Appendix — Tonahill v. United States

Supreme Court brief1970

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UNITED STATES of America

; Vv.

Joe H.s TONAHILL.

Crim., No. 5737.

‘ United States District Court

E. D. Texas, pe -

a a

~Beavnont Division.

Jan. 14, 1970.

MEMORANDUM OPINION AXD ORDER

ROB KR TS ee Judge. Tey

Defendant ‘is a lawver of wide experience arid

reputation, who has resided aml eonducted his legal

practice from offices in Jasper, Texas. Within the

cea District of Texas, for more than sixteen (16.

vears. His practice has been primarily hetgre State

no Federal Courts in) Beaumont, Texas. within th:

Eastern District? and he has on occasion practiced he-

fore courts In Austing Texas. He was iirdieted in Sean

Antomo., Texas, on April 14. 1967, within the Western

Distriet-of Texas, for three (3) counts-.of tax evasion

in vielation. of Section 7207, Titeimal Revenue’ Code.

YG TLS.ELAL § 720L alleged to have ceenrred. within

the Austin Division of the Wester District of "Posais,

ond covering the vears 1960, 1961 and 1962. This ws

late on the last day hefore the count for 1960 would he

harred by imitation. The ease was-removed by ay pre-

priate motion to the Beaumont Division of the Fasters

Division of Texas, the Division and District. in which

the defendant resides.

"Sitting by special designation of Chief Judge, CCA, 5th

Cits John R. Brown.

er oe

Among the various motions filled by (or on behalf of

the Defendant, is a motion to suppress certain evidence

obtained by the Government on the grounds that such

evidence Was obtained through fraud, trickery and de-

velit, and on the further grounds that such evidence —

was obtained without tirst having given, Defendant the

so-called Miranda warnings. Hearings on the motion

were held on December 8 3 1968. and July 25, 1969. Con-

theting testifnouy was wey from the witnesses as to

What transpired at the meetings between Defendant -

and his accountant and representatives of the Internal -

Revenue Sefviee. L have examined the reeord aud re-

solved the coutlicts : because of the conclusivii 1 reach

ole the issue’ of fraud, trickery and deceit, 1 do not

‘reach the question of whether Miranda applies to the

instant case. ,

As is usual in eases vf this kind, the investigation

hemtteas a civil audit of Defendant’s business by Rev-

enue Agent Belschner. Belschner examined Defend-

ants books and records from October of 1962, until

Mareh of L964. His procedure was to examine what was

submitted and veturn the reeords to Defendant or his

accountant on a daily basis. The actual examination ot.

the records tor each vear in this fashion took approx-

imately Jive (9) days, although the ape leered on

the case for overca vedar By December -3, 1963, he ne

lonszer had any of Defendant's records. Some time prior,

io Mareh 10, 1964, he formed a suspicion that Defend-

ant had violated Section. 4201. On that date. he referred

the case to the Inte Higence Division of Internal Rey-

enites Which assigned it to Special Agent Hugh Loven-

thal of the Division’s Beaumont office.

No contact iwas made between the Revenue. Service

and Defendant from January of 1964, until-September

of 1904.-On September 1, 1964, Belschner and Loven-

PCa a

fe)

‘n

—

thal met with Defendant and bis accountant. Defend-

ant arrived at the meeting ‘early, was introduced to

_ Leventhal, outside the presence of his accountant. as

a special agent, and Loventhal’stated that he was ‘‘as-

signed to conduct a detailed investigation tnto the vears

1960, 1961 and 1962;” that “Mr. Belse ‘hner had discov-

€ gi what had appeared to be large discrepancies. That

vas the reason for my participation in the case.’’ If |

such statements were made, and there is testimony ‘in

the record to refute even them, they whee. made in a

manner to muninize the ‘importance of what was heing

said. , \

ani It is obvious from the testimony that neither

Defendant nor his’ accountant had any -conception of

the significance of the term ‘‘Spec ial Agent.”’ The ac-

‘countant practiced locally in Jasper, had had in bis _

practice only one matter go beyond the Revenue Agent

level, and had experience with Revenue personnel from

Beaumont only when they came to Jasper to help a

~» Jocal agent on civil matters. Defendant had. no experi-

ence in tax matters whatSvever.

Wiiat is more important, in my opinion, is that the .

Agents must have known that the Defendant and his

accountant did not understand that the audit or inves-

_ tigation was criminal. Defendant and his accountant

were apprehensive enough—hecause of the length of

_ time involved in the investigation—to ask both Mr.

Belschner and Special Agent Loverithal on the several

oceasions- When thev met, what the 'v were doing, why

the audit was taking so long, and whether fraud was

involved. Not once did sos ees ee in the. affirma-

tive that “fraud” or a ‘‘erime”’ was involved. Instead,

they stated their function was to reconcile the large

discrepancies, to see if they were the result of innocent

errors. The Agents testified that they ‘also told De-

ee AS a

fendant that ther were trying to determine {f he had -

attempted to ‘*deteat”’ the tax, or “evade” the tax. De-

fendant and his accountant both deny that such state-

ments were made. Assuming, howev er; that they were,

they were coupled with consideyable conversation con-.

cerning legitimate deductionis inissed by the Defend-.

Jant but picked up hy them, and-errors made bv the

Defendant in favor of the Government: Such evasive-

‘hess by the Agents in the face of direct questions from

the — constitute affirmative fraud, trickery

and deceit. Especially is this so when the Age ants kne Ww,

or should have known, by the actions and repeated

questions of Defendant and his accountant, that they

did. not. understand the nature of the investigation,

Mere Was reason, ‘tin. for the Siacues Rania to

Keep the criminal investigation a secret ‘from Defeni-

cunt. "They knew Defendant’s reputation as‘a lawyer:

they knew he had expertise in the criminal’ tield ; and

they knew, as Defendant testitied, that any description

of the j inv vestigation as being criminal in natute would:

cut off their supply of information—whic h wats viven

with the full and eomple te cooperation of the Defend-

wut aud his accountant. And even within furty-tive (45

ditys’ of the“receipt of these records, atid before any

further contact was made with Def endant, the Special

Agent had submitted doc ‘uments to the Office of the

> samuner of Questioned Doc uments for analvsis. The.

daw ‘iments submitted cone erned the same matter whit ‘hy

had. tirst aroused Belse hner’s S SUSPicions.

Nor can tliere be any ‘areument that the iivestiga-

tlon Was notca criminal investigation? While Loven-

-thal’s eredentials'as a “Special Agent’? do not sv state,

“he testified that he was a member of the Inte ‘Iligence

Division, and that a correct. description of “his fune-

tions would be to ‘senforce the erimin: il statutes’’ ap-

-~— A-4 —

See

plicable to income tax laws. He further testified that

-he was instructed in 1967, tu thereafter warn taxpay-

ers of the criminal nature of the investigations and the

\; taxpayer’s rights under. the fifth and sixth amend-

~ ments, even though his dutjes do not appear to have

changed after 1967. Without quoting from the record

‘in detail, itis clear, and I so find, that Defendant and

- his accountant did not realize at least until Defendant:

emploved a lawver in the summer of 1965, that a erim-

inal investigation was being conducted, that the Agerits

knew that Defendant and his accountant did not know »

the nature of the Investigation, and that tliey deliber-

ately hid the fact that the investigation was criminal.

‘Even the Government’s counsel admits that sueh he-

havior eonstitutes, fraud, tricker v and deceit.

[2.3] There have bins no ‘Fifth Cireuit cases that -

have dealt with the precise issue in question—namely.

that frand, trickery and deceit will be.grounds for a

toetion fo suppress.in an income tax fraud case, Two

case in point, however, are United States v. Prudden.

“5 F.Supp. 110 (M.D. Fla. 1969 \: and Goodman v.

United States, 285 F.Supp. 245 (C.D. Cal. 1968). White.

the evidenee.of affirmative deceit is*different.in each

of the eases, in each as in this ease, there was a failure

to explain that a criminal investigation was in progress

(ora failure to explaip the distinction Hetween spi

cial” and “revenue’’ agents), edupled with affirmative

netion by: the Agents resulting in jner imthating actions

heing taken by: the taxpayer. In- this case. the affirma-

tive action was the concealment of the nature.of the

inv estigation, the refusal of the Agents to. tell Defend-

ant and his accountant that: a eriminal Jinv estigation

was underway when.specifieally asked, and the de lib-

crate attempt to hill Defendant and. his accountant in-

to cooperating with the Agents: See Stuart v. Vnited

— A-5 —

™*

”

States, 416 B.2d 459° (oth Cir. 1969). In this. connec-:

"tion, L point out that a lawyer-defendent in a tax: fraud

case is held to no higher duty of knowledge of the tax

= and procedure than any other defendant, Bursten

. United States, 395 F2d 976 {5th Cir. 1968), and

aire be expected to kiicw the difference between a -

“revenue”? and “special”? agent. If he is: a criminal

lawyer, however, he knows enough not to waive his |

constitutional rights in the course of a criminal inves-

tigation. U ntil he knows the investigation is criminal

_in nature, however, he has no opportunity to utilize his

knowledge. The agents were fully aware of Defend-_

ant’s background; antl deliber: itely \hid the nature of

_ the investigation. | | \

Accordingly, 144RANT the motion to suppress all

evidence. received by the Special Agent ‘from the De-

_ fendant or: his accountant, and all evidence obtain&l

_ through leads from evidence so obtained, or as a result

of information given by Defendant or his accountant: to

the Spec ‘ial Agent, including within my order all- evi-

dence re- submitte “1 to the Special Agent even: though

originally obtained prior thereto. I re alize that some of ~~

“the evide nee was examined by Belsehner prior to the en-— ’

trv of the Spee ial Agent, It is. obvious from the record,

however—the time lapse between the date. of last COH-

inet by Belsehner alone and first contact by Special

Agent, Loventhal, the method of audit used by Belse h-

ner, aud the lengthy investigation of more than two .

and one-half (214) years made hy the Spee ial Agent

after the matter was referred to him—that the Spe cial

Agent made his own “investigation from the material

submitted to him, and that the information obtained

in the coufse of the civil audit was not used in the

criminal investigation. Furthermore, if suppression of

evidence obtained through the behavior of the Agents

— A-6 —

in this case is to hav any Incaning, the ev ‘idence re-

-. ferred to above must bes ppressed: The ree Cord shows

what evidence was submitted to the Special Agent,

which includes ‘all material for which receipts. were.

obtained, as well. as material received by the Agents

even though they: neglected to receipt therefor.

