U.S. v. Choate
Citation | 619 F.2d 21 |
Decision Date | 21 April 1980 |
Docket Number | No. 79-1505,79-1505 |
Parties | 80-2 USTC P 9499 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Roy CHOATE, Defendant-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Richard G. Sherman, Los Angeles, Cal., for defendant-appellant.
Thomas J. Nolan, Asst. U. S. Atty., Los Angeles, Cal., on brief; Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before MERRILL and ALARCON, Circuit Judges, and TEMPLAR, * District Judge.
This is the third appeal to this court involving a two-count indictment in which defendant-appellant was charged in each count with income tax evasion. Twice, motions of defendant to dismiss were sustained by the trial court and in each instance, the dismissals were reversed. (United States v. Choate, 527 F.2d 748 (9th Cir. 1975) (I ), and United States v. Choate, 576 F.2d 165 (9th Cir. 1978) (II ). On remand, defendant moved to dismiss the indictment, claiming impermissibly discriminatory law enforcement and error by the trial court in refusing to suppress evidence resulting from the use of a "mail cover" obtained by an application which allegedly contained intentional false statements, thus violating applicable postal regulations. The motion to dismiss was overruled. A jury having been waived, the case was submitted to the court on stipulations. Defendant offered no evidence and was found guilty by the court. A motion for a new trial was denied and the defendant was sentenced. This appeal followed.
Defendant seeks to have this court reconsider its decision in United States v. Choate, 576 F.2d 165. The elaborate opinion in that case discloses that this court considered at length and in detail the contention advanced by defendant that the use of the mail cover in this case was in violation of Postal Regulations; that the use of the mail cover allegedly obtained violated his constitutional rights under the First, Fourth and Ninth Amendments. A repetition of the court's holdings on these issues would add nothing to the body of the law on the subject of mail covers so ably considered in the earlier appeal (Choate II ).
The defendant now urges us to determine that the trial court should have suppressed the evidence resulting from the mail cover because the agent made intentionally false statements to the postal authorities in his request for the cover. Defendant contends that when his latest motion to suppress was presented he should have been afforded a hearing to establish the intentional falsity of the statements contained in the application of the agent for a mail cover and a determination that evidence developed through information obtained by the mail cover should have been suppressed. Basically, defendant insists that he is entitled to the protection of regulations promulgated by the Postal Department 1 and that when violated by an agent of the government, any information obtained must be suppressed. But this contention is contrary to the holding in United States v. Choate (II), where it was decided that no constitutional inhibition was involved in the use of a mail cover in this instance.
The court below in denying defendant's motion ruled that the exclusionary rule did not apply in this case, relying on Choate (II) and United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). We believe the trial court correctly applied the law announced in the majority opinion in Choate (II) and in United States v. Caceres, supra.
Here, none of defendant's constitutional rights were violated. Cf. Smith v. Maryland, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177.
Defendant contends that the alleged falsity of the request for mail cover made on July 19, 1972, by Customs Agent Williams violated postal regulations and required suppression of evidence obtained by virtue of its use. Even if it be established that the request contained false statements, suppression of the evidence obtained would not be required.
Where violation of an agency regulation does not raise a constitutional question and defendant "cannot reasonably contend that he relied on the regulation, or that its breach had any effect on his conduct," he may not in a criminal prosecution "seek judicial enforcement of the agency regulation by means of the exclusionary rule." This was the reasoning in Caceres and it was correctly followed by the court below in this case. No hearing was required under such circumstances.
Defendant argues that the trial judge should have ordered an evidentiary hearing on the issue of discriminatory law enforcement because the Internal Revenue Service violated its policy of not prosecuting persons who voluntarily disclose and rectify false statements in their tax returns. Defendant's argument is based on a misunderstanding of the current Revenue Service policy.
In January 1972, three weeks before I.R.S. began its investigation of Choate, the treasury department changed its voluntary disclosure policy. In announcing the change, the Department of Justice Manual for Criminal Tax Trials, Chapter 1, page 5, reads:
Because there was no longer a policy affording immunity for voluntary disclosure, the defendant's argument that I.R.S. failed to follow its own...
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