Petition for Writ of Certiorari — Holsen v. United States

Supreme Court brief1969

Ask Donna

What actually matters in this document.

Text

AIBRARY | ” FILED

/PREME Co

URT. o, SS AUG 7 1069,

JORFFRSAVIS, CLERK

In THE

nisin Court of the Bnised Pate

OcrosER Turm ee

No. 38 3 |

WALTER P. MACKIEWICZ and

FLORENCE B. MACKIEWICZ

Petitioners,

Vv.

: ‘

UNITED STATES OF AMERICA, aon

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES-COURT OF APPEALS —

FOR THE SECOND CIRCUIT __ |

Curtiss K. THompson

Attorney for Petitioners.

205 Church Street .

New Haven, “Connecticut _

TABLE OF CONTENTS

PAGE

Cf). se ee none ie

JURISDICTION. .... feuts pails tee ree OSE waite E:

Questions FRaNERD Schewnas eecceees aeeecrgeees 2D

Constitution aL PRovisions Ixvouv ED seven yy rere 8

STATEMENT. OF THE Case . Lee eae nee ere rer re ‘3°

Reasons FOR GRANTING THE Warr DEY eater t cle oe: 9

-ArcuMENtT—The Court of Appeals: ‘has decided feder-

al questions in a way in conflict with si ane

decisions of this Court ......... AY SO rey 10

(a) Respecting the obligation of a law officer _to.. —

warn a person being questioned about his

constitutional rights Deen eden eee newness TPE

(b) Respecting the waiver. of coniehiiiadbinnal

rights under the Fourth, Fifth and Sixth

Amendments peers howe ies ses SA OE 12

ee to testify against.the other se eteeeeceeeeed dee 1d

_Concuusion ..... pavedtecceces Sete e ee sede eeeeeees 18

“ APPENDIX: | | .

- A—-Memorandum Decision’ on Defendants’ Dotions Bee

Suppress Evidence of United States District Court’. - la

-'B—Opinion of United States Court of Appeals ..... 9a

C—J WORE and Commitment of the — States Hy ite

.< District Court ...5....206s0e00. fiscneecvecceees vex’ /

D—Judgment and Order of Probation of the United -

. States District Court Lonny

‘E—Sudgment of the Court. of Appeals ‘ane imeneee 4 29a

OR OER SO EE ENT POMS

Z - eahaowe = - = eS et

, ea ‘TABLE OF CONTENTS net

| : _ PAGE

Cases Cited eee eee

Escobedo v. Windit 60.8 OR «oe 5k... 11, 12

- Glasser v. United States, 315 U. Sperone ee ~

- Hawkins v. United States, 358 U. S.74'..........15, 16, 18

J enkins. Vs State, 193 Ark. 842 ; 103 S. W. 2d 37 raat =.

Johnson v. Bechet; 304 US. ME 3 daGhivkskkeeses sacs ob j

Kerr v. Clements, 148’ Pa. Super., 378; 25 A. 2d 13717

Mathis v. United States, 36 L.W. 4379 ..... ere

Miranda v. Arizona, 384 U\S. 436 ........4..... 10, 11, 12

Peek v. United States, 321 F. 2d 934 (9th: | ere 16

Seymour v. State, 210 Ga. $1; 77 S.E. 24519 ....... 1

Smith v. United States, 337 U.S. 137 .. NOR ad Aa 15

State v. Clark, 173 P. 2d 189 (Wash. 1946) ........ 17

State v. Winnett, 48 Wash. 93, 92 P. 904 ............ ie

‘ Stoner v. California, 376 U.S. 483..............006. 15

Taylor v. State, 220 Ark. 953; 251 S.W. 2d 588...-.. 17

United States v. Ashby, 245 F. 2d 684:(5th-1957) ...° 18 -

United States'v. Winfree, 170 F. Supp. 659 <euuavice 17

) | Constitutional Provisions ; eran |

Fourth, Fifth and Sixth Amendments a. z .. 2, 3, 8, 9,14

- Other ‘Authority Cited _

Witnesses 97 C.J. 2d §266 ....2 0 eceeee eee a 2

ay it wa an ‘ a r — a oo me ree™ oss “af . . x

iy ade tea ama Shdiimaiaetinias ital tellin. elo aa aie Cea ae ed PEL LPM RG VE EIR IT CE LEELA LOVER BAER I SO EEF RSP

‘ . piel ot a AE eanerencaenat asi a win fa ‘

. ia .

grapes «

* Supreme Court of the Muited Stats

Octossn Tens 1968

No.

annie

—

WALTER P. Mackrewrcr, and net Sa B. iain: |

a a Petitioners,

v. 3

Unitep States oF AMERICA, one |

er Respondent.

iin,

<—-

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

: FOR. THE SECOND CIRCUIT |

The sithnaichaiis pray that a writ of certiorari issue to

- review the judgment of the United States Court of Appeals

for the Second Circuit entered in the above cage.

Opinion Below

vm opinion of the District Court for the District of

Connecticut on a Motion to Suppress i is canned in the an-

nexed appendix {pp. la-8a). .» .-

The opinion of the Court of Appeals for the Second |

Circuit has not -been oi aga but is” ane in the ~

annexed set hid (pp. ae

Jurisdiction |

‘The Salaonn of. the Court of Appeals ie the Baponi

Circuit was made and entered on July 10, 1968. The. peti-

\tion: of the defendant Florence B. Mackiewiez for a re-.

_ hearing of certain of the issues and suggesting a rehearing:

- én bane were filed in the Court of Appeals on July 24, |

- ° 1968; as yet the Court of Appeals has not acted upon them.

.3 The jurisdiction of this Court is a under 28 U.S. G ;

Section 1254(1). :

Questions Presented -

The case arises out of the prosecution of Walter P. Mac-

kiewicz and his wife, Florence B. Mackiewicz, on an indict-

ment charging evasion of income taxes in-violation of Sec.

7201 of the Internal Revenue Code (Title 26, United States

Code) in four ¢ounts relating to their- joint. income tax re-

turns for the calendar years 1960, 1961; 1962. and 1963.

After trial by jury and before Blumenfeld, D.J. a verdict

was reached, finding each defendant guilty as charged.

' At-the outset of the income tax. tiventigatioh: a Special.

- Agent of ‘the Internal Revenue Service obtained. certain °

~ oral admissions from the defendant, Walter P. Mackiewicz, -

and records and documents of each ‘defendant and made a >

search of their joint safe deposit box. The evidence thus ob- -.

tained by the government was of an incriminating charac-

-ter.

The first question that sittnicis is whether this widens

- was secured in violation of the constitutional guarantees

‘of the defendants under the: Fourth, Fifth and Sixth

Amendments. Questions subordinate to this are whether os

Walter P. Mackiewicz effectively waived his own rights

under these constitutional provisions and whether he was

authorized to and did waive the same rights of his wife. .

--The second question that arises is whether testimony of

‘the Special Agent as to incriminatory.oral admissions of |

~~the husband. and financial records of his were received in ©

- evidence over the objection of the wife in violation of: the

‘common law rule rendering one spouse incompetent to tes-

tify against. the other. A subsidiary question with respect

to.this is whether the husband was the implied agent of the i |

wife to make the incriminating admissions.

Constitutional a Involved

Such cai of the: Fourth, Pitts and Sixth. Amendments

as are involved are as follows: ~

as AMENDMENT IV

sons, houses, papers and effects, against unreason- ©

able .searches and seizures, — not be violated,

ok * 9 :

6 AMENDMENT’ Vv

No person ‘ stoi: shall be imnadiiei 3 in any criminal’

ease to be a witness against himse'f, nor be deprived

‘of life, liberty, or property, v without due process: of

law ; —_ *,

, ‘AMENDMENT VI

In all sctaninel prosecutions, the iiaieele ee en-

: The right of the* people to be secure in their per- : |

_ joy the right *** to have the Assistance of Counsel

for his defense. ” <3

Statement of the Case

Walter P. Mackiewicz was ‘born March 10, 1926 ; in n New

. Britain, Connecticut. His education ended with his first -

year in high school when he was sixteen and theréafter.

. 4

he worked in his father’s grocery-store and played in a

small orchestra. On December 8th, 1942, he entered the

army, served overseas in Europe, in combat, and returned

in November, 1945. Soon thereafter he received an hon-

- orable discharge and almost immediately married Florence

Bajek. During the war she had been living in a nearby

city, working in defense industries (R. ea 518, 520, 522,

539).

In 1946 Walter opened a small grocery store in Bristol.

The building he largely constructed, with his own hands.

On the second floor he, built an apartment for his downed

(R. 81, 82). *

In January, 1965, he and his wife ‘and their tvs daugh-

ters were living in this apartment (R. 552). The business

of the grocery store had substantially increased over the

intervenitig years. The building had been enlarged and it

was Row called the Washington Superette. Walter Te-

mained the sole owner of it (Exhibits 1-6).

The couple had regularly filed joint income tax returns “

prepared by a Mr. Hoffnagle, who did that sort of work

as an adjunct to his insurance business. Mrs. Mackiewicz

_ had never béen concerned with the preparation of such re-

turns. Her husband attended to all such matters and cus-

tomarily she did nothing but sign the returns when asked

- by her husband (R. 135, 555, 760A, 761).

