U.S. v. Serlin, 82-1460

• Citation: 707 F.2d 953
• Decision Date: 24 June 1983
• Docket Number: No. 82-1460,82-1460
• Parties: 83-1 USTC P 9368, 13 Fed. R. Evid. Serv. 49 UNITED STATES of America, Plaintiff-Appellee, v. Sheldon SERLIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 953

707 F.2d 953

83-1 USTC P 9368, 13 Fed. R. Evid. Serv. 49

UNITED STATES of America, Plaintiff-Appellee, v. Sheldon SERLIN, Defendant-Appellant.

No. 82-1460.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 21, 1983.

Decided May 19, 1983.

On Denial of Petition for Rehearing June 24, 1983.

Michael G. Cheronis, Chicago, Ill., for defendant-appellant.

Antonio J. Curiel, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, POSNER and COFFEY, Circuit Judges.

PELL, Circuit Judge.

Defendant appeals his conviction following a jury trial of willful failure to file income tax returns for 1976 and 1977 in violation of 26 U.S.C. Sec. 7203. At trial defendant objected to the admission into evidence of statements he made to various agents of the Internal Revenue Service (IRS), admission of evidence that he failed to file a return in 1978, and assorted instances of alleged prosecutorial misconduct. Defendant raises these same claims on appeal, which necessitates a detailed review of the events leading to his conviction. Prior to trial a suppression hearing was conducted by a magistrate. The district court adopted the magistrate's findings of fact, and as we cannot say that these findings are clearly erroneous we will rely upon them in reaching our decision.

I. Facts.

Defendant's first contact with the IRS agents came through an IRS investigation of Allen Stone, a former business associate of defendant. Special Agent Richard Lucas, assigned to the Criminal Investigation Division, was in charge of the Stone investigation. Lucas knew that defendant and Robert Koenig were business associates of Stone and was also aware that the IRS had no record of defendant filing a tax return for 1976. On May 9, 1978, with this information in mind, Lucas and Special Agent Pinta went to defendant's home, identified themselves as IRS agents, and informed defendant that they wished to ask some questions in connection with a criminal investigation of Stone. Defendant invited the agents into his home and began to describe his relationship with Stone. Agent Lucas initially told defendant that he was not the subject of any investigation, but after several minutes of conversation warned defendant of his right not to incriminate himself. Defendant acknowledged this warning and continued to discuss his dealings with Stone. Ten to fifteen minutes later, but before defendant provided the agents with any information about his own tax affairs, Lucas read defendant the IRS noncustodial advisement of rights. ¹ Lucas then began questioning defendant about defendant's apparent failure to file a tax return for 1976. Defendant stated that he filed a return for 1976 and would mail a copy to Lucas.

Lucas later obtained an updated report on defendant that confirmed that no return had been filed for 1976. Based on the information gathered by Lucas the investigation of defendant was reassigned to Special Agent Curtis Elliott, a criminal investigator with the General Program Group. Elliott opened criminal investigation files on defendant and Robert Koenig in August of 1978. Elliott first attempted to contact defendant on September 27, 1978, by visiting defendant's home. Defendant was not available and Elliott left his card with defendant's wife, explaining that he wished to speak with defendant about defendant's previous interview with Lucas. The following day Elliott received a telephone call from defendant during which Elliott asked if defendant remembered being advised of his rights by Lucas. Defendant at first replied that he did not recall this episode but then stated that he "kind of" remembered. Elliott did not reread the noncustodial rights to defendant. Elliott stated that the IRS had no record of defendant filing a return for 1976 and asked if defendant was willing to discuss the matter. Defendant replied that, on the advice of his attorney, he would not meet with the IRS but would have his attorney mail a copy of the return to Elliott.

On January 15, 1979, defendant called Elliott in response to a message left by the agent. Defendant declined to meet with Elliott, ostensibly because of the inclement weather, but agreed to get in touch with Elliott the next week to set up a meeting. On February 7, 1978, defendant called Elliott and left a message cancelling a meeting but assuring the agent that defendant was "not trying to dodge" him. That afternoon Elliott and Special Agent Johnson went to defendant's place of employment where they met defendant and showed him their credentials. Defendant requested that they all go to the warehouse on the first floor, and then stated that he did not wish to cooperate because of previous bad experiences with government employees. Elliott read defendant his noncustodial rights and assured him that he did not waive his rights by answering one question. Elliott informed defendant that they were investigating defendant's tax liability as well as that of Robert Koenig. Defendant claimed that he filed returns for 1976 and 1977.