In ‘accordance with the foregoing factual findings

and legal conclusions, the motion to suppress should —

me sranted and iti is ‘sO ordered. © :

te” Z

ene <2

te)

IN THE UNITED STATES COURT OF APPEALS |

FOR THE FIFTH CIRCUIT

No. 29426

/ we

( —UNLPED STATES OF AMERICA,

| \ ~ Plaintiff-Appellant,

versus

' JOB H. TONAHILL,

Defendant- Appelt e..

‘Appeal from the United\States District Court for. the

Eastern District of Texas .

Before GODB OLD, “MORGAN and INGRAHAM,

ae ireuit Judges. | pore ©

aS Y THE cou RT:

UTES ORDE RED that dppellec’s Sanotion to dismiss

-uppeal for want of jurisdiction, file ‘din the dhove stvled

~ and numbered cause, ix hereby denied. «

Re. ene

—

. &» s «

UNITED STATES COURT OF APPEALS.

FOR THE FIFTH CIRCUIT ~

October Pie. 1969

is No. 29426

Summary Calendar

_D. C. Docket No. CR 5737

_ UNITED STATES OF AMERICA,

ses Plaintiff - ular

versus

‘JOE H. TONAHILL,

Defendant- -Appellee. |

Appeal from thie U utted States District art for the

Kastern Districh of Teras, '

3efore, GOLDBERG, DYER and SIMESON,

Cinenit Judges.

: . J UDG@MEN 7

This cause came on to he heard on the transeript of

tia ree “ord from the U hited States District Court ter

the ‘Eastern District of Texas, and was taken under

“submission he ‘the Court upon the record and briefs

on file, pursuant to rule 18: tar |

ON CONSIDERATION WHEREOF. | 1: Ise HOW

here ordered and adjudged by this Court that the jude-

ment of the said District Court in.this eause he, and

the same is hereby, reversed; and that this exuse he,

vnd the same is-hereby remanded to the said District

Count for further proceedings not Inconsistent wit!

We opinion of this Court.

X ‘

Issued as Mandate:

b July 43. 1970 -

‘a

IN THE

UNITED STATES COURT OF APPEALS

7 FOR THE FIFTH CIRCUIT

ne SORee

Summary Calendar

“UNITED STATES OF AMERICA, ;

Plaintiff- Appellant,

_versus |

_ H. ‘TONAHILL,

Defendant-Appellee.

tppeal fron the United States Dist riet C'ourl for lhe

: Eastern District of Teras

‘July 13, 1970)

Before GOLDBERG, DYER and SIMPSON,

Circenit Judges.

DYER. Cirenit Judge: The defendant was charged

~ with three counts of willfully attempting to evade and

defeat his. individual income tax. for the vears 1960

thrench 1962 in violation of Section 7201 of the Inter-

nal Revenne Code of 1954. He moved to suppress from

evidence oral statements he had made to treasury agents.

“nnd documentary evidence seized by them, claiming

that the evidence was illegally obtained because Miran-

da warnings were never given to him and because the

agents induced him to furnish the evide ‘nce by fraud

— A-10 —

_and dee eit by misleading ine into thinking that there

would be. no criminal charges against him. The Dis-

trict Court granted this motion and the Government

has appealed. Finding this case controlled by our recent '

decision in United States v. Pradden, ) Cir: 1970, ——

F.2d —— [No* 28,140, April 10, 1970] we reverse and—

re Neue :

The defendant is a&t criminal attorney in Texas of’

wide experience and reputation. The investigation be-

van as a civil audit of defendant’s business i in October,

1962. Tlie Revenue Agent lingered on the « case for over

a year and during that. period formed'a suspicion that

- defendant had violated Section 7201. Tn Mareh, 1964,

he referred the case to the Intelligence Division of.

luternal Revenue, and the Gase was assigned toa Spe-

elal Agent. There was no contact betwee ‘nthe Revenue

Service and defendant’ from January, 1964. until Sep-

temiber, 1964. when the original investigating Revenue .

Agent and the Special Avent met with the defendant

and his aecountant.

‘ | ‘

The District Judge found that neither defendant nor ©

his eo knew the significance of the term **Spe-

al Agent.”? Howe ver, defendant and his accountant

were apprehensive ‘enough (because of the’ length of

time tvolved in the Investigation) to ask the agents

on the several (oecasions wher they met. what thev

Were ’ doing, wliy the audit owas taking so. long. anid:

whether fraud was involved. The District Judge found

that the Agents must have known that the defendant

and his accountant did hot understand that the audit

or investigation Was erimini land that. “Not onee did

the Agents reply ‘in the affirmative [to the sepals

of defendant and his accountant] thet ‘fri nd? or

Darsaait to our desis 18 this tase is decided without oral.

argument. .

a? A- 1 - —

. ' ; .

-erime’ was involv re Instead, they. stated, their fune-

tion Was to reconcile the large discrepancies, to see ir

they ‘were the result of innocent errors.” Relying on

Uyited States v. Prudden, M.D. Fla. 1969, 305 F. Supp.

110, and Goodman v. United States, C.D. Cal. 1868, 285

F. Supp. 245, the District Judge found that the Rev-

enue Agents had concealed the nature of the myvesti-

vation from taxpayer and his accountant and that this

zmounted to fraud, trickery and deceit on their part.

Accordingly, he granted the motion to suppress.’

— Pruddén was sabiseunely reversed by ‘this Court:

and Goodman was distinguished in that opinion on the

eround that the.taxpayer there.thad only a gr emmar

school education and was affirm: atively led to believe

that the information which he was giving the revenue

agents was part of the investigation of ayother tax-

paver, clements not present either in Prudden or i

the imstant.case. Slip opinion at. p. 35.

With the lew ul underpinnings swept away from the

District Court's order granting his motion to” SUp-

press, the defendant attempts to turn the Fifth Civerit

decision in Prudden to his advantage by arguing that,

although Pr udden approved silence on the part of in- -

vestigating Revenue Agents, It expressly disvipproved —

iffirmative misrepresentations and said. there was @

duty not to feave unanswered an- inquiry, where doing

so would he intentionally misleading. He argues that

‘Pincause he found the agents had obtained ‘the evidence

from the defendant-taxpayer by fraud, trickery and deceit,

the District Judge did not reach the question whether the.

agents were. required to give Miranda warnings - when the

- nature of the investigation changed from civil to criminal.

-If there was any doubt about this question before, it was re-

colved by United States «. Prutlden, 5 Cir: 1970, F.2d ©

No. 28,140, April 10, 1970] which — that Miranda

warhing are not required.

— A-12 —

thes inquiries of himself and his accountant to the

Revenue Agents imposed a duty: on them to inform

him that a criminal investigation was under way and

that their answer affirmatively misled them.

We tind no distinction between. the Instant case and

Prudden which justifies different results in the two

cases. Of course, there is no question, -as Prudden

pointed out, that Revenue Agent& cannot ‘obtain infor-

‘mation from taxpayers by fraud, tricke ry or deceit

which misrepresents the nature of ‘the seach. But

there must be “acts by the ageut[s] which materially

bens atin the nature of the inquiry” before there

is fraud, trickery or deceit and “the record . _» + must

disclose some: affirmative misrepresentation ‘to estab-

lish the existence of fraud, and this showing niust be

clear and convineing.”’ Pr udden slip opin. at p. 28-30

‘emphasis added). : zs

We cannot say.on this record that there was a ma-

terial misrepresentation which clearly and convine-

ingly shows fraud and the defendant has the -refore

failed to ineet his burden.’ The agents did not say or

indicate in any way that their investigation was not

criminal or that there was no possibility of a criminal

prosecution, They said their function was to reconcile

large diserepanei ‘les to see if thev were the result of

imnocent errors. If anything, sue ‘h a statement. to an

attorney and his accountant, especially when accom-

_ panied by prolonged investigation, should have yiut the

taxpayer on guard that if the agents determined that

the large discrepancies were not the result of innoe ent

errors he would be stibject to criminal. présecution.

“The emphasis ‘of the District Court's order granting the.

motion to suppress was on the taxpayer’s igporance of the

nature of the investigation and not, as required by Prudden,

on what the agents said and did. es ee.

meer GOR 4

" &

The order granting defendant’s motion to suppress

is reversed and the case is. remanded to the. District

Court for further proceedings not inconsistent with

_this opinion. °

REVERSED and REMANDED.

. | -.

IN THE

“UNITED STATES COURT OF APPEALS

‘FOR THE FIFTH CIRCU IT

» No. 29426 —

Summary Calendar

“~ UNITED STATES OF AMERICA,

Plaintiff-Appellant;

versus |

JOE H. TONAHILL, \

; Def endant-Appéllee.

: Appeal’ from. the United States District Court for the

_ Eastern Pistrict of Teras

ON PETITION FOR REHEARING AND PETI-* |

TION FOR REHEARING EN BANC °

——— ai 1970 )

_ Before GOLDBERG. DYER and ‘SIMPSON,

Cireuit J udges.

~PER CURTAM: The Petition for Rehearing is DE-

NITED and no me mber of this panel nor Judge in regu-

lar active service on the Court having requested that

the. Court he polled on rehearing en banc, (Rule 35

Federal Rules_of Appellate Pi oceditre : Local Fifth

Cireuit Rule. 12) the Petition for Rehearing En Bane

is DENIED.

— AB —

UNITED STATES of America,

_ Plaintiff-Appellant, .

Va Pah.

Horton R. PRUDDEN, Defendant: ae oe

Appellee.

- No. 28140.

United States Court of apenia.

ee 2 Circuit.

