Newman v. United States
Decision Date | 12 April 1960 |
Docket Number | No. 17896.,17896. |
Citation | 277 F.2d 794 |
Parties | Corley G. NEWMAN, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Zach H. Douglas, Jacksonville, Fla., B. L. Solomon, Marianna, Fla., for appellant.
Edward L. Stahley, Asst. U. S. Atty., Tallahassee, Fla., Wilfred C. Varn, U. S. Atty., F. E. Steinmeyer, III, George B. Barrs, Asst. U. S. Attys., Tallahassee, Fla., for appellee.
Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
The information charged that the defendant "did dispose of a substance of the Character used in the manufacture of distilled spirits, to wit, sugar, and wilfully and unlawfully failed to render a correct return to the Assistant Regional Commissioner, Alcohol and Tobacco Tax, Internal Revenue Service, Atlanta, Georgia, of the disposition of the said substance as theretofore, to wit, on 27 January 1954, required in writing by the Assistant Regional Commissioner, Alcohol and Tobacco Tax, Internal Revenue Service, and in the form and manner required by section 5213(a) of Title 26 of the United States Code and the regulations prescribed thereunder by the Secretary of the Treasury or his delegate." Count 1 charged that the offense was committed "from on or about 1 January 1957 to 21 August 1957," and Count 2 fixed the time as "from on or about 1 January 1958 to 30 July 1958." The jury found the defendant guilty as charged in each count. The court sentenced him to imprisonment for six months on Count 1, and fined him $200.00 on Count 2, but suspended the prison sentence and placed the defendant on probation for a period of three years.
The Government's case was based principally upon the testimony of Mr. Warren H. McConnell, a Criminal Investigator with the Alcohol and Tobacco Tax Division of the Bureau of Internal Revenue. The defendant1 insists that the testimony of agent McConnell should have been excluded because it related to evidence procured by means of an illegal search of defendant's records in violation of the Fourth Amendment to the Constitution of the United States, or because the requirement that the defendant keep and disclose the records violated his privilege against self-incrimination under the Fifth Amendment.
Section 5213(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 5213, provides that:
"Every person disposing of any substance of the character used in the manufacture of distilled spirits shall, when required by the Secretary or his delegate, render a correct return, in such form and manner as the Secretary or his delegate may by regulations prescribe, showing the names and addresses of the persons to whom such disposition was made, with such details, as to the quantity so disposed of or other information which the Secretary or his delegate may require as to each such disposition, as will enable the Secretary or his delegate to determine whether all taxes due with respect to any distilled spirits manufactured from such substances have been paid."
Section 5609 of said Internal Revenue Code, 26 U.S.C.A. § 5609, prescribes the penalty as follows:
"Any person who willfully violates any provision of section 5213 (a), or of any rules or regulations issued thereunder, and any officer, director, or agent of any such person who knowingly participates in such violation, shall upon conviction be fined not more than $500 or be imprisoned for not more than 1 year, or both."
The defendant had acknowledged receipt of the formal demand letter requiring him to render the returns "* * * showing each disposition by you to each customer on each day, whether by sale, consignment, delivery or otherwise, and each loss by fire, theft, spoilage, destruction, or otherwise, of the following named substances in the quantities specified: 300 pounds or more Sugar (all types) * * *"2 The fourth paragraph of that letter reads as follows:
On August 20, 1957, Mr. McConnell went to defendant's place of business in Blountstown, Florida, and identified himself to the defendant. The following then took place, according to McConnell's testimony at the trial:
Mr. McConnell returned to the defendant's place of business on July 30, 1958, and according to Mr. McConnell:
Upon the trial, the defendant objected to McConnell's relating any facts found among the books upon the ground that no search warrant had been offered in evidence and that the receipt of the evidence would be contrary to the Constitution of the United States. The district court overruled the objection.
The Government insists that a motion to suppress the evidence should have been made prior to the trial under Rule 41(e), Federal Rules of Criminal Procedure, 18 U.S.C.A. Under that rule, the district court exercises its discretion to entertain or to refuse to entertain the objection or motion at the trial. The court did entertain and overrule the defendant's objection. We must therefore treat the objection as seasonably made.3
When Mr. McConnell asserted a right to examine the records, and read to the defendant paragraph 4 of the demand letter (which has been quoted), the defendant's acquiescence was not an intentional waiver of his constitutional rights, but was a mere submission in an orderly manner to the claimed authority of a federal agent.4
If there was adequate legal authority for paragraph 4 of the demand letter, which directed the defendant to keep the records and to make them available for inspection upon demand, then the defendant cannot successfully object that the examination of the records constituted an unreasonable search or that he was unconstitutionally compelled to be a witness against himself.5
If the records were voluntarily kept in the ordinary course of business, or were kept pursuant to some lawful requirement, then authority for their examination would be found in Section 7602 of the Internal Revenue Code of 1954:
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