Their returns for the years 1958 and 1959 had been ex-

amined by an agent who made‘ only a minor change in a

depreciation schedule for the store (R. 273).

In November, 1964, another agent, a Mr. Gardner started

audit of their returns for 1961, 1962 and 1963. : About

this time Mr. Mackiewicz engaged a Mr. Minella as an ac-

countant. Mrs. Mackiewicz knew nothing about these mat-

ters other than that her husband had ured an accountant-

and that a revenue agent who Nad been auditing a return :

had become ill. About this time too her husband asked .

her for some of her bank books or records which, he usu-’

ally requested at income tax time and she gave them to

him without comment: She did not. know such records

were going to either Mr. Minella or a revenue agent (R.

_ 92-107): ie

As a result of his examination, Mr. Gardner caused the -

case to be referred to the Intelligence Division and it was

assigned to Special Agent Maurice L. Harden (R. 199).

The questions presented by this petition turn largely

upon the events of January 12, 1965 when the Special

Agent after conferring with Agent Gardner decided to im-

mediately interrogate the defendant Walter P. Mackiewicz.

It was the Special Agent’s duty to investigate for fraud

(R. 199) and he had been schooled by the Revenue Service

- in the technique of making the initial call on a taxpayer’

suspected of wrongdoing without prior notice or appoint-

ment {R. 274). So without advance notice, about noon on

the day in question, the two agents arrived at the grocery

store in Bristol and learned that Mr. Mackiewicz and his

wife had just left to inspect a new house they Were build-

ing a few miles away. The revenue agents followed them

there (R. 276). ,

Upon finding Mr. Mackiewicz in the ney house, Mr. Har-

den told him he wanted to ask him some questions in pri-

vate (@. 398). He made it plain to Mackiewicz he wanted

to talk that afternoon right after lunch. He did not tell

him what the questioris_were about nor did he tell him

\ that a criminal investigation had started (R. 49, 74, 277).

\An arrangement was made to meet in the Mackiewicz

apartment. At this meeting only the two agents and Mr.

Mackiewiez were oe (R. 162).

. ;

First Mr. Harden exhibited an. official card identifying

himseft as a Special Agent. of the Treasury Department.

The card was contained in a leather case on the outside of

which a. badge was pinned. The badge carried a spread

eagle at the top, the initials ‘‘U.S.”’ in the center, ard

around the edge the words ‘‘Special Agent United States

_ Treasury, Internal Revenue Service.’’ The badge also bore

the numerals 2828"(R. 286-291). -

_ “Mr. Harden had with him on this occasion a form of

questionnaire and instruction sheet entitied ‘‘ Investigation

Guide’? (Exh. A; Defs. Brief App. 7a) which had been

a taxpayer suspected of fraud (R. 14, 16, 277, 291). The

“Investigation Guide”’ instructed the Special Agent to ad-

vise the taxpayer of his constitutional rights. ~

What happened at the beginning of the interrogation .is

told:in Mr. Harden’s own words in a memorandum he pre-

pared (Exh. B; App. p. 1a):

‘****T stated that the purpose of my visit was

his and his. wife’s failure to report all income for

the years 1961 through 1963 according to Revenue

Agent Gardner’s computations. He was further ad-

vised that he has his constitutional rights to refuse

to answer any question that he feels may incrim-

inate himself and that he need not supply any rec-

ord that in his opinion would incriminate himself.

The taxpayer stated that he did not understand— -

so I then repeated that if he felt that any answer -

or record that he gives would incriminate him that

he need not answer or submit those records. He

then shook his head.in the affirmative and said that

he understood.’’ .

Mr. Harden’s oral testimony confirmed this»memoran-

. dum and made it plain that Mr. Mackiewicz was never told

of his right of silence nor his right to counsel; and further

that when Mr. Mackiewicz said he did not understand

about his constitutional rights, Mr. Harden made no ex-

splanation of them, but only repeated that he did not have .

to answer questions or produce records he felt would in-

criminate himself. The Special Agent did not tell him

that regardless of whether he thought a question incrim-

inating he did not have to answer it (R. 49, 284, 285, 286).

The ‘‘Investigation Guide’’ had been designed to obtain

information that would be helpful in applying the net worth

method of reconstructing income. Although he did not

know how Mr. Mackiewicz could determine whether any

question was incriminating without an understanding of

the ‘‘net worth’’ method he refrained from inquiring about

it (R. 278-285). In fact Mr. Mackiewicz had no knowledge

about the net worth method (R. 553, 554). Mr. Harden fol-

lowed the “Investigation Guide” in interrogating the, de-

fendant; the latter answered ‘all questions put to him not

realizing that to many of them he cou!d give no answer

without forging a link. in the.chain of evidence the gov-

ernment would ‘use to prosecute him (R. 283, 564, 656).

In time a question was reached on the “Investigation

Guide’’ about the existence of a safe deposit box and the

agent asked whether he could see it (Exh. A #54, Defs.

Brief App. 7a): An inspection of a taxpayer’s safe de-

_ posit box is very important in any net worth investigation

and this is true regardless of what may or may not be con-

tained in the box. The information obtained in examining

the box is an important link in the chain of evidence de- |

veloped by such an investigation. Regardless of what

there is in a box, a taxpayer may incriminate himself by

letting an agent see it (R. 392, 393). With no understand-

8. 5

ing of thi s,. Mr. Mackiewicz agreed to show ‘the box to Mr.

Harden (R393, 394; 554).

The agents and Mr. Mackiewicz then went to the latter’ S ’

bank and the.defendant obtained the box and put it on a ta-

ble in the small room where the three were. ‘The contents | |

of the box were then shown to Mr. Harden and he made

an inventory of them (R. 395, 555).

The next day. the agents went to the office of Mr. Minella

and there obtained some financial records and memoranda

‘R. 395). Mr. Minella had been told by Mr. Mackiewicz

_to give these documents to the agents.(R. 556).

Mr. Harden never had any conversation with Mrs. Mac-

kiewicz either on January 12, 1965 or at a later time. She

was not present at the meeting between the agents and

her husband. She did not hear what they said. She did

not know they were going to the safe deposit box. She

never authorized her husband to show the agents her rec-

ords in the safe deposit box or that she had nothing else

in that box or to let the agents have the records held by

Mr. Minella and she never consented to her husband dis-—

cussing their tax-returns ‘with Mr. Harden (R. 60, 87, 88,

89, 107, 277; Supp. R. 22-24).

Before the trial each of the defendants moved to sup-

press the evidence obtained as a result of the interroga-

tion of the husband, the search of the safe deposit box and

the financial records of each. defendant turned over to the

‘agents by Mr. Minella on thé ground they had been ob-

tained in violation of their rights under the Fourth, Fifth

‘and Sixth Amendments to the Constitution. Mrs. Mackie-

wicz’s motion set forth the additional claim that the oral

statements and documents: of her husband constituted tes-

timonial utterances made by him without her consent and

under common law principles could not be used as evi-

dence against her.

ee ee

¢ 9 ° ‘

After hearing on the motions, the Court (Timbers, Chief

_ Judge) denied them in an opinion reproduced in the ap-

pendix to this brief (pp. la-8a).

‘At the trial the defendants objected to the admission of

financial records of the husband and the testimony of the

Special Agent concerning the husband’s statements at the

interrogation of January 12, 1965 on both constitutional

and common law grounds. The objections were overruled,

the evidence was admitted and defendants were denied the

right to introduce evidence directed at the constitutional

question. Also at the end of the government’s case, the de-

fendants moved“to strike all such evidence on both grounds.

Such motions were denied by the’ Court. (Supp. R. 17-26; R.

158-167, 276- 300, 498-502).

After the verdict, each defendant move for a new trial °'

thereby raising the questions. presented by this —

Reasons for Granting the Writ -

____The deeision below. should be reviewed because the Court

of Appeals has decided federal questions in a way in con- |

flict with applicable decisions of this Court,

(a) respecting the obligation of a law®fficer to

warn a person being questioned about his constitu-

tional rights;

(b) respecting the waiver of constitutional guar-

antees under the Fourth, Fifth and Sixth Amend-

ments; .

(cy respecting the incompetency of one spouse to

testify against the other at common law.

Court. |

“ARGUMENT *

The Court of Appeals bes decided federal questions

in a way in‘conflict with applicable decisions of this

(a) miei the obligation of a law officer to warn a‘

person being questioned about his constitutional rights.

In Miranda v. Arizona, 384 .U. S. 436, 444, the Court”

summarized its decision i in these words:

ante.

_“* * * the prosecution may not .use statements,

“whether exculpatory or inculpatory, stemming from

‘; eustodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effec- °

tive to secure the privilege against self incrimina-

tion. By custodial interrogation, we mean question- |

ing initiated by law enforcement officers. after a

person has been taken into custody or otherwise

deprived of his freedom of action in any significant’

way. * * * Prior to any questioning, the person must

be warned’ that he has a-right to remain silent, that

any statement: he does make: may be used as evi-

dence against him, and that he has.a right to the

presence of an attorney, either retained or ap-

pointed. * * *”

In Miranda, supra, thé Court: recognized that the vice

of a custodial interrogation was its “compelling” “atmos-

phere”, “influence” or “circumstances” and that the pres-

sure that rendered it compelling could be psychological’ as

well as physical (pp. 448, 449, 465, 467, 468).

