McGarry v. Riley, 6685.

• Decision Date: 11 July 1966
• Docket Number: No. 6685.,6685.
• Citation: 363 F.2d 421
• Parties: Bernard G. McGARRY et al., Respondents, Appellants, v. William E. RILEY, Special Agent, Intelligence Division, Internal Revenue Service, Petitioner, Appellee.
• Court: U.S. Court of Appeals — First Circuit

363 F.2d 421 (1966)

Bernard G. McGARRY et al., Respondents, Appellants, v. William E. RILEY, Special Agent, Intelligence Division, Internal Revenue Service, Petitioner, Appellee.

No. 6685.

United States Court of Appeals First Circuit.

Heard May 4, 1966.

Decided July 11, 1966.

Lawrence F. O'Donnell, Boston, Mass., with whom Mitchell G. Hadge and John B. Greene, Boston, Mass., were on brief, for appellants.

Edward F. Harrington, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

OPINION OF THE COURT.

COFFIN, Circuit Judge.

This appeal raises the question whether attorneys, claiming that a court order enforcing summonses for the production of client's records issued pursuant to 26 U.S.C. § 7602 is ambiguous and serves a non-statutory purpose, can properly resort to self help and remove such records before completion of the examination. We hold they cannot.

The prior judicial history of the tax investigation forming the subject matter of this case is already lengthy, tortuous, and bellicose.¹ The district court in its opinion dated January 6, 1966 ably set forth both factual findings and legal conclusions. Its order adjudged appellants guilty of civil contempt and ordered that the records in controversy be made available to the Internal Revenue Service for purposes of a complete and unhindered examination for a maximum period of forty-five days.² This appeal was then taken.

The order, which appellants have been found below to have wilfully disobeyed, was one link in a lengthy chain of events in connection with an investigation of the tax liability of Bernard G. McGarry and of Marie G. McGarry. It was preceded by summonses, refusal to produce, challenges to their legality, petition for enforcement, a prior order of enforcement, appeal, affirmance on appeal, and denial of a stay of enforcement by a Supreme Court Justice. This order directed appellants to produce before the appellee, a special agent of the Intelligence Division of the Internal Revenue Service, certain corporate papers and records called for in the summonses.

Appellants and their clients duly appeared with the records before the appellee, setting forth the following ultimatums governing the examination: appellants would be present; no photostatic copies would be made; since the order directed production on a specific day, no more time for examination would be allowed (subsequently withdrawn); appellants would repossess the records after each day's work. After considerable negotiation, the government, in an effort to avoid further controversy, entered into an arrangement whereby the records would not be examined except in the presence of one of the attorneys or some other person authorized by them. It was also agreed that at the conclusion of each day's examination the records would be placed in boxes and that these would be sealed and kept in a locked room until the examination was to be resumed.

The records remained with the Internal Revenue Service for 31 business days, usually in a sealed state. Out of these 31 days one agent worked 11½ days on the records. On 19½ days no work was performed. On 5½ of these days no work was done because an agent was not available. And on the remaining 14 days, work on the records was suspended either at the request of appellant Greene or because of the failure of both appellants to appear. At no time were the seals broken in the absence of one of the appellants.

In an effort to complete the examination with sufficient speed, the government informed Greene on the 27th day that some of the records would be photostated. After threats by appellants and a further delay of several days, both appellants appeared on the 32nd day when examination was to be resumed. Appellant O'Donnell requested the boxes containing the records to be brought into the room and thereupon threw his briefcase on top of the boxes and said, "I now have possession of these records and I am taking them out of here". After being informed that the examination was not yet completed, O'Donnell made a statement giving, in substance, two reasons for taking the records away: (a) that the agents had no right to photostat the records, and (b) that they had already been given a reasonable amount of time to complete the examination. At the conclusion of the statement, appellants physically carried the records away.

The district court found these reasons to be spurious and mere pretexts for the removal of the records. The real reason for the removal, as found below, was to prevent the completion of the examination and to impede and obstruct the investigation of McGarry's tax liability. In addition, the court found that when appellants took the records they both knew that the examination had not been completed, and both had full knowledge of the contents of the district court's order and of the summonses to which the order related.

There was no attempt on the part of O'Donnell or Greene to bring the matter before the district court to obtain an opinion as to their right to remove and withhold the records from the Internal Revenue Service or to seek a modification of the order.³

The primary issue here is the right of an attorney to take the law into his own hands when he feels that an order of court is technically ambiguous, or is being wrongly interpreted. The district court found spurious the avowed reasons for removal of the records. We do not disagree with this finding. But even had the reasons been genuine or well founded, this would not have justified unilateral self help.

Appellants have cited no authority whatsoever rationalizing this kind of action. Referring to persuasive authority to the contrary, we note the words of the Supreme Court in United States v. United Mine Workers of America, 1947, 330 U.S. 258, 293, 67 S.Ct. 677, 695, 91 L.Ed. 884: "The defendants, in making their private determination of the law, acted at their peril. * * * An order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings." And Mr. Justice Frankfurter added in his concurring opinion, "Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities, may an order issued by a court be disobeyed and treated as though it were a letter to a newspaper." 330 U.S. at 309-310, 67 S.Ct. at 704.⁴

In this case there was no question but that the order was within the jurisdiction of the court, was not a flagrant violation of any constitutional right, and did not confront appellants with a Hobson's choice of irremediable injury or contempt.⁵ Whatever latitude for self help may be allowable in other cases, there was none in this. Understandable zeal for a client's cause cannot exculpate. The judgment of contempt is affirmed.

In view of the protracted history of litigation in this case, and its probable projection into the future, we do not hesitate to say that both grounds asserted by appellants in justifying their resistance to the summonses and the orders enforcing them are without merit.

While the order disobeyed by appellants did not specify that photostating could be done, it is inconceivable today that a right to examine and copy from voluminous files does not also assume that photostating can be done. Appellants apparently took the mutually contradictory positions of insisting at once on laborious hand-copying and on...