# Petition for Writ of Certiorari — Nemetz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0467%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 988 ## Text = ~ T wveme Un Wy oe 1k, & Dp ie ; . —_— — ead 3 . \ " . a . . ‘ Pr ‘ . - ‘ ; A : > . * m . : . . . . | a . * . \ . , . — - Za . iH we ° PE TITLON FOR “Writ OF CE RTIORARI: ~ .. Petitign~ INDEX si eo 3 2 SS 4. eS 8°. © 8 20.08 8 Oe @ 68 3D OC 4 68 4 Oe SO A Se 4 Opinions | Below ......2... Cte eeu aes ROP a er ae: Jurisdiction Cae Ae RR on eh he eros eae ee \ ae Cosatiniiénal Provisions, Statutes and. Regulations -Which the Case Involved _ eee Agar ai Ar an Siaternent of the: eee vee fate at OM AN ‘ bse for Granting. the Writ: WN Ny — | wn Is anew tial mandated when a special agent . - "of the Internal Revenue Service deliberately © violates a pgocedural directive of ‘his agency by not clearly disclosing his criminal func- . iion-at the initial contact with the. to-be- investigated taxpayer within the meaning: of. U. S..v. Heffner, 1969, 4 Cir.,.420 F/ 2d 809, and cases cited ‘therein ‘and U. S. v. Leahey, 1 Cir., 1970,.434 F. 2d 7? . . When special agents of the Internal bi aie Service confront. a taxpayer for the purpose ‘of obtaining oral admissions plusehis written records for use in the investigation they are then conducting into his affairs, is this a “critical stage” which mandates the right - to counsel warning within the meaning of Coleman v., Alabama, 1970, 90 S.-Ct. 1999, 2002, 399.U:S. 1, 7; U.S. v. Wade, 1967, 87 S. Ct. 1926, 1930-1931, 388 U.S. 218, 222-223, and, if so, has defendant waived. Renee. ee — i N-* “ ; ao; this right under. the fact ciréumstances of * this case when amg in light of Johnson: v. U. S., 330 US. 10, 12; Amos v. U. S., - 1920, 225 U.S. a “315, 317, and Von Moltke v..Gillies, 1948, 332 U.S. 708, 724? - Does a confidential relationship exist be- tween a bank and its-depositor and, if it does, must 26 U.S.C. 7602 process, be served before the bank records are made available for IRS special agent examination and, if so, does the taxpayer have an abso- lute.right, to notice that the sunimons has _ been served plus the opportunity to inter-._ ~ vene and participate when the special-agent * . interviews the witnéss so that he can prevent .. improper use of the summons and aid in the - disclosure’ of. helpful: evidence which would ing of U..£. v. Donaldson, 1971, 400/U.S prevent his» s prosecution all within the wus 517, 523, - 91S. Ct. 534, 538, 542? . In'a 26 USS.C. 7201 specific item prosecu- tion, must Government aid Defendant in proving deduction allowable under U- S. v. Sansone, 1965, 85 S. Ct. 1004, 1010, 380 - US. 343, 352, when his eecords have been . stolen previous to IRS contact and investi- gation .and does deliberate failure to do this qualify as a suppression of evidence within, ‘the ‘meaning.of Brady v. Md., 1963, 373 . U.S. 83.and its’ progeny?. enya a APPENDIX: 7 ' Opinion and Order of the. District Court ...:...°.. -— = _ Order of ‘the District Court. Par eee oh a .\ ‘Opinion of ‘the Court of Appeals ..... ee saree os, ‘ Petition for Rehearing ...... Rn as ac Wieienes | = Order oes ee il 23 52 69 — 75 - 84 . 85 90 97 TABLE OF CITATIONS CASES: : ° 21 vs rel. Almeida v. Baldi, 3 Cir., 1952, 195 F. LU. S. v. Erdner. 5 Cir., 1970, 422 F. rh OREN 63,65 V itarelli v. Seaton, 359 is AR. Pere eta ee M 62- Von Moltke v. Gillies, 1948, 332 U.S. 708 ....3,23,49 ” Wade v. Yeager, 3 Cir., 1967, 377 F.2d 841 ..... ° 46 Wilson v. Schnettler, 1960, 365 U.S. 381 ........ 62 Wien +. U.%., Ti US. FAR 36 SS 57 Wolf v. Colorado, 338 U.S. 25 ...... Gea AA, At 66 _ Vili : 7 . Wooley, v. Great ‘Atlantic & Pacific Tea Company, — 3.Dir., 1960, 281 F.2d 78 ........ ees _ 48 Wright v. Rockefeller, 1965, 376 US. 52 -....... 48 Yellin v. U. S., 374 U.S. 109 20.2... 2 62 Zimmerman v. Wilson, 3 Cir., 81 F.2d 847, 105 F. "i . SR err rn ty Pinar aie 58 CONSTITUTION: 7 U. S. Constitution; 4th Amendment .:.......... «5,45 -U. S. Constitution, 5th Amendment .......... 5 36, 45. U. S. Constitution, 6th Amendment pacneaeeseus 6, 45. * RULEs: | Criminal Rule ....... PS Pee reer ee er ‘ 11 Sina | ee ea oe ee Ll. 59 U. S. Supreme Court Rule 19-T(b) ......... we STATUTES: _ . ‘ iS URS. Seo RE ene: eer a Ee Se ie sR eey Ae aa 47 26 U.S.C. 6851 and 6861 ..........2...... (44 We WR We tac 2,4, 9, 39, 50, 63, 69 26 US.C. 7205 ......0:.... joe akeiaies RN ese OS URE. THOR oe cess -. 356, 12, 35, 52, 61, 63 “$6 UBL. WB... «260 2.. Peers RS Ge 7,61 URE. TON. orc neccies 61: 28 US.C..1254(1) .........5.. oe nae 2 Be Wee eee GE GEE. cs Kassie 44 > 7 Purdon Statutes 332, 333 ........... F eae ee 55 ix . MIscELLANEOUS: “ 7 Am. Jur., Banks, Sec. 196, p. OU es en ea ty 55 73 Bankers Law Journal 163 ees coats _ 80 Banking Law Journal 28 (1963) ....... eee Me © Columbia Law Review 1490 .. |... Ree ...44,45- 25 Columbia Law Review, 152 ...... pete es ere 54 Convictions, SeaTwkés and Seizures in_‘Tax-Cases;~ xX Norman Redick, 10 Tax Law Review 191. 31 Cones Juris Secondum, Banks and Banking, Sec. 71 (c) (POP setersserevrehsssapesscevossne 54 Federal Tax Reporter; Vol. 6, para. 5709.1148, p. eee PR ERE ge aI ae pias 3 i OLN 8 IRS News Release No. 8972 Oct. 3, 1967, ‘1971 ~ CCH Federal Tax Reporter, Vol. 6, para. PO nee MIE nok oc ccncvocsecaseon y John T. Morse, Ir.. “Law of Banks and Banking”, oth Fd., Vol. 1, Boston, Little, Brown and Company (1928), Sec. 298(a) 2.02... ~~ °° 14 Journal of Taxation 220 (1901) ....00.00... 57 “Michie, “Banks and Banking” Permanent Edition, Vol. 3¢b). The Michie Company (1950); Ch. oe Bee ee res . 54 60 Michigan Law Review 781 iin ti Mak ahead ak aoe 57 New Canons of Professional Ethics, D.R. 7- 103 (b), | %-109(a) (6). 7. E.C. 7-13 ......... whereas 74 Patton's Digest. American Bankers’ Assn. ........ 52 Random House Dictionary, BREE A ae 20 . Robert Morris Associates Code of’ Secrecy, p..28 UF 54 The Constitutional Right to Counsel .in Tax’ Investi- gations, 1965-66, 33 University of Chicago Law ; SY SOP ne sa avn vrnke ier dnes cen chs 37 76 Yale La® Review, 1 (1966) heed cone ns 37, 38, 44 Petition IN THE SUPREME COURT OFTHE UNITED STATES Sr aa Joseph A. Nemetz, ! Petitioner vs. . United States of America PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ To the Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States: Joseph A. Nemetz prays that a writ of certiorari issue to review the judgment of the United States Court of Ap- . peste for the Third Circuit in his-case. . f . . . . . . . Opinions Below and Jurisdiction ; > : : ‘ ; : : ‘ aoe CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS. bai Ss THE CASE INVOLVED _ The right of the people to be secure in their persons, houses, papers, and effects against unréasonable searches and seizures, shafl not be violated, and no Warrants shall: issue, but*upon’ probable cause, supported’ by Oath or “affirmation, and partictilarly describing the place to be . searched, and the stars in ‘to be seized. (4th Amendment to the United States Constitution) ©” No person shall be held to answer for'a capital, or. otherwise infamous crime, unless on a pregentment or indictment 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 