Fagan v. U.S., No. 75-3595

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, Chief Judge, and TUTTLE and TJOFLAT; TUTTLE
Citation545 F.2d 1005
Parties77-2 USTC P 9610 Lewis FAGAN, M.D., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Decision Date24 January 1977
Docket NumberNo. 75-3595

Page 1005

545 F.2d 1005
77-2 USTC P 9610
Lewis FAGAN, M.D., Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 75-3595.
United States Court of Appeals,
Fifth Circuit.
Jan. 24, 1977.

Page 1006

George D. Gold, Miami, Fla., for petitioner-appellant.

Robert W. Rust, U. S. Atty., David F. Geneson, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.

TUTTLE, Circuit Judge:

A jury convicted petitioner Fagan of three counts of tax evasion in violation of 26 U.S.C. § 7201 for the years 1964, 1965 and 1967. This Court affirmed the conviction on direct appeal, United States v. Fagan, 472 F.2d 1407 (5th Cir. 1973), and a subsequent motion for a new trial was denied by the trial court and affirmed on appeal, 487 F.2d 1400 (5th Cir. 1974).

This appeal contests the district court's denial of Fagan's section 2255 motion for postconviction relief. Petitioner is currently on probation, having served 90 days of an eighteen month sentence, the remainder having been suspended pursuant to the split sentence provisions of 18 U.S.C. § 3651, in lieu of which petitioner was placed on probation for five years and fined $10,000.

I. PRIOR PROCEEDINGS

Petitioner is a physician. His troubles with the IRS began when Hicks, an attorney representing another party in civil litigation against Fagan, discovered that the tax accounting methods employed by Fagan in his medical practice were less than exemplary. Hicks arranged for two former Fagan employees, Linda Stone and Barbara Willis, to meet with IRS Agent Jaffee to discuss petitioner's methods of reporting income. Following a June 2, 1969 interview with the two women, who had done bookkeeping work for Fagan, Agent Jaffee obtained a search warrant for and seized a large number of records, books, papers and other written and printed matter from Fagan's office. On June 3, 1969, Hicks deposed Fagan in connection with the pre-existing civil action; transcripts of the deposition were obtained by Agent Jaffee on October 6, 1969. Approximately 20 months later, after an extensive investigation into Fagan's tax and accounting records, he was indicted and arrested in April, 1971. Three months later, in July, 1971, Fagan moved to suppress and have returned all evidence seized in the earlier June, 1969 search. At a suppression hearing held on November 2, 1971, the district court ruled that Fagan's private tax records were protected by the fifth amendment against seizure and use in a prosecution against him, but permitted the Government to retain and use the tax records of Fagan & Fagan, P.A., which were the corporate records of the medical practice of Fagan and his brother. At a subsequent "taint" hearing held on February 2, 1972, the district court required the Government to show by a preponderance of the evidence, see Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), that each witness the Government planned to call and each exhibit it planned to use, had been derived from an independent source other than the evidence which had previously been...

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9 practice notes
  • In re Fairbanks, Bankruptcy No. 89-10904.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of New Hampshire
    • 20 Diciembre 1991
    ...607 F.2d 1129, 1131-32 (5th Cir. 1979) (per curiam); Witte v. United States, 544 F.2d 1026 (9th Cir.1976); Fagan v. United States, 545 F.2d 1005, 1007 (5th Cir.1977) Entirely to prohibit grand jury subpoena of business records in order to vindicate an individual\'s right not to have authent......
  • Grand Jury Empanelled, Matter of
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 14 Febrero 1978
    ...McCormick § 128, p. 261. See also, Andresen v. Maryland, 427 U.S. 463, 475, 96 S.Ct. 2737, 49 L.Ed.2d 269 (1976); Fagan v. United States, 545 F.2d 1005, 1007 (5th Cir. In his concurring opinion in United States v. Fisher, 500 F.2d 683, 694 (3d Cir. 1974), Judge Gibbons declined to express a......
  • Grand Jury Proceedings U.S., In re, Nos. 79-1562
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 23 Mayo 1980
    ...607 F.2d 1129, 1131-32 (5th Cir. 1979) (per curiam); Witte v. United States, 544 F.2d 1026 (9th Cir. 1976); Fagan v. United States, 545 F.2d 1005, 1007 (5th Cir. 1977) Entirely to prohibit grand jury subpoena of business records in order to vindicate an individual's right not to have authen......
  • U.S. v. Gorthy, No. 76-3538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Abril 1977
    ...us to begin with the date of Gorthy's arrest. Accord, United States v. Garza, 547 F.2d 1234 (5th Cir. 1977); Fagan v. United States, 545 F.2d 1005 (5th Cir. 1977). The length of delay between the date of Gorthy's arrest and his indictment is 17 months and between the date of arrest and his ......
  • Request a trial to view additional results
9 cases
  • In re Fairbanks, Bankruptcy No. 89-10904.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of New Hampshire
    • 20 Diciembre 1991
    ...607 F.2d 1129, 1131-32 (5th Cir. 1979) (per curiam); Witte v. United States, 544 F.2d 1026 (9th Cir.1976); Fagan v. United States, 545 F.2d 1005, 1007 (5th Cir.1977) Entirely to prohibit grand jury subpoena of business records in order to vindicate an individual\'s right not to have authent......
  • Grand Jury Empanelled, Matter of
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 14 Febrero 1978
    ...McCormick § 128, p. 261. See also, Andresen v. Maryland, 427 U.S. 463, 475, 96 S.Ct. 2737, 49 L.Ed.2d 269 (1976); Fagan v. United States, 545 F.2d 1005, 1007 (5th Cir. In his concurring opinion in United States v. Fisher, 500 F.2d 683, 694 (3d Cir. 1974), Judge Gibbons declined to express a......
  • Grand Jury Proceedings U.S., In re, Nos. 79-1562
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 23 Mayo 1980
    ...607 F.2d 1129, 1131-32 (5th Cir. 1979) (per curiam); Witte v. United States, 544 F.2d 1026 (9th Cir. 1976); Fagan v. United States, 545 F.2d 1005, 1007 (5th Cir. 1977) Entirely to prohibit grand jury subpoena of business records in order to vindicate an individual's right not to have authen......
  • U.S. v. Gorthy, No. 76-3538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Abril 1977
    ...us to begin with the date of Gorthy's arrest. Accord, United States v. Garza, 547 F.2d 1234 (5th Cir. 1977); Fagan v. United States, 545 F.2d 1005 (5th Cir. 1977). The length of delay between the date of Gorthy's arrest and his indictment is 17 months and between the date of arrest and his ......
  • Request a trial to view additional results

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