April 10, 1970,

Bet fore JOHN R. BROWN, Chief Judae. and COLK-

MAN and CLARK, Cire uit Judges. fy

CLARK. Circuit Judge:

Horton R. Pridden Was jadie ‘ted on seventeen © counts >

of evading taxes due the United States. On taxpayer's’ -

motion made prior te trial the court below in a blanket

ie eae all statements made and all corporate

eud personal deciments furnished by Rrudden to a

special agent of the Internal Revenue Service, together:

with all evidence obtained tygough ‘or as ao result. of

sue im statements or docuniente ay evidence, Suppression.

was} based ona ti nding thet. the internal Revenue Serv-

“lee jhad obtained such statements and doemments by

envaving ina deliberate scheme to deceive: | “ede ni

order to prevent | his undé rstanding that an investiga-

tion or ivinally commenced by a revenue agent had ma-

terially. altered vat the time the special agent entered ©.

the ease.” The U nited States. chose ‘to appeal the sup-

pression order rather than to proceed to trial without

the evidence thus suppressed, Since the record does,

305 F. “Supp. 110 (M.D: Fla. 1969).

— AAG — uf

he a

_ . 7 °

ote 7 net clearly and conyincingly de »monstrate a deliberate

se me eme-to deceive and we-reject the tax} VCS. COU-

tention that ne Wiis entitled to Miranda WwW: irhings, We

a +

Oe Verse.

‘Yhe followina, facts’ i ike cither wnidisprted or are

stated Inost faverably to thet axpaver. On Mav 10, 1963.

certain returns of The Florida € orporation of Amer-

CPCA) and its subsidiaries were assigned to Rev-

cnue Ngent Lexow for the: purpose of determining the

c erecknens of the tax reported. At this time Lexow

seen With the Internal Revenue Service about one

' a Fie wis still in training and was not a full-erad:

agent. Pruddemawas 50 vears of ave. al inw ‘school erad-

vate re then cimployed as a security analyst for 2

theniber firm of the New York Stock Exctange: Afte

lenrning that FCA was to be examined, Prudden tele;

rconed tex ‘xow at the Palm Beach office of the Internai

Revenue Serviee from his home i in Connecticut, stating

teat he was’a director of FCA. He inquired if Lexow’s

“wcunination was to cover FCA alone or its subsidii Aries

ne rand further asked. if the exanunation was routine.

. it ow replied that the examination would caver both

~ 1% © and its subsidiaries and that it was not routine ;

vo jue returns had been seleeted: in Jacksonville. t

‘is examined and had been-assigned to Lexow frot:

« . o ; : Pa,

‘there, ie eee |

The exainination actually conimenced on Mav mt

wire i Lexow contacted Mrs. Anne G. Smuth. who was

ated on the: returns to be fhe pres sident of these

cor moneaane? All of Lexow’ s subsequent examinations

ian and ¢ at the time of .these examinations ‘she was not a

corporate officer but was acting as an independent agent or

4n hourly pay’ basis. The ownership of substantially all the’

FL “A stock was held i in trusts, of which Prudden WAS CO0- trustee

for his sons. ;

eee the yee A oe

es.

rudden "testified that Mrs Smith had merely. neg a statis- |

‘ a

were made under the Stpe or visioni of Mrs. Smith either

with or without Prudden pr eSent. Prudden’ and Mrs.

Smith were cooperative with Ageit Lexow, furnishing

himi most ‘of the documents he wishe @ to examine ane!

making. copies for him at his requests, By June 17

‘Lexow's examiimations had disclosed whatshe consid-

ered to be possible indications of fraud. It appeared

to Lexow that a Nassau based, corporation, Research:

and Development, Ltd.; might he-xkimming profits off

one of FCA’s subsidiaries, He further noted there was:

indication as réquired on the.return,|that the Ba-

hamdan and American corporations were ‘related. Lex-

ow had also discovered information cone erming 2 szle

of stock which gave the appearance of having produced

a Jarge capital gain, but had been reported as a loss.

By this time. Lexow’s investigation had also broadene d

to cover’ Prudden’s personal returns. Lexow made no

report of these suspicions to his superiors at this jane-

ture becausé he wanted to pursue the examinatien

further. seers

“A number of tnnes during Lexow’s audit Prudden

* toldLhim that if they*found anvthing wrong, he, Prud-

_ den, wished that Lexow would let him know so that it”

could be corrected and any tax due could be paid.

Prudden was particularly insistent that Lexow advise

him on how to handle several details of a particular

stock sale. Lexow testified that it’ was possible that he

did tell Prudden that when all the facts were known

tc him he would ag vise Prudden how a 52,000 dollar

escrow item connected with the stock sale Should he

‘handled,-but Prudden admits he never got this advice,

“When a revenue agent discovers indicia of fraud in

the, course of an examination, the routine procedure

requires that he refer a complete. report of his findings

to the Tntelligene *e Div — revenue serv 1¢e,

i 7 A — A-18 ———

»?

which then dckottninien whether it will assign a special

agent ty: take charge of the case. On June 27, while

Lexow’s examination was continuing, he had his first -;

discussions with other persons in his. office about the.

possibility of referring the cas¢ to the Intelligence Di-

vision. Lexow began to write his referral’ report on

July 3 and completed iton July 15. On July 9 he wrote

Prudden: requesting bank statemients and canceled

--thecks of Research and Development, Ltd., urging him

to for ward these ducuments to Lexow in order to save

tine and enable Lexow to proceed With his examina-

tiou of FCA and its subsidiaries. He also: complimented

Prudden on his cooperation, A copy of this letter is

set out in the inargin. “it Was not shown. that’ Pr udden .

ever: furnished the documents requested to Lexuw or

ils SUC CCSSUES ;

Lexbw did not meet with Prudden or Mrs. Suhith at after

duly 9% On Augustel4, Lexow received advice trom the

os ze Division that it had dee ‘ided to make a

fali-seale investigation. On August 29. atter a telephone

coversation With Mrs: Sinith imtiieated that Prudden

Wanted a written request, Lexow wrote Praudden ys-

qiesting that capies he made available to him of papers-

preva iously furnished but-inadvertently left in the cor-

boration’s office. He alse aske d fora schydrte which

‘ ? , . . .

Oc Mr. Prudden: - :

lr presume that cou have retrieved’ ‘fron storawe the bank °

sivfements and ca: 1eled. checks of Research and Development,

. Ltd.’s two bank accounts.

Piniés ferward them to me in care of this office. By doing

xo, we will both benefit in that you will be saved a consider able

wmount of time upon your return to Florida and prior to your ~-

return, J will be able to proceed Ww Mth myx examination of FC 4

and subsidiaries,, 7

You have been. most cooperative in fur nishing informatiiin

and ir giving of your‘time in gonnection with this examina- 5

tion; therefore, I feel sure that you a wil give your immediate

attention to this. matter.

. Sincer ely.”

Ai . : a : *

’

. Py - ,

. . re e i : :

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P C CUE PEPE eT segs a l tat XgWes eXopiuattti: Léxow, once te ome

era, | toe Prudde n that the Internal Reveme rvitwould

7 "never leave hi t alone tintil he cae eee records: :

aes r Research and Development. Lid. Prudden, took the

n Ay ree Ss Fes: thi iT Suc! h rec meds did ‘riot have to be produced

. and. as stated? he never produce a them, On one ocea- . “

: sion when Lexew raised a question os to constmetive th

. ownership with | rudgden, Pin dden told Leacw not. to :

z e attenint Te tell} Leas nt the Lities ot eonustructiHte own-

se 4 * . 7

2 ° a) ] b 4 - - } 7 } B > E Te “% ¢

P t Psilhh, Thal th eae L dhe4al CCT J i= SPrcciaity it} law

“*~%@ FY . "ot ¥ e x 6 7 " ws 5

F - school and he find : studied i tor tiree Vears “On sev=- “*

* . oY “aS ae Ye, Rearek Tear ees

‘e , @ Fal ‘tislons = TU iden: fold” LOW OW, That. he, -Lexow, fo 4

quite ee eae =” apm is¢- -4 3 : } °

Wiis simply on re nshing. eXpeanlon Vihe .ohiv. To

: *T he:)* Ts t< iT Wen] 132»? : x y Aoxrpict

; aatber Tacts. thi VOU SLM PG LNW Se Pecoheeved

ae ©

; - e442 Py fee es Ses Bee ee ee

: bstierilistertin seinen AL LETT Web rndaden stated

. ‘ , ‘

> ig #13 * 2 Now le ° * > .

z tikit Ne Ww. is eit With The Qi tems Were ;

’ By oes - . A ° 5 es

: Pane sincicrn “out Of CONTAENGAN order. te ott: A liis Wit

- o> * a+ Gen ee } 4 a —_ P. 1 4

Chiilons as UbLLal ana eT [ hs} é a. oP } Tey Ott...

a“ - *s . = ee . : :

7 & i ; 1 , ) . + ? 7 ? ,. } .

. z idl t aafa frequent \V a FACwd . { i e'} yes Re vere

£ f ‘ . ay

SeIvice 's views hut ladel MeVEY Pecon testisie auswet 9

‘ .

‘ - nae } j 2th , : . age ee :

ot anv kind. He further ofersd reew With Agent

* ad .

- if 841-8, .4 : + a - - 3 > - Be

STalit WALLEY COMECNT t : ~ Ee a Sg £3 ke 7

> pth re eS os ne * 54 ; ere > wees -

é f Ndr be Sait’ Le! des The supimn > GRStS SUSRNNeCG * *

. , etatcec +} ; ; ‘ 7

’ e (fit i tad IWitles of iit alii i Ti t W et =

‘ , H be :

: . Ba . ] A :

: V0 oN aa Previovsive requested j

* e .

‘ ry .

7 © Ft sneer ar Ty" i

‘ oes t oe Bs * ] 7 *.) Say Spey = ~ , - °

Peers, 8 | ee Ptewhery 13. 1963, R CNUE AV2¢ , OWIs i,

oy Deets = » 7 } j Pe .