Witness against himself, nor be de- . prived of life, liberty, or property, without due process of law; nor shall private. property be taken for. public use, without just compensation. (5th Amendment to the United States Constitution) : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by, an impartial jury — Of the State and district wherein the: crime shall have ‘been committed, which district shall have been previously ascertained by law, and to be informed of the’ nature and cause of the accusation; to be. confronted with the wit- nesses against him; to have compulsory process for obtain- +, 6 ( ‘onstitutional Provisions and Statutes | nvol ved ing “Witnesses in his favor, iit to have the Assistance of Counsel for his defense. (6th Amendment to the oe States Constitution) \ 4 | if For -the purpose of, ascertaining the correctness of | any return, making a return where none has been made, determining the liability. of any person for any Internal Revenue tax or litbility at law or in. equity of any trans-. ‘féree or fiduciary of any person in respect of any Internal Revenue Tax, or callecting-any such Tiability, the Secretary ~ or his delegate is authorized. . . | (1) to examine any books, papers, records, or other data which may ‘be relevant or material to such inquiry; {2) ..to summon the person liable for tax or required to perform the act; or any officer or emplayee of such - person, or any person having posséssion, custody, or care of books-of account containing entries relating to the busi- ness of the person liable for tax or required to perform the act, or any, other person ‘the Secretary. or his delegate . “may deem proper. to appear before the Secretary or his delegate at a time’and place named in the summons ahd to produce such books, papers, records, or other data, and to give’such testimony, under oath, as may be relevant cr material to suth inquiry; and: (3). to takesuch testimony of the person concerned, under ‘oath, as may be relevant to - inquiry. . (26\1 — 7602) | es aie of summons—A summons issued under Sec: tion 7602 shall. be served by the Secretary or his delegate, by an attested copy delivered in hand to the person to whom it is directed, or left at his last.and usual place of abode; and the certificate of service: signed by the per- 4 Constitutional Provisions and Statutes Involved ‘ : “ lo % “vnies Reasons fer Granting Writ tials and state: ‘As a special agent, | have the funce- . tion of investigating the possibility of criminal tax fraud.’ (1079). Defendant strenuously suggests that this ‘order, is- sued October 3, 1967, controls defendant's May 2, 1968 “initial contact” by phone «and urges the Court to reject Carpenter's claim that only in- person face-to-face con- tacts are covered (42 la-422a). a * Defendant argues that the Tollowing testimony | is a clear showing, that Carpenter used the phone to avoid his “first contact” ‘obligation especially in light of his ad- mission that_he would have followed. his October 3, 1967 orde rs if the phone had not been used (423a-424a) . 7 *e A. .Now, | asked him what would be a con- ‘venient time lor us to get together and discuss the matter. ‘ oO. You didn't tell him that he didn't have to discuss it, did you? . | Sl . A. No, ldid not. ec 8. Q. And you didn’t tell him sient = aah hold back things. if they tend te ‘incriminate him, did you? : A: No, I did not. Q.. And you didn’t tell him that he had a right to have a lawyer there when you were going to come and see him at the convenient time, did .you? A. No, I did not.””. (420a-421a) | “Q.- And also he stated that he would. ae . available in his warehouse at 307 Corey Avenue; Braddock, Pennsylvania, at 9 a.m. on May 6, 1968. ne informed Mr. _Nemetz, that at that time I- would Snee 17 Reasons for Granting Writ © like to jeok at his books and records, cancelled a checks and bank statements pertaining to the years . 7 under ifivestigation. Mr, Nemetz stated he would ‘have the records available. 3 : @ . A. That’s correct. Q. Now, you didn’t tell him, in that interview that he didn’t have to bring the records in, did you? . A. No, I did not. Q. Nor that if they tended to incriminate hin he wouldn’t have-to give them to you? A. No, I did not. *s OF Why didn’t .you tell him then? Why did you wait until you were alone in the office?. You had showed him your badge and told him what your . | authority was and when he had everything there available for you, why, Mr. Carpenter, rather than . tell him on May 2, so he then could have consulted a lawyer and made ‘an independent decision whether he was going to cooperate with you or not? What did you wait for? ee Well, the conversation there was over the phone arid we do, this on our first persona] contact with the taxpayer. | : , Q. What you do then, you first. tell ie tax- . _ payer to bring the records in and then ‘when you are alone with him and he has them there and you show him your badge and tell him you investigate crim- inal trouble and in which he may become involved, then you say, ‘Listen, you don’t have to let us sée that if you don’t want to.’ Is that the way you fel- -lows work? - yr 18 ~ Reasons for Granting Writ A. UL called the taxpayer, made the appoint: ment, advised him of his rights When Mtalked-to him In person, that's correct. ‘ ‘ . . ‘. ™«~ ° Q. But why didn’t you advise him) of ‘his rights before he got his records together for you so that you knew then it would be hardersto say no? Why did you: watt antl he had | everything there for vou, Mr. Carpenter? Kieee : ‘Oe A. - tw aited until 1 talked ty him. There was no SS! C42 tad22a) - mY | 3 : “"Q. Why? : fe AS Phere was no particul: ir redson. Our in structions are that ‘on the fiest personal contact we would advise:the taxpayer of his rights. Q. Well, wasn't that contact over the phone: ? NX. Lawasn’t-— 1 told the taxpayer “then that | had the investigation. : | ‘Q. Let me ask you this: Say he had been home May 2 and there h@ was, would you have ad- vised him that he didn't have ‘to get those recone together or would. vou have given him the .sanfe story you gave him over qe phone and then when | you were there ‘alone’ with — and he had the rec- -ords, give him -his warnings?’ What would you have done if you saw: him. personally on May 2 in- stead offover the phone? . | A. 1 would have advised him of his rights be- cause then Tw ould have w anted to ask him certain questions. .Q. Well, he w ould have had the records then, would he? : a ‘ we Da * ? i J levee for Grant Writ . Well, needed oe ietdede. “4 was still es uestions concerning his financial Condition. co He would have fad the records then, would . ee ation’ kncne where he would have had them, Mr. Brunwasser. 5 ; © OQ. TE you sce him personally, would you tel) him ‘Mr. Nemetz, you don't have to yet those records together?” Or would you have waited until * he pol them together’ 2 : y ae “On initial contact with the daxpayer, IR: tials Mid state: ‘As a Special agent, | have the fune tion of investigating tlre possibility of criminal tax," fraud.’ os ' ~ “TE the potenttyLeriminal aspects Of the maticr are not resclved. by preliminary inquirics and fur Aher “investigation becomes Necessary, — the S| cial - agent is required to’ advise the taxpayer of his con Sutution: af rights to rem in silent and to retain ” aaa hata : . :" See a ae aa oti : Reasons for Granting Writ: - (1). He did not déscuss the elements of the crime . r the government's burden ol prook therein (393a,. “4020 aes: ‘ . 2 He did not distinguish between the elements er: Max. versus ordin: inv crintinal prosecution and procedure (6702-6772) and the in: ibthity oft the non tax oriented aut lorney ta advise in this field (- AOA). AS) | He did’ not tell him how. difficult il is lo con Vict Ww ithout records." (-4) He did- not tell him third parties ak inks | would be investigated if defend: int disclosed: thym (395 3900) and that this might. lead to. his cri prosecu- ton (05a), es ‘ - oie (5) He ‘did not property advise. of the’ right to consult, counsel before deciding if he should. Gooperate ~ and what help counsel could: give (383a, 388a-389a) in \e mi: iking this decision (354a- 355a, 37 1a-372a, 345a- 546.) . even though it was policy. 1a do so. (377a) if records were a requested. , ‘i oe ‘ (0) -He did not define what’ he meant ‘by pros “receipts” (356a-457a, 5351 a). f criminate’” (391la, 410a-4f la, 705a). Neither Carpenter former stating that it: me ans “show: guilt” (39 La- 3954) criminal law.’ | ce Serene ° . od + "Defendant was’ not indicted ‘or. tried for: 1965, the year foi which he gave no rr ‘cords to the gove rnment (402a - (7) He did not define the meaning of “tend to in- and that latter (708a) that it shows some vidlation of-the ‘nor Hildun,-in fact, knew the meaningsof this phrase, the’ ‘Tend to incriminat e* need nof show wut. -It-must only , + furnish a link “in the chain _ of evidence the g6verfment will & ‘ —_— | s =>. §i Reasons for Granting Writ . ”~ : (1) aT is respectfully Sup yiested that defe endant was overwhelmed by the agents’ show of. authority” and that the jury should have been. instructed on this issue. On May 2, 198, -Carpenter asked for defettdant’s records °(352a-353a). On May 6, 1968, ‘they over whelmed him with a show of identification and badge (355a) to obtain oral admissions, waiver of the right to counsel ples Records - (359ay. “They —touk._his s_testimony under oath and, used this ailecs f0° convict him (4) 2a- “3a).. Te, kee ise i . The air ae of Special Agen Mc Mahon to whom - defendant turned for atid (5374) was misleading mn light-- of his. failure. to disclose’ Carpenter had * asked him in’ endan’ s and Braddock, (541a). March about SE Defendant object&Nto all evidence: before the iad began (49a- 50a); before @ penter was sworn (351a), during trial (535a-540a) and after conviction (N.T. Para-/ graphs 12, 38, 51, 52).- He raised the. Miranda and: the involuntary | admission cases (348a- 649.) : psychological” coercion and the critical ea of the: proceeding - (F49a) ‘-“cases Cited. Johnson vy. U.'S., the power of = badge case: 10, the trial judge (350a).. aes a L/ The Court, after ruling out Ccross- -¢xaminiation: on the Cooley, and Plopi matter, advised defendant that the ‘only Ly mere Be ands ~N eventualgy produce against Adonai at .$riagh* liofte “te 1a 87. -S.-Cty 408; 414, footnote t, 485: US 298. 30%: “a reasonable. probability that it might furnish a ital: in’a chain of evidence -which could Subject the lax paver. Jove Mimiial prosecution, The information need not be of such Hn port my 10, tajse the -likelih : * Bae f of convietic n. Convictions, searches and. Siz sures in Tas. Case Norman Redlic h.10 — Law Re view 191. 195. . ioe a » =. Pes ih Reasons for Granting Wait ® chance’ he had‘ to win on the Yoluntary issue was to en* courage Carpenter to change his testimony (568a) . Since this obviously could not be done the instruction prophe- sied the Court's thinking and forthcoming decision’ on this vital defense. aust" 1. * _ Whether defendant's investigation ‘began in h, 1968 (435a) befause an informer ‘(474a) associated — "With him (472a) in the Cooley matter (431a-485a) or on October 25, 1967 (473a) when Carpenter was talking 16 - him (425a-431a) about Kis connection with Plopi, the Braddock numbers man (429a-430a). was importani in. impact of the October 3, 1967 Exhibit K directive ¥i07a). Carpenter's general credibility (432a) - and whether he was guilty of deceit (495a). - Since defehdant was directly involved with defend- -ant‘in the Cooféy matter (472a}- Roviuro y. U. S. (1957), 353 U.S. 53, on which defendant specifically relied (4322- 4335a, 4344, 435, 472a, etc.) would appear to require this person he identified so defendant could yse him for . possible attack against the Cooley story. It is respectfully suggested that the trial judge erred~ - when‘ he instructed defepdant not to interrogaté Carpenter’ on this issue when the jury returned betause the evidence "Game Out on cross-examination (473a-479a, 481a-482a, 484a, 566a-567a) eveh though government did not intend . to make reference to it (474a, 48 1a). ‘The jury was entitled to hear this evidence in ‘order "+. to understand the entire picture and purpose behind the May, 1968 Carpenter interviews (481a-482a). “It ie true that the bounds of proper cross-cxamina- tion must necessarily lic’ within the sound. discretion of Reasons for Granting Writ the ‘trial court” but “. | . crose-¢xamination of a. witness may embrace any matier germane to the direct examina- tion qualifying or destroying it or tending to develop facts which have been improperly suppressed or ignored by the party who was called as a witness.” Sleck v. J. C. Penney Co., 3 Cir., 1963, 324 F. 2d 467, 473-474, 475. It is respectfully suggested that examination of Car- . penter on the Plopi° and Cooley matters was within the . ~ bounds of propriety and that the Court should not have barred bringing this to the attention of the jury, so that the entire picture could be assessed in evaluating what weight to give Carpenter's téstimon$, especially since he was the main government witness: _¢ | . The May 2, 1968 phone call at Which defendant ad- “mitted he had récords available and the May 6, 1968 face to face meeting where Carpenter ‘took these- records -and “tMterrogated defendant under oath about his personal and .. financial affairs cannot be separated in deciding whether he talked-plus acted ,volufttarily. Clewis y. Texas, 1967, ° 87 S. Ct? 1338, 1339, 386 U.S. 207, 708: Boulden y. flolman, 1969, 89 S. Ct. 1138. 11539. footnote 1,- 394 U.S. 478, 479. Fair play would require that no request be made for the records until the parties are face to face and.defend-* — ‘ant has been given at least the cautions required by the Oc- * tober 3; 1967 memo (1079a) or, if this Court dig™ full Miranda warning. ‘ By producing Ifis records in the cardboard box. de. . fendant had already admitted their existence. What good - was the warning then shat he need not do so? s oF = * Reasons for Granting Writ With the agents thete displgying their badges and credentials of office, it would take. a strong defendant, indeed, to refuse cooperation {422a). ; Defendant urges this Honorable Court to’rule that he - - had an absolute constitutional’ right to be warned Otis © privilege to consult counsel before he made a decision -to ygive or to withhold cooperation and that -his cooperation was secured by deceit plus the power of the “badge which made a request’ become a command. 