# Petition for Writ of Certiorari — Bandy v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0971%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 390 U.S. 912 ## Text TP otfiee-Supreme Court, Us. | - FIEED OCT 33 1967 [_<_J0HN F DAW, mERK | OIBRARY | | SUPREME COURT, U, B No. 7 23 3 + . IN THE ; -. Supreme Court of the United States | OcrosEr TERM, 1967 ‘CLARENCE E. MANSFIELD, Sewer Petitioner, V.. * z ; UNITED STATES OF AMERICA, ie . : | Respondent. I PETITION FOR A WRIT OF CERTIORARI TO THE "ss "-"UNTTED STATES COURT OF APPEALS FOR = THE SEVENTH OIROUIT o JULIUS LUCIUS ECHELES 30. North, La Salle Street Chicago, Illinois 60602 MAX REINSTEIN . 110 South Dearborn Street _ Chicago, Illinois 60603 - “WOODROW. WILSON HODGE 189 West Madison Street pe: Chicago, Illinois 60602 . . Attorneys for Petitioner ’ ° r ’ ° . : ‘ UNITED STATES LAW PRINTING CO., CHICAGO, Ii 6618 LA keview 5-6581 s saranatieatin it schbiaha none ites Seeaeeite iat os © INDEX cua s x | nl PAGE J adgment and Opinion of the Sik Below . hieeaiadial - 2 Jurisdictional Statement. ............ ae ieialislasicio id oe 2 Questions Presented for Review .... f | 2 ". Constitutional ‘Amendments Involved 3 = 4 Statement of the Case ............ 3 ad | Evidence in aoe aye with the motion to sup- ¢> press the evidence Sicilia 7 ee Te Evidence on the ease in chief ia. een a ae Reasons Relied on for ‘Allowance of Writ . I. May deliberate Government deception be per- mitted to frustrate necessity for peoper warning of constitutional rights? Sallercaaieiea . 10 II. Does the holding in Miranda apply t to criminal tax investigations? eceordiconveneans ‘ ~~ MM. “Conclusion ons : ee Reeser: | " eS | ‘ Appendix en =“ ‘siete , | i App.1 a Appendix B—Order heii a Petition for Rehear- _ ing -... oe seoeceeeeAPD. 10" - iiss . ii » AUTHORITIES CITED , Cases— “ad : . PAGE Escobedo y. Bilinols, 378 ee emenne daasitendslnas 12 Kohatsu v. United.States, 351 F.2d 898 (9 Cir. 1965), : _ cert. denied 384 U-S. 1011 } RES ‘cipasiieameeiens ’ 15fn Mathis v. United: States, 5 Cir., 37 6 F.2d 595 (decided, , - April 28, 1967) seaienieeiaiene s. 16 . Morgan v. United States, 1 Cir., 377 F.2d 507 (decided, : May 16,1967) neccnveorncnetrrretrnnnnennneennn 16 Miranda v. Arizona, 384 U.S. 436 at [' 2: i csooee 1%, 18: Rickey v. United States, per curiam, 360 F.2d 33 (9 Cir. 1966) CIES Retr .. 15fn Stern v. Robinson, 67- 1 USC. 83,727 (W.D:Tenn. . 1966) neaere 15fn _ United States v. Bachman, ¢ 67-1 U.S.T.C. 83,772 (W.D. Pa. 1966) .. | 15fn United States v. Carlson, 260 wi "Supp 423 (E.D. N.Y. OE aesenwind ae titan o United ee v. Fiore, sit F.Supp. 435 (W.D. ra. . : 1966): cciuciaiancsunienitiniannecinnactniacscttiaeear anal 15fn United States v. Gleason, 265 F.Supp. 888 (S. DN. ¥. ees sa we 15En 6 United States v. Hill, 260 F.Supp. 139 (8.D.Cal. 1966) 15fn United States v. Kingrey, 19 AFTR 2d 762 @e Fla. | RN ce 14 United States \ Vi: » Kingry, 61- 1 U. ST. C. 63,604 (N.D. Fla. 1967) . 15fn : United. States v. , Mains, 378 F. oa 719 . 16 ‘ a baad 5 2 _s “i iii. a. 3 te tee PAGE United States v. Schoenburg, 1 19 AFTR 2d 347 (DC: | . Ariz, 1966). .......... .14,15fn — ~ United States v. _ Shlinsky, 261 F. Supp. 265 (D. Mass. _ 1966) nis: 15fn | United States v. Silverstein, 2 Cir. 63, 314 F.2d 789, cs 790. - Giwees 12 © United States v. Spinney, 264 F. Supp. 174 (D. Mass. 3 1966) ) 15fn United States v. eoomar, 339 F.2d.941 (7th Cir. 1965), _ cert. denied. 380 U-S. 975 (1965) , /15fn . United States v. Turzynsky 268 F.Supp. 847 (devided : June 2, 1967) , ian ae Constitutional Amendments | | Fifth Amendment “ duiiosmieades Sixth Amendment ie 14, 17 oC. ‘ ¢ is b ol é aa * . 3 \ e .*. . e ‘ ° F , 7 . . e . ry _ . . ‘ . - . > e han ad . . . . . = ™ . . . / 4 . Ps : . 7 p55 e - : fs : - . _@ . . 4 {@ 2 4 ~ F ree : , ‘ renee AN - . ° * : . i . = . ey « ,* ? ‘ . ¢e . . ; é . 8 . ‘ : < ie? ¢ os ‘ ” . a a : ‘ on oo IN THE - "Supreme Court of the United States OcTOBER Team, 1967 2, Petitioner, ° ' UNITED STATES OF AMERICA, ss Ka Peete katy ; Respondent. | PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR ‘THE SEVENTH, CIRCUIT To: The Honorable Chief Justice and yen Justices of the Supreme Court of the United States: ~ Your petitioner, Clarence E. Mansfield (hereafter called defendant), respectfully prays that a Writ of Certiorari “be issued to review the decision of the United States: ‘Court of Appeals for the Seventh Cireuit. : . s 2 JUDGMENT AND OPINION OF THE COURT BELOW | / On July 26, 1967, the Court of Appeals for the Seventh. Circuit affirmed a judgment’ of conviction entered in the "United States District Court for the Northern District of Illinois, Eastern Division, sentencing the defendant to a ‘term of one year imprisonment for filing fraudulent, in- come. tax returtis for the years 1957 through 1960.. The Court of Appeals opinion has not as yet been reported ; , it. is printed: herewith as Appendix '‘‘A’’.~ J URISDICTIONAL STATEMENT . ‘_Qn-a-trial-to the court without a jury, the defendant, a practicing physician, was convicted on four counts charg- - - ing wilful evasion of income tax for the years 1957, 1958 and 1960, in violation of Title 26, U.S. Code, Section 7201. On appeal to the. Court of Appeals for the Seventh Circuit, the judgment of conviction was-affirmed in an opinion filed July 26, 1967. ‘(Appendix ‘‘A”’). A petition for rehearing was timely filed; it was. denied on September 8, 1967. (Appendix ‘‘B’’). The jurisdiction of this court is invoked under the pene of -Title 18, US. -Code,. 