550 F.2d 297 (5th Cir. 1977), 76-2324, United States v. Tweel

Docket Nº:76-2324.
Citation:550 F.2d 297
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Nicholas J. TWEEL, Defendant-Appellant.
Case Date:April 08, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 297

550 F.2d 297 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Nicholas J. TWEEL, Defendant-Appellant.

No. 76-2324.

United States Court of Appeals, Fifth Circuit

April 8, 1977

Harold Ungar, Edward Bennett Williams, Washington, D.C., for defendant-appellant.

Robert W. Rust, U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Chief, Appellate Section, Robert E. Lindsay and Charles E. Brookhart, Attys., Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Page 298

Appeal from the United States District Court for the Southern District of Florida.

Before MORGAN and FAY, Circuit Judges, and HUNTER, [*] District Judge.

FAY, Circuit Judge:

Appellant, Nicholas J. Tweel, was convicted of conspiring (with an unindicted co-conspirator, Charles Zemliak) to defraud the United States by obstructing the lawful functions of the Internal Revenue Service (IRS), 1 two counts of tax evasion for 1967 and 1969, 2 and two counts of making false statements in a tax return for those same years. 3 Two other co-defendants were named in one of the counts for tax evasion. Tweel was sentenced to four years on three counts and three years on each of the other two, all concurrent. He was also fined a total of $30,000.

The government's evidence showed to the jury's satisfaction that in the tax years, 1967 and 1969, Tweel "laundered" parts of his income to avoid paying taxes by passing sums on to persons who would owe little in taxes because they were in a lower tax bracket or had large losses which would offset the income.

The investigation leading up to appellant's indictment began on May 28, 1969. Don L. Miller, revenue agent for the Internal Revenue Service informed appellant and his wife by letter that he had been assigned to conduct an audit of their federal income tax returns for 1966 through 1968 and asked for an appointment. Appellant's accountant, Ben A. Bagby, telephoned the agent on June 10, 1969 to request a postponement of this audit because the IRS had just completed an audit of appellant's returns for 1958 through 1963. They did set an appointment for August 4, 1969.

During the earlier audit for 1958 through 1963, a special agent of the Intelligence Division of IRS became involved but eventually withdrew, with the audit remaining civil instead of criminal. To discover whether his client was again involved in a criminal inquiry, Bagby asked Miller whether a "special agent" was involved in the new investigation. Miller replied that no special agent was involved. This response led Bagby to believe that Miller was just conducting a civil audit. What Miller did not disclose was that this audit was not a routine audit to which any taxpayer may be subjected from time to time. This audit was conducted at the specific request of the Organized Crime and Racketeering Section of the Department of Justice. 4

Bagby, who had his own records of appellant's tax affairs as well as some of Tweel's also allegedly obtained additional records from Tweel to voluntarily present to Miller for the new audit. Miller microfilmed all the records that...

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