3 . A. - Miranda v, Arizona, 1966, 86 S. Ct. "1602, 1628, 1640, 384 U.S. 436, 475, 498, did-not create new law.” It merely recognized the factors which courts have af- ways evaluated in. deciding if a defendant’s actions voluntary and declared that when a person is significaNitly deprived of his freedom,,the giving or not giving of the + traditional- warnings are no longer clements to be evalu- ated, but mandated ‘procedure. | - This is because “in sustody” is held to be a —- stage” as -a matter of law and soa prophylactic rule 1 - «required. - > Consultation with coulaci*holaes and during the ‘in- terrogation must be “clearly” offered (86 S. Ct. at 1628, . 384 US. at 475). to prevent coercion and, or misreporting _ Of what he said plus provide his attorney as an at- trial - witness in gase of dispute. : - Goleman v. Ala., 1970, 90 S. Ct. 1999, 200 , 399 U.S. 119, declared a not requireg state preliminay -hear- -———— _| Nemetz* is aware that? al eee of the Third Cireuit held Miranda; per se. wot apgilicable under certain -civeumstances, in United. Statys v. Jaskicwicr, 433 F.2d 415% ae ° } ae (8A yee Reasong for G ranting Writ ing to be such a critical ‘Stage requiring a prophylactic rule. Wade v. U. S., 1967887 S. Ct. 1926, 1931-1932. 388 U.S. 218, 222-225. declared the bre-identification lineup to require identical protection. In ruling that 26 U.S.C. 7602 process would be en- forced against partnership papers, the Third Circuit Court .of- Appeals in 1963 observed: aie , “An appearance before .a special hoent is in the . Nature of an appearance in a criminal investigation.” U.S. v: Silverstein, 314 F. 2d 789,.790. | ie Taking Silverstein and Coleman together. it is re- spectfully suggested that the appeargnce Fefore Carpenter was sufficiéntly identical to’ a preliminary hearing to in- _ Voke- {ull Miranda piotection. Defense counsel’s _re- : search has not disclosed a controlling Third Circuit case. The closest discovered*was US. v. Remco, 3 Cir., 1968: 388 F. 2d 783, 785, where the Circuit passed the prob- ‘lem because the confession involved ante-dated the Miran- da decision. . Defendant respectfully suggests that close reading of -_ Wade, Coleman and Miranda creates a definite impres- * sion that the United States Supreme Court is determined {0 prevent interrogation"whicth concludes with defendant defenseless and deprived of ariy witness to aid-him in con- testing tlieNate’s version of what took ‘place plus what he said or did.- If an attorney can help,-he must be of.’ fered and made available both befere and during the ques- tioning (90 S. Ct. at 2003, 399 US..at 9). --. The Coleman Court opined: - : “It is central to that principle that in addition $0 counsel’s presence’ at trial. the accused, is guaran- 36 2 Yoke Reasons for Granting Writ teed that he need-atot stand alone-against the state - at any stage of the prosecution, formal or informal, - in court exout whe ere counsel's absence might dero- gate from th accused's righf to a fair trial.” (90 . . at 2002'\399 US. at 7.) (Emphasis sup- .. plied.) Ts “Ht calls upon us - inn: whether - ae substantial prejudice to defendant's rights inheres in ~ ‘the particular confrantation and ‘the ability of coun _ Sel to help avoid that prejudice.” The Court then goes om to shaw what a lawygg can do“at a -preliminary hearing plus ‘the inability of defend- ant to be aware of, this available help (90 S. Ct. ait 2003, 399 US. at 9). . . ‘The Wade @vitr (87 Ss. Ci. at 1931: 388,058 : 224), observed that-most facts are marshalled befor? “a tind that if the attorney is not present the aceused’s fate “is sealed and the trial a meré formality. The Courf- is concerned that the trial not. be “no more than an appeal from the interrogation” and observes that it is- ¥alueless “if, for all practical purposes, the conviction is already .y assured by pre-trial examination” (87 S. Ct. at 1931- . 1952, 388 U.S. at 226). - - Additionally, the Caurt is concerned that defendant -may not b& able to take the’ stand without waiving his - 5th amendment privilege against self-incrimination and “the availability of a lawyer to do this for him is a sub-» sfeeial required right (87 S. Ct. at 1934,.388 U\S. at 231-232). In. this’ particular case, defendant could not . take the stand to deny what the agents had said. Defend- . > ™~ 2 : . (87 S. Ct. at 1937, 388 U.S. at 235). - . Reasons for Granting Writ an’ believes ‘that availabilijy of a lawyer to do this for him would have changed the eventual outcome. The Wade Court is additionally concerned that with- out counsel nobody. at the interrogation has any interest in protecting defendant so that the trial, itself, is merely a rehash of facts devgloped by the investigatinp officers ~ It is, not necessary that defendant be i jail- for this critical stage rule to apply. Orozco v. Texas,’ 1095, 1097, 394 U.S. 324, 327 (bedroom held su Massiah v. U. S., 1963377 US. 201, 203 (afte ment, -improper to permit. informer interrogate de in cooperation with government agents). Additi the Internal Revenue Service is subject te Miranda defendant isin cust6dy on another charge, Mathis v. UNS.; 88S. Ct. 1503, 1504, 391 U.S. 4.- -\ =e, Aa Many of the Circuit Couris of pte. which havé- ether or not Miranela applies have | ap-° proached the issue on the basis of whether defendant is in custody ‘or ignificantly deprived of his freedoni. ‘Defeng- ant does nt believe the “critical stage” approach hat been argued in any of these. authorities (10854) / Commentffors approve of the full Miraizdg warning when the s cial agént appears on’ the scene: Payl L. Lipton, speaking at the 1968 Sixth Circujt Judicibl Con- ference, 45 F.R.D. 323; The Constitutional Right to Coun- sel in Tax Investigations, | 3-1966,. 33 “Wniversity of Ciiicago Jaw Review 134: 96 Yale Law Review 1 (1966). -- - . oe 7 Justice Douglas, dissenting from refusal to grant cer-. icient) ; indict- ndant - ' tiorari in a case concerning interragation by the Internal dé 38 ; Reasons for Granting Writ Lhomas vy. U. 1967, 386 iS. 9F5:; 87 S. Cte 1164, rema ks that the pistienstion is.cOercive, at a critical time, like a preliminary hearing and that. the same, cgpmplaints are constantly being filed in the Supreme Cow”. Se , Ses Revenue Service in * Cases Which have applied the full Miranda warning are: U. Sov. Wainwright, D.C., 1968, 284 Fed. Supp. 129 (Miranda applicable when spécigl agent. receives asign- ment) PUSS: v. Turzynski, N. 1). FH... 1967, 268 Fed. Supp. S47, 850 (special agent gnust “warn when investigation shifts from civil to criminal) ; i. . Kingry, 19 A.FLT ZR. 2d °762 (special agent must warn : asians ‘of right to attorney); U.S; 1 Gower, 1967, M.D. Pa., 271 Fed. ‘Supp. 655, 658 (special agent.must warn of right to coun- sel ‘befare question and answer session begins). Justices Douglas and Black speaking in ‘oon opinion in Columbe v. Conn. 1960, 367U.S. at 640, and in particular; in footnote 2, observe that the warning to- be sifent and obtain counsel does not tell defendant. any- thing- he does:not already know. but is clear .notice that war has been declared between the investigators and the defendant-who has formally become the accused. : . Thus, the time when®war is declared should be the’ time when the warning should be given, and it ts respect- fully suggested that sea is no Jatcr than when. the special agent appears on the s either in ‘person or by phone. Th continuous Statements of the special agents that .