Reply Brief — Tonahill v. United States

icmanional = ; po SeeET CHE TS: ]

| FILED i

: & a . ‘OCT 24 2970

E. ROBERT SEAVER “CLERK

Simin Court of the United States a

OCTOBER m™u 1970

Sean Se 672

.. JOE H. TONAHILL, -

Petitioner |

Vv. ,

THE UNITED STATES OF AMERICA,

, Respondent

On Petition for Writ of Certiorari to the Court

of — - the Fifth Circuit

PETITIONER'S REPLY TO BRIEF OF THE

re ‘IN OPPOSITION

CLARK, THOMAS, Hieen

DENIUS & WINTERS

~

~ Mary Jog Carroii - SANDER W. SHAPIRO |

- P. O. Box 1148 ~ P.O. Box.1148

: Austin, Texas 78767 Austin, Texas 78767

A/C 512 472-8442 - A/C 412 472-8442

Of Couhsel | Counsel of Record»

Alpha Law Brief Co., M&M Bldg., Houston, Texas 77002

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_ Morgan ¥, United States. 377 F.2d 5C

Agoranos v. United States.

Cif. 1959). cert. den:

19357)

‘ “0p ae Pied ,

Cohen \. United States. 403 F.2g 234‘: Sth Ch

; 1968). cert. den.:. 394 U.S. 943: °

if or ile te i? a me i a -—/. = - 33 = °

Evan} v. United States. 377. F.2g 435 «Sth Gir.

sss . ;

Feichtne Vv. United States. 389 Fidg 498 (Oth

-— > J C+ YO} » ae hae =|

Grant «. United. States, 2°1].F.2g 25> -nd .Cir

1 7 os } © ne es ~ —s ~ eo ~

-1961). vacated on‘andother ground. 369 US

a |

401

:

oe }. ~ . 5 ~ r ‘ oe + 2: ast¢ . 4 =

ensiey Vv. United States. 406 F.2d72481 110th

Cir. 1968.) a

, * As a ~ J, as Pay :

KRohatsu: v. United States. 251 F.2g S898 (Oth

- ~ >. 3 :

Cir. 1965). cert: den... ;

7 . oe ee Be as” > 33 O47 os |

Mansfield \. United States. oS] F.2d 961 th.

Ss 3

Cir. 1967). vert: den. 389-U

eik. agen.

Poach \ ” Vaited i States, 424 -F.2g 1021/*( Sth

vr

Cir. 197 O- : © ast Boe i

J

Sciflmsky v. United States? 379 F.2g 738 ‘(1

Cir. 19673. cert. den.. 388 US. 920°

United States v. Agv. 374 F.2d 94. . 6th Cir

1967 ) ¥ *) » ;

United States v.. Frank. 245 F.2d 2@4 « 3rd‘Cir

1957): cert. den.. 355 U.S. 815

United States \. Harrison. 265 F.Supn 640

DCN. 1967" ee ie

United States +. Maius. 378 F.2g Tie stk Cir

1967). cert. den. 388 U.S. a05 ;

United ‘States vs. Maneyso: 378 F.2g 512. /eTo

4th Cir:.1967). cert. den... 390 U.S. 958 ;

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IL i ‘ e

. CASES

United States v. Miranda, 422 F.2d 150 (6th

Cir. 1970), cert. ‘den... 399 U.S. 910 © 4

‘United States v. Neves, 269 F.Supp. 159 (S.D.

N.Y. 1967) :

United States v. Remolif, 227 F.Supp. 420 (D.C.

Nev. 1964) . Rayrts 1 Aaae

— United States v. Sclasani, .265 F.2d 408 (2nd

- Cir. 1959). cert. den... 360 U.S. 918 -

United States v. Turzynski. 268 F. ‘Supp. 847

(D.C. Ill. 1967) :

_ United States v. White. 417 F.2d 89, 91 (2nd

Cir. 1969). cert. den.. 397 U.S. 912

ZacherA. United States. 227 F.2d 219 (8th Cir.

1955) hie A |

| f

U NITED STATES CONSTITU TION

Fourth Amendment

Fifth Amendment

Sixth Amendment

RULES OF THE UNITED STATES SUPREME COURT

Rule 24 - : | ce

Page

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WW.

IN THE

Supe Court of the. United Atates |

OCTOBER .TERM 1970

No. 672. —

JOE H. TONAHILL,

Petitioner

Vv.