1264(1). . - * QUESTIONS PRESENTED FOR REVIEW 1. Does a warning, that there was a possibility of a criminal prosecution and that he did not have to talk to the agents or show them any records, given on April 6, 1961 to a taxpayer by a®Special Internal Revenue Agent while investigating 1959 tax returns stand as ffective constitutional warning where a different tax aga visited - 3 the taxpayer 15 months later in J uly 1962 for the purpose of investigating the — s returns for 1957 through 1960? . 2. If a criminal ‘suspect is once warned of his consti- tutional rights during an interrogation, does such warn--— ing permit governmental interrogation without any other warning by another agent 15 months later about other possible crimes? 4 o - 3. Can the holdings in Escobedo v. Illinois, 378 US. = 478 and Miranda v. Arizona, 384 U.S. 436, be deliberately evaded and avoided by an affirmative Internal Revenue de- partmental policy not to repeat the constitutional warnings after a 15 month hiatus in an investigation because the . warning might ‘‘frighten off cooperation which might- ‘otherwise be forthcoming”? | 4. Does a taxpayer under investigation have the same right to réceive a. warning of his constitutional rights as ‘a suspect under investigation for murder, bank robbery, kidnaping, rape, burglary, arson, etc? a 5. Within the’ spirit of this court’s recent pronounce- _ ments on ‘the necessity of criminal interrogators to give _ constitutional warnings to suspects, may a deliberate gov- ermental policy to practice deceit on the suspect by failing to warn him for fear his —— would be withheld be ‘permitted to stand?» — * : 6. Was-the required.criminal intent to evade taxes shown where the evidence demonstrated the doctor’s: for- getfulness, his illnesses durin ing, the years in question, his habitual lengthy workday running to 12 hours, his sloppy bookk eping methods and.the fact that ,both his recep- tionist-secretafy and the person who made out his re- turns (who was 75 years old.and had only an 8th grade ‘ te on education) had little experience in. bookkeeping matters, and the tax discrepancy as found by the government’s ac- countant were disputed at trial by a competent and experi- enced accountant on behalf of the defendant? Y CONSTITUTIONAL AMENDMENTS INVOLVED The Fifth Amendment to the Constitution of the United States states, in pertinent part: ! **No person .. . shall be compelled in any criminal | case to be a witness against himself .. .’’, The Sixth Amendment to the Constitution of the United States states, in pertinent part: | _ “Tn all criminal prosecutions, the accused shall enjoy the right .. . to have the assistance of counsel for his defense.’” . STATEMENT OF THE CASE. “Evidence in connection with the motion to suppress the evidence. The ‘Siti appeared before the office andit section of the Internal Revenue Department and spoke to Gertrude Anderson, a tax technician in ‘the audit section, on No- . ‘vember 23, 1960 (A. 5). Following this meeting, Miss sateen referred the | ge “to the intelligence unit and subsequently, on April , two special agents, John J. Creen and Ralph pore ven visited the home of the defendant where he pt his offices (A. 24). Creen said they identified themselves as special agents and told the doctor that ‘‘the special agent’s office looks into these matters to see if there has been any wilful Hy) attempt to evade and defeat taxes, and that there was a possible criminal prosecution, and he does not even have to: talk to us or show-us any record.’’ (A. 24) Defendant ’ testified they did not (A. 20). They were given his log ~ books and other record’ for the year 1959, which they pro-— ceeded to examine (A. 25). Following that, defendant received a bill from the Inter- nal Revenue Department for $10.00 for a deficiency for the year 1959 which he paid (A. 21). He assumed that the investigation which had been begun by. Gertrude An- derson and carried forward. by special agents Creen and Bergstrom had been concluded (A. 28). From April-6, 1961, until July 2, 1962, nothing further ; appears to have been done in the case (A. 21). On July 2, 1962, Russell Armstrong, an internal revenue agent, was assigned to the case. He telephoned the de- _ fendant te set up an appointment to exaniine the books for the years 1957, 1958, 1959. He told defendant over the " telephone that he was conducting a ‘‘joint investigation” . for tliose years, but did not explain what a joint-investiga-_ tion was (A. 11). Defendant denied he was so told (A, 21). A departmental decision was made not to advise defend- ant of his rights. When the question came up whether or not Armstrong should inform Dr. Mansfield of his rights ‘«., . we decided that since another special agent had in- formed him on a previous occasion, it was not necessary for me to inform Dr. Mansfield of his rights.’”’ (A. 19). Armstrong visited the doctor’s residence and office on July - 6 or July 10, 1962, for the first time (A. 10) and continued ‘his examination until some time in October, 1962 (A. 6). Armstrong took with him a large box containing all of the _doctor’s log books, patient books and records (A. 12). He ~ 6. = -~-took down the names of attorneys who had appeared in. the records as having paid the doctor certain fees (A. 14). _. During the course ‘of Armstrong’ . investigation, he com- . © Mmunicated with special agent William Sandroff at least once every two weeks (A. 16). Armstrong testified that . special agent Sandroff was in charge of, the investigation and that he made reports of his findings at periodical in- tervals to Sandroff (A. 17). _ Armstrong never advised the defendant that he was conducting an investigation which would lead to a criminal prosecution, nor did he tell the doctor there was: a possibil- ity of his being prosecuted for income tax evasion (A. 16). - William Sandroff came to defendant’s home and office - on October 8, 1962, identified himself as a special agent. in - the Intelligence Unit and advised the doctor that ‘‘This was a criminal investigation’’ (A. 7). He told the doctor. «<* * * he did not have to say anything to me, if he chose © not to do so—anything he said to me could beyused in any action, criminal action.’” (A. 7). Before he visited the doc- tor, he was working on the-case in conjunction with Arm- - strong (A. 10). He was assigned to the case on July 12; " 3 (A. © The defendant testified he did not — the differences between an internal revenué agent and a special. agent and had no reason to believe that the information which he furnished Armstrong was for the purpose of making ‘a criminal case (A.. 21-22). Armstrong visited his office for about ten weeks, calling daily (A. °22). ‘It was on the basis of the books and: records mainly obtained by Armstrong that the case was ‘made against a defendant (A..10). . —— ——<—— 7 .. Bvidencs. on t} ne case in chief, . The government introduced evidence in the form: of checks received by defendant from numerous attorneys. for _., Medical services performed for their clients as follows: 1957 $8,280.00 ; 1958 $12,257.30; 1959 $17,345.50; 1960 $11,049.25 (A. 40). ve The government also introduced evidence that the in- come received by the doctor in his office was as follows: 1957 $4,637.75; 1958 $4,504.16; 1959 $3,980.63; 1960 - $4,128.00 (E.A., G-42, 43) ' The government showed interest income received in 1960 was $209.97; income from welfare organizations was $327.50. for’ 1959-and $1,265.00 for 1960; and income from the City of Chicago per prerhnent exhibits 42 and 43 we were as follows: | __ eee gouscA 1957 $3,728, 90; 1958 $4,389.58; 1959 $4,325 82; 1960 $5,430.76 (E.A., G-42, 43). The gross receipts per the government’s. tebelatinns’ for the years: in question are as follows: 1957 $21,423.39; 1958 $24,567.48; 1959 $30,781.14; 1960 $25,532.32 (A. 41). The government’s evidence showed an under reporting of income in each of the respective years as follows: 1957 $10,247.62; 1958 $13,066.80; 1959 $17,061.14; 1960 $8,010.32 (A: 42). *«*H.A.”’ refers to Exhibits Appendix.. as follows: PLES oe é a ¢ Defendant introduced evidence showing iticome, includ- ing all of ‘the additions eae by the — as follows : 1957 $17,083.77; 1958 $21, B56. 46; 1959 $26, 583. 63; 1960 $22,816.22 (A. 55). The defendant also presented evidence showing aa | - tures not deducted on the income tax returns as w reported eee ne en eh 1957 $8,628. 42; 1958 $8,195. 44; 1959 $15, 891.78; 1960 ; $11,011.55 -(A. 3; total of defendant’s apyentiots ‘\ A & B). ‘Defendant’s expert witness William Corren, a certified public accountent, testified that giving due regard for the / government’s computations and expenditures by the de- / fendant not deducted, the correct tax due for each year “in question was as follows: : 1957 $1,118.16; 1958 $2,118.34; 1959 $2, 251.08; 1960 $1,274.16 (A. 55). | Robert‘ N eal, who prepared defendant’s tax returns, . testified he was 75 years of age and had an 8th grade edu- cation. He made out returns for 21 years (A. 33-34). Angeline Hardy kept the books for the doctor. Her main function was that of a receptionist-secretary in the doctor’s offices. She had no ‘training as a — and never kept books before (A. 53). ' -. Dr. Mansfield testified that he was either 60 or 61 years old; he did not recall the exact year of his birth (A. 48). Neither did he recall the years in which he attended Brown University (A. 48), nor the exact year in which he was _ admitted to the practice of medicine in Illinois (A. 48). 3 His normal. workday was twelve hours a day (A. 48). He saw three types of patients: those he determined to be “welfare patients, sent to him by welfare organizations, patients referred to him by attorneys, and those patients whom he saw in connection with his duties as a. police _ surgeon for the City of Chicago at the police lock-up at 1121 South State Street, Chicago (A. 47-48). + 1957, the doctor was under treatment by a ‘iene for diabetes, hypertension, obesity, and sinusitis (A. 47). In 1959, he had Bell’s fiilsy of the face and was both under -_ doctor’s.care and hospitalized (A. 47): Oe . 10 REASONS RELIED ON FOR ALLOWANCE OF WRIT AL May deliberate Government deception be permitted to - frustrate.necessity for proper warning of constitutional rights? sa a peers, | _ Dr. Mansfield who, the record shows, worked ‘about 12 hours a day at. his profession, was visited by Internal Revenue Agent Russell Armstrong on either July 6 or . July 10, 1962 (A. 10) for. the purpose of examining the - doctor’s records for 1957, 1958 and 1959. Armstrong had. been advised by' his superiors in the Internal Revenue De- . partment not to warn the doctor of any constitutional rights. (A. 19) Armstrong testified that when the ques- tion whether or not he should inform the doctor of his rights came up “‘ ... we decided that since another special agent had informed him on a previous occasion, it was not necessary for me to inform Dr. Mansfield of his rights’’. But the record fairly shrieks that this departmental de- _ _ cision made in conference was deliberate deceit and fraudu- lent ‘subterfuge.: The so called previous warning took place some’ 15 months prior, in April 1961, when a spe- cial agent, one Creen, interrogated Dr. Mansfield about his 1959 tax return. Although the doctor denied that he had been: so warned (A. 20), Creen testified that he told the doctor in April 1961, that ‘‘the special agent’s -office — looks into these matters'to see if there has been any wil- ful attempt to evade and defeat taxes, and that there was a possibility of criminal prosecution, and he does not even - have to talk to us or show us any records. ’’ (A. 24). 