphy did not warn petitioner of

his. rights; the. investigation at the tirne was wholly

- eivil in character. During the next two months, Mur-

oe ‘phy determined that an understatement of. a 3

had occurred. . : a ara

. Murphy then referred the rieittete ta the Yntelligence’

‘Division for further investigation. Special Agents

Kirby and Manning first met petitioner at. his drug -

store on April 24, 1962. Kirby told petitioner that he

+. ) and Manning would conduct a preliminary investiga-

| tion of petitioner’s tax liabilities. Kirby advised pe-

--titioner that he’ did not have to’ produce “any records

or make any statement that he felt would incriminate

him in any. way, arid also stated that he and ‘Agent

| Manning would leave at any time petitioner told them to er

do so. Petitioner was not told that the investigationthen

_ looked toward the possibility of criminal action. Nor

Was he advised of his right to counsel. Petitioner made

‘ certain oral statements to the agents and turned over

certain records to them. About two weeks later Kirby —

made a second visit to the drug store at which time .

he requested and: received some additional records,

which were returned to petitioner a few weeks later.

Kirby’s third and final visit was in February, 1964,

- when petitioner advised ‘him that he never drew busi- |

-. ness checks on his personal account.

, On the basis of these facts the district oan dinied,

the motion to suppress evidence that Kirby and Man-

ning collected, holding that (R. 80) : : 3

_ . ** * no rights of defendant Schlinsky were

violated, under the decision. of the Supreme

C. Court in Miranda v. Arizona, 384 U.S. 436

‘o. - (1966) or Escobedo v. Illinois, 378 U.S. 478

(1964), it being clear that the defendant was at

no time when interviewed at his own store in

custody or otherwise deprived of his freedom

in any significant way. Tlie record establishes

that he was never interviewed by the agents ex-

cept in the familiar surroundings of his own

store, and I rule that he acted voluntarily in all

. of hig dealings with the agents, free from any) .

of the compulsive factors adverted to in the

“Miranda opinion. The teaching of both tranda

and Escobedo ‘is lua to this faet

situation, *.* * Bont:

- The court of appeals affirmed.

No error has been committed. No- further, review of

petitioner's conviction is justified.

1. The courts of appeals-in six other circuits have

been confronted with the same contention:made-here ~~ _

(Pet. 9-13)—that the Sixth Amendment requires a

Special Agent of the Internal Revenue Service to ad-

vise'a taxpayer of his right to. counsel before discus-

Sing the taxpayer’ s returns and books, even when the

taxpayer is not in custody or under any restrairt, and —

_- is interviewed on his own premises. The circuits have. _-

____without exeeption tuled in accordance with ‘the de-

cision below. See United States v. Mancuso (C.A. 4),

- decided May 19, 1967, 19 A.F.T.R. 2d 1583; Thomas

- vv. United States, 370 F. 2d 96 (C.A.'5), certiorari -

denied, 386 U.S. 975;* United States v. Maius (C.A.

6), decided June 15, 1967, 19 A.F.T.R. 2d 1712, pe-

ee tition fo for certiorari pending, No, 372 this Term;

~ * Although this issue is not discussed in the Fifth Circuit's

per curiam opinion, it is evident from Mr. Justice Douglas’

dissent. from the denial of certiorari in Thomas that the question

was raised in the case. Cf. vane v. since loceee-daipi 2d 535

(CA. 5). |

United States. v. Mansfield (C.A, 7), decided July 26,

1967, 20 A.F.T.R. 2d 5233; Frohmann vy. Unjted

| States, 20 A.F.T.R. | 2d 5244 (C.A. 8); Kohatsu-v.

- United States, 351 F. 24-898 (C.A. 9), certiorari de-

-* nied, 384 U.S. 1011; Rickey v. United States, 360 F.

| 2d 32 (C.A,, 9), certiorari denied, 385 U.S. 835.” This

‘result is correct where, as here, there is not'the slight-

est evidence, nor indeed any claim. of, the sort of ..

_ compulsion that the rule of Miranda and Escobedo i is

designed to prevent. _ :

2. Equaliy . without mani is the einhimbicn (Pet.

13-15) that, quite aside from Miranda, the- agents

violated . petitioner’s rights ‘under the Fourth and

Fifth Amendments by failing to advise him-that he

was the subject of a criminal investigation. No such -

warning is necessary in the circumstances presented

here. United States v. Sclafani, 265 F. 2d 408, 414-

415 (C.A. 2), certiorari denied, 360 U.S. 918; Turner

v. Umited States, 222 F. 2d 926, 931 (C.A. 4), certi-

- * United States v. Schoenburg, 19 A.F.T.R. 2d 347 (D. Ariz.);

_' United States v. Kingry, 19 A.F.T.R. 2d 762. (N.D. Fla.), and -

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

/ 20 A.F.T.R. 24 5004, on, which petitioner relies (Pet.'10), have

aie. each heen overruled by. & court of appeals decision in the same

} ' circuit. The weight of district court opinions is in accord with

the views expressed in the courts of appeals. See United States

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

Fiore, 258 F. Supp. 435, 440 (W.D. Pa.); United States v.

