Kelley v. U.S., s. 75-3259

• Decision Date: 14 June 1976
• Docket Number: Nos. 75-3259,76-1061,s. 75-3259
• Citation: 536 F.2d 897
• Parties: 76-2 USTC P 9506 Claire KELLEY, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees. Claire KELLEY, Plaintiff-Cross Appellee, v. UNITED STATES of America, Defendant-Cross Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 897

536 F.2d 897

76-2 USTC P 9506

Claire KELLEY, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.

Claire KELLEY, Plaintiff-Cross Appellee, v. UNITED STATES of America, Defendant-Cross Appellant.

Nos. 75-3259, 76-1061.

United States Court of Appeals, Ninth Circuit.

June 14, 1976.

Claire Kelley, in pro per.

Alfred S. Lombardi, Asst. U. S. Atty. (argued), Washington, D. C., for respondents.

OPINION

Before CHAMBERS and WRIGHT, Circuit Judges, and EAST, ^* District Judge.

PER CURIAM:

Appellant seeks review of a district court's denial of injunctive relief which would have prohibited the Bank of America from complying with an Internal Revenue Service summons pursuant to 26 U.S.C. § 7602 for records in possession of the bank relating to her account.

This appeal was presented to us once before. 503 F.2d 93 (9th Cir. 1974). We there affirmed the order of the district court dismissing the action against the IRS but vacated the dismissal as to the bank in order that appellant might have an opportunity "to seek an order restraining the bank from compliance with the summons until such constitutional claims as she has standing to assert have had judicial consideration." 503 F.2d at 94.

On remand, the district court again denied relief, relying on Garrett v. United States, 511 F.2d 1037 (9th Cir. 1975), for the proposition that appellant was without standing to contest the summons. The court did, however, enjoin the Internal Revenue Service from using the materials obtained as a result of the summons as the basis for either recommending or bringing a criminal tax action against appellant. The government cross-appeals from this part of the order.

We agree with the district court that the summons does not invade appellant's protectable Fourth or Fifth Amendment interests. In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Court considered a taxpayer's challenge of a summons issued to his accountant for production of the taxpayer's business records. In rejecting the claim, the Court noted that there was neither a legitimate expectation of privacy in the materials sought nor any governmental compulsion against the person of the taxpayer. Couch, supra at 336, 93 S.Ct. 611.

Appellant's claim must be rejected for the same reason. The Court has recently ruled adversely to her claimed expectation of privacy with regard to the bank records.

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies . . . we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

United States v. Miller, --- U.S. ----, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976).

Here, too, any governmental compulsion was directed at the bank, not appellant. Thus, the summons does not violate either her Fourth or Fifth Amendment rights.

The contention that the summons infringes upon her First and Ninth Amendment rights is entirely without support. She has failed to indicate with any particularity, despite numerous opportunities to do so, how the bank's compliance with the summons will improperly affect these rights. Her allegation that the bank's compliance will result...