THE UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of ne to the Court :

| of Appeals for the Fifth Circuit” :

PETITIONER’S REPLY TO BRIEF OF THE

RESPONDENT IN OPPOSITION C)

_ Major considerations prompt utilization of the privilege

granted to the Petitioner by Rule 24, ‘paragraph 4; of

the Rules of this Court. By order dated October 12, 1970,

this Court” denied application: for writ of certiorari to

“review Prudden v. United States, 424 F.2d 1021 (Sth

Cir: 1970). The brief i IN Opposition relies en on that

2

ruling but ignores and, thus necessitates explanation of,

significant and controlling distinctions between Prudden

- and the decision subject fo review here. ‘

As Petitioner has previously pointed out (Pet., p. 6),

a major distinction between Prudden and this case is that

in Prudden. the government, as appellant, -placed. in issue

the sutliciency of the evidence to sustain the trial court’s

fact findings of. fraud, trickery and deceit while in this

case the judgment of. the trial court Tecites that counsel

for the government admitted that the behavior of the In-

ternal Revenue agents constituted fraud, trickery and

deceit (Pet. A-5), and neither that fact finding nor any

other upon which the district court. decision rested was

placed i in issue on appeal. i

The court of appeals decided ‘Prudden by setting porn

the district court's ultimate fact finding of fraud, trickery

“and deceit and by-cancluding that the ‘evidence had been

voluntarily and knowingly given by the taxpayer to the ‘s

agents. In the decision here before this Court, an en-. ©

tirely different issue had ‘been raised: The position of the —

government hére was that evidence is not Veadeeisdbic:

even though secured from the taxpayer by admitted fraud,

trickery and deceit on the part of the revenue agents.

The decision in Pruddén. does not support such an argu-

ment, nor doés this Court’s denial. of\cértiorari in the

Prudden case indicate that a like ruling should’.be made

here. Indeed, denial of certiorari in the instant case could

cause the lower courts to concliide, as the Government

contends. that agents can use. fraud, trickery and deceit,

immune from the right of suppression.

Although the brief ‘in opposition filed’ in this Court

' contains no reference thereto, the government, as appel- ‘

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. lant. in the Court of Appeals admitted. to “deceit: prac-

ticed by the agents in emphasizing the civil, and de-em-

phasizing the ‘criminal,. aspects of the case” (Brief, p. 7).

The deceit was defended by contentions that “deceit

practiced by law enforcement officials, in and of itself, >

is not enough to warrant. suppression of confessions or

a@missions; confessions and adntissions aré not’ rendered

‘inadmissible merely because they are procured by deceit,

trickery or fraud” (Brief, p. 7); “deceit, in gnd of it-

self, is not° enough to warrant suppression of a’ confes-

sion” (Brief; p. 19); “the use of strategems. . trickery,

misrepresentations and deceit by an investigator is. neither

‘unconstitutional nor illegal, per: se”; and that “a confes-

‘sion is not rendered inadmissible merely because it was

. procured by deceit, trickery or fraud” (Brief, p. 20).

Even in Prudden, the Fifth Circuit “explicitly rejected]:

the government’s cgntentidn that the agents were free to

use: fraud, deceit, f trickery,” and pointed out that “in

cases where the IRS agents are obtaining consent to ex-

amine documents, they cannot gain such consent by

affirmatively misrepresenting the nature of the search”

(424 F.2d 1032, Ftn. 21; Pet. A-37). In the decision :

here subject to review, the court, because of the gov-

ernment’s admissions, necessarily must be: found to have .

held that ‘the absence of any warning whatsoever may be

coupled with fraud, trickery and deceit of the agents.

Tt: should. be pointed out that Petitioner's motion. to

‘suppress was grounded on the Fourth, Fifth and Sixth

Amendments to the Constitution of the United States,

~ any one-of which should have been grounds for suppres-

sion. The-Geyernment. on the other hand. argues in effect

that the Fourth Amendment rights‘do not apply. and that

4

a taxpayer has no right to Fifth Amendnient protections

unless he can also claim Sixth Amendment protections, If

, taxpayer is not in.custody, he need not be warned of his

right to counsel under the Miranda rule: therefore, aceord-

ing to the Government, he. need not be warned of his

right - to keep silent. The Government's contentions. are

* inconsistent with the vast majority of tax cases _con-

‘cerned with the issue.