In Mathis v. United States, 36° L. W. 4879, this Court

rejected “the contention that tax investigations are im-

mune from the Miranda requirements for warnings to be

given a person in custody.”

The instant case does not present an ~—— in-eustody

situation as the Court of Appeals said. But it does pre-

sent, as that Court did not say, a situation where the In-

ternal Revenue Service considered a warning about con-°

stitutional rights essential and instructed the Special -

Agent to give such warning and to make sure the defend-

ant understood it (Defs. Brief App. 7a). :

Plainly - the investigation had reached the accusatory

stage; such a reference to a Special Agent occurs when

‘there “are definite indications of fraud or criminal poten-

tial.” There can be no doubt that this was the basis for

the instructions to the Special Agent. A compelling at-

mosphere was engendered by the agent’s unannounced ap-

pearance, his insistence upon a “private” interview im-

mediately the exhibition of his indicia of authority, the

accusation inherent in the stated purpose of his visit to

talk about the “understatement of income” in the returns

and in the inadequate, mistaken and misleading instruc-

tions:the agent gave about censtitutional rights. Man-

ifestly an investigation accusatory in nature had. focused

on Walter P. Mackiewicz and at very least its purpose

was to obtain incriminating admissions from him. Com-

pare Escobedo v. Illinois, 378 U. S. 478, 492.

A majority of the Court of Appeals finally rested its

decision upon-a harmful effect in the collection of taxes,

supposedly resulting, were Miranda warnings required

whenever a Special Agent entered a case. As Chief Jus-

tice Warren pointed out in Section IV of the Miranda

opinion (p. 479) this argument is-that “society’s need for

interrogation. outweighs the privilege. ” He made it plain

that constitutional rights cannot be abridged .on that ac-

count and thus the conflict between the two decisions be-

comes abundantly. clear.

Judge Feinberg of the Court of Appeals in his coneur-

_ ring opinion noted his disagreement with the majority over: —

whether serious administrative difficulties would result

from insistence on Miranda warnings. He did not, fore-

see that result and indeed it is evident from the “Investi-

gation Guide” in the record here (Defs. Brief App. p. 7a)

that the Internal Revenue Service was following such a

policy even before Miranda. . °

_. The warning which the agent gave the defendant was

cle ly susceptible of meaning that the defendant did ng

: have to answer any: questions or ‘produce any records

id not think incriminating. The Court of Appeals dis-

' , agreed. But in Miranda (p. 467), the Court held that: a

~ person in custody “must first be informed in clear and

unequivocal terms that he has the right to remain silent.’

We submit that the decision of the Court of Appeals

conflicts with the decisions of this Court in vata Escobedo,

. Miranda and. Mathis cases.

| (b) Respecting the waiver of constitutional rights under

the Fourth, Fifth and Sixth Amendments. »

In Miranda v. Arizona, 384 U.S. 436 at page 444, Chief

J ustice Warren said:

«« © * The defendant may waive effectuation of :

these rights, provided the waiver is made volun-

tarily, knowingly and intelligently.”

Mr. Mackiewicz was not a well educated man; he had left

‘high school after two years and his years afterwards with

thie.exception of his military service had been spent. work-

ing in a grocery store. The agent informéd him inade-

quately and misleadingly about his constitutional rights.

Nothing was said: about. his right to silence or about his

« . : , | 13 , | e

right to counsel. In answer-to the agent’s question, Mr.

Mackiewicz said.he did not understand about those rights.

. The agent repeated his own mistaken ¢onception of them,

without undertaking any further explanation and Mr.

- Mackiewicz then nodded his head affirmatively. . _

. This is an unvarnished statement of the evidence from

which the Court of Appeals drew the conclusion that

.. aa > oe Mackiewicz knowingly and intelligently .

waived whatever rights he had.’’ (App. p. 17a)

- We'submit that the inference drawn by the Court of ’

Appeals*lacked any reasonable basis and fell far short

of “the high standards of proof for the waiver of constitu-,

tional rights” which this Court has firmly established.

_ The Court of Appeals recognizing Mr. Mackiewicz’s in-

ability to truly comprehend the interrogation and its in-

criminating effect, said: | | 7

«“® * * the ignorance of a person being inter-.

viewed by Government agents will not always sup-

port the conclusion that he must be given Miranda

warnings.’’ (App. pp. 16a, 17a)

Despite this ignorance the Court held that by answering

the questions, he “intelligently and knowingly” waived his

constitutional rights. Further, the essential conflict be-

‘tween the views of the Court of Appeals and this Court

appears when the foregoing statement is compared with

that in the Miranda opinion, that in absence of an adequate

warning this Court “will not pause to inquire in individual

cases whether the defendant was aware of his rights with-

out a warning being given’’ Miranda, supra, p. 468.

Mrs. Mackiewicz‘ had always allowed her husband to ~

attend to having thé income tax returns prepared; also she

leased a safe deposit box jointly with him. Further, she

_ had handed him some of her own financial records without.

comment: when he had asked for.them. From this conduct,

the Court of Appeals concluded: |

: “Mr. Mackiewicz was Hie wife’s agent in this field

in January, 1965, for better or worse, no matter

_ where this agency might lead.’’ (App. p. 20a) -

Thereby the Courts held that Mr. Mackiewicez on January .

12, 1965 was authorized to waive. his wife’s rights under

the Fourth, Fifth and Sixth Amendments and further to

-make incriminating statements to the Special Agent which,

despite the. common law rule. about anti spousal testimony,

would be admissible against her in evidence. Thus under

the decision of the Court of Appeals, the defendant Flor-

ence B. Mackiewicz lost the constitutional and common law

‘J _ rights to which she was entitled during the afternoon of :

January 12, 1965 despite these facts, viz. such rights were .

never in her mind, she. was wholly ignorant of them; no. |

person mentioned or explained them to her or told her ©:

_. their continued -existence ‘was at stake, and she said ‘noth- .

ing or did nothing that related to them.

We further submit the rulings of the Court of en

are in conflict with not only the Miranda decision but with

‘the. decisions of this Court from which we quote below:

«* © * Tt has been pointed out that ‘eourts indulge

every reasonable presumption against waiver’ of

fundamentél constitutional ‘rights and that we ‘dé

not presume acquiescence in the loss of fundamental »

rights.’ A waiver is ordinarily an intentional -re-

linquishment .or abandonment .of a known. right or ©

‘. privilege. The determination of whether there has

“been an intelligent waiver of the right to counsel

must depend, in each case, upon the particular facts

and circumstances surrounding that case, including

the background, experience and conduct of the ac-—

cused.” Black J. in Johnson v. Zer bst, 304 U. s. 458,

464, : ee)

“To preserve the protection of: the Bill of Rights

for hard pressed defendants, we indulge every rea-

‘sonable presumption against the waiver of funda-

mental rights.’ Murphy, J. in Glasser Vv. United

States, 315 U. S. 60, 70. |

«* * © Waiver of constitublonal rights, however,

is not lightly to be inferred. * * #” Reed, J.in Smith

v. United States, 337 U. S. Pvshia 150.

a ee . rights protected by the Fourth Amendment

are ‘not to be eroded by strained applications of the ©

law of agency * * *: ”’ Stewart, J. in Stoner \ v. Cali-

fornia, 376 U.S. 483, 488.

> &

— (e) Respecting the incompetency of one me ‘to testify

- against the other. .

‘Mhe decision of this Court in ' Hawkins v. United States, i"

358 U. 8-74 established the principle that one spouse’ is ©

not competent to testify against the other ‘ina trial where.

life and liberty is at stake.”? The Court acted in the be-

lief .

‘that such a policy was jiecessary 7" foster farn- ;

ily peace, not only for ‘the benefit of husband and

. wife and children. but for the benefit of the public

as well,’’

At the trial of this case, ‘the government introduced. as

evidence agaiist the wife testimony of the Special Agent

relating. to incriminating oral admissions of the, husband .

as well as financial records of the husband. This was done

without the consent of the wife and over her. objection

that such evidence constituted testimonial utterances of the

husband not admissible against. her under spared v.

United States, supra.

The Court of Appeals held such evidence viteibiailiin’ ex-

plaining that because the Special Agent and not the hus-

band had testified about the admission, the domestic peace .

of the family had not been jeopardized. | In further ex-

planation it said _ ef

we ee there a 5 chanes that marital frictions

will be aggravated, 33 Tul. L. Rev. 884, 890-892

(1959) for there is the convenient buffer of a third

person. actually making the remarks.’’ (App. p. 22a).

This ruling of the Court of Appeals conflicts With Hawkins |

y. United States, supra, and is opposed to te whole cur- -

rent of judicial authority. .

In Peek v. United States, 321 F. 2d 934 (9 Cir. 1963) ;

cert. denied 376 U. 8S. 954, the Court of Appeals said at

page 943:

‘«* © * What remains is the rile that a husband or

wife cannot be compelled to testify against his or

her spouse, and cannot be permitted to do so unless

the other spouse consents. This rule is one of priv-

ilege, and the privilege may be waived. Olender v.

United States, 9 Cir. 1954, 210 F. 2d 795, 42 ALR

2d 736. And this privilege includes the prohibition

against a third person relating a statement made by

one spguse against the other which that spouse

would not be-allowed to relate if called as a witness.

