# Petition for a Writ of Certiorari — Mitchell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0521%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 401 U.S. 910 ## Text Table af Camteata 1 (a), Refereure te official report 1 (b). Statement of grownd for j. cadiction 1 (e). Question presented for review 1 (cd), Constitutional provisions and statutes United States Constitution, Amendment V United States Constitution, Amendment VI 3% USC. § 7203. Willful failure to file, return, supply information, or pay tax (vol. 6, 1964 ed., v. 5764) 3 1 (e). Statement of the case | 4 IGS. Argument 5 A violation of defendant's rights under the Fifth and Sixth Amendments entitled him to a judg- ment of acquittal or a new trial 5 Cenclusion — Appendix 9 Tab of Authorities Cited. Cama. Cohen v. United States, 405 F. 2d 34 _ Eacobede v. Iinois, 378 U.S. 478 Garay v. United States, 399 F. 2d 696 Hensley v. United States, 406 F. 2d 481 Miranda v. Arizona, 384 U.S. 436 ö 3, 6, Morgan v. United States, 377 F. 2d 507 Schlinsky v. United States, 379-F. 2d 735 Spinney v. United States, 385 F. 2d 908 Taglianetti v. United States, 398 F. 2d 558 D W O 1 23 @ ii TABLE OF AUTITORITIRS CITED United States v. Avendio, 171 F. u 122 United States v. Dickerson, 413 F. 2a 1111 2, 4,6, 7,8 United States v Heffner, 40 F. 2d 809 United States v. Lackey, 413 F. 2d 655. United States v. Turzynski, 268 F. Supp. 847 United States v. Wainwright, 284 F. Sapp. 129 - Srareves, Bro. United States Constitution, Amendment W United States Constitution, Amendment V1 3% U.S.C. § 7208 28 U.S.C. § 1954 (1) Mascetsarros. Andrews, The Right to Counsel in Criminal Tax In- vestigations ender Geeshede end Misenda, 88 few, L. Bev. 1074 (1968) ; Comment, Constitutional Rights of the Taxpayer in a Tax Fraud Investigation, 42 Tul. I. Rev. sey (1968) Duke, Prosecutions for Attempts to Evade Income Tax, 76 Yale LJ. 1 (1966) 79 Harvard Law Review, 938 g Hewitt, The Constitutional. Rights of the Taxpayer in a Fraud Investigation, 44 Taxes, 660 (1966) Lipton, Constitutional Rights in Criminal Tax In- vestigations, 53 ABAJ 517 (1967) Weiss, Speciel Agents need not advise a taxpayer of | “his constitutional rights, 26 J. of Taxation, 26 (1966) 7 a PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. Petitioner prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals er the First Circuit, entered in the above-entitied cause on Oe. tober 7, 1970, rehearing denied October 22, 1970. 2 (a). Reference to Olicial Mapert. The opinion of the Court of Appeals for the First Gr. cuit in this case is presently designated United States v. Christopher C. Mitchell, Docket Nusaber 7614, ist Circuit, October 7, 1970, and the text thereof is appended hereto. @ : | 1 (0), Stetement of Greend fer Jurisdiction. The ground for juriediction in this Court ix that a Court of Appeals has rendered a decision in conflict with the de cision of Uhre Court of Appeals in this case on the same mat. ter, Le, United States v. Dickerson, 434°, 24 1111 (7th Cir. 1989). 5 : (i) Date of judgment.—(Oectober 7, 1970; Date of entry October 7, 1970. (ii) Order denying rehearing, entered October 22, 1970. (iii) Statutory provision conferring jurisdiction—28 U.S. § 1254 (1). 1 (e). Question Presented for Review. - The question presented is: 1. Did the failure of the Internal Revenue Service Spe- cial Agent to give your petitioner any warning of his fifth and sixth amendment rights, or even of the fact that he was being investigated for a criminal offense, x0 violate hi- con- by reason of such violation was plain error which entitles him to a judgment of acquittal or a reversal? 1 (4). Constitutional Provisions and Statutes. Urte Srares Coxetrrcriox, Abu V. No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indict- ment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a tained by law, and to be informed of the nature and cause of the accusation; to be .confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his Tavor, and to have assistance of counsel for his defence. 26 U.S.C. 672. Wu Fand ro Fus, Rervax, Sve. | rr Ixvonmatiox, on Pay Tax (Vol. 6, 1964 EA., p. 5764). Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a re. turn required authority of section 6015 or section 6016), keep any or supply any information, who willfully fails to pay such ¢stimated tax or tax, make such return, keep such records, or supply suc information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon corvicticn thereof, shall. be fined not more than $10,000 or imprisoned not more than 1 year, or both, together with the costs of prosecution. (Aug. 16, 1954, e. 736, A Stat. 851.) 