Stanle wrete Pig LLC] 282117 TiN 1) Ohe- :

é oe . - . _ .

toh < 196 ah P lay% if. A let a. - i i gee ‘Pe i °

‘ , se pan i are 2) Fo bX ‘ \ { (¢ .

yet Menpion hha. Special

Leta} ; an

Sa. , ee > ? +} ' ts -: ase > ae ee ] of :

“STanier opened the meeting they ideutited tl eTasclyves ss

. rr jE ip “de® . . eo Aeeee” ibe } .

. to Prudden aca special agent ‘and «= revenue agent ¥e-

wticely anA h sedi hi thar 1 e9 .. ee

speeTiVervy., ane showed. him the Po WPriltten credentials oe

2 te . * i <9

whieh ne examined. Cohen's credentials Mainly carried

o. . the legend Tntelligence Division. ** Prudden testitied :

if : | al eee ;

: ual ee

—

‘

’

ee 5

> ‘

that-he did ngt know the signitic ance of Cohen's ace

nation as special agent. They informed Prudden that

ther were thete to make an audit and eNatnination of

his returns, the returns ofNhis three sons and the re-

tins of FCA andcits tight’ stibsidiaries dle was ‘also Rey:

vol that. the e ‘Xamimation would inelude any other cor- .

“poration, oF ‘wift tax returns that he had filed. Neither

Stanle vy nor Cohen ever stated: to Prudden that ae rim-

inal investiv: tien was being eondueted oy that the in-

vestigation they were ninking 4vas boing made to dé

termine the possibility of fraud. P rudden was never

siven any Swaening nor was he ‘ever ndyis ed that he

hod’ a -right to remain silent or that ’ any iiforni: abion

furnished by hita could’ be used -against htm nm any

subsequent. proe eodings. All. acthans and procedures:

followed by Stanley a Cohen were in, accord )with

what was then the Internal Revenne Service's stand- |

ard procedure in such cakes. a

On December 21, 1964, Revemie wos Startley and .

Special Agent ( ‘ohe n intervie wed Prudden.at the In, > *

vernal tevenne Sefvice Titelligene e Division office.

oe len answered the questions asked him but refused

+ Callow the conver sation to be, recorded. All other.

peivease between, Prude ai and the ikS vgents. were

Jat Prod dens office at his convenienee during regular

business hotus. The work of Spee ‘ial Agent Cohen and .,

Agent. Stanley ex tended over a period of some: fifteen .

J nouths. Prudden persisted in refusing: revords of the

Bah: unt i corporation and records outside the vears -

he felt we re properly open. Tle continied to complain |

that the agchts were fishingeand criticized third-party

investigations, but he also continued toe HOPpel rave with-

in these limits-with- the agents’ requests for informa

tian and records during the entire period, |

ct v

ee ee

“

e 7 .

I. NECESSARY WARNINGS AND ADVICE

Prudde nn conte ads that. the evidence obtamed after

“Spec ‘ial Agent Cohen entered the. investigation ust

- be suppressed because he, Prudden, was uot. warned

and ‘advised of his rights according to Mir ynda v. ASi- .

zona, 384° U.S. 436, 86 S.Ct. 16022 16 L.Ed.2d 694

(1966). We a ee to our prior rulings and reject this >

contention. Towever, the Supreme Ceurt’s ruling in -

Mathis v. United States 391 U.S. 1. 88 S:Ct. 1: 303. 20° -

*L.bd.2d 381 (1968) reversing this court and holding

‘that. routine tax investigations are not imunune from

the Miranda requirements for warnings to be given to aoe

a person in custody,and two recent deci ‘islous from the

Seventh Circuit which reach a result’ contrary: to ours |

. here! indicate that we make a detailed review of: ‘this a ae.

‘issue, . | , |

-A ree urrence & tosthe, constitutional found. itidhn is al-

a a

eee _—*atthrough the evidence | in sialon was obtained. ‘pr ior to

the decision in Miranda, the Supreme Court applied-that de-

cision to persons whose trials td not begun as of June’153,

_1966, regardless of when the ‘alleged constitutional infirmity

occurred. Johnson v. New Jersey, 384 U.S..719, 734, 86 S.Ct!

1772, 1781, 16 L.Ed.2d 882 (1966). In Jenkins v. Delaware,

395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), the\Court

. limited the retroactiv ity of the rule by ‘refusing to app it to

retrials commenced after the date of the decision even fthough

_, the original trial preceded Miranda. It is appr opriate /to_here —~—_—___-___

- , note that the District Court—was- under the - ‘impression that. - ‘

Prudden did not ‘rely.on Miranda and the order suppressing»

evidence was expressly declared to be independent of any’ . +

application of Miranda to the instant case. The constitutional ;

dimensions of that-rule and the fact that this cause must be

demanded for further proceedings where the point. night he

- raised, indicate that we should rule on it. now. :

“United States v. Dickerson; 413 F. od. yi (7th Cir. 1969),

and United States v. Habig, 413 F.2d 1108 (7th Cir. 1969), .

cert. den., 396 U.S. 1014, 90 S.¢t. 559. 24 L.£d.2d 506° (1970).

. «(The Miranda issue was not presented to the Court in the

Application for Writ of Certiorari.). -Seé also United States

. v. Campione, 416 F.2d 486.(7th Cir. 1969). .

Ways aQ appropriate beginning polat. The Fifth

Amendments mandate is that no person-shali be “*eom-

: — in any erimiial case to be a wethess agalust hinn-

So: ai at eta

Compulsion, ul “requisite to the: invoe ation of the

Amendment’s pfotection: against self- inerimination,

was nét attenuated in Miranda. The ma jority opinion

~in Miranda is complex and lengthy hut the following

pertinent extracts highlight the prodlenf preseuted and

explain the controlling principles, Tn the prefaee the

=e Ke ourt pitomized the ‘decision’s meaning thusly :

Pte Our*holding will he spelled out with some ‘speci-

ficity in the pages which follow but brietly Stated it

is this:. the prosecution may not use’ statements,

whether exeulp: itory or inculpatory, stemming

fromy¢ uustodial interrogation of the defendant mn-

-, dess it demonstrates the use of procedural sate--

. guards effective to secure the privilege against self-

— inertmination. By custodial interrogation, wenean

"questi ioning initiated by: law enforcement officers

after a> person has ‘heen taken into custody or

otherwise: ‘de J bs ived of his freedom of ae tion i anny

significant way. ‘ 6,

Part . began with the following paragraph:

“The coustitutional issne-we decide in each of

these cases is the. admissibility of statements ab-

tained ‘from a defendant questioned while Wy eUs-

“tody or otherwise deprived of hiss freedom of

action iwany signifieant way. Di each, the defend-

ant was questioned hy polic e-officers, det tectives.

ora proseenting attorney in a reom in whieh ‘he

was cut off froni the outside world. In none of these

" cases was the defendant given a full and effective

warning of his rights at the outset of the inéerroga: -

tion process. "In all the cases, the “questioning

elteited oral admissions, and ih three of them,

Ko A284 | in San

(384 US. at HH, 86 S.Ct at 1612, es

—

signed statenie nts as we IL which were admitted at.

their trial=. Fhev alt thus share salient features—

iMcommunicads interrogation of inglividuals in 9.

police-dominated atmosphere, Hoe iy ‘in -self-

- - Inerininating state ments without full Warnings of

constitutional rights.’

(384 US: at AND, 86 S.C t. at 1612 2 :

The Court continued Dv pointing-out that sophistie dited

pve hologic al te c hyiques had Been deve loped by pole en

to supplant the oft condenmed use of physical Toree.

to extort confessions, the.key to which called for iso-

F aut ing Suspects from familiar surroundings and friends

hi distilled the ne w tee liniques this wav: :

on 0 rom these representative samples of inter-

rogation tec hniques.the setting prescribed hy the

neumals and observed’ inypractice becomes lear. |

In essenee, it is this: To be alone with the subject

ix essential to prevent distraction and to de-

prive him of any oatside support. The aura of eni-

“ i dence in his guilt undermines Ins will to resist. ft

», / s y

(384'U.S. at 455, 86 S.Ct. at 1617 ‘ meer 4

ta coneluded’ thusly;

“Tiveach Of the cases, the ‘defe ndant Was thr rst.

tito an untamiliar atmosphere and ry three)

menae ne police interrogation prog ‘dures! 21] Phe

fotenti: ality for conipulsion is ‘fore ‘epally apparent,

V ironmant ix created for. ho purpose other than to

subjugate the individual ‘to tye will of his ex: iD}!

-iner. This atmosphere « carriés its own hadee of

‘intimidation.’ z 8 : ; as

BSE US. at 457. 86°S.Ctoat 1618) | ie

Port IT traced the history of the privilege, its embodt-

tent in our ‘onstitfttion and its subsequent .court im-

ple ment: itions down through Escobedo, ‘ Hlinois. 3B .

va aree tae — A-25 — :

USO478. 84 S.01.-1758, 12 1. Ed.2d 977 (1964), with

-this applicition of the latter’s ratioriale: .

The entire thrust of police interrogation there, |

asin all the cases today, was to put the defendant’

in such dn emotional state as to tmipaiy his capacity:

for’: ational judgment. "The abdication of the con-

stitutional’ privilege—the choice on bis part te

“speak to the police—was-not made knowin!) oF

competently because of the-failure to apprise him: |

| of his sights ;.the compelling atmosphere of the ine -

“4 * custody interrogation, and not an independent cle-

cision on his part, catised the detendi unt ta speak?’

(R84 TLS. at 463: 86 _ at 1623) aie :

ae D

Part LIT demonsty ater how the rule announced was

to he emploved and detailed the: justification for tend-

ering ap attorney's advice. It ehosed with. this vaveat:

“Our decision is not: intended to Svige r the

‘aditional. function of police officers -im-itivesti-

pele crime. See: Extobedo v. St a of Pfmets,

78 Us. 478, 4924 84 S.Ct. 1758.° 1765. When an

individual is In “custody san. probable cause? the

police miy, of course, seek out evidence in the field

tobe used at trial AGAINST him. Such investigation

‘nay “Inchide inquiry of persons not unde ree

straint. General on-the-seene questioning &= to

facts surréunding. a crime or other general ques

tioning of citizens in the fact-finding process is net

affeeted by our holding. It is an act of vesponsills

« ‘itizenship for indiv iduals to give Whatever infor-

- mation they mav have to aid in law enforcement.