11 But if Creen had so warned the doctor in April 1961, and if because of that warning the Internal Revenue depart- mental hierarchy ‘decided that Armstrong, who was an ordinary, as distinguished from a special agent, should: - not give the doctor any constitutional warnings about his rights in July 1962 because of the previous Creen’s warn- “ing, why then the wholly superfluous warning to the - doctor when Special Agent. Sandroff showed up at the. . doctor’s house to identify himself as a Special Agent . from the Intelligence Unit? Sandroff testified he advised the doctor that ‘this was a criminal investigation’’ and that the doctor would not have to say anything to him, if he chose not to do so and that, ‘‘anything he said to me could be used in any action, criminal action.”” (A.7) -— However, through the months of July, August, Sep- tember up to the visit to the doctor in October 1962, Special _ Agent Sandroff was laying in the weeds. Ordinary Agent °) Armstrong had access to all of the doctor’s books, logs, rec- ords, receipts, memoranda, etc.. He would make photo- - static copies of the documents at will. During these months of investigation when Armstrong had -the use of the doctor’s records (deliberately withholding any warn- ing that information gleaned might be used against him in a criminal prosecution) he was relaying all of the in- formation to Sandroff, who had been assigned to the case almost simultaneously with Armstrong. (A. 6; 10) It. | was only when Sandroff had everything he needed to make out what he believed to be a case against the doctor, that he moved in.on the kill in October. 1962; and it, was only then ‘that he gave the: wholly superfluous warning. ~ To be remembered is that after Special Agent Creen had audited and inspected the doctor’s books and records pertaining only to his 1959:tax returns, the doctor received ? 8 ; | - a tax bill for $10 from the Internal ieee Department. and paid it. (A. 21). It was his belief that the matter ' _ with respect to the investigation of the 1959 tax return had ‘been completed. That would be any taxpayer’ s normal belief. a : The deliberate ‘subterfuge practiced nee the government in derogation of the taxpayer’s rights under the Fifth and . Sixth. Amendments4to the Constitution tainted the govern-- ment’s: evidence with illegality and fraud. Such practice - and deliberate deceit ought. not to be sanctioned. ‘Although the trial here was held in December: 1965, before the holding in Miranda v. Arizona, 384 U.S. 436, but after’ the holding in Escobedo-v. Hlinois, 378 U.S. 478, the- ‘question _ is whether the ‘‘totality of circumstances’’ vitiated the voluntariness of the taxpayer’s consent. It is clear that attention focused on the doctor as a crimingl suspect at the time when Armstrong came to his offices. Just as _ ‘tan appearance before a special agent isin the nature of ‘an appearance in a criminal investigation . . :’? United ‘States v. Silverstein, 2 Cir. 68, 314 F.2d 789, 790, so the appearance-of a special agent (or one working secretly for him) is likewise. As investigation had focused on the _ defendant as a criminal suspect, the requirements as laid down in Escobedo v. ‘Minois, nish, should have been followed. ; ' The opinion of ‘the Court of Appeals, if allowed to -stand, will permit widespread governmental deception to . avoid and frustrate the constitutional: commandment -as | ‘implemented in the Escobedo and Miranda holdings. The Seventh Circuit, in justifying the confessed deception of "the agents, stated: . “Tn the course of oral arguments, counsel for the government suggested frankly that agents must some ° _ times decide whether unnecessary repetition of warn- . ings will not frighten off cooperation which might otherwise be forthcoming. We agree that in this case . ~ - the tactical decision not to. repeat full warnings al- ready given would not: render the books and records produced, subject to suppression as evidence.’’ (Opin- ion, Appendix “A”, p. 4). ts . How far removed from the spirit and the language of the holding by this .court‘in Miranda v. Arizona, 384 U.S. 436 at 467-8 where this. court announced strongly: - “At the outset, if a person in custody is to be sub- jected to interrogation, he must first be informed in clear and unequivocal terms that he-has the right to remain silent. For those unaware of the- privilege, the warning is needed simply to make them aware of it—the threshold. requirement for an intelligent “de- . Cision as-to its exercise. More important, such a - warning is an absolute prerequisite in overcoming thé » inherent pressures of the interrogation atmosphere. It. is not’ just the subnormal or willfully ignorant who saccumb -to an interrogator’ s imprecations, whether implied as expressly stated, that the interrogation will continue until a confession i is obtained where that silence in the face of accusation is itself damning and will bode ill when presented to a jury. Further, the warning will show the