8 om rs — 4 1 (e). Statement of the Case. At all material times Mitchell was a funeral director do- ing business as the Tobin Funeral Service in Boston, Mas- sachusetts. Tobin Funeral Service was incor rated in 1968, but, prior to incorporation, Mitchell operated it as sole proprietor (R. 9). He had a long history of alcoholism and emotional disturbance which required psychiatric treat- ment from time to time (R. 66-69, 96-99). ; In October, 1966, Special Agent George T. Kelley of the IRS Intelligence Division was assigned to conduct a crimi- nal investigation of Mitchell’s tax returns as a result of a previous civil audit conducted by Revenue Agent Thomas McGagh (R. 5-6). IRS Intelligence Division Special Agents have as their principal duty the investigation of criminal violations of the Internal Revenue Code (R. 5) and in this respect do not differ from other federal law enforcement officers, such as FBI agents. On October 27, 1966, Agent Kelley, accompanied by McGagh, held his first two inter- views with appellant Mitchell, one at Mitchell’s place of business and one at an IRS conference room in Boston (R. 6, 8). During the first interview Agent Kelley repeatedly asked Mitchell whether he had filed returns, despite the fact that Mitchell manifested his unwillingness to answer any questions at that time and showed signs of considerable con- fusion as a result of this confrontation (R. 7, 25-30). At the second of these meetings Mitchell made self-incriminat- ing statements which were introduced at trial as part of Agent Kelley’s testimony (R. 8-11). Subsequent to the Oc- tober 27th meetings, Agent Kelley met with Mitchell on two other oceasions. On November 16, 1966, Mitchell came to the IRS offices in Boston to sign medical waivers at the re- quest of Agent Kelley (R. 11). When Mitchell appeared at this meeting with a friend, Thomas H. Mulvey, he was un- der the influence of aleohol but Agent Kelley took his signa- ture in spite of this fact (R. 39, 52-53, 62). On January 9, 1967, Agent Kelley again met with Mitchell at the IRS ““@ifices in Boston, at which time Mitchell turned over all his personal business records for the years 1960 through 1965 to Agent Kelley (R. 17-18). These records were also placed in evidence against Mitchell at trial. Mitchell produced these records in the belief that he was obligated to do so by law (Second Mitchell Affidavit, R. 99). At no time during the above-named meeting did Special Agent Kelley advise Mitchell that he was under criminal investigation, nor did he warn him of his right to remain silent and to refuse to produce records, nor that he had a right to consult counsel before answering any questions or producing any records (R. 26, 30-31). This failure to warn was a violation of IRS policies, procedures and instructions existing at that time (Beli Affidavit, R. 100). A major part of the evidence against Mitchell was ob- tained at these meetings including substantially all of the evidence on the essential element of willfulness. The basis for federal jurisdiction in the Court of First Instance was 26 U.S.C. § 7203. 1 (h). Argument. A Violariox or Derewpant’s Ricuts uxper tae Firra AND Sixth Amenpments Ewtir.ep nim To 4 JUDGMENT OF Ac- QUITTAL on 4 New Tri. The case of United States v. Dickerson, 413 F. 2d 1111 (7th Cir. 1969), extends the doctrine of Miranda v. Arizona, 384 U.S. 436 (1966), to a situation where a taxpayer, not in physical custody, gives self-incriminating information to a special agent of the Internal Revenue Service without be- ing warned of his constitutional rights. Accord, United States v. Lackey, 413 F. 2d 655 (7th Cir. 1969); United States v. Turzynski, 268 F. Supp. 847 (N. D. III. 1967 ); Uni- ae ted States v. Wainwright, 284 F. Supp. 129 (D. Colo. 1968). Except for the petitioner’s failure to raise the point in the trial court, the present case is squarely in point with Dick- erson on its facts. An impressive group of legal commentators support Dickerson. See Hewitt, The Constitutional Rights of the Taxpayer in a Fraud Investigation, 44 Taxes, 660 (1966) ; Duke, Prosecutions for Attempts to Evade Income Tax, 76 Yale L.J. 1, 31-76 (1966); Weiss, Special Agents need not advise a taxpayer of his constitutional rights, 26 J. of Tax ation, 26 (1966) ; Lipton, Constitutional Rights in Criminal Tax Investigations, 53 ABAJ 517 (1967); Andrews, The Right to Counsel in Criminal Tax Investigations under Es- cobedo and Miranda, 53 Towa L. Rev. 1074, 1111-1113 (1968) ; Comment, Constitutional Rights of the Taxpayer in a Tax Fraud Investigation, 42 Tul. L. Rev. 862 (1968). In addition to the present case, there are numerous cases which refuse