An such situations the compe ‘Wing atmosphe re ip-

herent in the process of in- - ustody inte rrogation ts

not necessarily prese nt

““The distinction and its significance has been pore de-—

- . scribed in the opinion of a Scottish court;

‘Ins former times such questioning, if ‘undertaken, would be &

‘conducted by police officers visiting the house or place of busi-

> ness Of the suspect and there questioning him, probably in

— A-26— :

mee dealing With sfateme nt< obtained through

interrogation, we do not pur port to tind all contes-

sions inadimissible. Confessions remain a “proper

- «element in law etiforeement. Anv statement given

freely and voluntarily withott anv compe Hime: ir

Aucnce is, ef cour xe, adinissible iu evidence, . The

fundamental iniport of the privilege Wile an in-

dividuaPis in custod# is not whether he is allowed

to talk to the pohice without the Nenefit of warnings.

and counsel, but whether he ‘can he inter vogated.

There is ho requirement that poliee stop a person

who enters a police station and states that he wishes ‘

fi confess toca erime, or a person. who calix the:

1y Hie to offer a confession or anv other st: itement

ne desires témake. V olantee ‘red statements of any

kind azare not barred hy the Fifth Amendment and

their adimissib ity is not ation ted by our heldire

today.”

(384 U.S. at 477, 478. 86 SA t: at 19-1630" no

“TH In: Mathis v. United States. supra, the cues

was convieted of tax fraud om the basis of evidence

Heited byen regular revenue agent’ ona routine inves:

tisaion made while the taxpayer was in prison ‘fer gov

urelated « ernie, The Suprenic ( court reversed our af-

firtn ance of the ‘ouviction. bee ‘ause the prisoner had

* .

Hot oee n viven the Meranda warnings. Although Mathis

TNE OS it clear thait Miranda is potentially applicable

ta oul fax inVextigation: it imest definitely does ligt

Tequire Mirada warhings in all tax investigations. IMe-

iis im no way din winishes the heeessity for showing |

the p: ‘esence of a relation or friend, Howeve: convenient th e

modern practice may. be, it must normally create d Situation

very unfavourable to the suspect.” C halmers sv. H. M, Adv ocate :

[1954] Sess.Cas. 66, 78 (J.C. , Pata

‘We held that routine tax inv estigations were not tienes

in nature, and thus were bevond: the protection of the Fifth

Amendment without regard to the bresence.or absence‘of com- .

pulsion. Mathis v. Lnited States, 376 F.2d 595 (5th Cir. 1967).

ys ee eet

‘2 + “ee

actual or inherent compillsion to self- inerimination.

Mathis was net merely at the - station house,. he Was

“imprisoned fer a tixed term. He was deyirived of his

liberty in a most. positive way. ‘Thus when the court

established that. the type of inquiry there present was |

Liat determinativ e, the result Wats “ee essarily a finding: :

‘oft Fifth Amendment violation. | }

*Thour view, the Seveith. Cireuit’s recent! opinion in:

U nited States v. Dickerson, supra, whic h petitioner”

“urges we now adopt}s aun unwarranted extension of

_ Miranda. decision. Dicleirson held that WMirande

‘arnings imast be given a taypayer at the Inception of

first contact with hinr oe the iransPer of a.tay

cise to the Tnte ‘Hligence Division. The facts recited nT)

that opinion show no element of enstady or restr: aint

no deprivation of | freedom—no compelling atmos-

“phere—only a visit by-a regular and a special agent of ©

the Internal Revenue Service to de fendant at hissplace-, |

of business, The: opinion ‘stated : f By

“We cnacegtaia the teaching of Miranda’ to de

that one. confronted with governinent al authority

mab adversary situation should ‘he accorded the.

opportunit. to make anintelligent decisio as to ®

the assertion er re linquishment. ‘of these constitu-

» tional rights designed to protect him under pre-

¥isely sue he cireumstances.”* 413 F.2d at 1114. .

Thus. the ¢ ourt inferred compulsion fromthe fact that

the investigators represented *governme tal authority

Eas an adversary situation.” Such. a rule is over broad

nnd we expressly decline to follow it.

[2] We cannot agree that every idiatnitvative offi-

cial who confronts a-citizen With a request for infor-

mation that. might diselose.eriminal conduct, thie reby '

exerts a cComprilsion onthe éitizen that must he dis-

pellede hv the: Wirawda placebo. In today’s ‘vast and

—t h8 ney

Pe >. - «

ie,

comples Geet ionirke of widespiread ‘daily adini iiistrative

contacts between ¢ itizens: and government officials, such

a holding’ would open a veritable Pandora's box. When

a census taker returns to recheck inforniation, he has

received or a building inspector comes to investigate

a report of: noncompliance with provisions of the city.

housing. code or a game warden ‘who hears oe

out-of-seasonsstops a man he finds in the woods oD

hank examiner.questions a teller whose figijres are sin

of balatice. would each then. have to give ille Miranda

warnings ? In each case a governme ntal official is cou-

frontiig a’ citizen and. criminal] charges may Result.

There are a thousand and one administrativ e Inquiries.

“youtinely inde. every day.in every eity which could

: evoke responses that might form part of the hasis mm

_ proof for a charge of perjury, falsification of records,

failure to file a re port of “perform & legal duty or otligr

criminal conduct. Most of these routine adininistratipe

confrontations would he rende red j itie frective to the cit-

° ba

izen and his goverment by imposing Miranda require.

ments. Indeed. if the warning: beeame toa commen-

place. the very purpose of its requirement could be.

idndorinined If “autherity”” were allowed to supplant:

Ss custody—the deprivation of freedom) —as the determi-_

nant of compulsion, even these toutine field investiga.

tions which Viranda expressly exempted: ‘nuist. fall.

ist could: not ask to see hisv license without waging |

- him and advising him’in full’ It is not for this. Court

-to so extend Miranda: and welare partic ‘ulavdy wnwill-

ing to; extend it to an adult experienc ed businessmn: atl,

"Cf. United States y. Marlow, 423 F. 2d 1064 ( sth Cir. 1970).

where a routme request for a driver’s license made without

-Miranda .warnings produced a. wrongfully acquired credit

card that led to the driver’s s conviction for obstructing the -

mails. “So wee apt Bary: pe ites.

f° - , A295 2 pax oe

iets Ah

eae “ > ;

mee ys \ : “6

a law schoo! eradtate,-who ‘for ove es Tut voluntarily.

furnishd selected corporate and personal records do

titx agents-snot claimed, to be overbearlng but over:

tg ln AERO a . : ms

3 The eee sliows that Prudden’s interviews with

all the bgents were on venerally amieable terms—what |

Pruddetr described: asl ‘ta normal business arrauge-

went.” KI liniited the{information he gave the agents,

seciical refusing fo give them requested iiforui-

tion froni\vears not underexamination and the regords

of the Bahamian subsidiary, He testified that he was

“never threatened, He even testified that: Lexow once

told him that the futemal Revenue Servies would not

eave him alone unless he produced the sathamiian com-

: pany records, vet he never produced then. There was

simply no fagtual support for a contention that Prud-

don avwas put ti such an emotional state as, to cumpatr

Ee. . + 8 F ons \ é . ; * 3

his’eapaeity for rathonal judgment.

»There are other incongruities in Dickerson. Tt purports to

—~ apply Mathis but admittedty. does not uses Mathis’ standard, |

“ Mathis a routine ¢Xamination by 2 reguiar revenue agent °

rior to any referehcé of the case to the {ntelligence Division.

ef the Revenue Service. was voided. Dickerson does not apply’

this rule, it adniits incriminations by. the taxpayer produced

by the regular agept and gnly suppresses infoymation ob- -

+ \ined after the case had been transferred to the Intelligence

| Division. Since Mathis did, not Yretognize any distinction be-

‘tween the regular and special agent, the compulsive effect of .

the ngent’s, official status. Is idéntical. Uhless ‘the regulations °

of the-Internal Revenue Service are changed or United States

_v. Heffner, infra n. 12, is not followed, Dickerson will have

no effect as precedent. Prior to-its rendition, the Revenue

Service adopted a regulation requiring spegal agents, to give

Miranda. tyne. warnings on their first contatt with taxpayers.

In recogmitien of the fact: that Dickerson represented ,a de- .

parture

frora the present state of the. law, the court deter-

mined that its Holding would only apply to interrogations tak-

ing place after the date of the decision... Thus: only Dickerson

And the taxpayer in the companion case of Habig will be at-

facted. If Prudden’s case were now ptesented to that circuit

he would get\no benefit from that ruling since the investiga-

tions here involved.took place in 1963.and 1964, .

op aly he | o— A-30—

. ‘ ° ’

G . .

.¥ * :

Pe Mareover. there is no evidence that the ineriniinating

ee x ee - 7 -

evidence was coerced as a matter of law: i.e. was the

@ result of in-enstody interrogation or anything ‘ap-

8 preaching comparadle pressures. None of the evidence

What Prndden seeks to stiypress was obtained whtle he

re eas under arrest’or underaiuuay sort of detual or implied

restraint. Tn fact, Pandden’s fraud, deceit.and trickery

contentions strongiy militate against any thought of

presstre. The bi sie thrus! of this other contention is

that the agcnts Wwere too nice to him. He was never

deprived Of his freedom in anv significant wav during

the questioned interviews, all but one of which took

place at his own Office at his convenience during reg-

ular office hours.” The Oe interview which occufred

% [ ' dete \

~The Supreme Court in Miranda) defined custodia

gation to mean, questioning initiated by law enforcen\ent offi-

cers after a person has.been taken into custody ‘or otherwise

‘deprived of-his freedom in any significant way. The Court

also emphasized that the “salient features” of the cases there

decided showed “incommunicado interrogation of individuals

ina police-cominated_ atmosphere.” 348 U.S. at 445, 86 S.Ct.

at 1912. *:* e y ae

. “Werrecognize that custodial interrogation can occur beyond

the confines of the station house. For example, in Orozco v.