See United States v. Winfree, E. D. Penn 1959, 170

F. Supp. 659.”’ ‘

The Supreme Court for the State of Washington in

State v. Clark, 173 P. 24 189, (Wash. 1946) said,at page

193: |

‘We do not believe that it is proper to permit a

third person to relate a-statement made by one

spouse against the other which that spouse would

not be allowed to relate if called as a witness. Testi-

mony should not be permitted to enter through the

back door which the statute forbids to enter through

the front door. State v. Winett, 48 Wash. 93, 92 P.

904.’ - ;

In United States v. Winfree, 170 F. Supp. 659, the Dis-

trict Court had before it a Motion to Suppress evidence *

in an income tax evasion case. A husband had been in-

-dicted and his estranged but not divorced wife had volun-

tarily made certain statements to Internal Revenue officers

relating to his ineome tax matter. The motion to suppress

_was denied, obviously because the evidence had not been

illegally obtained, but fhe Court made it plain that such

evidence could not ‘be used on the trial because of th

spousal relationship. It said at page 661: ao ie

. “The above stipulated facts, together with the fol-

lowing facts which have: been assumed by the trial.

judge, show the applicability of the policy stated in

the Hawkins case, supra, if any attempt is made to

have Mrs. Winfree testify at the trial or to have

any agent repeat the extra-judicial statements made

by her on issues concerning her husband’s guilt.”’

(emphasis added) ;

Other authorities opposed to the ruling of ‘the Court of.

Appeals are: er

Taylor y. State, 220 Ark. 953; 251 S. W. 2d 588; .

Jenkins v. State, 193 Ark. 842; 103 S.W. 2d 37; .

' Seymour v. State, 210 Ga. 21; 77 S.E. 2d 519; *

. Kerr v. Clements, 148 Pa, Super..378; 25 A. 2d 737.

eRe me ene ne eee Ee Ere ele me nes = mh

- — sl

: | 13 | |

We have found no decision supporting the ruling of the

Court of Appeals. The case of United States v. Ashby,

245 F. 2d 684 (5 Cir. 1957) cited by the Court is not rele-

‘vant because it does not deal ‘with the competency of one

spouse to testify against the other. Rather it is concerned

with the ‘privilege accorded private or confidential com-

munications between spouses analogous to the privilege

communications between attorney and client enjoy.

See Witnesses 97 C.J. 2d §266 et seg. This is an en-

tirely different principle not invglyed here and hence

United States v. Ashby, supra, is not a pertinent authority.

The Court of Appeals also held that the-husband had

‘‘implied authority” from his wife to talk.to the Special

- ‘Agent and make the admissions, but we have shown in the

point preceding this that there was no-basis for implying

sich authority and that in doing so, the Court of Appeals

was violating repeated injunctions of this Court.

‘The allowance of the testimrony of the Special Agent.

concerning the husband’s admissions against the defendant

wife and the use of the husband’s own financial records

against her conflicted with Hawkins v. United States, su--

pra. If not in direct conflict-because the admissions were :

proven by-testimony of the Special Agent rather than di- f

rectly by the husband, the matter constitutes an import- ‘|

ant question of federal law which has not, but should be |

settled by this Court.

CONCLUSION — |

It is respectfully submitted that this petition for a writ

of cortiovay! chewld (be granted. ‘

Curtiss K. THompson

Attorney for the Petitioners.

APPENDIX A _

Memorandum Decision ‘on Defendants’ Motions to Suppress

Evid of United States District Court

UNITED STATES ‘DISTRICT COURT

District or CONNECTICUT

—

Unirep States or AMERICA,

—vs.—

Watrer P. Macxiewicz and Frorence B, Mackrewicz ,

—>—

APPEARANCES :

Samuel J. Heyman, Esgq., Asst. U. S. Atty.,

- New Haven, Conn. (Jon O. Newman, Esq.,

U. S. Atty., Hartford, Conn., on the brief),

for the United States.

Curtis K. Thompson, Esq., of Thompson, Weir &

Barclay, New Haven, Conn., for defendants. ’

QUESTION PRESENTED

- Defendants, husband and wife, are charged in a -four

count indictment filed April 11, 1967, with income tax eva-

sion in violation of 26 U.S.C. § 7201 by reason of alleged

knowing understatement of income in their joint returns

fer each of the years 1960-1963. The central issue raised

by defendants’ motions to suppress evidence, pursuant to

Rule.41(e), Fed. R. Crim. P., is whether defendant Walter

- [laj

Pad

Appendia A

P. Mackiewicz freely and voluntarily cooperated with fed-

eral authorities in furnisHing certain information as to the

state of defendants’ financial affairs while under investiga-

‘tion for the years in question by agents of the Internal,

Revenue Service:

The Court holds that the facts in this\case reveal an en-

tirely voluntary course of conduct on the part of defend-

ant Walter P. Mackiewicz; accordingly, there can be no

valid claim of violation of constitutional rights, and the

instant motions are denied.

. . FACTS

The following facts are not in dispute.

Defendants, residents of Bristol, Connecticut, filed joint

income tax returns for the years 1960 through 1963.

In the fail of 1964, defendants’ returns were under

examination by Wilbur Gardner, an agent in the Audit

Division of the Internal Revenue Service. Mr. Mackiewicz ©

had engaged an accountant, Samuel Minella, and furnished

relevant records to Minella for inspection by Gardner.

Among such records were records previously kept sepa-

rately by Mrs. Mackiewicz and delivered by her: to her

husband at his request; informed of the disposition of those

records, Mrs.. Mackiewicz never sought their return or at-

tempted to limit their use.

As a result of his investigation, Gardner considered

there to have been a significant understatement of income,

and the matter was referred to the Intelligence. Division

- of the Internal Revenue Service.

On January 12, 1965, Gardner and Maurice L. Harden,

an agent of the Intelligence Division, proceeded to the’ —

Mackiewicz home to seek an interview. The two men found

Appendia A

Mr. Mackiewicz at the building site of the couple’s uae

completed new home; Harden identified himself and told

Mr. Mackiewicz that he would like to ask him some ques-____

‘tions. It. was agreed ‘thatthe agents would meet Mr.

Mackiewicz later in the day at-the Mackiewicz apartment

over the family’s grocery store in Bristol.

“At the second meeting that day, Harden informed Mr.

Mackiewicz that the purpose of the visit was to investigate:

defendants’ failure to report all their income for the years

1961 through 1963. Harden then informed Mr. Mackiewicz

‘that he was not required to respond to any questions or to

furnish any records that he felt might be incriminating.

Mr. Mackiewicz stated that he did not understand; Harden

repeated his explanation, and Mr. Mackiewicz then indi-

‘eated that he did understand. No mention of ‘a right to

counsel was made, and Mr. Mackiewicz did not mention

any desire to seek an attorney’s advice.

Mr. Mackiewiez proceeded to make full and coopera-

tive response to Harden’s questions; he «id not seek in any

- manner to delay or cut short the interview, and. did not

refuse to answer any question propounded. No threats or

. promises of any sort were? made by Harden. Defendant

was not under arrest, nor was his freedom of movement

restricted in any fashion.

In the course of the interview, Mr. Mackiewicz was

asked if his business books and records would he: made

available, and defendant replied that the books and records

were at the agent’s disposal, and could be obtained from .

Minella.” ; .

Harden also asked at that time to see the Mackiewicz

safe deposit box, of which the husband and wife were _

- joint lessees, and Mr. Mackiewicz freely consented. The

Appendiz A

two.agents then accompanied Mr. Waitaki to his bank

in Bristol, and the box’s contents were inventoried.

The next day, January 13, 1965, Harden examined the

‘books and records made available to him by Minella. At

no time was any objection interposed by either Mr. or Mrs. |

Mackiewicz.

CLaIMs OF THE ParTIES ©

Defendants contend that all evidence. ties —_ means

of the interviews of January, 1965 should be suppressed

for the reason that no intelligent and knowing waiver of

basic Fourth, Fifth and Sixth Amendment rights was made ~

by Mr. Mackiewicz; it is additionally contended that, with

respect to Mrs. Mackiewiez, no such waiver of her rights

could be made by her husband.

It. is the government’s contention, on the other hand,

that the circumstances involved disclose a fully voluntary

“series of, acts by Mr. Mackiewicz; as to the evidence per-

taining to Mrs. Mackiewicz gathered thereby, it is con--

‘tended that sufficient right of control over the critical

effects was in the husband so that his. consent was yyalid

against the wile.

| Oprmton’

I. Oral Statements by Defendant Walter P. Mackiewicz

The Court can find no basis for suppression of state-

ments made by Mr. Mackiewicz during the course of his

' interview with agent Harden on January 12, 1965, since

_that interview was accomplished through clearly voluntary

cooperation on the part of the defendant with full knowl-

* egde of his right to silence in the face of a eriminal in-

vestigation.

EF ONS E OF AETV Le eee ee

_ oa

' Appendia A °

A possible failure by agents of the Internal Revenue

Service to employ the cautionary measures set forth in

Miranda v. Arizona’ is not relevant to disposition of the

instant motions, since the procedural safeguards therein

prescribed have application only to a suspect taken into

custody “or otherwise deprived of his freedom of action

in any significant way.”* The critical factor of eustodial °

jmterrogation is not present inthis ease, involving simply

- an interview with a person in his own home, and the Court

is therefore not at liberty to require a demonstration that

the rules laid down in Miranda have been observed.* Con-

fronted with a wholly’ voluntary series of statements de-

livered in a context devoid of any indication of coercion,

it is not appropriate for this Court to find applicable there-

to as a pre-condition to admissibility adherence by govern-

ment agents to a formal mode of procedure devised as a

safeguard for situations in which compulsion is inherent. *

1 384 U. S. 436, 444-445, 479 (1966).