Elliott later spoke with defendant at defendant's office on August 27, 1979, and reminded him of his rights. Defendant said that he was aware that he did not have to answer any questions. Defendant once again claimed to have filed his returns and then signed a waiver of notice of summons that allowed Elliott to obtain defendant's bank records. Elliott spoke with defendant on September 11, 1979, after reminding defendant that he could refuse to answer any or all questions asked. Defendant answered Elliott's inquiries about the missing returns. This scenario was repeated on December 20, 1979.

II. Admission of Statements.

Defendant's principal contention on appeal is that the district court erred in admitting his statements into evidence. In support of this claim defendant asserts that the statements were involuntary in that they were the product of governmental deceit, the agents failure to honor his stated desire not to cooperate, and other coercive conduct by the agents. Faced with these claims it is our task to "examine the entire record and make an independent determination of the ultimate issue of voluntariness." Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976). Although our final decision will be based upon the totality of the circumstances surrounding defendant's statements, given the distinct nature of each of defendant's claims, we examine them seriatim.

A. Deceit and Trickery.

Defendant claims that he gave the statements in the mistaken belief that he was not the subject of the investigation. This mistaken belief, he asserts, was induced by the agents repeated references to their investigation of Stone and Koenig, which served to mask the true nature of their inquiry.

To prevail on this point defendant must produce clear and convincing evidence that the agents affirmatively mislead him as to the true nature of their investigation. United States v. Nuth, 605 F.2d 229, 234 (6th Cir.1979); United States v. Lehman, 468 F.2d 93 (7th Cir.1972), cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232; Cohen v. United States, 405 F.2d 34 (8th Cir.1968), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478 (1969). Defendant must also prove that the misinformation was material in his decision to speak with the agents. United States v. Tonahil, 430 F.2d 1042 (5th Cir.1970), cert. denied, 400 U.S. 943, 91 S.Ct. 242, 27 L.Ed.2d 247. Simple failure to inform defendant that he was the subject of the investigation, or that the investigation was criminal in nature, does not amount to affirmative deceit unless defendant inquired about the nature of the investigation and the agents' failure to respond was intended to mislead. United States v. Tweel, 550 F.2d 297 (5th Cir.1977); United States v. Lehman, supra; United States v. Prudden, 424 F.2d 1021 (5th Cir.1970), cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62.

The typical deceit case involves a taxpayer who claims that his volubility was induced by assurances that the investigation was "routine" and only civil rather than criminal. Defendant's claim differs from this situation in one crucial respect. He admits that he was aware of the criminal nature of the investigation but claims that he was ignorant of his own susceptibility to penalty. In the case in which the taxpayer is told that the investigation is only civil, the nature of the questions will not reveal the true purpose of the inquiry. In evaluating defendant's claim, however, it must be borne in mind that the repeated questions concerning defendant's apparent failure to file tax returns would have alerted even the most unsuspecting taxpayer that he was, at least partly, the focus of the search. From this vantage point it becomes evident that defendant's statements were not the product of affirmative deceit.

One insurmountable obstacle in defendant's path is that the statements concerning the investigation of Stone and Koenig were true. Defendant does not seriously question this and even concedes that the investigation of his tax problems served the "dual" purpose of bringing to light the wrongdoings of his business associates. A true statement cannot be equated with affirmative deceit. United States v. Mapp, 561 F.2d 685, 689 (7th Cir.1977). In addition, although agent Lucas initially told defendant that he was not the subject of any investigation, this mistake was corrected when Lucas realized that defendant might incriminate himself a few minutes into the conversation. Ten minutes later, and before defendant gave any of the statements in question, any lingering misconception was removed by Lucas' reading of the IRS noncustodial advisement of rights, which informed defendant: "As a Special Agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses. In connection with my investigation of your tax...