. Texas, 894°U.S. 324, 89 S.Ct. 1095, 22 L-Ed.2d.311r (1969),

the Court applied Miranda to incriminating evidence obtained.

* by questioning the suspect in his-own room in a boarding.

house. The suspect was alone and in the custody of four police

officers who questioned him. Under those circumstances, Oroz-

co was held-to be signifi¢antly deprived of his freedom. But

Orozco merély stands for the rule that “a compelling atmos-

phere” can exist outside of the station house, it does not hold

that any inquiry by a: government official carries-sech an ele- -

mentf intimidation as amounts to compulsion. to self-incrim-

ination. The majority opinion emphatically states: “We do not,

as the dissent implies, expand or extend to the slightest ex-

tent our Miranda decision.” See also United States v. Lackey,

413 F:2d 655 (7th Cir. 1969), where a recorded courthouse

basement interrogation of: the taxpayer alone was held to be

within Miranda's ambit.-No comparable ‘significant depriva-

tion of freedom or compelling atmosphere ever existed in the

case naw before us. ° ; :

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e 7 . . . . .

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. s ‘ eo --2akg * ‘ a 2 iy} £ice. ore e cite iat

; — 42 ‘YT .7? ye > : =. ? .

‘ Wats 13) ry] esto ntre 4 4S ee "ft? 3) TTeEn ited

Yh *F 4a? ? ; ‘a +] ley. +} eo; wt TAs ] =

Mieke Wb WHISSes Che CY PUST oy al NotdmMe—the

. ’ 2 aed -

SE ene Poe ere Ce aAGe Pah ke ESO Fe .

aver Was NOT in eakstody PoMMaer eanpuision when

oe art} aati we

ie a eee Tes Se Doak Cl ee .

PVIGW Too Debate In United S ates vi Jernioan,

! .

Wy RA 251. (x0, Ol. [hare 3 77S

: ad 401 (oth Cir. ceft. dea. 296 U.S. 027 a0

~ eb <he tt Sh cic = iS y

i sant LAE 2d 225 (1969) we acain refused to

‘ . . | . , =

> e,3 hs : - Deer 7 , Ps

Pf Miraivge warnings. Prudden’s 2ttemnpt lis.

oF Se poem Niulsessn eh “yf SSA Sele , a Be

. we . = ’ Jf = oe Ae i! W “s re Ag 127% Ane

eee : c 9: Py * : “

ve may have limited effect as precedent fon the same reas

Coned In note.&. supra, Sines May of 1967 the

’ ITS Nar -} 8p lea ~ 90 Vea9 aN _ . > | ~ . 7

i 2 Service has required S Decia | Agents to'give

‘

’

? Q/ ae - , < ee Qrmnal a >

‘ ule - @ Wat? MSS 211i se |

iH € ce at thgir in-

*. oWiterence. See I.R.S. News Release TR-o%: 9 41969 COHs

Lax Rptr.¢6946). The Fourth Circuit has recentiv held

ac Mr eett VAI Ve WS, = ft + a sf he

. .< OCCUPT ing after the ineeption < this

-h> ~ - > . cme eee-9 z a

e IRS. is ! ft compiv with its own ute on thé

2 ~~ : . ~. wie, ae - 3 3: ee . .

== of United St X rer. Aecardi v. Shaughnessy. vat

Ss Pe = 4 ~ 4 > 7 - - ‘. e

ws OU. ¢4 ee, ; zs Ed. B81 (16 54). Uni ed States v

Tatnar 490 ‘ 2. 44h . aed

ener, 420 F.2d 809 “(4th Cir. 1969). Since this question is

; > > ? wine es . F ? . :

+<—Sresented by t Ovi, we ret n'trom OXDFESSING 2n

3rect Sonat appropriate, however. that we now

ote That our holdiyg here accords no rateo tive significance

Jterna: Revenue Service has voluntarily taken upon itself to

“Svea taxpayer MWircnde gype warnings an@ advice -at

he Special Agent's first meeting With hin ™, does not give tax-*

ayers gl uestioned before. the promu gation of his order ad-

(tional constitutional rights. -. .

: ‘$00 F 2a at S35. : : 7. i

. 2 ae .

— AD —- : :

‘. : . ,

not a speggal agent not only conflicts with Mathis but

is not apropos te the point he makes, ‘Regular agents

aets of a tax evader.

frequently obtain evidence which Inter forms one OF

more Hnks in the chain which affixes criminality te the

Mareus v. United States, 422 F.2d 792° (Sth Cir:

1970) is ouy latest decision which discusses this ques- .

tion. Marens was convieted for failing to file individual

tax returns. One grouud-of his appeal was that he had

not been given Miraxda warnings ner expressly told

of the criminal nature ‘of the investigation by special

agents of the Titernal Revenue Service until after he,

had supplied records ‘and made damaging admissions.” ;

Mare contended, as Prudden now does, that MV/ iranda

‘applied’ to noneustodial tax. frand investigations We

(rejected thine wtentiom with the statement : Pn aerin:

inal tax. fraud ease, this Court has recently held thaat

the Miranda doctrine applies only: to in-custody inter:

rogation., Agoranos Vv. United States, 5 Cir., 1969, 409

F.2d 835. Since [the taxpayer] was. at no time In cus-

“The fects in Marcus, which. was decided after the’ instant

appeal was argued, do differ from the casé sub judice, In the

words of that opinion: dane aes

“There is testimony in the record * * * that at the first

‘naterview the Internal Revenue agents informed Marcus

| that they were Special Agents attached to the Intelligence

Division, which handles only criminal investigations, that .

- he had a right to remain silent, and that anything he said

could -be used against him. Likewise, it is undisputed that

the agents failed to inform Marcus that he had a right

to an attorney, as they were required to do if Marcus was

entitled to.a Miranda warning.” 422 F.2d at 756.

These factual differences do not serve to distinguish Mar-

cus. The rights protected by Miranda are constitutional’ in .

nature and if Miranda warnings and advices are required at

all, they are all required for unconstitutionality knows no

gradations. ka: is ¥

ie Rae ese

tody during the Taternal Revenue Servic einvestiga- ..

‘tion, the conte ntiou. is without merit.’

{lwo reeent eases before this court, U Gee States

Roundtree, 420) Br2d 845 ( Sth (ir. 1969) cand Stui ut

United States, 416° F.2d’ HX 5th Cir. 1969). converned

a related but distinguish able que stion. Those ee Ys

claimed that enforceenient yf an Iiternal Revenne So

‘ice, administrative summons wotld epmpel them te in-

erinunate the MISC ‘Ives. Dn those cases Ave reeoenized that

“routine tax: inv estigation may be Criminal inn ature.

in Rowudtroe we stated'that it the taxpayer ean sh. Ww

that the’ proceeding had: become an inquir v with donne

nant criminal overtones, le would He entitled 1 Maine

ifth Amendment objectrons, C ompu! SION Was prese nt

Mh Houndt ree and Start in. the. form of the Sub pocna a

Sad the singleoremaéining element necessary to invoke

tine Fitth, Amendment?s protection Was the claim df

self-me inugation, Even if Prudden could show that

othe inquiry inte the tax: liability of the’ corporation,

himself and i tamil) Was one with dominant ¢rim-

anal on “ertones: he avonld fail to bring himself within

Mir: anda” s anbit hecatse he cainot show. compulsion,

“THE: CULALM OF “FRAUD. DECEIT AND

.* THICRERY.

io, The tria®judge stippressed all evidence obtained

_ if aftersthe day when Lexow referred the ¢ ase te

“Titeldypuce Division be cause be fotind that the In-

tern: if Revenue Ser Viee agents engaged ina deliberate

scheme to deceive Prudden in.orde? +4 prevent his

SUspeeting that the nature of the investigation had iil

tered materially.” Here the ultimate fact determina-

fiotr wes rear ‘hed bya process vs reaseninyg from undis-

"499 F.2d at 756. " ES,

“305 F.Supp. at 111. -

— A-35 —

P See me

“puted eV diary facts. After a careful review of the

entire record, We conclude that ultimate fact tinding—

* fraud, deceit and trickery by the agents—is a mistaken,

one.” We are left-with the definite and firm conve toh

that this finding is in error. tee ;

r Because of: the hotiting 1 we make here it is umeces-

sry 4erdiscuss the breadth of the suppression order,

reaching as it did not just personal records but cor

porate records in corporations witli which Pruddei

was connéeted only as a director or an employee. No

claim of privilege as to -selHt- ‘inerimination selative to

Hesaype of third party Sask las neal Heed

becognized. See, €: Y., Hale \ . dienkel, 201 U.S. 43, 26

S.Ct. 370. 50 L.Ed. 652. ( (1908) : Fineberg: ae mited

States, 393°F.2d 417 (9th Cir. 1968): Hensley ¥. United

States, 406 F 2d 481 (10th Cir. 1968).

io} Tf the evidence, obtained stibsequent te Special

aay of an nunMeasonable seareh in violation of the

— Amendment, then it ale have to be sae

sed, VP radden also asserts violation of Fifth and

Sixth Aine ndine ‘nt rights. Since all elated violations .—

er nora showihe of the evistene? of — de. |

cert or trickery, it Is not necessary tp diséuss each -

‘Stitutionak claim’ xe parate ‘ly. Prudden postulates ‘hai

the search was, timreasonable hecansé: his censent t4

examine the records was obtained by. fraud, dereit and

iniekery, While we veComMZe that frand. deceit. oF

“Galena ieken Cor poration v. Secfield, 218 F. 2d Za, (3th

Cir. 1954); Mayo v. Pioneer Bank & Trust Co., 297 F. 2d 392

cE (5th Cir. 1961).

“United States v. United States Gypsum Co., 333 U.S. 364,

294-395, 68 §.Ct. 525, 541-542, .92 L.Ed. 746 (1948); United

‘States v. . Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 88S. Ct. si

1784 n. 9, 10 L.Ed.2d 823, (1963) ; Minneapolis-Moline, Tne. Vv .