2 Miranda v. Arizona, supra n. 1 at 444. This includes, of course, the

incidence of the right to counsel. See Miranda v. Arisona, supra‘n. 1, n. 4

at 444; Escobedo v. Illinois, 378 U. S. 478, 490-91 (1964); see also Rickey

v. U. S., 300 F. 2d 32, 33 (9th Cir. 1966), cert. denied, 385 U. S. 835

(1966) ; Kohatsu v. U. S., 351 F. 2d 898, 901-902 (9th Cir. 1965), cert.

denied, 384 U. S. 1011 (1966).

8See U. S. Bottone, 365 F: 2d 389, 395 (2d Cir. 1966), cert. denied,

385 U. S. 974 (1966); see also U. S. ex rel. Molinas v. Mancusi, 370 F. 2d

601, 603 (2d Cir. 1967), cert. denied, 35 U.S.L.W. 3343 (March 27, 1967) ;

cf. Hoffa v. U. S., 385 U. S. 293, 303-304 (1966); U. S. v. Knohl, 2d Cir.

‘slip op. 2579 at 2605-2606 (June 22, 1967).

4Jt would seem especially imprudent for a District Court to initiate

such an extension of the principles of Miranda, see U. S. Vv. Carlson, 260

F. Supp. 423, 427 (E. D. N. Y. 1966), U. S. v. Davis, 259 F. Supp. 496, 498

(D. Mass. 1966), since. suppression of evidence pursuant to Rule. 41(e) on

such novel grounds would not be appealable. See DiBella y. .U.. S., %9

_ Us S. 121 (1962); Carroll v. U. S., 354 U. S. 394 (1957). But compare

U. S. v. Tursynski, 67-2 U.S.T.C. $9489 (N. D. Ill, 1957).

Laren ie vor ek PO EE REI SS Ee

6a |

Appenilia A

In short, given defendant’s own decision to cooperate,

there is no constitutional bar to the admission of his oral »

statements in evidence. ° ad

IL ye and Seieure of Documents

Defendants’ financial records and safe deposit box were

not examined pursuant to a search warrant. The govern-

ment therefore has the burden of establishing voluntary

consent, free from duress or coercion, an unequivocal,

| specific, and intelligently given consent.®

While such consent is ‘not to be lightly inferred,’ it is

clearly present in this ‘case. The tax investigation did not

* involve the slightest trace of trickery or deception; in addi-

tion to the warning to both defendants considered in-

herent in the original commencement of the joint return

audit. Mr. Macki oo: was expressly advised of the ‘pur-

pose of the continued investigation, and was warned that he

néed not furnish any materials-which he might feel were

incriminating, Mr. Mackiewicz had a number of opportuni-

ties to raise objections or to withdraw his cooperation; he’

did neither. There is no evidence or persistent demands or.

other forms of coercion on the part of -the agents, or of

5In view of possible conflict between an asesrtion of the marital priv- _

ilege; see Hawkins v. U. S., 358 U. S.'74, 75-79 (1958), and an ultimate

finding of agency as‘ between husband and wife, see 8 Wigmore, Evidence

§ 2232(1) (McNaughton rev. 1961), the precise scope of such statements’

admissibility is best left for determination at the trial.

6 See U. S. v. Thompson, 356 F. 2d 216, 220 (2d Cir. 1965), cert. denied,

384 U. S. 964 (1966); U. S. v. Smith, 308 F. 2d 657, 663 (2d Cir. 1962),

cert, denied, 372 U. S. 906 (1963). '

7U. S. v. Viale, 312 F. 2d 595, 601 (24 Cir. 1963), cert. denied, 373

U. S. 903 (2069). se

-8See U. S. v. Sclafam, 265 F. 2d 08, 414-415 (2d Cir. 1959), cert..

denied, 360 U. S. 918 easel

9 7a

Appendin A

’ the least réluctance on the part of the defendant. In such

circumstances, the Court mist conclude that there was

voluntary and effective consent.®

Furthermore, it is plain that, the hushand’s consent

“validated the search and seizure of the records and effects ©

of Mrs. Mackiewicz. Husband and wife were joint lessees

of the safe deposit box; the other records of Mrs. Mackie- '

| A wicz had been unreservedly delivered to her husband, and ~

\. "no subsequent objections or limiting instructions were ;

given by her when she learned that the records were to be |

~ examined for.purposes of the joint tax return audit. With /

. joint and equal right of access to the safe deposit box, and —

unchallenged and unfettered possession of and control over

-the couple’s records, Mr. Mackiewicz had full authority to

consent “to thé searches and seizures carried’ out by the

agents.” Such consent was granted voluntarily, and the

A. fruits of the consequent searches sted not be suppressed:

9 See, eg., U. S. v. Then, supra n.-6 at 240: It should be noted

that Mr. Mackiewicz was better informed.of his rights than most taxpayers

deemed to have. acted voluntarily in deliveting their records for tax in-»

vestigation. See, eg., Greene v. U. S., 296 F. 2d 841, 842-843 (2d Cir.

i 1961), vacated and remanded with instructions to dismiss the appeal, 369

-U. S. 403 (1962) (disposition of: motion to. suppress held non-appealable in

\ DiBella v. U. S., supra n. 4); Grant v. U. S., 291 F. 2d 227, 228-229 (2d

Cir. 1961), vacated and remanded with instructions to dismiss~ the appeal,

- 369 U. S. 401 (1962) (same reason); U. S. v. Sclafani, supra n. 8 at 414-: ’

~ 415; see also Kohatsu v. U. S., supra n. 2 at 902; U. S. v. Spomar, 339

F, 2d 941, 942-943 (7th Cir. 1965), cert. denied, 380 U. S. 975 (1965).

| 10See, eg., Drummond v. U. S., 350 F. 2d 983, 989 “(8th ‘Cir. 1965),

cert. denied, 384 U. S. 944 (1966); Nelson v. California, 346 F. 2d 73, 77 —

(9th Cir. 1965); cert. denied, 382 U. S. 964 (1965); Burge v. U. S., 342

. F. 2d 408, 413-414 (9th Cir. 1965), cert. denied, 382 U. S. 829 (1965);

Sartain v. U. S., 303 F. 2d 859, 862-863 (9th Cir. 1962), cert. denied, 371

U. S. 894 (1962); U. S. v. Eldridge, 302: F. 2d 463, 465-466 (4th Cir. 1962);

U. S. v. Sferas, 210 F. 2d 69, 74-75 (7th Cir. 1954), cert: denied, 347 U. S.

935 (1954); see also’ Roberts v. U. S., 332 F. 2d 892, 896-897. (8th Cir.

1964), cert. denied, 380 U.-S. 980 (1965) ; Woodward v. U. S.; 254 F. 2d

312, 313 (D. C. Cir. 1958), cert. denied, 357 U. S. 930 (1958) ;. cf: U. S..v.

Walker, 190 F. 2d 481, 483 (2d Cir. 1951), cerf. denied, 342 U. S. 868

(1951); U. S. v. Pugliese, 153 F. 2d 497, 499 (2d Cir. 1945) _(dictum).

’ - a

ep oot eH EK NC ARTOIS ALPE GE PALA REE LER LL ISTP PAE OR Be my RLS A

EPRI ROS Sata sen 43» Shae Sito Sans ap ned nV ragpnte T fon sac am Se} mY kn th se Mia tes si

on A °

ee pe ce CONCLUSION og

The undisputed factual record in this case having dis:

closed no violation of defendants’ constitutional rights, de- -

fendants’ motions to suppress evidence, pursuant to Rule

41(e), Fed. R. Crim. P., are denied.:

Dated at New Haven, Connecticut, this 22nd day’ of

August, 1967. :

Wo H. Trwpers

Wiru1am H. Timsers

Chief Judge

APPENDIX B

' Opinion of United States \Court of Appeals

UNITED STATES couieh OF APPEALS

For ‘ HE SECOND Cigcurr

Lv,*

No. 507—September Term, 1967.

: (Argued May 15, 1968 | Decided July 10, 1968.)

Docket No. 32145

Usime Sraxis' OF AMERICA,

dee’ a a Plaintif-Appellee,

—against—

’ Watrer P, Macktewicz and Fiorence B. Macxiewicz

+ _ .. Defendants-Appellants.

Before:

Mook, Hays and Fruntens,

o | | | Circuit Judges. —

Appeal from a judgment of the United States District.

Court ‘of Connecticut, M. Joseph Blumenfeld; Judge, ~

founded on a jury verdict — defendants guilty of |

income tax evasion.

Affirmed. —

——-

“‘Ciees K. ToMPson, New Hav en, Conneeticut,

a deféndants-sppellants, |

10a

al | Exhibit B

Jon 0. Newnan {United States Attorney for

the District of Connecticut, Hartford, Con-

_ necticut), for plaintiff-appellee.

