# Petition for Writ of Certiorari — Holsen v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0073%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1029 ## 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 (c) Respecting the incompetency of one 2 spouse “i 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 . 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. S 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. ” 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. 14 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 i) “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. > & ad — (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 . 16 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.”’ ‘ 17 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 ee 2a 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 3a 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 e 4a 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: 2 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 9a 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, i 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 L 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. At common lew, the hanband pe wife were disqualified © 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 ' . > | . a | = ‘ | . ‘i . ‘ | - ° | . . ; | . . y ‘ é« | | . | . . rn a . _——— a“ en a . ° 7 ‘ ; | ° - ry ¥ . “ : | ‘ 7 ‘ : . ’ i 7 , . . ‘ = . . $ & 2 Ah | | . ° . P | . : . . . . ‘ | | re --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0073%3A1. Public record. Not legal advice.