Marvin v. U.S.

• Decision Date: 26 April 1984
• Docket Number: No. 82-2476,82-2476
• Citation: 732 F.2d 669
• Parties: -6395, 85-2 USTC P 9858 Dr. Jack L. MARVIN, Patricia Marvin, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 669

732 F.2d 669

56 A.F.T.R.2d 85-6395, 85-2 USTC P 9858

Dr. Jack L. MARVIN, Patricia Marvin, Appellants, v. UNITED STATES of America, Appellee.

No. 82-2476.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1983.

Decided April 26, 1984.

James R. Wyrsch, Charles E. Atwell, Stephen G. Mirakian, Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, Mo., for appellants.

Robert G. Ulrich, U.S. Atty., Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before ARNOLD and FAGG, Circuit Judges, and DUMBAULD, ^* Senior District Judge.

FAGG, Circuit Judge.

The Marvins seek return of records concerning Dr. Marvin's chiropractic practice which were seized by Internal Revenue Service agents in the course of a criminal tax investigation. The district court denied their motion brought pursuant to Federal Rule of Criminal Procedure 41(e). We have been informed that all of the original records have been returned to the Marvins, but that the IRS has retained copies of documents reflecting financial information. Hence, the question before us is whether the IRS may retain these copies. We affirm in part and reverse in part.

Kenneth Wissel, an IRS agent, and Clara June Astorino, a clinic employee, swore in person to affidavits before a federal magistrate. The Astorino affidavit provides information about practices used at the clinic for recording and reporting income and includes estimates of income earned at the clinic but concealed. Her affidavit also describes the financial records of the clinic and indicates where they may be found. Wissel's affidavit reiterates information found in the Astorino affidavit and includes statements bolstering Astorino's reliability. In addition, based on information received from Astorino and on gross receipts reported to the IRS by the Marvins, Wissel's affidavit contains estimates of unreported income of substantial amounts.

Based on these affidavits the magistrate issued two search warrants. The warrants provide for seizure of records reflecting the Marvins' taxable income from operation of the clinic for specified years. One warrant authorizes a search for these items at the clinic operated by the Marvins. Another warrant authorizes a search of a residence owned by the Marvins and rented to Bill Kelly, but limits the search to the area under the stairway leading to the second floor. The warrants were executed and records were seized at both locations.

The Marvins contend that all records seized must be returned because the searches and seizures by which the IRS gained possession of them were unlawful. Federal Rule of Criminal Procedure 41(e) provides in part:

"A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. * * * If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial."

The Marvins have advanced several grounds for finding the searches and seizures unlawful and hence requiring the return of records seized. We now turn to an examination of those grounds.

The first issue we consider is whether the affidavits which supported the issuance of the warrants provided probable cause. The Marvins contend in particular that Astorino's affidavit is deficient because it contains no showing of her credibility and veracity and that as a consequence the reliability of the information she provided was not shown. The sufficiency of the Astorino affidavit is important because Wissel's affidavit is largely based on the information included in Astorino's affidavit. We believe, however, that the affidavits are adequate to support a determination of probable cause. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960); United States v. Doty, 714 F.2d 761, 763 (8th Cir.1983); United States v. Ross, 713 F.2d 389, 393 (8th Cir.1983). In her affidavit Astorino described her duties and responsibilities at the clinic and related in detail the procedures for keeping records, the method by which income was concealed, and the places where documents reflecting income were stored. Wissel verified some of this information in his own affidavit. In addition, Astorino executed the affidavit in person before the magistrate. Cf. United States v. Hunley, 567 F.2d 822, 827 (8th Cir.1977) (informant personally appeared, thus no requirement of independent corroboration of trustworthiness). The affidavits withstand scrutiny under Gates.

The Marvins also contend that the affidavits presented to the magistrate contain material misrepresentations and that as a consequence warrants supported by the affidavits are invalid. The Marvins have focused their argument on alleged false statements in Astorino's affidavit, and rely on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), in which the Court held that if it is shown by a preponderance of the evidence that a warrant affidavit includes a false statement made knowingly and intentionally or with reckless disregard for the truth and if, with the affidavit's false material excluded, the affidavit is insufficient to establish probable cause, "the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. at 155-56; United States v. Wallraff, 705 F.2d 980, 993 n. 5 (8th Cir.1983), quoting United States v. House, 604 F.2d 1135, 1139 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 931, 63 L.Ed.2d 764 (1980). The district court determined that the Marvins did not meet their burden of establishing by a preponderance of the evidence that the contested portions of Astorino's affidavit contain false statements made by her knowingly and intentionally or with reckless disregard for the truth. This finding is not clearly erroneous. See United States v. Wallraff, supra, 705 F.2d at 993 n. 5. The Marvins also argue that some information was omitted from the affidavits and that this omission constitutes a material misrepresentation bearing on the existence of probable cause. We agree with the district court, however, that the omissions are not material to a determination of probable cause. The omitted information does not contradict statements in Astorino's affidavit, but pertains only to her credibility and reliability. Probable cause would not have been lacking had the omitted information been presented to the magistrate.

We next consider whether the seized records must be returned because tax return information was disclosed in violation of 26 U.S.C. Sec. 6103. The first improper disclosure allegedly occurred when Wissel interviewed Astorino while other law enforcement officers were present. The second improper disclosure allegedly occurred when the affidavits were filed without placing them under seal, thus permitting public access to information in the affidavits. The district court held that suppression or return of evidence is not available to the Marvins as a remedy for a violation of section 6103 and held in addition that no violation of section 6103 had occurred in any event.

Assuming for the sake of discussion only that a violation of section 6103 occurred, we hold that in this case return, and consequently suppression, of copies of the seized records is not an available remedy. For violation of the disclosure provisions of section 6103 Congress has specifically provided criminal penalties, 26 U.S.C. Sec. 7213, and civil penalties, 26 U.S.C. Sec. 7217 (repealed Sept. 3, 1982); 26 U.S.C. Sec. 7431 (effective Sept. 3, 1982). The Second Circuit has noted that these penalty provisions "afford some evidence that Congress did not desire the courts to apply the exclusionary rule mechanically to every violation of Sec. 6103," United States v. Mangan, 575 F.2d 32, 41 (2d Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 324 (1978), and that "courts should be loath to imply an exclusionary sanction" for such violations. United States v. Barnes, 604 F.2d 121, 146 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). We find this reasoning especially persuasive in the present case. The Marvins do not seek return or suppression of information disclosed in violation of section 6103. Instead, they contend that improper disclosure of information during a tax investigation renders unlawful the seizure of records pursuant to a warrant during the investigation. In both Mangan and Barnes, however, an exclusionary remedy was denied even though the defendants sought suppression of the very information allegedly disclosed in violation of section 6103. The Marvins thus present a less compelling argument than did the defendants in Mangan and Barnes. They are not entitled to return of the records by virtue of the alleged violations of section 6103.

Several issues have been raised pertaining to the search warrant for the clinic and its execution. One of these issues is whether the warrant for the clinic describes with adequate particularity the places to be searched. The Marvins contend that the warrant is defective because it does not specify the places to be searched within the clinic building. Specifically, they argue that the warrant improperly permitted the agents to search private apartments within the clinic...