Gilbert v. United States
| Decision Date | 19 May 1961 |
| Docket Number | No. 17034.,17034. |
| Citation | 291 F.2d 586 |
| Parties | R. Milo GILBERT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Albert A. Dorn and Wirin, Rissman, Okrand & Posner, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Minoru Inadomi and Robert E. Hinerfeld, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, HAMLEY and HAMLIN, Circuit Judges.
A complaint, charging forgery (18 U.S.C. § 495) of a certain check (United States Treasury check number 11,260,576, dated June 2, 1958, in the amount of $848.11) was filed before a United States Commissioner on January 2, 1959. On the same day a warrant for the arrest of the appellant was issued,1 requiring appellant to answer the complaint relating to the forgery of the one check described above.
Appellant was an accountant specializing in preparing income tax returns for clients and in advising his clients concerning their form, the inclusions, and the deductions. There is little doubt, from an examination of the record, that appellant was pursuing a steady plan of falsifying his clients' returns by adding income tax deductions not incurred or claimed by them to their returns after they had signed them, requesting a refund from the government in the clients' names, and pocketing the same, allegedly by forging a client's name, i. e., cashing the government checks by endorsing the checks as trustee for the payees, which he was not, either in fact or law. For the purpose of this part of this opinion, we find there was more than sufficient evidence to support appellant's conviction on each of the 35 counts of which he was indicted, if all such evidence were properly admissible.
Count 21 is the sole count relating to the check numbered 11,260,576, dated June 2, 1958, in the amount of $848.11, payable to Daniel H. and Chalrene (sic) R. Bartfield — the check mentioned in the warrant issued January 2, 1959.
Count 22 relates to another check in the amount of $556.04 payable to the same payees, Mr. and Mrs. Bartfield.
All the other 33 counts relate to returns of, refund demands for, or checks payable to, other and different clients.
Hirst, the Special Agent of the United States Secret Service, who had filed the complaint and obtained the warrant, proceeded to serve it. He went to appellant's combined home and office, arrested him,2 stated he wanted "the tax records of defendant and his clients." Appellant produced the records, and invited inspection of others in the garage, according to government witnesses. Appellant states he was threatened the search would be made by force, if necessary, and if he did not turn over his records, and after talking to his attorney, appellant "did not restrain the government officers further."3
Appellant describes that which the government agents seized as "thousands of documents." The motion filed for the return of seized property referred to "files" containing papers and references relating to one hundred and eighty-five single persons, married couples, partnerships or corporations; an unspecified number of tax control sheets covering an eight year period, seven powers of attorney, one ledger book, four boxes or envelopes containing records, and five categories of groups of personal records, bills, checks, clients' work sheets, and miscellaneous clients' letters, notes and memos — in all some two hundred and three items. Some thirty-four of such items were returned by the government, the balance were retained.
On May 13, 1959, a twenty-two count indictment was filed against appellant; and later, on August 5, 1959, the superseding thirty-five count indictment hereinabove described was filed.
Appellant, prior to trial filed a timely motion for the return of the seized property and for the suppression of all evidence obtained by such search and seizure.
This motion to suppress "was granted as to all files except those relating to the four checks," as set forth in Counts 12, 13, 14, 15, 16, 17, 21 and 22, and denied as to such files. These unaffected counts related to the following nine checks, described by the year of issue, check number and client, as follows:
Count
No. Year Check No. Client
12 1957 10,643,497 James J. Manion
13 1957 10,685,637 Marion Manion
14 1957 10,707,063 " "
15 1957 10,730,575 James J. Manion
16 1957 10,768,977 N. and T. Libling
17 1957 12,054,960 Dolores J. Frankel
18 1957 12,054,961 Fay Matorian4
21 1958 11,260,576 Daniel H. and Chalrene Bartfield
22 1958 11,260,577 " " " " "
The counts charged either forgery of the checks (18 U.S.C. § 495) or wilfully presenting a forged check to an agency of the United States with intent to defraud (18 U.S.C. § 1001); or aiding or advising the filing of a fraudulent return (26 U.S.C. § 7206(2)).