_ Bryan, nis oF 2a 841 (5th Cir. 1969).

— A-B6—.

4 P

“*

= . ei ‘<= ‘ « a

.triekery in obtaining access to ine riminating evidence

can make ath otherwise lawtul search unreasonable,”

Prudden, as‘ the moving party in the motion to sup

press, did not sustain the burden. that was his of dem-

. . ° « ‘ ** ; : . bs

onstrating that fraud, deceit or trickery wert present,

The essence of Prudden’s contention snd rhe finding

of the trial court is that the eirenmstane OS surrowiding

the transformation of the inv estigation into one with

-inereased possibilities of. resultant « riniinerl charges

withont Prudden’s knowledge, require d suppression of

the evidence.” Just how Prudden. was defirauded. de-

ceived or ty ic ked is w hat we fail ta he receive, ( ‘ertainly. :

ifthe agents had given P ridden fhe full panoply of

Miranda warnings, and advice, he ‘could not. make such’

acim: Wiradude warnings, however, Were not required.

“So what avere the as gents required to do. or leave wn-

doné or sav or let go nnisaid that discloses the fraud.

deceit ani trickery? They told) him they Wi ented. te

endit and examine records in his. possession relatine

to tax returns. They pursued this announced Intention

In what 2: uudde na describes asc a businesslike way at

‘ite rvals over many menths, de ‘spite his HCCRSTC nal ex-

‘ pressions of dise ‘ote nt. W e are tinable to sav that ther

"Gouled v. United: States, 255 Us. 298. 41 Sct. 261, 67

- L.Ed. 647 (1921): Spahr v. United States, 409 F.2d 1303 (9th

Cir. 1969), cert. den., 396 U.S. 840. 90 S.Ct. 199. 24 L.Ed.2d

$1 (1969); United States ¥. Sclafani, 265 F.2d 468- (2a Civ.)

cert. den., 360 U.S. 918. 79 S.Ct. 1436. & L.Ed.2d 1534 (1959).

* We-explicitly reject the - ‘government’s contention that the

agents were free te use fratid.. deceit or tricker vy. In cases

where the IRS agents are obtaining ecnsent.to examine docu-

ments, .they cannot gain such consent by affirmatively mis-

representing the nature of the search. -

“Nardone v. United States, 908 U.S. 238. 60 S.Ct. 266, g4

L.Ed.2d 307 (1939); Der Garabedian v. United States, 372

F.2d 697 {5th Cir. 1967). _

“305 F.Supp. at 111. im ri 3

- — A-87.— 7

wm >

had a duty to do more or less under the ps

inelige mislead Prudden as -to the function of

diselosed by this ree ord,

‘ ar

[7] Prudden points to the failure of Special Agent «

» Cohen to tell him that his function was ‘to investigate

for criminal fraud. Afl Cohen wh required to do by,

the then existing Internal Revenue Service required, et

nents was to tell Prudden that he w a@a Special Agent

and show Prudden his credentials. This he did. He in

Ho‘way concealed his true identity. He could not have

the\intelligence Division or.as to the’duties of a special

avent, since ne ‘ither- of “thesé subjects were ever dis-

cussed. Silence cauonly he equi ated with fraud whe re

there is a legal Jor ‘moral ‘duty: to speak: or where ar

inquiry: left unanswered would be intentionally mis-

leading.” None of these 4 factors were pr ese ‘ut here...

[n Spahr v. United States; supra note 21, one ground

of taxpayer's appeal of. his convietion for corporate

- tax evasion was that ineriminating, evidence Was pro-

tured through guile and fraud. Allegediv the revenue

agetits fraudulentky Concealed the true purpose of their

investigation, As in the- instant CASE, two agents me rely

identified thémselvet as a speetal age nt and a revenue

agent, respectively, without: giving “duny additional

warnings. The Ninth Cireuit ee nod dece ption. {uot-

ing the Second Circuit’s opinion in U nited, States v:

Se ‘lafani, supra. note 21, ‘they said:

“A ee, trax investigation apeay commenced

*See United States v. Sclafani, 265 F.2d 408 (2d Cir.),

cert. den., 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (195 9) ;

c. f., Avery v. Cleary, 132 U.S. 604, 10 S.Ct. 220, 33 L.Ed: 469

(1890) ; Atilus v. United States, 406 F.2d 694, 698 (5th Cir.

1969) ; American Nat’! Ins. Co., ete. v. Murray, 383 F.2d 81

(Sth Cir. 1967).

"409 F. 2d at 1306, quoting, 265 F.2d at 414- Ale

Axe A-38 =e

_as such is devoid-of stealth or deceit because the

ordinary. taxpayer surely knows that there is in-

bs herent in it a warning that the government’s agents

oth ol pursue evidence of misreporting without re-

gard to the shadowy line between avoidance and...

evasion, mistakt® and willful omissiom.”’ |

In Sclafani, as in the instant case, ‘the taxpayer db-

jected that records obtained from him after the ‘rou-

tine audit”’ commenced by a revenue agent was turned

over to a special agent should have- been suppressed

because they were obtained throngh stealth and deceit.

The court found no fraud or deceit and stated:"”

“co “Phe Fourth. Amendment does not require more |,

than this, that when. his consent is sought the tax-

payer be apprised of the government’s” concern

. with the accuracy of his reports. and’therefore of

such hazards as may be incident to a voluntary

disclosure. We-hold that Selafani was to apprised

by the warning inherent ini the request When Agent

Sonkin identified himself and -disclosed his pur-

pose to audit certain returns of the corporation. ’’

~ [8] We conclude that the mere failure of a revenue

agent (be he regular or special) to warn the taxpayer

that the investigation may result in criminal charges,

absent any acts by the agent which materially misrep-

resent the nature of the inquiry, do not- constitute

fraud, deceit and trickery. Therefore, the’ record here -

must disclose some affirmative misrepresentation to es-

tablish the existence of fraud, and this showing, must

he elear and, convincing.” tie | |

“265 F.2d at 415. See United States v. Squeri, 398 F.2d 785.

788 (2d Cir. 1968): “[T]he information that a taxpayer’s

returns are under audit gives notice of the possibility of crim-

inal prosecution regardless of whether the agents contemplate

civil or criminal action when they speak to him.” °

*Jett v. Zink, 362 F.2d 728, 729: (5th Cir. 1966), cert. den..

Chamberlain v. Zink; 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d

‘448 (1967). °, Cra

ead ABO a

«3

Pridden points to several incidents to esti ablish the

existence of affirmative misreprese ntations by the Line

ternal Revenue Serv ice agents. He does not in any of .

these, however, establish fraud by clear and ¢ onvine ing

orodf, rather the ev idle nee te ‘nds to. show th: it fraud was.

+n “present. Rays é; vi

Audit: and KE amination. rudden seeks te distin-

eatsh Spal and Sc dafani beeause in_those cases no

‘efirmative acts of misre spresetitation were shown. On-

Aine other liatnt. Vrudden claims that ‘Chen's state-"

poet ntaat the hearing that ‘we informed Mr. P vitden.

thi it we had come ‘for an audit and examination o! bhi 7~

returis—his son’s returns, and the retiins of the Flor

a ( ‘orporation of America and its: eight subsidiar ies"

was affirmative misrepresent ition in the case at bar:

Telling P rudde n that a audit and ex: ain: tion were

‘to trike plac eis not dece ptive. That is exactly what the

agents di. They aniite “land examined his books. Phat

in so doing they uneevere “dime riminating ev idene C docs

wot change the character af the investigation they un--

oe Audit and ex: mination is but one means of

gathering evidence ina tax fraud case, Since the a: werits

did not have to warn him diree tly that they were Wwyt-

dert Kine a erimiinal investigation, then teHing him the

means by whieh they were te eather evidence in. ne way

is pitsleadine. -

Letters from he LOW to Prudde nv. Prudden, cote nds

fhat fhe two letters: from Lexow fraudulently misrep-

“resented the nature of the inquiry. The. July 9th letter.

which’ was. writte n-before the Intelligence Division

ame inte the ease but while Lexow was pre paitines to

Yefer it to them.asked Prudden to send records of one

of FC A’s subsidiaries to finn order to facilitate his |

7" go: \ R

i> \

PY - se - \ *

~~,

“mination and to save Prudde n time.” There are uc:

nesrepresentations off faet/ in the letter. Even if the

ietter had been misteadins, Vrudden coniplains of ns

cvidence obtained asia result of it. In fact, the record

‘Coes ast show that We ever complied with the letter”:

request. F urthermore, the trial court's suppre SSTOR or-

only applied to fidence abt; ained on or after se

__- tritst wt Tt 2 full nu uth aftoy the writ tthe rt na etn

The ‘seeond le tter was written an ‘Mies 23> tw

Wi" ‘eks after the referral of the ease to-the Intelligence

Division without advising him-of anv change Th ‘the

reture of the - jnvestivation.- There, Is ne eV lence ot

sule by Lexow. He- testified that he was only COnSET.

entions Iv trying to lernve a coinplete record of al] the

Fiets he dtd prev iously aceummulated for his successor.

Tre documents he requested: were those whieh, Pr udden

hi i alteady authorized him to copy. but he had inad-

vertenthy left: them in Prudden’s office, "1 his, nothing

“harcow Was added to the gover nment? s case, Frrthe more.