The ‘courts seem to say that. advice as to the right to

counsel becomes imperative only when the defendant is

under custodial interrogation. The right to be warned -

that a person might be jncriminating himself — that a

‘criminal investigation is being conducted and he has a

right to keep silent — these warnings are required

- ‘whethér or not custodial interrogation is involved. The

distinction, while not articulated,’ is obvious. A. suspect

questioned in his own store, if he is warned that a.criminal.

investigation is in process, has at Jeast the freedom to

telephone his lawyer and remain silent yntil his lawyer

arrives. If he is in custody, the authorities must inform

: him of his right to telephones

The distigction is- nowher® more valid than ‘in the

= here before the Court. Petitioner, being “a lawyer,

uld have known immediately to -call a lawyer éx-

perienced in tax matters and to remain silent ‘until the

lawyer . arrived if he’ had been told he ‘was being in-

vestigated for the commission of a crime. His knowledge

in this regard would be of no benefit to him unless he

also. knew that he. was involved in a criminal investiga-

tion. Until: he was.so informed his knowledge of what to

do in a criminal investigation was worthless to him, The

decision below stands alone in presuming a waiver of

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constitutional rights and holding admissible evidence ob-

tained from 4 taxpayer without any warning whatsoever.

, Whether the warning 4s required by Mirgnda and ree

bedo, it is nevertheless required. : !

Each of the decisions cited by the vovernment, as well

s many other decided cases, is, therefore. clearly recon-

re le with the established general rule that the advice as.

to the privilege against self-incrimination isnot dependent

upon custodial investigation. The decision below does: not.

‘purport to. find that Petitioner - voluntarily and wnder-

—— waived his constitutional rights; instead, the de-

cision. assumes waiver by placing upon the taxpayer the.

porn of proving circumstances constituting an absence

of waiver. None of the cited cases so. holds; all indicate

_ that the warning against self incrimination must be given. |

and that the Government has the burden of proving that’

> the inforntation was obtained lawfully—after due warning

. and without fraud, treachery and deceit.

ae . In Grant v. United States, 291 F.2d 227 (2nd Cir. °

wt 1961), vacated on another ground, 369 US. 401. the

taxpayer had been. warned at least to the extent, that an

_ Interrial Revenue agent -had told him “that what they”

were trying to do was to put him in jail”, (291 F.2d 229)

“and had been informed by another agent that * ‘you don’t

have to give me. this. information” (291 F.2d 228): Peti-

tioner was neither so warned ‘nor- so advised. Moreover,

ay in Grant the trial court had found “that there was noth-

to show any affirmative misrepresentations, fraud, de-

< [i or scheme to Loved while the trial cotirt in* the

/ case at. bar found, dnd the government admitted to.

affirmative fraud, trickery and deceit on the part of the

Internal Revenue agents.

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In United States~v. Remolif, 227 F.Supp. 420 (D.C.

Nev. 1964), the trial court found that “defendants were -

informed by.agents of the Internal Revenue Service of

pose criminal implications in the investigation”; that

“consent . . . to. the eXamination of the books and records

. wvas voluntarily and understandingly given” and that.

“consent was not obtained by fraud or misrepresentation” —

(227 F. Supp. 442). Contrary findings | ‘were made by the ©

trial court here. In United States’ v. Neves, 269° F.Supp.

59 (S.D.N.Y. 1967), the court found that: there was no

‘fraud and that the Internal Revenue -agents had “warned.

the defendant that anything he said could be used against —

him” and advised that “he did not have to answer ques-.

tions or submit records tending to incriminate him” (269

F.Supp. 160). Here the government has admitted. fraud

and conceded that no warnings: of any sort were ever

given to the Petitioner. In United States v. Prudden, 424

F.2d 1021°(Sth Cir. 1970), cert. den., No. 453, this

Term; it was thegtax payer himself who had initiated the

“contact with the agents for the Internal Revenue Service.

in* summarizing the facts “most -favorably to the tax-

payer,” the court there pointed out that “Prudden tele- |

phoned Lexow at the Palm Beach office of the Internal-

Revenue Service from his home in Connecticut, stating

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

examination wé S to cover FCA: alone or its subsidiaries

also, and furtHer asked if the examination was routine.

Lexow replied that - the examination would cover both,

FCA and its subsidiaries and that it was. not routine” (424

F.2d 1022, Pet, A-17). Not even that minimal warning

. was given to Petitioner bythe revenue’ agents who ap-

proached him. Moreovey, the taxpayer in Prudden con- 7

sistently “refused” to produce certain records for the

. v7 . 3 °

government agents (424’F.2d 1021, Pet. A-20), thus

establishing his knowledge: .that he .was not required. to

provide - evidence and his: voluntary action in making ©

other records available.

In Morgan v. United States; 377 F.2d 507 (Ist “Cir:

1967), the taxpayer “was warned by the« <agents of his.

right to remain silent, and that anything he said might

bé used against him. . . . The defendant. makes no asser- «

tion, nor could he, that he was not free to walk’ out of

‘the internal revenue office at any time. Nor is there any .

suggestion of trickery or fraud.” In United States v. White,

-- 417 F.2d 89, 91 (2nd Cir. 1969), cert. den., 397 US.