individual that his interro- gators are prepared to recognize his dares. should he choose to exercise it. “The Fifth Amendment privilege is so fundamental | to our system of constitutional rule and the expedient... of giving an adequate | watning as to the availability of the privilege so simple, we will not pause to in- - quire: in individual cases whether the defendant was aware of his rights without a warning being given. - Assessments of the knowledge the defendant pos- . sessed, based on information as to his-age, education, | intelligence, or prior contacts with authorities, can _mever be more than speculation; a wornmng is a Gear a — on cut fact. More important, whatever the backgrounde of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pres- sures and to insure that the individual knows he is free to exercise the privilege at that point in time.’’ - : (Bmuphacts added) II. Does the holding in ‘Miranda apply to criminal - , tax investigations? There is a growing conflict amongst the courts as to whether taxpayers have the same rights under the Con- stitution as persons under suspicion of more serious, crimes such as murder, bank robbery, rape or arson; ete. This . court should issue , its Writ of Certiogari to resolve- that question, which i is decided differently throughout the coun- . try. | : ; In United States v. ete 19 AFTR 2d 347 (DC . Ariz. 1966) the court held that the conduct of the special agent deprived the defendant of his. right to counsel under the Sixth Améndment when the defendant was not advised ‘of his right to counsel before an interrogation took place between the agent and the taxpayer, the court holding that Escobedo applied because suspicion had begun to focus on ‘the taxpayer: An arrest was held not to be necessary for the application of the Escobedo rule. The interrogation in Schoenburg took place at the taxpayer’ s place’ of busi-~ ness, as in the case at bar. In United States v. Kingrey, 19 AFTR 2d 762 (DC | Fla. } 1967) the court applied the holding in Miranda to a crim- inal tax prosecution stating that, ‘‘.. . if this kind of warn- ing is required for bank robbers, . senldie or arsonists, it seems to me that-the taxpayer should have the same bene- fit, and I ean see no possible way to distinguish in a crim- inal ‘action that would subject one to possible confinement Oe Paar — = in an institution, regardless what the nature df the crime "may be.’? In Kingrey, the special agent identified himself as such and advised the defendant of his constitutional right to refuse to answer any questions; but he did not state he was investigating a possible;criminal' violation - of the tax law, and he never advised the ‘defendant of his right to consult with or have a lawyer present. __ | Similarly, in a case from the Northern District of Ilh- nois from which District. this prosecution stems, District Judge Hubert L. Will, held in United States v. Turzynsky, 268 F. Supp. 847 (decided, June 2, 1967) that evidence ob- tained by agents from a doctor taxpayer should ‘be sup- pressed because no warning was given prior to the in- terrogation and investigation. The court stated that ‘‘to hold otherwise would lead to the ae conclusion ~ Jes | 1 Judge Will noted the following in his gpinion: Post-Escobedo, pre-Miranda cases holding Escobedo inapplicable to the instant situation are United. States v. Spomar, 339 F.2d 941 | (7th Cir. 1965), cert. denied 380 U.S. 975 (1965); Kohatsu v. United States, 351 F.2d 898 (9 Cir. 1965), cert. denied 384 U.S. | 1011 (1966); and Rickey v. United States, per curiam, 360 F.2d 33 (9 Cir. -1966). ori Post-Miranda cases figlding Miranda inapplicable to the instant situation include: United >v. Fiore, 258 F.Supp. 435 (W.D. Pa. 1966); United States V~Carlson, 260 F.Supp. 423 (E.D.N.Y. 1966) ; United States v. Hill, 260 F.Supp. 139 (S.D.Cal. 1966); United States y. Shlinsky, 261 F.Supp. 265 (D.Mass. 1966) ;. United States v. Spinney, 264 F.Supp. 774 (D.Mass. 1966) ;, United States v. Gleason, 265 F.Supp. 888 (S.D.N.Y. 1967) ; Stern v. Rob- ‘inson, 67-1 U.S.T.C. 83,727 (W.D.Tenn. 1966) ;-United States v. Bachman, 67-1 U.S.T.C. 83,772 (W.D. ‘Pa. 1966)... -Post-Miranda cases where Miranda was applied to non-custodial <7, criminal tax: investigations include United States v. Kingry, 67-1 © U.S.T.C. 83,604 (N.D. Fla: 1967), and United States v..Schoen- burg, 19 AFTR 2d 347 (D.Ariz. 1966). 3 Pa genes < ™: “ 16 that a person suspected of bank robbery, sale of narcotics, - murder, rape or other serious crime is-entitled to the greater protection of his constitutional rights than a per- son suspected of violating the Interna] Revenue laws.”’ Morgan v. United States, 1-Cir., 377 F.2d 507 (decided, May 16, 1967) and Mathis v. United States, 5 Cir., 376 F.2d 595 (decided, Ape 28, 1967) seem to hold bo the contrary. | | A recent case decided by the Sixth Circuit on J une 15, 1967, suggests strongly that this question is ripe for con- sideration by this court. United States v. Maius, 378 F.2d 719. There also a defendant was interrogated with respect to.the proper reporting of income taxes, and although the agent advised the defendant of his rights under the Fifth Amendment, the agent did not inform the taxpayer that he could have an attorney present during the interview. The court stated: ‘* Appellant was not under arrest or under duress in the legal sense of the term when he made the state- _ments ‘in question. A doubt may well assail us as to whether it is fair to a citizen to be summoned before the Inteffial Revenue agents to be