Poe er idenee received’ pursuant to this letter Was ex-

o unted from the suppression order by the. tr ial court,

uetponae® did not object. Secondly, Pradden

tends that the letter was deceptive since Le xow'y

2 Sorence to the Fr ansfer of the ease to Revenue Aget

Sitanler wns Cale lated to Kaise no suspicion and spe- *

mention that Special Agent Cohen of the bntelli-;

chee Seva would -heticeforth be-in charge of the:

gation was omitted. Lexew testified: that his

rT niin ign of the Special Avent? ’s assignment to the eash

was not niide heeause he was afraid pf the flow of in-

5 cmaition would be ent off. The only yossible harm in

fis letter wonld. He that Prudden- wotld think threat the

enfey auto the case of a different — Was of no sig-

‘This letter is a out at. note 3 supra.

wT nis letter is drs gut at note 4 supra:

—-A-41 —"

ae °

inficauce. Whatever momentary. noisapprehension in

this direction thatayas left in Prudden’s mindNiy the

letter should have be dispelled by the. ac tai

appearance not only of Revenue Age ‘nt Stanley but also

Special Agent, Coben. In place of One ucophyte, 1 wo

- experienced: agents ap speared and persisted in an. éx-

amination and audit for fifteen months. At any rate,

this conte ntion falis far short of persuading us thet the

otter was frandulent. — :

Beta ; te : i - % ‘ : ;

Fricudliness of the Agents. Pr udden argues that the

aye of the investigation was coneealed be ‘eause of

- friendliness and cordiality of the relationship he-

- +ween himselt. and the agents. Most .of the evidence he

cites as proof of deceit through cordiality is with re

via'd to Lexow. Here again we are reminded that hene

of the information gathered by Lexow: is subject te

suppression. Even with regard to the more business-

Jike attitudes adopted by Cohen and Stanle¥, we per-

ceive no possible subterfuge. We can see no sie sea

why. ‘civil ser vants should be required. i in. their dat!

dealings to assume anh uneivil character just on

they are in a position to discover criminality on the

part of a citizen. That would be a poor form of warning

at best. If direct warnings are unnec¢ essary, then re-

anuring circuitous warnings -hy the manner of: action .

of the agents is irrational. Furthermore, the tone of

every interpersonal relationship 1s subject to the cor-.

“trol of alf the parties. Prudden’s own, conduct was a

necessary ingredient of the amicaile elnsouaiy: of .

which he now complains. It max well be that kindness |

-oua taxpayer’s part could be calculated to dispel an

agent ’s suspicions or to help to persuade him to see the

results of dis investigation in. the most favorable light.

By = we only mean to observe thi it “it takes two to

tango.’ |

Sas eee

Promises and Advice. Prudden further argues that

promised advice from the agents, Another manifesta-- *

‘tion of their “dec ceptive” cordiality, was. fraudulent.

ile first claims that Lexow said that he would advise

bin «gn howto handle one feature of a particular stock

sale involving a 52,800 dollar escrow account. Le ‘XOW

pr NISC “d- PA Ade ‘oan answer when he knew all the

“taets. But Lexow ‘le “ft the investig: ition without giving |

Pe eee ndd@n any answer. So Lexow’s promise was nof de

i , ceitful, Pridden also pressed Cohen anid Stanley for.

ah Galena ae in regard to the same transaction hut admit~

hat he got na’ “recognizable answer.” The lone and —

hort of this is that none of the agents ever gave hit

inv edvice om the escrow. tr; ansaction. Tow eould this

deceive hin? Prndde Dalso claims that the failive of

‘ the’: gents to adyise him that he shonld fle an amended

| ' veturn in 1968 Wes misleading. He asked Cohen if he

are . honld file an amended return and was told that the

. ¢ ae agents would consider only his original return in ppe-

3 sparing their report. This is’ no more than a factual

statement. It was not ‘showin'to be ¢ false or deceitfn],

pn ’

Ft winulative Misreprese viations. The explication ot

eek, : a: in: factual and eval segments can distort the

| oral pieture of what really happened. Therefore, we

: ave carefully veviewed the record as > whole but still

annot find that Pridden sustained his hirden of prov-

‘ing fraud, decei: and trickery, Goodman v7 Nites

States, 285 F Supp: 245 (C.D. Cal. 1968 ), whic h was re--

lied on hy the. District Court Js distingnishable, Most ”

“notice ably, in that ease the taxpayer hitd only a gram.

mar se hoo] education. and was affirmatively led to be-

Heve that the inform: ition which he was giving the

revenue agents was part of the investigation of ane

other taxpaver, That is not near this edse on either

eas Oe equnt,

? /

4 : :

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’ , ‘

ayy %% :

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‘ ’

IN HE

SUPREME COURT OF THE UNITED STATES

No pelbelnisctncamias Pe od & ‘

er ober Term, 197¢ |

(+ Joe H. Tox inviz, :

° . a : Petitioner

Tae Uniti Sra . AMERICA

} : Respondent

CERTIFICS ATE OF SERVICE

x I hereby seer rity that, in

ot the Ri les ot this Court. on the 0 lat

tember, 1970, three copies othe Petition faz aro

Certiorari were mailed, air mail! postage prepaid. to

the, Solicitor -Gerieral, United States Department ‘of

Justice. Washington. D. POAR, 2g hres additional

Ses ta Mr. Johimie M. Walters: Assistant

Attorney

reYral. Tax Division, United States Department af

PUSTICE, Washington. 1).

ertify

that ali Sarties reqhired 1. served

>”

—-~--- Sein

P. o. eae 14s

- Austin, Texas 78767

eee Coungel ‘Tor Petitioner

Re Met | ee

Si Page

‘ AMUN. 2 Ra on og sans at era ey Pima 1

Jurisdiction... =.= 1. Teme ae ae eee eee ee 1

“Questions presented... yee op awa kaa knee & ie 2

Statute involved. __—- ee See Pete RA aaah or non ip Re 2

. Statement _.._... Pekar btw Ghin samme ont canes Ye 3

Pe eee te oe ee Naam ee 5

iinet 282 a eke ae wees See RC ee | ea fe ||

CITATIONS

Cases: a '

Ayordhos ve L ‘nited States, 409 F. 2d $33, certiorari. 7

denied, 396 U.S./824....* CR as pie ag mm 3 5m ae , é

Biggs v. United States, 246 F. 2d eset ss na acta ie S

Seca v. North Carolina, ee): eh neat

Cohen v. United States, 405 F. 2d 34, certiorari denied,

304 US. 944_...... ae Seo Ney eee eee 7

Feichtmeir v. L ited States, 389 F. od _ HeSee pyr ipre aes cae Sj

Gouled vy. United States, 2! 0S 96... 822s mena 9

Grant ve € ‘nited States, 291 F.. 26: 227,:% vacated, 369

Mer a a oe oR eee aes Mle a ka Mahou 6

Hensley v. U Nasleil States, 406 F: 2d 481 Pols eae el gare 7

Judd vy. United States, 190 7 20Oe. ...03.. 2.52228. 8

Miranda v. Arizona, 384 U.S. 436__.-_. 2-2 --- 2, 6,7

Morgan v. United States, 377°F. 2d 507_----=--.----- : 6

Turner v. United States, 222 F. 2d 926, certiorari =.

United States v. Campione, 416 F. 2d 486, certiorari

Wenn 6) I ee cece §

United States v. Dechert, 413 F. 2d Hie. Joe, a Se

United States v. Frank, 245 F. 2d 284, certiorari denied,

MRE ANS co eee Vee El

[ ‘hited States v. Gallagher. ( “ALT a 18, 000), decided |

Da A a pe san titan 8

United States v. Haden, 397 F. 2d yt ee 6

im . Ww

1o0) PES eta :

Cases—-Continued / . | |

United States v. Jaskitwicz ANo. 18,387, C.A), — Page

decided, September 28, 1970... +) 2. 7

United States v. Manetiso, 378 F. 2d- 612, certiorari i a

I, Se a is So cee a ee oe

United States v. Miriant, 422 F. 2d: 150, certiorari je" :

nied, 399 U.S. 9105 _- ES RR ee 7

United States v. Pate, 324 F: 2d 934____- Soph eb Sea

- United States v. Prudden, 424 F. 2d 1021, certiorari, Fe

denied October 12, 1970, No. 453, this Term_____- 6, 8,9

United States v. Remolif, 227 F: Supp. 420-_-__------ , = @

United States v. Selafanr, 265 F. 2d° 408, certiorari de-

a, DD Ge eo oan on eee cco Secuune 8,9

United States v. Tow nsend, (C.A. 7, No. 18, 159),

decided July 9, 1970 pending on vstitlon for certi-

Ve orari,-No. 708, Oct. 7, 1970_____- eee Sipe tein gens 8

United States v. White, 417 F. ad 89, certiorari dented, -

Oe rs a a a rea oe cs cee ce ecco nae Man 6-7

Zacher v. United States, 297 F. 2d 219, certiorari denied,

* OOOO OM. io 8

Statutes and regulations:

18 U.S.C. (Supp? V) ae ea eer eE Eee 2,5, 10

28 U.S.C.: oe . ae :

a eae Spey ee apm a ey ae oe ee eases 10.

Sec. 510. a ae as ee Nope nutes Se aa as ae atte ae 10

Pr er oe oe tcc tceceetaasccacdceeee™ ae

j Mise ellaneous:

Internal Revenue Service News. Release, November

26, 1968, 1968 CCH Fed. Tax Reporter, par. 6946,

1968 Prentice-Hall Fed. Taxes, par: 55, 576.__.---.

“J

Je a a

aa | i bo

om fi Supremd Gout of the Bnited States

Se mo TERM, 1970

. / N 0.. 672

JOE H. TONA att, PETITIONER

-e4 ‘ vv.

UFNTTED Graves OF AMERICA

“ON PETITION FOR AW RIT OF CERTIOR: ARI TO THE UNITED

STATES: COURT OF APPEALS FOR THE FIFTH CIRCUIT

2 BRIEF FOR THE UNITED STATES IN OPPOSITION

. ?

OPIN IONS BELOW

The.opinion of the court of appeals (Pet. _A10-A14)

reversi. ig the suppression order of the district court

dis not vet reported. The opinion of the district court .

( Pet. Al- es is reported at 308 FY ie 97.

J URISDICTION

The ‘judeme nt of en: court of appeals Was entered

July 13, 1970 (Pet. A9, A10) and a petition for re-

hearing was denied August 13, 1970 (Pet. A15). The

petition for a writ of PROCES Was filed) Septem-

her 10, 1970. The’ jurisdiction of this’ Gaurt is invoked

under 28 U.S.C. 12 254(1).

7 (1)

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.