Moore, Circuit Judge:

' Walter P. Mackiewicz and his wife, Florence Mackiewicz, .

were convicted before a jury of income tax evasion on

their joint returns for the years 1960, 1961, and 1962 and

1963. Int. Rev. Code of 1954, §7201. To establish. unre-

ported taxable income, the Government relied on the net

worth and expenditure method. This is a technique where-

by the annual increment in asset value is compared to the

‘reported incom¢ The Government contends that there was

.a discrepancy; that the Mackiewiczes understated their

grocery store revenue in their receipt books by about $400

- week; and that over the period involved there was unre-

_ ported income of some $20,000 a year for a total of ap-

proximately $84,000. By way of defense, Mr. Mackiewicz

claimed that the excess arose from a cash hoard, black

markéteering overseas, success with dice on his troop ship

coming home, gambling at casinos and repayments of loans

by relations and associates. The jury apparently rejected

these explanations. Both Mr. and Mrs. Mackiewicz appeal.

The appellate issues before us do not concern the facts as

such but the methods used by Internal Revenue Agents to

Mr. Mackiewiez owned a small grocery. store which he

and his wife managed. The work was divided between

them, although there was evidence that the majority of

lla

. | Appendia B.

the entries in the — books were _ by ‘Mrs,

Mackiewicz.

In November, 1964, Agent Gardner (of the: Audit: Divi-

sion of the Internal Revenue Service) hegan an audit of

their joint returns. To assist him, Mr. Mackiewicz re-

tained an accountant, Mr. Minella, and he turned over his

business and personal records to him. These included the

grocery store account books. Moreover, in December,1964, «

he asked his wife for her personal records, which she nor-

mally kept in a desk drawer. These included savings ac-

count books, personal account stubs, personal account

records, and a mutual fund document. She willingly gave

these papers to her husband, for he eften asked for them

at income tax time. In fact, Mrs. Mackiewicz never con-

cerned herself with the preparation of their annual joint

return. She left the entire matter in the hands of her hus-

-band and she merely signed whatever tax papers he

presented to her. When she discovered that he had given

these personal records to an accountant for the purpose of

assisting Agent Gardner, she said nothing.

In the course of his investigation, Agent Gardner ascer-

tanied that the Mackiewiczes’ deposits exceeded their busi-

ness income. He therefore referred the case to Special

Agent Harden (of the Intelligence Division of the Internal

-Revenue Service.)

On January 12, 1965, the two agents went to the

Mackiewiczes’ store’ in order to interview Mr. Mackiewicz.

They were told that he was at a new building site, so they

drove there hoping to find him. Mr. Mackiewicz was at the

site, and the three arranged to have an interview that very

afternoon.

Appendiz B

At 1:30, Mr. Mackiewicz invited the agents into his home’

for the interview. Agent Harden displayed his badge and ~

’ advised Mr. Mackiewicz that he was making an inquiry

into certain tax deficiencies on his and Mrs. Mackiewicz’s

joint return. He further told Mr. Mackiewicz that he did

not have to answer any questions or produce any docu-

ments which might incriminate hini. The agent repeated

Mackiewicz coufd call an attorney.

Agent Harden then proceeded to ask Mr. Mackiewicz a

series of questions, taken from a lengthy questionnaire

supplied him by the Internal Revenue Service for use in

investigating a taxpayer suspected of fraud. Many of the

questions were designed to enable the agent to fashion a

net worth theory of evasion. Since he was ignorant of this

theory, Mr. Mackiewicz did not understand the potential

import of the questions.

Mr. Mackiewicz answered, in a very responsive and co-

operative manner, most of the questions. Moreover, at the

request of the agents, he took them to the bank and allowed

the agents to inventory the materials in the safe deposit

box which he and his wife owned jointly. It included

several bonds, stock certificates and some cash. Mr.

Mackiewicz also instructed Mr. Minella to permit Agent

Harden to examine all the family business and personal

records. Mrs. Mackiewicz was not present at the interview,

- this, and Mr. Mackiewicz indicated, by an affirmative nod, -

that he understood. The agent never mentioned that Mr.

nor was_she aware that her husband was showing their

private papers to the agents.

Mr. Mackiewicz claims that his constitutsdith rights were

st ee

violated under the Fourth [e.g., United States v. Blalock,

‘13a

Appendia B

255 F. Supp. 268 (E. D. Pa. 1966) ; 67 Colum. L. Rev. 130

_ (1967)], Fifth [Miranda v. Arizona, 384 U. 8. 436 (1966) ],

and Sixth [Escobedo v. Illinois, 378 U. S. 478 (1964)]

Amendments for at the January 12, 1965 interview he was

not told of his rights as enunciated’in Miranda. However,

we believe that Miranda does not apply in the circum-

stances of this case and that Mr, Mackiewicz unequivocally, —

specifically and intelligently, United States v. Smith, 308

F. 2d 657, 663 (2 Cir. 1962), cert. denied, 372 U. S. 970

(1963), consented to answer the questions and to the as-

- serted search and seizure of the documents.

Mr. Mackiewicz contends that on. January 12th the in-

quiry as to his tax deficiencies-had shifted from the in-

vestigatory to the accusatory stages, Escobedo v. Illinois,

supra, at 482, and that the conduct of the agents established .

an atmosphere of custodial: interrogation, Miranda v. Ari--

zona, supra, at 444. Reliance is place on the following .

facts: (1) The civil investigator had referred the case to

a Special Agent. This is done when there are “definite

indications of fraud or criminal potential.” Mathis v.

United States, 36 LW 4379, 4380, n. 2 ( 1968) (dissenting

opinion); Turzynski v. United States, 268 F. Supp. 847

_ (N. D. Ti. 1967). (2) The agents’ actions established an

atmosphere of urgency. Moreover, they displayed their

authority in such a manner as to put Mr. Mackiewicz on

the defensive. He claims that he felt it was not merely

an interview, but an inquisition in which he knew that he

was faced by representatives of the Government who could

demand, if necessary, an inspection of his records, docu-

ments, and papers. Int. Rev. Code of 1954, §7602. -Mr.

Mackiewicz claims that although not technically under ar-

rest, he felt constrained to cooperate. (3) The asking of

apparently innocuous questions was “insidious and dis-

l4a

Appendix B

honest,” Turzynski v. United States, supra, at 851, for Mr.

Mackiewicz claims that he had no way of knowing that

these questions might later incriminate him. He didn’t

know of the net worth theory of proving income, and it is

probable that even if he had, he would have been unable

‘to imagine how the questions and answers could be used

to build the Goverment’s case. Thus, he was tricked into

supplying the Government with the incriminating evidence.

As one experienced tax attorney has said:

“The agents are understandably circumspect in their .

questioning of the taxpayer. Early i in their careers,

they have learned that it is easier to catch flies with ©

molasses than with vinegar. They do not wish to an-

tagonize the taxpayer or alarm him unduly ... For

all these reasons they are:pleasant in their relation-

ship with the taxpayer, they do not confront him

with incriminating evidence, and he is often lulled

into a false sense of security.” Avakian, “Rights.

and Remedies of Taxpayers Suspected of Fraud,” 33

Taxes 878, 879,-880 nw.

We are aware that i in certain cireumstances administra-

tive investigators ‘may infringe upon a private citizen’s

constitutional rights. However, in this case, the circum-

stances were such that it was unnecessary for the agents

to supply Mr. Mackiewicz with the full-blown Miranda

warnings. To some extent, a taxpayer must watch out for

~ himsélf. Morgan v. United States, 377 F. 2d 507, 508 (1 -

Cir. 1967). This is such a case.

Thousands of inquiries are made annually by our tax ©

investigators. They must be carried off with some dis-

patch and efficiency. To inject the full Miranda warning

at this stage of the proceedings would merely clutter an

lia

Appendiz B

already difficult administrative task. Furtherfore,> if

Miranda warnings were required, the Service might -have

to supply financially. indigent taxpayers with attorneys to

assist and advise them. Morgan v. United States, supra,

at 507. This obviously would hinder the efficient collection

of our taxes. . A

“The prevention of dilatory behavior and administra-

tive overload is an important interest. In United States v.

Powell, 379 U. S..48 (1964), the Supreme Court held that

the Internal Revenue Service does not have to show prob-

able cause for a subpoena; it based its decision, inter alia,

on the danger of increased dilatory. action by taxpayers

and the increase in the administrative load. These con-

siderations are equally valid here.

More specifically (in response to Mr. Mackiewicz’s con-

tentions), we do not believe that the mere referral.of a

case to a Special Agent changes the focus of the case

enough to generate the necessity of Miranda warnings.

Although a few cases have argued that this referral is a

decisive step, Turzynski v. United States, supra, the Su-

preme Court has indicated that the precess is more grad-

‘ual. In Mathis v.United States, supra, the Court hold that

under the circumstances of that case, the taxpayer was

entitled to Miranda warnings as early as the routine tax

investigation by a civil agent. It thus rejected any formal-

istic reliance on the official title. of the investigator. As

the Court said at 4380: “ * * * there [is] always the pos-

sibility during his investigation that his work would end

up in a criminal prosecution.” To draw a precise line

would discourage the Service from having any special in- -

vestigators and it would encourage civil investigators to

expand their mquiries. 33 U. Chi. L. Rev. 134, 147-48

16a °

Appendia B-

(1965). Feaiheneede. regardless of the official title /of the

agent, it would be administratively impossible for the

Service to forewarn a taxpayer every time its suspicions,

based on changing evaluations of the chenging. evidence,

shifted. .