informed that any- thing he says may be used against him, and then for the agents of the Internal Revenue Service, personify- ing the authority and punitive nature inherent in law - enforcement, to subject a man to questioning and to extract possibly by threats, insinuations, or subtle forms of suggestive coereion, the , only evidence on which he ean be sent to prison, and to'use this evidence ' to send him to prison. It would-seem, in all fairness; that before he answers such questions ‘and’ thereby di- rectly incriminates himself, he should be advised of his right to have his lawyer present. The Internal Revenue Service has lately been subjected to. widespread criticism, because of trickery® of some of its agents in * As in the case at bar. 17 unconstitutional invasion of a citizen’s rights by the use of tapped telephone wires, or ‘¢bugging’’; and the Commissioner has repudiated and castigated such con- duct... No one would believe, however, that a man . would appear hefore the government agents, and an- swer their questions, if he knew that the effect of his answers would be to send him straight to the penitenti- ary. But whether fair or not, no court** has held that a man who is not advised of his right to- have his at- torney. present when questioned by an Internal Reve- nue agent is thereby deprived of his constitutional . rights. A citizen summoned before such federal agents « had the option to refuse to answer their questions; but there are few who have the toughness of fibre and the technical knowledge of: their rights, who would decline _ to. answer quesfions put to them in these circum- stances. Until we.are told by supertor authority that a citizen’s constitutional rights are.imperiled by such procedure, we are constrained to hold that the evidencé” thereby obtained is admissible in the ensuing criminal trial.’’ (Emphasis added). . It is thus demonstrated that the lower courts are needful of further guidance from this court in this area. CONCLUSION If the Internal Revenue departmental penaiion as sanc- | tioned by the Seventh Circuit Court of Appeals is per- mitted ‘to stand, new and creative methods fdr avoiding - the direct and positive pronouncements of the holdings in _ Escobedo and Miranda will be attempted in derogation of the Fifth and Sixth Amendments. This court ought - not to sanction a procedure, deliberately engaged in by government agents, which seek to frustrate and avoid the . plain holdings of the aforesaid cases. . ** But see cases ein 18 Considering the growing body of conflict amongst the various courts in determining whether. Escobedo and Miranda are applicable to non-custodial criminal tax in- vestigations, we respectfully submit the time is ripe for _ | this court to make known its views for the guidance of all -- ‘| ‘of the courts which have this recurring problem. ; Respectfully submitted, Juuius Lucius EcHELEs - Max Rerstein Woovrow Wison Honce Attorneys for aac ed APPENDIX “A” , : in the pihieve 3 | United States Court of Appeals Bor the Seventh Circuit SepremBer TERM, 1966 . Apri Session, 1967 No. 15802 | ) Appeal from the Unrrep States or AMERICA, United States Dis- Plaintiff-Appellee, ’ trict Court for the v. | Northern District Cuarence E. MANSFIELD, of Illinois, Eastern Defendant- Appellant. Division. July 26, 1967 Before Knocu, SwYGERT and Farrcuip, Circuit Judges. . Kno yu, Circuit Judge. Dr. Clarence E. Mansfield, the defendint-appellant, was found guilty in a trial by the Court sitting without a jury on a four-count indictment charging wilful evasion of income tax through filing false and fraudulent returns for 1957, 1958, 1959 and 1960, in violation of Title 26, U.S.C. §7201. He was sentenced to serve one year on each count, the sentences to run concurrently. Dr. Mansfield contends that: 1, the Court erred in denying his mation to. suppress “yoxs and records made available to Russell Armstrong, App. 2 - an internal revenue agent, who did not advise Dr. Mans- field that he was conducting an investigation which could lead to criminal prosecution for income tax evasion; 2. giving due regard to the defendant’s age, long hours of work, inept bookkeeping methods, and forget- fulness, the government did not prove the element of’ wil- fulness; 8. the computftions of the government were in error and duplicated some figures; 4. recognition was not;given to certain allowable ‘de- ductions which would decrease the amount of tax: - In November, 1960, Dr. Mansfield had spoken to | » Gertrude Anderson, a tax technician in the Audit Section of the Internal Revenue Department, respecting his 1959 return. She had warned Dr. Mansfield that an agent might visit. him. — ce a John Creen testified that he was a special agent of the Internal Revenue Service; that he and Special Agent Ralph Bergstrom visited the defendant at his combined office ‘and residence in Chicago; that they identified them- selves and told him they wanted to speak to him about - his income tax return. Dr. Mansfield had replied that he thought the matter was closed. at the office, but the agents informed him that the matter had been referred “to the special agents’ office which leoked into these mat- - ters to see whether there had been any wilful attempt to evade and defeat taxes, that there was a possibility of criminal prosecution and that Dr. Mansfield did not have to talk to the agents or show them any records. Later in the same visit, when they asked to see his medical records, the agents again informed the Doctor _ that he did not have to talk to them or