- the case is both civil and reli is only a technique to deprive. Se of his constitutioiral right to the warn- /ing. This distinction has been c lassified as double. talk. in N76 bf ale Law Review i et 39. “Reasons for Grating Writ . . When Carpenter states © ‘investigations could turn out to be.a civil matter or it could turn out ‘to be both’ civil and criminal but it can never’ furh out to be strictly crim- inal’ ¢529a), he ‘is sity ating that cvery criminal case must be civil because a ditiorrassessment. is necup-” sary to find a violation of 26 U.S.C. 7201, ae ‘Ttis respectfully suggested that the Court knows this | lo bea fact and that the policy.of winking at what ic”’ obviously a direct violation of .the law should now end ,especiafly since the Revenue: Ser rvice is constanily taking advantage: 1 a C B. Defendans urges this. Hosaenbite Court’ to find as a fact that the of-the- surface. imnocent request by. Carne - _ penter for books-ef defendant when he was actually look- ~ ing for income: from St. Brendan’s, Braddock and the Cooley mz itters plus the’ fact that he did not advise de- ‘fendant that the 1967 returns were also the subject of the investigation is such. “a direct deception that the evidence must be se#ppressedy . Scare im ay / Carpenter knew what he’ was after and intentionally? didnot advisé defendant, .-If defendant’ was aware that: * ie Cooley, St. Brendan and Braddock income. was the’ .. Subject of the investigation, he certainly would ngt have , turned over the books and talked when he ape this would guarantee his prosecution. Additionally, Was deceitful for Carpenter to ‘take the books dnd in - 1967 plus Cooley wher he ‘advised 1964 agree “the only ye years inyolved. - Trickery, misteprésentation or: ‘a Vitiate the, . Search and confession leaving the government . exactly _ where it was before the imprortiety took Place. each > ¢. “s ' x . “ “40 Reasons for Granting Wit v. Conn., 1969, 367 U.S. 568 (officers. investigating mur- der falsely charge defendant witht breach of the peace so that they can hold him in custody and avoid advising him _of his right to silence. and sounsel;: conduct condemned,. see also footnote 95); Fraternal Order ef Eagles v. U). 8.., 3 Cir.. 57 F. 2d 93 (false representation of identity by — _ prohibition officers to gain entry; evidence suppressed) ; U.S. vy. Sing, BC. N.Y. 1957.7 149 Fed. Supp. 269 agents do not disclose investigation of passport fraud; affirmatively claim another purpose; evidence suppressed everr though turned over voluntarily) @Reineman vi U.S., 7 .Cir., 1962, 301 F.2d 267, 269 @revenue agents re-- ‘examjne fecords for closed year that has not been -fe- | opened: defendant not advised it is a reexamination; as-, sessed de fi iciene V OV err uled)- To, is obvious that Carpenter was’ looking for a con- fession and- therefore his conduct “must be examined with the most-careful scrutiny”, Spano v.-U. S., 1998, 360 US. 315,324. AS erie | ae It is respectfuHy submitted that Carpenter's phone conversation with defendant. was a command rather, than a request especially when given previous to any warning. He says, “*. . . | would like to set an appointment so we _can get tcocther and discuss the situation with him, and I told. him.at.that time that I. would like to ‘see his can, - celled: checks and books and records which.he may have . available” (352a-353a). oe, a | When the records were there, Hildun and’ Carpenter -arrived, showed their. badges and official credentials and then gave the warning. which did not advise defendant i ‘that he could talk to a lawyer — he made any deci- \ = ee, oe Reasons ad Granting: Writ” 3 ee sion. With ie agents aa the ae there, it is réspect- fully suggested that it would take a strong man, indeed, to call off the investigation and ask. for the right: te call an attorney for advice (422a) ‘Defendant- would # Be justified in believing: that any delay would aggravate the agents. and necessarily preju- dice their decision in. deciding what, to do with his Case.. It is.a pressure whith only a person who has been in- : vestigated by the IRS can feel. (1) In holding acquiescence’ to the power of a. search warrant hot be voluntary, Bumper v. North Caro-— lina, 1968, 88 S. Ck. 1788,- 1792, 391 U.S. 543, 549. cites with approval ine foofnotes 13 and 14 the following cases which appear applicable to the hate situation. . (a) Johnson. v. U. S., 353. US. 10-. 12 (“J want ‘to talk to you a ditt] - ae . defendant's ac- quiescence held coerced). ; .-- ©, Xb). Amos y. U. S., 1920, 255 US. 313, $15. é 317 (defendant's. wife. admit men who say they ar’ , * “revenue: officers shee come to search the prem- ises. for violations of the revenue laws”: conviction-: based upon: goods found reversed for violation ‘of _ 4th and 5th Amendment rights to non-waived im- plied coercion) . «. 4 (c) Higgins v. i. &., He Cir. 209 2 2d 819. 820 (policeman asks defendant if he can talk to him in his room; defendant approved; when there “I _asked. him if IT’ could,look around”: conviction. re- versed and evidence suppressed as coercion). (d) MacKenzie v. Robbins, 1965, S. D. Me.. * 248 Fed. — 496 (na warrant of arrest or. r search, ak oe *. : previous toentry):. ex 42 pein weed : Ee ne bs Reasons for Granting Writ or probable cause; policeman identifies self and says “TL would like to talk to you"; door opened and po- ficeman enters without express, invitation: but without protest; habeas corpus issued to reverse conviction int sti Me court as coercion’ see cases collected at De “501). ; . _ : | (e) - Us S.'y. Marra, ED. N.Y., 1950, 40°F. 2d 27! jorciNaon agents say they are going to in- spect and. do so without. defendant's. presence; con- ‘viction reversed and evidence suppressed even | af a though sufficient. facts. for search warrant posses sed Wy) ; (ft). Judd v.U. 8 Sivek Cir. 1osT. 190 F. 2d 649, 651° (cases Eleciae in’ custody defendant asked whether “he minded us going over to his on _and taking a Logk: 3 confession held coerced. Atso relevant: is the decision Te Sate te Polensky. D.C. Vt.. 1969, 300 Fed. Supp. 976,. 979 . _ (defendant stopped for traffic violation and in op out of car is asked for gun which, che-turns’ over; held critical stage, counsel necessary, and evidence. suppressed: ’ “Certainly a request to produce evidence that ig central to ‘the prosecu- tion’s case is a eritical stage of the proceeding against the accused.’: The presence, of counsel is an‘ effective check ” on the unknowing relinquishment of 4th- Amendments ‘rights just as. it is an effective check on the’ unknowing waiver of 5th” Amendment rights.”’) pe In fact.tin Berne, supra, 412 F. 2d at 1062, the Court ‘indicates that it might have suppressed evidence. if the This case was recently approved ‘by the Thi@l. Cirenit. in (aovernment of Virgin Islands x. Berne, 442 F. Pd 1455. 