to extend Miranda to the factual situation pre- sented here. Cohen v. United States, 405 F. 2d 34, 37 (8th Cir. 1969), and cases cited therein. Unlike Dickerson and the present case where the taxpayer received no warning whatsoever, in most of these cases, the taxpayer did receive some warning. There is, therefore, a clear conflict between circuits as a ground for granting this petition. The language and reasoning of Dickerson cannot be im- proved upon in this brief. It is submitted that the psycho- logical coercion of being questioned by government agents, enhanced in this case by the petitioner’s history of aleohol- ism and emotional disturbance, constituted the equivalent of ‘‘custody’’ required by Miranda. : However, in the present case the Court is not required to go as far as Dickerson, i. e., to require the full Miranda warn- ing. Petitioner received no warning whatever, distinguish- ing this case from almost all the other cases on the subject. 7 | It is submitted that the same result as in Dickerson should be reached by applying the reasoning of pre-Miranda deci- v. Illinois, 378 U.S. 478 (10866). The test has been whether the totality of circumstances deprived the defendant of a free choice to admit, to deny, or to refuse to answer’.’’ Miranda v. Avizona, supra, dissenting opinion, at 534. In the present case, it is not that petitioner was not free; it is that he was not given a choice. The failure to inférm an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of consti- tutional rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all the Court characteristically and properly leoks very closely at the surrounding circumstances. ... I would continue to do so. Escobedo v. Illinois, supra, dissenting opinion, at 499; see 79 Harvard Law Review, 938, 974. The factors constituting the ‘‘totality of cireumstances”’ and favorable to petitioner are as follows: © 1. No warning whatever. 2. Petitioner’s emotional disturbance and aleoholism. 3. The failure of the special agent to follow IRS regula- tions, or at least customary procedure. See Bell affidavit, R. 100. United States v. Heffner, 420 F. 2d 809 (4th Cir. 1969). 4. The type of crime alleged, i- e., white collar and non- violent. | 5. The manner in which the special agent surreptitiously inserted himself into what had started as a civil audit. It is further submitted that the failure of prior counsel to raise the point in the trial court should not vitiate this cc ccc appeal. First, if petitioner's conviction was obtained by evidence largely procured by violation of his constitutional rights, this is the plainest kind of plain error. Hensley v. United States, 406 F. 2d 481, 484 (9th Cir. 1968) ; Garay v. United States, 399 F. 2d 696 (Sth Cir. 1968) ; United States v. Asendio, 171 F. 2d 122 (3d Cir. 1948). Second, prior counsel for petitioner did not know of the Dickersow case prior to or at trial. See Hurley affidavit. It was not called to his attention or to the attention of the Court by Government counsel. It was decided so recently (rehearing denied September 5, 1969, trial in this case Jan- uary 20 to February 4, 1970) that in the exercise of reason- able diligence it would not have come to petitioner’s coun- ' gel’s attention prior to trial. (A decision does not appear in Shepard’s until about six months or more after the de- cision is final.) Without the Dickerson decision to rely upon, it would have seemed futile to prior counsel to raise the point in view of the several contrary decisions of the First Circuit. See Morgan v. United States, 377 F. 2d 507 (Ist Cir. 1967); Schlinsky v. United States, 379 F. 2d 735 (Ist Cir. 1967); Spinney v. United States, 385 F. 2d 908 (Ist Cir. 1967) ; Taglianetti v. United States, 398 F. 2d 558 (Ist Cir. 1968). Conclusion. It is respectfully submitted that, for the reasons stated above, this petition for a writ of certiorari should be grant- ed. W submitted, Ee JESSE R. FILLMAN, CHOATE, HALL X STEWART, 28 State Street, Boston, Massachusetts 02109. E APPENDIX. . —ñ— Opinion of the Court Selow. United States Court of Appeals for the First Circuit. No. 7614. UNITED STATES OF AMERICA, APPELLEE, v. CHRISTOPHER C. MITCHELL, DEFENDANT, APPELLANT. