Cohen v. United States, 19181.
Decision Date | 01 April 1969 |
Docket Number | No. 19181.,19181. |
Parties | Jerry M. COHEN, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
John M. Bray, Washington, D. C., for appellant; Robert J. Koster, of Cook, Murphy, Lance & Mayer, St. Louis, Mo., with him on the brief.
John M. Brant, Atty., Dept. of Justice, Washington, D. C., for appellee; Richard C. Pugh, Acting Asst. Atty. Gen., Dept. of Justice, and Lee A. Jackson and Joseph M. Howard, Attys., Dept. of Justice, and Veryl L. Riddle, U. S. Atty., St. Louis, Mo., and Irvin L. Ruzicka, Asst. U. S. Atty., with him on the brief.
Before MATTHES, MEHAFFY and HEANEY, Circuit Judges.
Certiorari Denied April 1, 1969. See 89 S.Ct. 1274.
The defendant was indicted in three counts for willful failure to file individual income tax returns for 1960, 1961 and 1962 in violation of § 7203 of the Internal Revenue Code of 1954, and in eight counts for knowingly filing false employer's quarterly tax returns for 1961 and 1962 in violation of § 7201. He was found guilty on all counts and was sentenced.
The question raised here is whether the District Court erred in refusing to exclude evidence obtained from the defendant by Internal Revenue Service Agents — evidence which the defendant contends was secured by misrepresentation and in violation of his constitutional rights under the Fifth (Miranda)1 and Sixth (Escobedo)2 Amendments. We affirm.
A special Agent,3 assigned to investigate the defendant's failure to file tax returns, telephoned the defendant on August 19, 1963, and told him he was a Special Agent who investigated irregularities in taxes. He asked the defendant a few questions and requested an appointment.
On September 9, 1963, the Special Agent went to the defendant's office and told him that the St. Louis Office of the Internal Revenue Service had no record of income tax returns filed by the defendant and asked where they had been filed. The defendant replied that he had filed returns in Detroit in 1959, but had not filed returns after that. This was the first time that the Special Agent knew that no returns had been filed. The Special Agent then told the defendant that a Revenue Agent had been assigned to "examine his income tax liability, if any" and that the Revenue Agent would make the tax examination, and that he, the Special Agent, would conduct an audit. The Special Agent also learned, at this meeting, that the defendant was the sole proprietor of the United Heating Service.
The agents visited the defendant's office singly or together on September 26, 1963, June 3, 1964, September 9, 1964, March 16, 1965, August 10, 1965 and September 16, 1965. On most occasions, they obtained records used against the defendant.
It was at the second visit, on June 3, 1964, that the defendant was first advised that he need not answer any questions which tended to incriminate him. He responded to this warning by saying that he understood but saw no reason not to answer. The warning was repeated at an August 10, 1965, meeting at the defendant's office. The defendant again answered the questions put to him by the agents.
On April 6, 1966, the taxpayer went to the Internal Revenue Service office for a formal interview. He did so in response to a letter which told him he could bring an attorney. He was advised for the first time at this meeting that the Special Agent was a criminal investigator. He was also advised for the first time that he had a right to counsel, but was not told that counsel would be provided for him.
On the basis of this record, we are convinced that the defendant's records and statements were not obtained by misrepresentation, fraud, or coercion, as those terms were understood pre-Escobedo and Miranda, and were voluntarily given in the same sense.
While there is District Court authority for the view that Internal Revenue Service Agents have an affirmative duty to inform a taxpayer that he is the subject of a criminal investigation in circumstances comparable to those here,4 the United States Courts of Appeals have uniformly held to the contrary.5 We follow the latter cases but reiterate our warning in White v. United States, 395 F.2d 170 (8th Cir. 1968), that agents must not affirmatively mislead a taxpayer into believing that the investigation is exclusively civil in character and will not lead to criminal charges.
We turn to the question of whether the failure to give a Miranda warning, or a modified version thereof, made the evidence obtained inadmissible.
We indicated by way of dictum in Frohmann v. United States, 380 F.2d 832 (8th Cir. 1967), and held in White, that a special investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue Service conducting a pre-custody investigation need not warn a taxpayer of his constitutional rights as enunciated in Escobedo and Miranda. We did not distinguish in either case between investigations conducted by the Audit Division, usually civil, and those conducted by Special or Intelligence Agents, usually criminal. Nor did we attempt to draw a line between the investigatory or accusatory stage of such investigations.
We are now faced with the question of whether we will apply the dictum in Frohmann and the holding in White to pre-custodial inquiries by Special Agents of the Internal Revenue Service, including situations in which the inquiries may have reached the accusatory stage.
District Courts in the Tenth, Fifth, Third and Seventh Circuits have held that warnings are required at the point the investigation reaches the accusatory stage or becomes criminally oriented. They have indicated that this stage is often reached when a Special Agent is assigned to the case.6 United States v. Turzynski, 268 F.Supp. 847 (N.D.Ill. 1967), is recognized as the leading case for this point of view.
In Turzynski, as a result of a civil investigation, the taxpayer's case was turned over to the criminal division of the Internal Revenue Service. The taxpayer was not informed of this shift of focus and continued to furnish the Special Agent with records and interviews. The taxpayer was given no warning of possible criminal prosecution until the investigation was completed and he was sent a letter inviting him to a formal conference. The letter informed him that he could bring counsel. The taxpayer reported without counsel. The agents, however, refused to continue until the taxpayer retained counsel. The court said:
The Courts of Appeals, that have considered the matter since Escobedo, have held, in a variety of fact situations, that warnings need not be given in pre-custodial interview.7 The reasoning of Judge Lumbard in United States v. Squeri, 398 F.2d 785 (2d Cir. 1968), appears to reflect the views (often unexpressed) of the Circuits that have considered the question:
On November 26, 1968, the Internal Revenue Service announced a revised procedure for advising a taxpayer of his rights during an investigation conducted by a Special Agent of the Internal Revenue Service, Intelligence Division.
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