1058. wv Soa * aoe : , 45° ~ a Reasons for Granting Vi rit _ —_ police did not have sufficient facts-to sustidin “a convic- tion and were attempting to obtain them ‘by. the alleged claim of consentual search. In the present ° case, ‘Car- . ~penter had no evidence whatsoever to get the case going _ before he obtained -the ‘oral admission plus, the records . (N.T. 79). ; oie eats - (2) The compulsigh: and pressure can be mental as Well: as physical. H is respectfully suggested that not only the power. of the badge but the pressures ‘of maintaining respectability and not being disgraced’ in--the community plus the’ hope that the revenue agents will only assess civil damages, and not bring. criminal charges is sufficient coer- ° cion to catise the average person, never in trouble before, to cooperate and thus play into the hands of the revenue agents who kriow..the rules. e o . Cases disaussing psychological coercion are Brady y, U: s 1970,90°S. Ct. 1463; 1470, 399 U.S. 742, -750: U.S. v. Gower, 1967, M:D. Pa., 271 Fed. _ Supp. 635. 660: Davis v. North Carolina, 1966, 86 S. Ct. 1761, 384 U. . ne Martinez v. U. S. , 380°U.S. 260,85 S. Ct. 953. (333 *. 2d 405, 407, 9 Cir.; 1964, where. FBI wanted to talk. to ys remanded for mere facts on the- issue of corisent or coerced): Smith y. U.-S., 1954, 348: U.S; 147°--15 (police peessure and resulting “strain and confusion” may vitiaté confession, but not-on facts in the case) ; LS: Calderon, 1954; 348 US. 159, 164 (Court recognizes anxiety of taxpayer to Cooperate and avoid ; crimina! prosecution, U. S: v: Blue, 1966, 384 U.S. £91, BO p. Ct, 1416. (issue of ° pressure to waive privilege- against self- | _incrimination. ‘to avoid civil jeopardy assessment appeal which is pending in tax court held tobe an issue for trial when coerced evidence is offered) ; Shotwell Mie. Co... e 5 , a ° e 44° | : : Reasons for Granting: Writ U. S., 371 US. 341, 347-348 (confession must be free -and voluntary; see Justice Black's concurring: Opinion ‘at p: 384 and footnotes 24 and 25 collecting psychological . ’ pressure authorities); 7 Yale Law Review 1, 34 (pressure to waive privilege against self-incrimination — to avoid civil assessment where IRS keeps investigation civil until ready, to criminally prosecute discussed). If defendant refused to display his books, Carpenter make jeopardy assessment. To oyergetic this ex parte ac- would have been justified by 28 U spe and 6861 to tion, defendant would be required to waive’ the Fifth ~ Amendment. This type of pressure has been condemned in oiher ° cases and should be similarly.treatéd here: U. S$.» Kor- del, 90 S. Ct. 763, 770, 397 US. 1, 13 (evidence coerced under threat of civil forfeiture cannot be ‘used in criminal prosecutions) ; Garner v. Broderick, 88 S.Ct. 1913. 1916. 392 US. 273, 278 (testimony given under compulsion of losing job suppressed); Garrity v. New Jersey, 1967, 385. U.S. 493, 496, 87 S. Ct. 616. 618 (choice between privi- "lege against self-incrimiriation and waiver or loss of job held unconstitutional;- subtle mental pressures con- ~-demned); Spevaek v. Klein, 1967, 385 U.S. 511; 87 S. Ct. 625 (attorney disbarred when he raises 5th amend- ment privilege as ade to production of records: re- versed); U. S. v. Jackson, 1968, 88 S. Ct. 1209, 1216, - 390 US. 570, 582 (kidnapping act encourages plea to ‘ avoid risk of death at jury trial; needless chill on exercise of basic constitutional rights itself unconstitutional) : U. S. v. Thompson, 1969, 89 S. Ct. 1322, 1329, 394 US.. 618, 631 (welfare one year residence réquirement chills right to travel into state; patently unconstitutional); 6. ~. ; 49 _ Reasons for Granting Writ’ Columbia’ Law Review 1490, 1502 (threats by adminis-.- ~ trative agency to obtain compliance with illegal demand is bill-of attainder).. - me Se egunhes ~ (3) The method ‘of obtaining ‘defendant's coopera- tion must be evaluated in deciding whether or not the conduct was voluntary. Jenkins v. Delaware, 89 S. Ct. 1677, 1681, 395. US.. 213, 221; Johnson .v. Néw Jersey, 1966, 86 S. Ct. 1772, 1780, 384 U.S. 719, 731; Davis vy. North Carolina, 1966, 86 S. Ct. 1761, 1764, 384 U.S. 737, 740; Greenwald.y. Wis., 1968, 88 S. Ct. 1152, 1154, 390 "CS. 519, 521 (lack of or inadequate warning goes | involuntariness) Boulden v. Holman, 1969, 89 S. Ci. 1138, 1139-1140, 394 U.S. 478, 480: Frazier v. Cupp. 1969, 89 S. Ct. 1420, 1425, 394 U.S. 731, /39: Clewis _v. Texas, 1967, 87 S. Ct. 1338, 1340, 386 US. 707, 709; | Lloyd v. U. S., 5 Cir., 1955, 226 F. 2d 9, 15; Swenson v. .” _ Bosler, 1967, 87 S. Ct. 996, 997, 386 US. 258. 260 (court has duty tO appoint attorney: without defendant's request when right tg attorney absolute). | Defendant urges the Cotirt to find as a fact that the conduct of special agent Carpenter,’even under the pre- Miranda tests deprived him of his constitutional rights guaranteed under the- 4th, 5th and @th_ Amendments to the Constitution of the United States. C. * Regardless of the findings. of the trial judge, the Court of Appeals can determine the voluntary vs. involun- tary issue after an independent study of the record. Boulden’ v. Holman, 1969, 89 S. Ct. 1138. 1140, 394 U.S. 478, 480; Clewisv. Texas, 1967. 87 S. Ct. 1338, - 1339, 386 U.S. 707,'708. The burden of proof is on the government, Bumper v. North Carolina, 1968. 88 S.. Ct, 1788, 1792, 391 US. 543, 548-549. : rd 46 Reasons for Granting Writ. D. Even though: the trial judge belieyes the conduct 7 Was yoluntary, he has no right to direct a verdict requir ing the jury make the identical findings even if the testi- mony is uncontradicted. o . (1) Phe burden to convince the jury remains on government after a Jackson v. Denno hearing has been decided adversely to: defendant, Wade vp. Yea-- ger, 3 Cir., 1967, 377 F.2d 841,844.” ae + (2) 18 USC 3501 deals with admissibility -of confessions and sets forth guidelines for the Court to lollow. Substction (b) sidered in deciding the issue: “The trial judge in determining the issue of vol- untaringss shall take into consideration all the cir- cumstances surrounding the giving of the confession, | including (1) the time clapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew: the nature of the offense with which he was charged or of which he Was suspected at the time of making “the confession, (3) whether or not such’ defendant was advised or knew that he was not required to make any staté- ment and that any statement could be used against him, (4) whether or. not such defendant: had been . advised prior to questioning of his rights to the. assis- tance of counsel; and (5) whether or not such de- fendant was without the assistance of counsel when - questioned and when giving such confession.” The Act further declares: : “The presence or absence of any of the above- - mentioned factors to be taken into consideration by _ details what should be con-__ “e ARs . ome.) 5, . 