912, the taxpayer was told “that he was not fequired ‘to

answer any questions or turn Over any personal records.”

In United States Vv. Mancuso, 378 F.2d 612, 619 (4th

Cir. 1967), cert. den;,; 390 U.S. 955, the agent “advised

" the deferidant ‘that under the Constitution of the United

States he. may refuse to answer any question the: answer

to which will tend to incriminate him’; moreover, the

taxpayer had been convicted under the net worth theory

rather than upon the basis of evidence which he himself

had provided to the agents. Similarly. in’ Agoranos v..

United States, 409 F.2d 833 (5th Cir? J959): cert. den.,

' 396 U.S. 824, the taxpayer had been-‘convicted under the:

net worth theory: rather than upon the basis of evidence

asserted to have been unconstitutionally obtained -from

him. In United States v. Miranda, 422 F.2d 150 (6th Gir...

1970), cert. den., 399 U.S.910, the circuit court affirmed

the trial ‘court's holding based upon findings that the ©

agents had .warned the taxpayer that he “was. not requited

; tO answer any. ‘questions . ... or give any information,”

‘that the eae: stated . that he ccmuamietiat and that “all

8.

statements ‘made and all documents délivered were ‘vol- |

‘untary acts of fhe appellant and were not induced by :

- _ Stealth, trickery ‘or misreprésentation™ mes F. Supp. ee ty.

220-222). 2 = Gee

(

.~ In Cohen vs United States, 405 F.2d 34 (8th Cir. 1968),

. cert. dén.y 304 U.S. 943, the taxpayer was advised that he

need not answer any questions which teadéd to incrimi-

nate him”; the: taxpayer said “that he understoad”; the.

. “warning was repeated”; the taxpayer received “a letter

_ Which told him. that he could bring an attorney”. -

In Feichtneir ¥. United States, 339: F.2d 498 (9th Cir.

1968). after the ¢ase was referred to a special agent.

“appellant obtained | counsel who was present at sub-

sequent conferenge ss objection to * ‘the admission of ex-

hibits obtained by the special agent “from appellant with -

his counsel's permission is. . ‘broundless.” In Hensley v.

United States, 406 F.2d 481 (10th Cir.-1968), the “only ©

ef evidence obtained from’ the appellant which was intro-

duced at the trial Was corporate records and a “natural :

person may be required-to furnish the corporate records :

irrespective of the fact that such records might tend to —

incriminate him; . . ..no evidence was uged by the prosecu-

_ tion which. an accased, fully aware of hjs constitutional

rights. could have prevented the governfnent from obtain-

ing. or introducing. i

< To this effect also are S« linsky v. United States, 379

F.2d 735 (Ist Cir. 1967). cert.‘den., 389 U.S. 920; Mans-

field v. United States, 381 F.2d 961 (7th Cir. 1967), cert,

den.., 389 U.S. 1015; United States v. Maius, 378. F.2d

716 (6th Cir. 1967). cert. den., 389 U.S. 905. See also

United States v. Agy, 374 F.2d 94 (6th Cir. 1967), hold-.

ing that statements made before warning were ngayon.

stble: Kohatsu v. _ United States, 251 F.2d. g98 (Oth Cir:

1965). cert. den.; 384-US. 1011, holding that statements

admissible on the basis of warning shortly after criminal ,

investigation instituted; and Evans v.- United States, 377

F.2d 535 (Sth Cir. 1967).

‘In United States v. Sc lasani, 265 F. 2d°408 (2nd Cir.

1959), cert. den.,- 360 U.S.4918. the Court of Appeals

_ affirmed the trial court’s finding that the taxpayer's *orig-

_ inal: permission was freely given in response to-a fair ‘and

accurate warning” and that there was no fraud or trickery _

on the part. of the goyernment’s agents (265 F.2d 415).

The eOnviction was upheld upon the basis of “net worth .

independently .provéd sss government” (265 F.2d. —

412). i , :

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In United States v. Y rank, 245. F.2d. 284 (3rd Cir.

1957). cert. den., 355 U.S. 819. the government-proved ‘

its case by the bank deposits-ex; pendituire method .and for,

corroboration used the net worth ‘method. The trial court

had found that no fraud was practiced by the gov ernment

agents (151 F.Supp. " 864). *

In Biges v. United States, 246 F:2d 40 (6th Cir. 1957).

the court found that the evidence was “voluntarily given:

to a revenue agent in a civil tax investigation without

. prothise of immupity and .in the absence: of fraud and §

misrepresentation” (246 F.Zd 44). ‘

In Zacher v. United States, 227 F.2d 219 (8th Cir.