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Before Aupricu, Chief Judge, McEwrtez and Corrix, Circuit Judges. Charles F. Choate, with whom Mark A. Mighelson, Randall T. Bell, and Choate, Hall & Stewart were on brief, for appellant. Carleton D. Powell, Attorney, Department of Justice, with whom Herbert F. Travers, Jr., United 8 Attorney, Johnnie M. Walters, Assistant Attorney General, er Rothwacks, and Joseph M. Howard, Attorneys, Department of Justice, were on brief, for appellee. e : 10 October 7, 1970. Corr, Circuifdudge. Appellant was convicted of wilful failure to file income tax returns in violation of 26 U.S.C. § 7203. Im the course of the investigation which resulted in prosecution, Special Agents of the Internal Revenue Service interrogated appellant on several occasions. On pone of these oceasions was he under arrest. The LES. Agents gave Mitchell no warning of his fifth or sixth amendment rights or even of the fact that he was being investigated for a criminal offense. At these meetings appel- was introduced against him without objection at trial. under the Supreme Court's rulings in the cases of Escobedo v. Illinois, 378 U.S. 478 (1964) and Miranda v. Arizona, 384 U.S. 436 (1966) and because the interrogations, in which the evidence was obtained, were in violation of LR. S. procedures. : | Appellant's trial counsel failed to object to the admission of this evidence despite the fact that the government’s direct examination of the LR. S. Agent brought out that Mitchell had not been given the warnings which it is now asserted on appeal were required by Miranda and L. R. S. procedures. Nor did he move to strike after his cross- examination in which he specifically asked the Agent what warnings had been given. Appellant, who is represented by different counsel on appeal, asserts that the admission of this evidence was plain error which this court may con- sider under Fed. R. Crim. P. 52(b). In Dichner v. United States, 348 F. 2d 167 (ist Cir. 1965), we indicated our reluctance to consider claims not raised below except in unusual circumstances. ‘‘ Plain error’ means precisely that, and ‘exeeptional circumstances’ must in fact be excep- tional. 348 F. 2d at 168. 1 Bee also Define Martone v. United States, 396 F.2d 229 (let Cir. 1968); Pugliano v. United States, 348 F.2d 902 (lst Cir. 1965), cort, denied, 382 U.. 939 (1965). 11 In urging us to invoke Rule 52 (b) here, appellant relies on Hensley v. United States, 406 F. 2d 481 (10th Cir. 1968). Hensley also concerned an LR. S. interrogation in which the Miranda warnings were not given. At trial the de- fendant failed to object to the admission of evidence obtained at this interrogation. Although noting that ‘‘even constitutional objections may be waived by a failure to raise them at the proper time“, (406 F. 2d at 484, citing Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)), the Tenth Cireuit agreed to consider the Miranda issue. At the time of trial, it was thought that Miranda did not apply to IR. S. interrogations, but in the interim between trial and appeal, the Supreme Court announced its decision in Mathis v. United States, 391 U.S. 1 (1968), holding that. under certain circumstances Miranda rights were available at LES. interrogations. Because a defendant cannot waive, hy failing to object, an unknown right, the court in Hensley consideted the Miranda question for the first time on The situation in this case is not the same as in Hensley. No controlling opinion has intervened to establish a right that had. been thought not fo exist at the time of trial. Appellant argues that although bis court has ruled that Miranda does not apply to non-custodial interrogations conducted by the IL. R. S.,? it has never ruled in a case such — as that which faces us now, where the taxpayer has had no warning of any kind. Appellant points out that the Seventh Cireuit has ruled on such a case, holding that warnings must be given. United States v. Dickerson, 413 F. 2d 1111 (1969). But the decision of another circuit is not control- 2 Taglianetti v. United States, 398 F.2d 558 (1st Cir. 1968), 4 d. 394 U.S. 316 (1969) ; Spinney v. United States, 385 F.2d 908 (1967), cert. denied, 390 U.S. 921 (1968); Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967), cert. denied, 389 U.S. 920 (1967) ; Morgan v. United States, 377 F.2d 507 (lot Cir. 1967). 12 ling here.* Even though the facts of the other cases we thrust of those cases is such that the district court can hard- ly be said to have committed plain error in admitting the evidence below.