' Hill, 260 F.. Supp. 139 (S.D. Cal.) ; United States. v. Carlson,

260 F. Supp. 423 (E.D.N.Y.); Moon v. Brennan (E.D. Wis.),

decided November 21, 1966, 19 A.F.T.R.:2d 641; Stern v Rob- -

inson, 262 F. Supp. 13 (WD. Tenn.) ; United States v. Bach-

man, 267 F. Supp. 593 (W.D. Pa.) ; United States v. Neves

(S. shag stones April 28, 1967, 67-1 — par. O41.

qe

ae

orari denied, 350 U. S: 881; United States v. | Fromk, Stat

245 F. 2d 284, : : 285-286 ¢ C. A.’3), certiorari-denied, ;

355 U.S. 819; Montgomery v. United States, 203 F.

"2d 887, 892-893 (C.A, 5); Hanson. v. United States, 186

F, 2d 61, 64-65 (C.A. 8) : ef. Lewis v. United States, 385

—_—

US. 206 ) 209-211; Hoffa V: United States, 385 U.S. 298,. a

300-303.

‘3. Petitioner’s. final arguthent (Pet. 15-17 i is that

‘he was deprivéd of due process of law because Reve-

nue Agent Murphy’s: grand jury testimony was not

reeorded: and hence was unavailable for use in cross-

examination at the trial. It is without substance. Rule

- 6(d) of the Federal Rules of Criminal Procedure,

\ Ne

which authorizes the presence of a stenographer in

the grand jury room for the purpose of taking evi-

; dence, i is permissive and not mandatory. Unitéd States °

v. Caruso, 358: F.. 2d 184,-186 (C.A. 2), certiorari

denied, 385 U. 8. 862; United States v. Cianchefti, 315

Re 2d 584, 591 (C.A, 2); United States v. Martel, 17 .

FROD. 326, 329 (N.D.N.Y.), appeal dismissed sub

“ nom. United States v. Catola, 222 F. 2d 369 (C.A.

2). A. defendant has no constitutional or statutory

right requiring that a stenographer take or transcribe

the testimony of a witness before the grand jury.

United States v. Hensley, 374 F. 2d 341, 352 (C. A.-6);-.

3 United ‘States v. Cianchetti, supra, p. 591; M cCaffrey

v. United States, 372. F. 2d 482, 484 (C.A. 10), certi-

orari denied, June: “5, 1967, No. 1322, October Term,

1966; United States v. ‘Westmoreland, 41 F.R.D. 419,

422 n. 2 6D. Ind.) ; United States v. Marte, ‘supra

at 329..

It is true, as petitions contends, that one error

found ini Lenske v. United States, 18 AF. T.R. 2d

. > | . . . ; . } é , “ anes

+ : i ss ‘ a = os - * —— He — ~— thats os “a

‘ 5815 (C.A. 9), wes the proséecutor’s failure to have _

' transcribed the grand jury testimony of government

‘, ‘agents. But the reversal there is based. on :several

other grounds, and there «is: no indication that the

failure to transcribe alone would have ‘resulted in |

WHEE: 8 "te ah | 3

a There is,” moreover, a material difference between |

the facts here and what the Ninth Circuit fowind: to

be the case in_Lenske,’ and this distinction as: well

' shows that the failure to record Murphy’s grand jury

_ testimony could not have harmed petitioner. In Lenske

the Ninth Circuit concluded that “the Government so

arranged matters that * * * there would be no writing

_ which the taxpayer might use for cross-examination.””

18 A.F.T.R. 2d at 5822. Here the reason for not

recording grand jury testimony was that Murphy

submitted such detailed reports and work papers:

that recordation was unnecessary. The defense had

available to it Murphy’s entire “referral” report

_ for use in cross-examination (R. 121-122).* When:a

question arose about a conversation between petitioner

* Even were there not this controlling distinction, it is not at

a clear that a conflict with Lenske would exist; the Ninth Circuit

has yet to act on a petition for rehearing en banc that the govern-

ment filed on November 23, 1966. - :

*The court advised defense counsel that only the first two

‘ pages related to Murphy’s direct examination but that he could

read the balance of the report that evening and recall Murphy

in the morning for additional cross-examination: (R. 122). On

the following morning the defense did not exercise its right to .

conduct further cross-examination (R. 148, 149). pion

Murphy’s “final” report was not made available to the de-

fense since the court found that’ nothing céntained in it related

to his testimony on direct examination (R. 135-136). See 18

U.S.C, 3500(c). . . | Beato ‘s ;

. work papers concerning that conversation (R. 136-

ahs i

8

and Murphy on September 12, 1961, ‘Murphy p pro-

- duced for the use of defense counsel a page from his:

187). When there arose the question of the time Mur-"

phy spent on this investigation during September, —

October and November, 1961, the witness.produced his

monthly reports and’ read into the record the precise, —

days he. had worked on this case and the number of

hours spent.on it each day (R. 132-133). Thus the’

defense had available to it such detailed and extensive

' ‘records of Murphy’s activities that the lack of. a

' transcript of his grand jury testimony could not have

been prejudicial.

_ * The petition for a writ of certiorari should be

denied. ,

sess seieabie: Maines

: Tuurcoop MARSHALL, pyre

— * Solicttor General.

MircHELL Rocovin,

Assistant Attorney General.

' JOSEPH M. Howarp,

RicoarkD B. BUHRMAN, .

Attorneys. ©

?

?

aft.

Aveust 1967.

|

4

©.8, GOVERNMENT PRINTING OFFICE: 1967,