Secondly, we do not believe that the estates was so.

charged that it was tantamount -to an actual in-custody in-

vestigation. We base-our decision, not on a technical and

unrealistic view of the custody requirement, Mathis v.

United States, supra, but on the totality of the. cireum-

stances present at the interview. There was little that was

hostile or inherently coercive here. The taxpayer had the

interview in his own home. Schlinsky v. United States, 379 -

F. 2d 735 (1 Cir.), cert. denied, 389 U. S. (1967). He

was free to come and go as he wished. He was free to

ask the agents to leave. To hold this atmosphere coercive

would be equivalent to holding all interviews between an

individual and a Government agent coercive. Frohmann v.

United States, 380 F.2d 832 (8 Cir.), cert. denied, 389 U. S.

976 (1967); see generally, Mertens, Federal Income Taxa-

tion §55A.21.

Thirdly, we do not think that the agents’ actions were

insidious ‘and dishonest. Most frequently, an’ agent is

never sure of the theory he is developing until the facts

have been discovered. Therefore, the fact that he har » t

explained the thrust of his questions to the taxpayer does

not necessarily bear on his motive and intent. And in this

case, there is no evidence that the agents acted dishonestly.

Thus, this is a case where Mr. Mackiewicz’s claim rests

fundamentally on his own awareness of the possible sig-

nificance of the questions and answers. However, the

ignorance of a person being interviewed by Government

17a |

Appendix B

agents will not always support the conclusion that he must

be given Miranda warnings. Such a rule would be too illu-

sory to form a rational and practical basis for administra-

tive action. Where there are no other coercive, extraneous’

_ factors, evidence voluntarily given should not be sup-

‘pressed. United States v. Mancuso, 378 F. 2d 612 (4 Cir.

1967). P

Mr. Mackiewicz argues further that even if the full

Miranda warnings needs not be given, the partial warnings

: actually given in this+case were misleading. He claims

that in telling that he- need not answer questions which

might incrinfinate him, the agents implied ‘that he had to

answer all other questions. This was particularly unfair

here, he argues, if viewed from thé perspective of a tax-

payer unaware that these were criminal investigations and

that answers to’ the apparently innocent questions could

later incriminate him. We disagree.

Parenthetically we note that there was no proof that. the »

agents intended to mislead Mr. Mackiewicz. Furthermore, .

the warnings given do not necessarily convey the implica-

tions asserted by him. A reasonable interpretation of the

warning would’ be exactly what it says. Thus, since the

full Miranda warnings were unnecessary, this partial ad-

vice, offered/ without proof of a dishonest intent, was not

SO misleading as to be unfair to the defendant.

Finally, we conclude that Mr. Mackiewiez knowingly

and intelligently waived whatever rights he had. He indi-

cated that he understood the warning the agents gave him.

His answers to the questions asked him were responsive

and he cooperated in every way possible. He actively as-.

sisted the agents by giving them the family records in the

‘safe deposit box and in the hands of the accountant. Under

18a

Appendia B

i + * ae

these circumstances, we believe that he unequivocally and |

- freely consented to the searches and .seizures and he in-

telligently and seitttentd agreed to answer the agents’

questions. —

Til.

Even if we should find that the Service did not violate

Mr. Mackiewicz’s constitutional rights (as we have); Mrs.

Mackiewicz contends that the search of thé jointly held

, safe deposit box and the seizure of her records (which she

had given to her husband) infringed on and violated her

Fourth Amendment rights. In essence, she claims that a

personal, direct. waiver is necessary and, since she did not

explicitly authorize her husbands’ consent or the agents’

actions, there | was no relinquishment of her rights.

The Fourth ‘ amendment was originally based on a prop-

erty concept, 79 Harv. L. Rev. 1513, 1516 (1966), and there-

fore many: courts, adopting this premise, have held that a

search and a seizure is reasonable if the party in posses-

‘sion and control of the property consents. Mascolo, “Inter

Spousal Consent to Unreasonable Searches and Seizures,”

40 Conn. Bar Journal, 351, 397 n. 118. However, over the

_- years the: concept has developed into a personal privilege.

As Justice Bradley said in me v. United States, 116 U.S.

616, 630 (1886):

“The principles laid down in this opinion: affect the

very essence of constitutional liberty and security... —

they apply to all invasions on the part of the govern-

ment arfd its employees of the sanctity of ‘a man’s

home and the privacies of life. It is not the breaking

of his doors and the rummaging of his drawers that

constitute the essence of the offense; but it is the in-

vasion of his indefeasible right of personal security,

19a

Appendie B

personal Liberty and” yotente property, where the

NG Tight has not been forfeited. .

More recently, in Storer v. Cilitorsie, 376 U. S. 483

(1963); the Court held that a hotel clerk could not consent

to a search of a tenant’s room. The Court. said at 489: “It

was a right; therefore, which only the petitioner ‘could

waive ‘by word or deed, either. directly or through an

agent.” Furthermore, no “strained application of the law

of agency” was to be permitted. - .

“1 However, in this case, the circumstances of ‘is re pos-

- session and ‘control, the particular relationship of the

Mackiewiczes in respect to tax matters, and the nature of

the Service’s investigation all establish an agency rela-

tionship sufficient to make Mr. Mackiewicz competent to

waive his wife’s privilege, thereby making the search and

seizure reasonable as to her. Saratain v: United States,

303 F. 2d 859 (9 Cir.), cert. denied, 371 U. S. 894 (1962);

United States v. Eldridge, 302 F. 2d 463 (4 Cir. 1962). —

First, Mrs. Mackiewicz' had given her personal records

to her husband for tax purposes. He /had free access to

the safe deposit box for the same reason. In the past, Mrs.

Mackiewicz had never objected when he had used this priv-

ilege to examine the contents of the box or~ even pass

_ her papers to another person for the purposes of prepar-

ing tax returns. In fact, inthis instance she made no ob-

‘jection when ‘she discovered that her husband had-turned

the papers over to the accountant. With this: background,

the possession of the papers and access to the box support

the inference that he had the power, not to do with the

papers what he willed, but to act reasonably: w ith them in

respect to tax matters. at &

20a .

Appendia B

: Second; Mrs. Mackiewiez had traditionally left the prepa-

ration of the tax returns to her husband. She had nothing

to do with them, other than signing her name. Thus, he

was her agent for tax matters. Although one commentator

has suggested that a wife would never make her spouse

_ her agent to disclose incriminating evidence, 67 Colum. L.

_ Rev. 130, 147 (1967), this is unrealistic. Mr. Mackiewicz

' was his wife’s agent in this field in January, 1965, for

better or worse, no matter where this agency might lead.

It wasn’t until long after the interview that Mrs. Mackie-

wicz attempted to sever this authority.

Third, if viewed from the Service’s perspective (and i in

determining reasonableness this {s névessary), the agents

were making an investigation of a joint return. Therefore,

from their standpoint, it was natural to seek the person

who in fact completed the form and direct their questions

to him. This Court has infact gone so far as to hold that

' if there is joint criminal activity by a married couple, the

less dominant partner (in a particular matter) can consent

to a search of their property. ‘United States v. Publiese,

153 F. 2d 497 (2 Cir. 1945). - Moreover, since Mr. Mackie-

wicz could have expected to be as guilty as his wife of

any fraud, there was no reason for the agents to suspect —

that he would be cavalier with his wife’s property and

rights. This is not a situation where the police convinced.

an innocent wife to allow a search of her criminal hus-

- band’s property. State v. iia die 106 N. H. 186, 208 A.

2d 322 nr

aa cs vie oe |)

p ee Mr. Mackiewicz further contends that her common lew

- marital privilege was violated when Agent Harden testi-

fied as to certain financial facts told to him by her —

at the January 12,.1965: interview.

“2la

: Appendia B-

“,.. The admissibility of evidence and the competency: -

of witnesses shall be governed, except when an act of

Congress or these rules otherwise provide, by the

principles“of common law as they may be interpreted

by the courts of the United States in the light of rea-

son and experience. wee &. Crim. P. 26.

from testifying in a law suit in which his (or her) | ‘spouse —

was a party. .This rule was based on three distinct prin- ~

ciples: (1) the incompetency of the spouse to testify. for -

the other; (2) the incompetency of the spouse ‘to testify

as to confidential information; and (3) the incompetency

of either spouse’ ‘to-testify against the other.

: Principle (1) was rejected i in Funk v. United States, 290

U. S. 371 (1933), in which the Court recognized that this

aspect of the rule was based on the universally ignored |

common law rule of disqualifying interested witnesses.

Therefore, the rule was no longef needed.

Principle (2) is still vital, McCormick, Ev tence, §§83,

.. 4, but inapposite in this case. The facts related to the —

agent were of a financial nature, referring to the income »

and assets of the marriage. They were not confidential;

and they were never meant ‘to be confidential.. United —

States v. Ashby, 245 F. 2d 684 (5 Cir. 1957). :

Thus, it is only principle (3) which may be wonlioiiit :

In Hawkins v. United States, 358 U. S. 74 (1958), the

Court held that a wife, although willing to testify, could’ -

* not testify against. her husband. As J ustice Black said at -

17: 7

“The basic reason the law we vefaned to pit wife

» against husband or husband against wife in a.trial

298

Appendie B

where life and liberty is at stake was a belief that

such a policy was necessary to foster family peace,

not only for the benefit of husband, wife, and chil-

dren, but for the benefit of the public as well.”

