732 F.2d 669 (8th Cir. 1984), 82-2476, Marvin v. United States

Docket Nº:82-2476.
Citation:732 F.2d 669
Party Name:Dr. Jack L. MARVIN, Patricia Marvin, Appellants, v. UNITED STATES of America, Appellee.
Case Date:April 26, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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732 F.2d 669 (8th Cir. 1984)

Dr. Jack L. MARVIN, Patricia Marvin, Appellants,


UNITED STATES of America, Appellee.

No. 82-2476.

United States Court of Appeals, Eighth Circuit

April 26, 1984

Submitted Sept. 14, 1983.

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[Copyrighted Material Omitted]

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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

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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...

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