‘ Appellant’s attempt to raise this question for the first time on appeal serves only to reaffirm our belief in the. wisdom of the rule which prevents litigants from raising new issues on appeal. We are left in the-dark because the record is silent on several factual questions pertinent to a consideration of appellant’s argument that some form of warning, if not the complete Miranda warning, is necessary. For example, at the second meeting with L. R. S. Agents when incriminating evidence was obtained from appellant and at subsequent meetings appellant was accompanied by other individuals. In Miranda and in Mathis the Court was pri- marily concerned with the coercion inherent in police in- terrogations. If we were to consider extending Miranda to interrogations such as the one in this case, we would also be interested in the degree of coercion involved in such interviews. On this question, the testimony of appel- lant’s companions at the interview is clearly relevant, yet the failure to object below or to claim that the evidence was involuntarily given preeluded such an inquiry. Appellant’s contention that these interrogations violated LR. S. procedures serves as an even better example of the necessity of raising objections at trial. We rule today in the case of United States v. Leahey that IL. R. S. Special Agents must follow their publicly announced procedures of giving warnings before interrogating taxpayers. Yet Vitti”. 409 F. 2d 1254, 1254, 1256 n. 1 (1969). * As the cases cited in Cohen v. United Steles, 406 7 44 84 37 n. 7 (8th Cir. 1969), indiec te, the case relied on by appellant is proba- bly inconsistent with the view of most circuits. 13 because this issue was not raised below in this case, we do not even know if the LES. had a similar rule at the time appellant was interrogated. Appellant offers only an affidavit of one of appellant s counsel which contains the hearsay statement of a former LB.S. employee that the LR. S. did have such a rule at the time of appellant's interrogation. The government, on the other hand, asserts cedure. We cannot decide this kind of factual issue on appeal; if appellant wishes to raise it, he should have done so at trial when the Special Agent who conducted the interrogation should have been called to testify i b : : 4 F 4 f protections afforded them by the Miranda opinion unknown to counsel. While it is true that the full cations of that case may not yet be decided, the of Miranda’s applicability is often dependent on questions that cannot be dealt with for L N E F F a FF i Ju a Miranda question that is raised for first appeal; it is enough to say that we shall exercise our the fairness of the trial. For the most part, this motion was based on the failure of appellant’s trial counsel to call as a witness appellant’s psychiatrist to testify as to appel- lant’s state of mind at the time of the commission of the crime. This court denied the motion because cf appellant’s failure to move for a new trial below. We thought, and en think, that it would be impooper for this court te 14 exercise its discretionary power granted by F. R. A. P. 47 to permit appellant to revive an issue which he waived by his failure to move below. A trial must terminate, and & judgment must at some point be considered final. Mitchell v. United States, 259 F. 2d 787 (D.C. Cir. 1958), cert. denied, 358 U.S. 850 (1958). No precedent exists for the procedure appellant seeks. In Jackson v. United States, 371 F. 2d 960 (D.C. Cir. 1966), on which appellant relies, there was a motion for a new trial. United States v. — F. Supp. 220 (D. RI. 1967), aff'd, 398 F. 2d 558 (ist Gir. 1968), f d, 394 U.S. 316 (1969), concerned a wiretap upon a telephone which appellant had used on several occasions. The wiretap became known after the conviction, at the government’s own admission. It having been impossible for the issue to be litigated at trial, the motion to remand, made by the government and unopposed by the defendant, was granted for the purpose of determining whether or not the illegal wiretap was a factor in the defendant’s con- vietion. f we have discretion to remand despite the unprece- dented nature of appellant’s request, we decline to do so. To overcome the burden imposed by such a novel and un- precedented motion, appellant must make a stronger show- ing than he has made here. Ample evidence was introduced at trial of the impairment of appellant’s mental faculties as a result of alcoholism, including the testimony of another doctor who had treated appellant for this affliction. Further- more, in light of a bench conference at which the court expressed reluctance to admit the psychiatrist’s testimony, we cannot agree that trial counsel’s decision not to call the witness prejudiced appellant's trial to the extent that has heen suggested. Affirmed. & 3 * * — 4 e & e 4 v s 0 5 2 „ 7 2 ** 1 a e . © — * a \ + 8 * * oe * 55 0 5 2 0 = * 8 A ae 5 7 * — * 2 © as 2 e ’ » 0 5 * o s * 2 ‘ * ° 8 E © g * * Cc 8 — * 8 + ee » * 4 2 5 l * ‘ 8 * ? * 0 * : 0 é 5 — . “a * 3 e =: * „ ° — , ° 8 0 7 5 io 9 ~ * 0 7 et > * e * ° 0 8 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0521%3A1. Public record. Not legal advice.