submit any rec- a ueneuEnanereneeeneeneneneae mamas App.3 ords to’ them. When asked whether repeated warnings were not unusual, Agent Creen said that the. practice varied from time to timé ‘pursuant to current court rul- ings. He testified that Dr. Mansfield said that he under- stood and that he had nothing to hide; that the Doctor . had then instructed an employee of his to give the agents ° two record books for 1959 which they were allowed to examine. in his absence: and made available to them an adding machine. When Dr. Mansfield testified concerning this visit, he said he thought it occurred in January 1961. He also described ‘the records given to the agents as more ex- tensive than the two volumes described by the agents. He testified further that he was given no warnings, that the agents showed’ him cards identifying them. only as - from ‘Internat Revenue”’ and asked to see his office rec- ords, that he had to go out and he had left them at work in his office with his records. He said he later received a bill from Internal Revenue for $10, which he paid, and he considered the matter closed. - On July 2, 1962, Russell Armstrong, an internal revenue agent in the Audit division, was assigned to this case to make the field investigation which was a ‘‘joint” in- vestigation for 1957, 1958 and 1959, as he advised Dr. Mansfield when he telephone him to make an appoint-. ment. Dr. Mansfield denied that he’ was told even that. much. Agent Armstrong said he did not explain what a ‘‘joint’’ investigation was, state that he was, conducting a criminal investigation in conjunction with the Intelli- genve Unit of the Bureau of. Internal Revenue, or repeat : the warnings to whith’ Agent Creen testified. @ App. 4 In a joint investigation a special agent is in charge of the investigation, and some time after the assignment . of Agent Armstrong, Special Agent William Sandroff of. the Intelligence Unit was also assigned to this in- vestigation. During July, August and Beptenbes, 1962, Aisi Arm- ° strong made periodic visits to the Doctor’s office where he examined a cardboard box of cancelled checks, bank © statements, e ete., and ‘log books showing income for daily walk-in, patients. From time to time he discussed the _. investigation with Special Agent Sandroff. At a conference with. the special agent assigned to the case prior’ to William Sandroff, Agent Armstrong said it was decided that it was unnecessary for him to advise ' Dr. Mansfield of his rights beéause he had already been so advised by another agent. Dr. Mansfield argues that this was deliberate deceit amounting to subterfuge and misrepresentation and that all evidence obtained by nom ’ Armstrong ought to have been suppressed. In the course of or al argument, counsel.for the govern- - ment suggested frankly that agents must sometimes de- cide whether unnecessary repetition of warnings will not frighten off co-operation. which might otherwise be forth- coming. . We agree that in this case the tactical decision not to’ repeat full warnings ‘already given did’not render the books and records produced subject to ssi as evidence, The government observes that: Dr. Mansfield sisi no '- change in his continued. permission for examination of his records even after Agent Sandroff did Tepeat the prior warnings at the time of his own first’ interview with Dr. Mansfield in October 1962. This fact is at least oO App. 5 canaily .persuasive- ‘of the government’s contention, that , the Doctor was never misled, as of the defendant’$ own” assertion that the damage was already dorfe and revoca- tion of the permission would have served little purpose.’ In any event, during the entire investigation, Dr. Mans-,” field withheld his record regarding personal injury patients with claims for damages. The District Court . did not err in denying the ‘motion to suppress. U:S. v. Spomar, 7 Cir., 1964, 339 F.2d 941, 943, cert. den. 380 ’ iP f so" U.S. 975, reh. den. 381 U.S..956; U.S. v. Achilli, 7 Cir., yh 1956, 234 F.2d 797, 805-6, afd. 353 US. 373.0 yA oJ” The defense points | out ‘such circumstances ‘as the fol- lowing: 1. the Doctor’s forgetfulness: he: couldn * say when testifying whether he was 60. or 61 years old, because he didn’t recall the exact year of his birth, and he couldn’t remember in which years he attended Brown University _ or the year he was admitted to practice medicine in Tllinois ; “ ) 2. the lengthy workday he habitually followed, raqang to twelve hours; ; 3. ._he was under treatment for diabetes, hypertension, obesity and sinusitis in 1957 and for Bell’s palsy i in 1959; 4. his records were kept by a receptionist-secretary who had neither training nor experience in bookkeeping; ‘5. hisYax returns were made out by Robert Neal, who had only an eighth grade education and wae was 75 — old at the time of the trial; 6. he saw three types of patients: (a) those sent ih welfare EIN, (b) those. referred - to im by App. 6 ° 9 ‘attorneys, and (c) those he saw in connection’ with his duties as’ police surgeon fog the City of Chicago at the lockup at 11th and State Streets in Chicago; 7. he did make his books and .regords available for examination. Under all these circunistances, the defense feels that the Doctor was admittedly careless, but that there is no showing of intentional evasion. : ae On the other hand, the government has shown a sub- | stantial understatement of gross income for a number . of years, which has been held to be evidence of wilful intent to evade. Epstein v. U..8.,.6 Cir., 1967, 246 F.2d 563, 566, and