Appellant was tried on all thirty-five counts. The jury acquitted appellant on Counts 1, 2, 3 and 35, and found appellant guilty of Counts 4 to 34, inclusive. Appellant was sentenced to thirty-one consecutive sentences of one year and one day on each of Counts 4 to 34, inclusive.
One further factual matter requires recital. Appellant had been under investigation by the government taxing authorities during most of 1958, and had refused to cooperate with government investigators by turning over "all of his files and records" after their alleged request therefor. Appellant testified that Special Agent Hirst telephoned appellant in December 1958, but no contact between them was then made; that agent Hirst again telephoned appellant on January 2, 1959, about 2:00 P.M.; that appellant first offered to come to Hirst's office, subsequently to meet Hirst at a public restaurant; that Hirst insisted on meeting appellant at his home; that agent Hirst, and agent Coyne then arrived at appellant's home about 4:30 P.M., and arrested appellant; that two other agents, Borchardt and Lewis, arrived almost immediately thereafter, and participated in the search. This factual sequence, says appellant, proves that the government officers were trying to maneuver the arrest of appellant so that it would take place physically at a place where they could search appellant's files, as an incident to his arrest, without a search warrant, and as extensively as they desired.
On this appeal the appellant makes no objection to the introduction of evidence obtained by the search and seizure with respect to the conviction on Counts 21 and 22, relating to the Bartfield checks. One of these checks was the subject of the original warrant for appellant's arrest on the charge of forgery. But appellant urges error in the appellant's conviction on the twenty-nine other counts, charging (a) that the evidence relating to eleven counts (Counts 8 to 18, inclusive) offered by the government (and which was not suppressed by the trial court's suppression order) had been obtained illegally from files relating to other crimes, i. e., other forgeries or false claims. (The trial court took the position these files were all instrumentalities of the crime of forgery.) (b) That the evidence relating to eighteen counts (Counts 4 to 7, inclusive, 19, 20 and 23 to 34, inclusive) offered by the government (although such files had been returned to appellant by the lower court's order) had been obtained illegally, or leads as to further proof of such counts had been obtained illegally, from those files during the time the government had maintained possession of them. These counts, relating to the following persons for the respective years cited, were:
Years Covered
Count Client by Return
4 Louis Dunoff 1956
5 Beatrice Dunoff 1956
6 Bernard Arond 1956
7 Mollie Arond 1956
19 Sam Matorian 1957
20 Allen Frankel 1957
23 Juventino Silva 1956
24 Celia Sally Silva 1956
25 Juventino Silva 1957
26 Celia Sally Silva 1957
27 Juventino Silva 1958
28 Celia Sally Silva 1958
29 Raul Anchondo 1956
30 Angelo Anchondo 1956
31 Raul Anchondo 1957
32 Angelo Anchondo 1957
33 Raul Anchondo 1958
34 Angelo Anchondo 1958
Counts 8 to 11, relating to the Manions, are based on alleged false returns. Exhibits 19 and 22 were offered in evidence to support such charge. Exhibit 19 consisted of notes, in Mr. Manion's handwriting, and prepared by him, showing his 1955 income and expenses as a public relations consultant, and his wife's 1955 income and expenses as a consultant for "Relaxicisor." This had been sent through the mail to appellant and was the basis, as such figures were falsified and increased by appellant, of the false 1955 income tax returns for Mr. and Mrs. Manion. Exhibit 22 consisted of similar material, in Mr. Manion's handwriting, and prepared by him, similarly sent to Mr. Gilbert, and similarly used by appellant to prepare Mr. and Mrs. Manion's 1956 income tax returns with fictitious and fraudulent increased figures for deductions.
Objection was made to Exhibits 19 and 22 upon the ground the documents had been illegally seized by means of an illegal search. The objection was overruled upon the ground the documents did not belong to defendant Gilbert, and hence Gilbert was not in a position to object to their seizure.
During the trial defendant's counsel objected to the admission of crucial evidence in support of any and all counts, other than those relating to the Bartfields (Counts 21 and 22), upon the ground the evidence was obtained as a result of material gathered by an illegal search and...
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