47 ~ Reasons for canentng: Writ the- judge need not be conchive on the issue of vol- untariness of the confession. e “if the trial judge determines that the confes- ‘sion was voluntarily made it shall be admitted in evi- dence and the trial judge shall permit the jury to hear ° relevant evidence on the issue of Voluntariness and will instruct the jury to give such weight to the con- fession ds ee feels it deserves-amderall the cir- cumstances.’ Not only did Judge Marsh not give this instruction but it is respectfully submitted | that he should have been required to advise the jury concerning the standards of” 18 USC 3501(b) so that they: could make an intelligent decision. ° In his charge of the warmameny ¢ issue, the aon merely says (1025a): | “If you find any statements made to the agents on May 6, 1968, were not voluntarily made, then you. * would disregard everything which the agents said that | the defendant told ther and you would disregard the bo. “s «..d records the defendant gave to them and you would disregard all the facts which the agents uncovered as a result of that interview and from ex- amining the defendant’s notebooks and other rec- ords.” Défertdant had previously objected to. Exhibit 167,- which is the summary of all the government. evidence, . ‘and moved to strike it (716a, 732a-733a). However, both the jury and the Court of Appeals can draw their own. inferences from the facts. Jackson .v. e 48 . 2 : ms : Reasons for Granting Writ Denno, 1963, 378 US. 368, 377. (coercion ‘issue for jury - | if reasonable men could differ as to-inferences to be drawn : from undisputed facts); Columbe+v. Conn., 1960, 367 U.S . 568, 603-605 (issue ‘of credibility for lowed\gourt in- ferenives as to mental state of defendant which is the" re tual subject of appeal can be decided by appeal court) ; Sims v. Ga., 1967, 87 S: Ct. 6397 643,385 U.S. 538, 543 ~ (defendant's s testimony of abuse at unsuccessful suppres- sion hearing undenied, but partially . contradicted at trial; - remanded for Jackson v.’Denno hearing on. voluntary-i -in- voluntary issue; thus credibility of ragga defense testimony still for trier of fact); U. S. v. Wheeler, 3 Cir. 1960, 275 F. 24 (Marsh, J.; in- tah court; both: gov- —ernment and defendant admit voluntary cooperation and pew deceit, coercion or false representation, held nothing for jury as a matter of law); '* Wright v. Rockefeller, 1963,.376 U.S. 52, 57 (trier of facts must be permitted choice of conflicting inferences) ; Rhoades, Inc. v. United : Airlines, Inc., 3 Cir., 1965, 340 F. 2d 481, 485 (oral tes-° timony can be rejected even if undenied); Wooley’ v. Great Atlantic & Pacific Tea Company, 3 Cir:, 1960, 281 | ~ F. 2d 78, 80 (Judge Marsh) and Nanty-Glo Boro v. Amer- ican Surety Co:, 1932, 309 Pa. 236, 238, affirmed for the ‘proposition that binding instructions cannot be’ given on undenied oral testimony, the credibility of which must go to the j jury. . he E. Defendant did not —— and . intelligently waive his right to counsel plus the other Ba was detailed above. , * This is probably ie case on which Chief Judge Marsh re- lied in directing that nothing was opened for jury consideration _ on the-voluntary issue (566a-568a). “f/f iA ws Me gt ‘ cy a 7 49. Reasons for Granting Writ +. Although the investigating agent can preliminarily de- cide if, constitutional rights have beerr waived, the final. determination is still for the court. (Miranda, supra, 86 S. Ct. at 1634, footnote 55; 384 US. at 486.) The state has a “heavy burden” to show a knowing and intelligent waiv- ‘er of any constitutional. right (86 S. Ct. ‘at 1628, 384 US. at 475). The Court ‘will-not presume ‘a waiver from a si- lent record. Boykin v. Ala., 1969, 395. U.S. 238, 242,89 S} Ct..1709, 1712. Sal my A el OLN a ae The doctrine of Waiver has been concisely discussed : in. Von Moltke v. Gillies, 1948, 332 US. 708, 724 as fol- _ lows: - a | ae ie ae “To be valid, such waiver must be made with an apprehension of -the nature of the charges, the statu-:- tory offenses included within th&m, the range of al- lowable punishments thereunder, possible defenses to , the charges: and the circumstances. engaged in-thereof and all other facts essential-to a broad understanding - - of the whole matter.” - : . “The signing of a standard written waiver of coun: sel” is insufficient (332 U.S. at 728). -,. “The question of a waiver of a federally guar- anteed constitutional right is, of. course, a federal question controlled by federal law. There is a pre- sumption against a waiver of constitutional rights; _...and for a waiver to be effective, it must be clear- -ly established that there was ‘an intentional relin- _quishment or abandonment of a known right or priv- ilege.””’ Brookhart y. Janis, 86 S. Ct. 1245, 1247, 384 U.S.1,4. | i. % 50° Teas Reasons for Granting Writ — _ It. is respectfully suggested that defendant could not have intelligently and knowingly waived his constitutional rights because by turning over the books and giving. the oral confession he guaranteed that he would be convicted, es as he was, ina Federal Court. : ‘ -produced six bank officers. Five, who were asked, declared the relationship between the defendant and his. bank to be confidential and most ~ stated that this ‘is a rule acknowledgedyin: ‘the entire bank- ing industry: Micenko (198a); Axon (214a); Markland . (245a): ; Berger (261a); Lansinger. (268a). B. These bank officer-witnesses only restated what courts and commentators have overwhelmingly’ declared. Thé relationship between a. bank and its depbsitors 1 is con- fidential. | “Patton's Digest” prepared for, copes by and used as the Bible of the American Bankers” Association, my - t hare The defend: ant requested ad was eranted to ack- son Vv, Denne” hearings in the absence of, the jury lo fest the Voluntariness of his disclosures to ) special aeents of the Internal Revenue Service at an interview at his offiec won May & 1968. The ‘defendant's counsel interrogated the spectal agents at length, Their testimony showed that the.’ dy ‘tendant, S disclastives were voluntary aid certain of his records Were freely turned over to them. The defendant did not take the Witness stand to repudiate ont. word of. the agents testimony or to testify fo any nvoluniariness, csereion, inducement, trickery, guile. or | misrepresenta- tion, Accordingly, the court refused to suppress the’ tes- timony of the’ Special agents, * i *In the first. triak: the defendant suceeded in securing a mistrial When the esurt made statements. in the presenge of the the defendant claimed, and the*court believed, were cee : omen Ee ee siden winter WeaMaily prequdielal. P . = ‘ cece - The defendant's lengthy eross-examination of Special Ag vent i PMNONe ” .