1955). the court. quétes the warning which was given to:

the taxpayer and his response, that he “felt freeto answer

thése questions”. (227 F.2d 225). ‘The court therefore —

found that the evidence had been voluntarily and Know-

ingly supplied by the taxpayer.

eo,

46 (6th Cir. .1957), thé court’ explicitly held’ that

eS | ee A.

No case cited by the government denies a motion to

suppress. or approves a conviction u on the basis: of,

evidence secured from the ‘taxpayer witfiout warning or:

_indication .of knowledge and understanding of? criminal

‘proseeution on the part, af the taxpayer. Where the tax-

payer, as here. was never adyised of his right: to remain

‘silent or told that a criminal investigation had. been

‘instituted. the courts have held*that the evidence should

be suppressed. United States ¥. Tur: cyiski,* 268, F.Supp.

847. (D.C. ll. 1967); United. States v: Harrison, 265

F.Supp. 660 (D.C.N.Y. 1967). Here the absence of

spa was coupled with admitted fraud, i seats and

deceit...:* ; an

In its’*brief. in oppesition in this. Céutt the easeenment:

does not continue its previous defense of fraud asa means

_of securing evidence. put neither ‘does it. attempt to re-

‘fraud. Instead. if seeks to

defend the decision below by a charge, that Petitioner has”

contused findings of tact with conclusions of law in his

‘claim that the decision below rests upon an unwarranted .

rejection of the district -court’s findings of fact. The find-

ings + of fact to which the argument, had been directed |

were, of | course: those in which the trial court. found :

“affusmative fraud, trickery and deceit” (Pet. 22-23 ). No

authority) whatsoever is cited. for the contention thaf’

“affirmative fraud, trickery and deeeit”. are “conclusions

of law.” The government's assertion to that effect is ‘con-

tradigted even by the. dgeisions relied upon in other argu-

ments. For example, in Biggs v. United States, 246 F.2d

“[wlhether the books were Voluntarily surrendered by

the appellant “or. were obtained under a promise of im-

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munity or through fraud or misrepresentation on the part

of the Government is a question of fact’. (246 é: 2d 44;

_ emphasis-added). Inz United States vy. Remolif® fe Os oP

Supp. 420, 425 (D.C. Nev. 1964), although the motion

to suppress was’ denied, the’ court, because ‘of a. dispute

as to whetfier or not fraud. misrepresentatiog or trickery

vitiated: the consent, ordered the issue to be submitted ‘to

the jury. In Prudden, upon which the government heavily

- relies on all other points, the court, citing cases,on. the

“clearly erroneous” test, reached the. conclusion ‘ ‘that the

ultimate fact finding—traud. trickery and deceit by: the,

-agents—is a mistaken one” (424 F.2d .1031:; Pet. A-35-

. 36). and, after’an exhaustive review of the evidence re-

lied upon ‘by the taxpayer (424 F.2d 1031-1035; Pet. .

A-35-44. emphasi§ sel set aside the. “fact détermina-

tion” of the trial court.: —

“The decision below, thus. sets aside in_a. trial court

judgment that which-the ‘same court had previously des-

ignated to be a “fact finding—fraud’by the agents.’ ’ That

ruling ‘was made without regard to the “clearly erroneous”.

“test and in spite of the fact:that the ‘governnjent had not.

contested the trial court findings of fact. "Here the ‘trial.

court not only found fraud ‘on ‘the part of fhe agents but —

a also-found” that” “[e]ven t the Government's. counsel admits

that such behavior {that previously described ‘in the: opin-

jon and nowhere disputed by the government either in the

Circuit Court or in this Court] constitutes: fraud. trickery

and deceit” _(Pet. A-5).- cos

In essence, therefore. the sovernment. by its brief in

oppositjon, is here seeking this Court’s denial of certiorari

and, thus. the opportunity to base prosecution of Petitioner

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on* evidence not only obtained without warning but even

admittedly secured by “fraud, trickery and deceit” on the

part of ihe revenue agents.

©“ os

ee.

CLark, THomas, HARRIS,

_ Dentus & WINTERS

4.

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P.O. Box 1148 i

Austin. Texas 78767

A/C 512 472-8442. °

Of Counsel |

Respectfully submitted,

SANDER W. SHAPIRO

P. O. Box 1148 ee

Austin, Texas 78767

~A/C 512 472-8442

Counsel of Record

’

- Mary Joe CARROLL |