The question here presents a variation of the Hawkins

rule. May a husband’s voluntary out-of-court statements,

made when acting as agent for his wife, be repeated by

a third person and used against his wife at a joint trial

in which neither spouse consents to their use? Under

these circumstances, we think so, for (a) since the state-

tients were not actually testified to by the husband at

trial, they did not jeopardize domestic peace, (b) since

Mr, Mackiewiez testified, the danger of prejudicial hear-

“\say is greatly reduced, and (c)-the statements were made

voluntarily when Mr. Mackiewicz was an implied agent for

his wife.

This is not a case where the proseéution called the hus-

band to the stand. If he had testified under those circum-

stances, the common<law rule would have been violated.

Here, however, we are one step removed. from actual

testimony. Therefore, there is no chance that we might

be repulsed by a spouse actually testifying against his

mate, see McCormick, Evidence, §66. Nor is there a chance

that marital frictions will be aggrevated, 33 Tul. L. Rev.

884, 890-892 (1959), for there is the convenient buffer of

the third person actually making the remarks. United

States v. Winfree, 170 F. Supp. 659 (E. D. Pa. 1959);

contra, Peck v. United States, 321 F. 2d 934 (9 Cir. 1963),

cert, denied, 376.U. S. 954 (1964) (dictum); Olennder v.

United States, 210 F. 2d 795 (9 Cir. 1954), cert. denied,

352 U. 8. 982 (1957) (dictum).

23a

Appendia B

Mrs. Mackiewicz further contends that since these are

out-of-court statements, they are heresay. 8 Wigmore,

Evidence §2232 (McNaughton Rev.;1961). However, the

danger of hearsay statements is that the defendant does

not have the opportunity to cross-examine the declarant.

In this case; Mr. Mackiewiez took the stand, and there-

fore, if his wife had wanted to, she could have cross-

examined him.

Furthermore, Mr. Mackiewicz had the implied authority

of his wife to make the statements. As has heen noted

above, he was the implied agent for the family businéss

in tax matters. Moreover, since they were partners in the

income tax evasion, the statements are admissible under

a standard exception to the hearsay rule. United States v.

Pugliese, supra; People vy. Williams, 127 N. E. 2d 505, 6

Til. App. 2d 325 (1955). This exception is applicable if

there is simply a “likelihood of an illicit association.”

United States v. Ragland, 375 F. 2d 471 (2 Cir. 1967). This

was established when the Court had reason to suspect tax .

fraud on the joint returns.

Finally, this is not a case where a wife purposefully

makes an incriminating statement against her husband.

United States v. Ashby, supra (the statement was ad-

mitted in that case, for by the time of trial the couple

was divorced). Rather, Mr. Mackiewicz, being a potential

defendant at the time he answered the questions, had

nothing td gain by revealing facts which would do harm

to his wife. |

Affirmed.

24a

Appendiz B

Feiperc, Circuit Judge (concurring) :

I join in the majority opinion, but as to Part II thereof,

I concur because the way I read Miranda I do not believe

that it applies to a situation with as few custodial aspects

as this one, as my brother Mogre has ably pointed out.

However,« -if this analysis of Niranda is incorrect, and

full warnings are required when an investigation has been

referred to a special agent of the Intelligence Division of

the Internal Revenue Service, I do not agree that this

limited extension of Miranda will necessarily cause serious

administrative difficulties. |

25a

APPENDIX c

snionen cunt eiiaiadiiiailia ax i Ninna tee

Disteiat Court’

Unrrep States Dasneer' Couns

FOR THE

District oF Coxwecricur

—

Usrrep States or AMERICA

| v.

Water P. Macktewicz

No. Cr. 11,970

—

On this 22nd day of January, 1968 came the attorney for

the government and the defendant appeared in person and'

by, counsel.

Ir Is Avsvpcep that the defendant upon his “— of? not

guilty and a finding of guilty by the jury has been con-

_vieted of the offense of violation of Title 26, Sec. 7201 of

the U.S. Code (filing false and fraudulent income tax re-

turns) as charged* in four (4) counts and the court having

asked the defendant whether he has anything to say why

judgment should not be pronounced, and no sufficient cause

to the contrary being shown or appearing to the Court,

Ir Is Apsupcep that the defendant is guilty as charged

and convicted.

. 26a

Appendiz C

Ir Is Apsvpvcep that, the defendant is hereby commftted

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of* three (3)

years on each of the four counts, to run concurrently, and

- is fined. ten thousand dollars ($10,000.) on each count [to-

tal fine $40,000.) ; execution of term of imprisonment shall

be suspended after serving six (6) months, whereupon

the defendant shall be placed on probation for a period of

three (3) years. The defendant shall stand committed un-

til the payment of the fine is made, or r until otherwise dis-

charged as provided by law.

Execution on payment of the fine is hereby stayed for

‘thirty (30) days. |

Ir Is Onverep that the Clerk deliver’ a certified copy of

this judgment and commitment to the United States Mar- .

shal or other qualified officer and that me copy serve as the

commitment of the defendant.

/s/ M. JosepH BLUMENFELD

United States District Judge.

The Court recommends commitment to:*

“ae

“ese eevee eeneeeeaeeneeneneeee

A True Copy Certified this 22nd day of January, 1968

(Signed) Giieert C. Karu.

Clerk. .

(By). Sytvester H. Mackowsk1

Deputy Clerk.

FIep §

Jan 25818 AM ’68

U. 8. Districr Courr

New Haven, Conn.

atime tain oe a ~~” ~~ ° m —_ _~ = os “ ~- i] ,

27a

‘ APPENDIX D

- * Judgment and Order of ‘Probation of the

. ‘United States District Court

Unrrtep States District Court

; FOR THE

District: or CoNNECTICUT’

—

Unrrep States or AMERICA

FLORENCE B. Mackrew1cz

No. Cr. 11,970 -

iii

On this 22nd day of January, 1968, came the attorney for

the government and the defendant appeared in person, and’

by counsel. .

Ir Is Apsvvcep that the defendant lias been convicted

upon her plea of? not guilty and*a finding of guilty by -

the jury of the offense of violation of Title 26, Sec. 7201

of the U.S. Code (filing false and fraudulent income tax re-

turns) as charged* in four (4) counts and the court having

asked the defendant whether she has anything to say why

judgment should not be pronounced, and no sufficient cause

to the contrary being shown or appearing to the court,

Ir Is Apsupcep that the defendant is guilty as charged

and convicted.

Ir Is ApsupceEp that the defendant be fined five thousand

dollars ($5,000.) on each of the four counts [total fine $20,-

28a

Appendia D

000.] and is hereby committed. to the custody of the Attor-

ney-General or his authorized representative for imprison- -

ment for a period of one (1) year on each count, to run’

concurrently, execution of term of imprisonment is hereby

suspended and the defendant is. placed on probation for a

period of fhree (3) years. The defendant shall stand com-

mitted until the payment of the fine is made, or until other-

wise discharged as provided by law. Execution on pay-

ment of the fine is hereby stayed for thirty (30) days. \

Ir Is Furtuer Orverep that during the period of proba-

tion the defendant shall conduct herself as a law-abiding,

industrious citizen and observe such conditions of proba-

* tion a& the Court may prescribe. Otherwise the defendant

‘may be brought before the court for a violation of the

court’s orders.

Ir Is FurtHer Orperep that the clerk deliver three cer-

' tified copies of this judgment and order to the probation

officer of this court, one of which shall be delivered to the

defendant a the probation. officer.

/8/.M. JoserxH BLUMENFELD

United States District Judge.

A True Copy. Certifified this 22nd day of January, 1968

(Signed) Gripert C. Earu ;

4 Clerk.

(By) Sytvester H. Maraew SKI

Deputy Clerk.

29a

APPENDIX E

- Judgment of the Court of Appeals

_. Uytrep States Court or APppgALs

: . - FOR THE

: Seconp Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in -the City of New York, on the tenth day of

July one thousand nine hundred and sixty-eight.

Present: '

Hon. Leonagp P. Moore,

Hon. Paut R. Hays,

Hon. Witrrep FEINBERG,

Circuit Judges:

, iin ,

Unirep States or AMERica,

Plaintiff-A ppellee,

Vv.

Watter P. Mackiewicz and Fiorence B. Mackiewicz,

Defendants-A ppellants.

—

— from the United States District Court for the

District of Connecticut. ar

This cause came on to be heard on the transcript of rec-

ord from the United States District Court for the District

of Connecticut, and was argued by counsel.

30a

Appendiz F

On Constveration Wuereor, it is now hereby ordered,

adjudged and decreed, that the judgment of said District

Court be and it hereby is affirmed.

| _ A. Dantren Fusaro

Clerk.»

a s |

Peer a : |

; : |

o : :

. ss :

, °

° . :

| .

| =

‘

| .

‘i .

‘

| -

| .

. ;

| .

. y

‘

é« | |

. |

a .

_———

a“

en a

° 7

‘ ; |

° -

ry ¥ .

“ : |

‘ 7

‘

’

i 7

, .

‘

= .

. $

& 2 Ah | |

. P |

: . .

. .

‘ | |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.