* ¥ Jackson v. Denno’ "hearing was -replete with ' ices fs . Upon resuming the trial fefore the juty, no evi-. dence whatsoever was adduced] that what defendant dis- closed to the special apents at:the interview ons May 6th was confession or that anything“he said or did was in- voluntary. Special Agent Carpenter testified that defend: ant told them that-his grandfather had given him approx- imately $80,000 in 1949 which he had kept in-a. brown paper bay until 1963 when he began to deposit theernoncy in trust accounts for his four. children. Examination of the deposits in. fourcaf the trust accoynts (I:xs. 147, 149, 151, 153) reveals that they were cqual and in driblets from November, “1961, to May, 196%, when they were closed out. The prosecution was within bounds to argue ‘that this bizarre recital was incredible. Reason No. 41 is without merit. Both agents testified be ‘fore the jury that after Gorcudan! was given what was substantially a Miranda warning * he freely turned ‘over sorne records. and his 1967 tax return; he did not admait’ to them, that 4% Satake “al issues Which did no inany way itupugn the voluntar. ine dada the interyiew. The following ‘case : hold that a Mirada+wa: Hing dives not soextend to a iNT Interna Revenue Service inguiry United States vo Jeniigan. 41 F.4d 471 (oth Clr 196% ; Cohen v. United States.” 405 Peed 34 (8th Cir. 1964). United States ¥, Squari, 398 FL 2d 785, (2d Cir. 11968; Spinney ‘v. United States, 385 I. 2d 908 (st Cir. 1967): United States v. “Mains. se 378 F.2d 716 (6th Cir. 1967) » Morgan’ v. United States. 377° F-. + tf 2d S67 (Ist Cir, 1967); Rickey v. United States, 360 FS 2d 9th. ir, 1966) ; Kohatsu v, United States, 351-F. 2d 898 9th Cir 1965 7° United’ States v, Charamella,’ 204 F, Supp. 290° D. Del 1968); Unithd’ States vy. W hite, 293 Fe Supp. 692 (E.D, Pa 196s baited States. v. Basil,.268. FL Supp. 1015 °S_D.: Fla “ya ri United States: vy Bachman, 267 F.Supp. 593 W.D. Pa. 196¢ United States v. Fiore, 258 F, Supp. 435 iW.BD. Pa 1966 ” . ‘ . . « 78 * Opinion of the District Court he had understated his taxes or, had underreported his in. come for ary taxable year. Notwithstanding, the defend ant contends that “the confession was not voluntary” and it Was error to refuse to suppress it, (Reason No.2) The Jary was toll to disregard the deféndant’s disclosures if, they were found to be involuntary.‘ * ; Fedlowing the interview," investigation ‘by the agents revegled a. pattern of substantial underreporting of in- come for all the indictment years. 1 was also shown that following the request on May 2. 1968 by the agents for an imerview. the defendant withdrew nearly $100 from his several savings aecounts on May 3rd and Tth, J968. _ +* Constantly throughout the trial the defendant cgn- tended that the court should have required “the govern- ment [to] supply a complete examination and furnish explanations of materials and supplics plus labor and jhe __ teasonable costs thercof..all of which placed hare — of doing this on defendant.” (Reason No. 9.) If the first”. Place, the prosecution, after inquiry by defendant, stated’ explictly in writing that its method of proof of taxeva- sion was, the “specific items” method. * If the “burden” Was cast upon, the defendant to prove the cost of his ma- ; terials, supplies and labor. he -failed to milequatcly meet it.e Altheugh there was evidence that several persons helped the defendant in his roofing and construction busi- ‘ * Ness, not one of then was called to establish his fitethod — = °C, Williams v. United States, 1 F 2d 6a ID +O jr, 1951. whereift it was held. ahwent evidener of inveluntarifiess: t. Wak unnecmary f spiayit that question-to-the jury "See brief of the United States in’ respene to motions filed igfendan®. page 4. item E. and Judge. fiourlet ‘« Onder mdulv @ 196" atyp.4 ae 79 Opinion of the District Court or rate of compensating them. His tax returns indicated that he subcontracted his contracts, but not one subcon- * tractor was called in defense to-substantiate a sharing of the proceeds in excess of that.stated in the returns as the cost of suMoatracting, Since he paid for his supplies in cash only the defendant and his workman had the per ‘sonal knowledge to estimate the materials and sup. jies which went into cach job —but none of his workmen wes. ° called. The defendant's cash invoices were’ allegedly - ’ stolen or destroyed by fire. . ® sat | Order of the District Court IN THE DISTRICT COURT OF THE UNLTED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA - | , \ Criminal No. 69-55 , United States of AmeNiga ae ™ Vs. ‘Joseph A. Nemetz ~ ae Se ORDER OF COURT ; A ‘ - , . al | ie ee Sete Sek 85) Opinion of the Court of Appeals | UNITED STATES COURT OF APPEALS . Kor the Third Circuit No..18,850 — Unitedhatatesof America _ _ Joseph A. Nemetz, Appellant Apptal From the United States District Court For the Western District of Pennsylvania Argued October 5, 1971 | Before McLaughlin, Gancy and Adams, Circuit Judges * " OPINION OF-THE COURT) | (Filed November 4, 1971) oe . . > 2 . . . re jor Rehearing use of the summons or letter and. the discldsure of helpful ev idence which would prevent his bem ? 6. Ina 26 U. S.C. 7201 specific: item pragecudion, must- government aid.defendant in proving deductions’ allowable under U. $. v. Sansone, 1965, 83 S. Ct. 1004: 1010, 380 U.S. 343, 352, when his records have been stolen previous to I.R.S. contact and investigatidn and. . does deliberate failure to do this qualify as a =~ ression ’ of evidence within the ,meaning of . Brady v. Md, 1963, 373 US. 83 and its: progeny? 7. Was it pfoper to ceive records pdeone by ‘Father Bernard J: Berg, John G. Micenko and Robert J. Axon, which recofds weré not properly qualified as re- quired by 28 U.S.C. 1732(a) and because no’ testimony * was. produced that the entries in them were made “at the . time of such act, transaction, appearance, or event or with- | in a reasonable time thereafter’ and because Father Berg: tefreshed his’ recolleetion from an unqualified memo?. *. fe May the jury consider an uncorroborated -ex- culpatory statement made to an L.R.S. special agent? 9. Is it proper for a trial judge in sustaining an ob- jection, to tgstify as a “witness as to What the answer, . if allowed, Would ‘be? Wherefore, petitioner requests: A. That reargument be allowed; F B. That reargumept be allowed’ before the Court 2 en banc as permitted. by Federal Rule of Appellate Pro- ~ __dedure 35. Respectfully submitted; | ALLEN N. BRUN WASSER, Attorney for Appellant... - \ ~ : 97 Order Denying. Rehearing UNITED STATES: COURT OF APPEALS For the Third Circuit . aoe ae No. 18,850. United States of America. Joseph A. Nemetz _ SUR PETITION FOR. REHEARING Present: Chief Judge Séitz, Judge McLaughlin, Judge Ganey, Judge Van Dusen, Judge Aldisert,” Judge Adams, Judge Gibbons, Judge Rosenn’, Judge Rosen, Judge Hunt- | er. a) i | _ The petition for rehearing filed by JOSEPH A. * NEMETZ in the above entitled case: having beeri submit- - téd to the judges who participated ‘in the’ decision of this court and to all the other available circuit judges of the - circuit in, regular active service, and‘nd judge Who con- * gurred_in.‘the decision having -asked for rehearing, and a majority: of- the circuit judges -of the circuit in regular active servict “not having voted for rehearing by the court in bane, the petition for. rehearing is denied. — _ By the Court,’ e= Jak: _ Arlin M. Adams ire oie oe eZ, - Dated: - es . e | ae : _ December 3, 1971 Be ca to oe et 2 pons Mee OF ge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0467%3A1. Public record. Not legal advice.