cases there cited, cert. den. 355 US. 868. ‘The returns were prepired from ‘documents’ and papers supplied by the defendant; some of the figures given - Mr. Neal were’only estimated. In two of the years, in . question, ‘Dr. Mansfield’s expenses as provided for prep- ' aration of his returns exceeded the income figures pro- vided. Mr. Neal testified that in preparing the returns: ‘he reduced the amount. of. these expense deductions be- - ' cause he did not-want the Doctor to get into any-trouble, _; and when he told the ‘defendant about: that, the defendant “was agreeable to the changes. In going through the de- fendant’s records, Agent Armstrong. came upon an un- signed, unfiled tax return for 1958 which showed sub- ' ‘stantially higher gross receipts than’ the return which was actually filed for that year.. The defendant objected - to the fact that -a photocopy was made of this return form without his knowledge, -but Agent Armstrong tes- tified only from his own recollection as refréshed from his own notes. The photocopy was not offered in evidence or otherwise used during the trial. | App. 7 - Although the, sole oieeeanaail of taxes was ‘made on his wages from the Police Department;. which represented only one: of the three sources of his income, the defendant _ secured annual refunds of several: hundreds of dollars in the years in question. He could not have believed that he was entitled to these substantial refunds when no taxes were being prepaid on his private medical practice. - full disclosure of income records was not made to the examining’ agents. The defendant told Special Agent ‘Sandroff in October 1962 that he had five or six personal injury ‘patients per month, which was markedly. lower than the actual figure. In November 1960 when visiting _ the Internal Revenue office he made no mention of his personal injury patients. He told Mrs. Anderson that he © had not reported some income from welfare patients, but. he always withheld the receipts from the personal injury claimant patients. As this was one of the most lucrative | aspects of his practice, withholding these records was inconsistent with his assertions that he put his books and- records at the agents’ - disposal. Conduct, the effect of’: which i is to conceal or mislead, suggests wilfulness. Spies v. U.S., 317 U.S. 492, 499 (1943). oxi hve unt evidenee from which the Trial Judge could: have decided beyond a reasonable doubt that. de- fendant wilfully attempted evasion.’ U. S. v. Peterson, 7 Cir., 1964, 388 F. all 595, 598, cert. den. 380 U.S. 911 . (1965). In computing the correct income and deductions, the government produced in evidence cancelled checks paid ‘to the Doctor by some thirty attorneys for services to clients with claims for person&l injury. Also introduced “~~ “ 3 App. 8 in evidence were cancelled checks from theyIllinois Public Aid Commission and the Treasurer of Cook County for - -” services to individuals on public relief, in addition to pay- roll checks from the-City of Chicago for services as public surgeon. These were checked as to date and amount against defendant’s deposit slips. A number of checks listed on ’ these slips running to total sums in excess of $14,000 for each of the years involvéd were not in evidence. Many of the checks in évidence had not, been deposited but had been cashed or-negotiated to others. as .shown. by. endorsements. The total cash deposits listed in the deposit slips were not included in gross income because the income Yecorded in the defendant’s daily log books was included as ‘a result of a conference in May 1963, in the Intelligence Division’s offices, where Dr. Mansfield, in. ‘the presence of his attorney, said that the amounts in his daily log books represented cash receipts which he used to pay expenses. The log books were considered to be a more accurate record than the cash deposits. The compu- tations. did include cash retained by the defendant when he deposited only a part of one of the checks in evidence. Interest earried on savings for 1960 were included and consideration. given to amounts withheld from the Police Department pay checks. Nontaxable deposits such as tax ‘refund checks, loans, anda check from an attorney which was not considered to be for medical service income, were: eliminated. -. This method of reconstruction was properly applied. Beard v. U. S., 4 Cir., 1955, 222 F.2d 84, cert. den. 350 U.S. 846; Percifield v. U. 8., 9 Cir., 1957, 241 F.2d 225, 229. C a7 App.9 The defendant’s accountant disputed the government’s ‘analysis of allowable deductions by sums which would have made littlé/inroad op the indisputable fact that there was highly Substantial unreported income. The Trial - Court which gave due consideration to all of the testi- mony accepted the government’s analysis of the allowable deductions. On this record we are not disposed to disturb the Trial Judge’s findings. Glasser v. U. S. (1942) 315 U.S. 60, 80. The judgment of the District Court is affirmed. _ . AFFIRMED. App. 10 APPENDIX “B” UNITED STATES COURT OF APPEALS FOR THE SEVENTH C Friday, September 8, 1967. 2 a « Unirep States oF AMERICA, a Appeal fromthe United ‘States District Court > for the Northern District of Illinois, _ Plaintiff-Appellee, . No. 15802 °“~ - vs. CLarence E. MansFIELp, | ’ _Defendant-Appellant. ) ‘Bastern Division. IT IS ORDERED by the Court that the petition for a DENIED. rehearing en banc of this cause be, and the same is hereby, & * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0971%3A1. Public record. Not legal advice.