Schlinsky v. United States

• Decision Date: 06 June 1967
• Docket Number: No. 6864.,6864.
• Citation: Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967)
• Parties: Leo J. SCHLINSKY, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

379 F.2d 735 (1967)

Leo J. SCHLINSKY, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6864.

United States Court of Appeals First Circuit.

Heard May 1, 1967.

Decided June 6, 1967.

Jerome Gotkin, Boston, Mass., with whom Benjamin Arac, David M. Scheffer, Stephen M. Honig and Widett & Kruger, Boston, Mass., were on brief, for appellant.

Herbert N. Goodwin, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Defendant appeals from his conviction, following a jury trial, of willful evasion of income tax for the years 1958, 1959, and 1960. 1954 I.R.C. § 7201. Defendant was the sole proprietor, and principal operator, of a drug store. His returns were prepared by an accountant named Warrick. Warrick did not audit or, with one exception, examine any of defendant's books, but simply took the figures given him by defendant and, for a charge of $55, prepared the return. The book which defendant did supply contained the receipts from defendant's regular sales, but did not contain the receipts from his "accommodation," or no-profit sales. Defendant retained a notebook, described by him as a "personal memorandum," that showed both. He destroyed this after Warrick told him that the Internal Revenue Service audit of his returns was revealing substantial discrepancies.¹

The discrepancies were in fact substantial. It was stipulated at the trial that defendant's net taxable income for the three years, totaling approximately $117,000, was understated by some $37,000, or more than 30%, and that savings bank interest of almost $10,000 was 50% underreported. Defendant avoided cross-examination upon what might be thought sizable inadequacies on the face of the returns by testifying that he never looked at them. His explanation, while lengthier than this, amounted to little more than that he trusted Warrick.

Defendant testified that the book supplied to Warrick contained proprietorship accounts showing how much money he was taking out of the business. He now contends that since these figures reflected his true income, an inference of good faith should be drawn. In fact, however, these accounts accurately reflected neither his income from the pharmacy nor his total income from all sources. It was pure coincidence that the total corresponded closely with what was eventually stipulated to be his true income. The jury was not required to conclude good faith from this. It is true that Warrick might have learned from these figures that defendant was extracting from the business more than it was earning, but, assuming he did so, Warrick was not retained either to investigate, or to evaluate, defendant's business judgment. If the jury disbelieved defendant's statement that he never looked at his returns, as well it might, but credited his testimony that he attached "biblical" importance to the proprietorship figures, it could conclude that rather than trusting Warrick's results to be accurate defendant was well aware that they were not.

Before trial defendant filed what district judges are now finding almost inevitable, a motion to dismiss and a motion to suppress. The former, based on a delay in the return of the indictment, asserted a denial of his Sixth Amendment right to a speedy trial. The investigation began in the late summer of 1961, and the indictment was returned in January 1965. The defendant was interviewed by IRS personnel in April and May of 1962. In May his attorney registered his appearance with the IRS. In February 1964 defendant was interviewed again, and in March the Service formally advised him of the possibility of criminal proceedings. Defendant does not complain of the ten months delay after March 1964 because during that period his counsel were seeking to head off any indictment. Nor does he make any showing that any delay prior to March caused his actual prejudice, or was improperly motivated. Cf. United States v. Ewell, 1966, 383 U.S. 116, 122-123, 86 S.Ct. 773, 15 L.Ed.2d 627. We do not agree with the defendant that the burden was on the government to "explain."

It has generally been held that the right to a speedy trial does not attach prior to indictment. E. g., Nickens v. United States, 1963, 116 U.S.App.D.C. 338, 323 F.2d 808, cert. den. 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178; Foley v. United States, 8 Cir., 1961, 290 F.2d 562, cert. den. 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed.2d 88; Hoopengarner v. United States, 6 Cir., 1959, 270 F.2d 465. As the Supreme Court has stated in a somewhat different context, "There is no constitutional right to be arrested." Hoffa v. United States, 1966, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374. While we are not prepared to hold categorically that the statute of limitations is the only control on the length of time permissible between the conclusion of the government's investigation of a crime and the bringing of an indictment, cf. Ross v. United States, 1965, 121 U.S.App.D.C. 233, 349 F.2d 210, we do hold that a claim of unconstitutional preindictment delay must be supported by something much more than appears in the present case.

The motion to suppress was directed to records that the defendant had supplied to IRS agents and other evidence obtained as "fruit" of examination of those records. This motion was properly denied. The court found that in the initial civil audit no warnings were given to the defendant. However, when the possibility of criminal liability appeared, the case was turned over to a Special Agent who, at his first meeting with the defendant, advised him that he need not answer any questions, that he need not produce any records that might incriminate him, and that he could terminate the interview at any time.² All interviews were conducted on defendant's premises. It is not contended that there was any physical restraint, threats or promises.

The relation between a taxpayer's obligation to supply information to taxing authorities and his Fifth Amendment privilege is a complex and unsettled one. Every person is required to maintain records of all financial dealings that bear on his tax liability, 1954 I.R.C. § 6001 and Treas.Reg. 1-6001-1(a), and under some circumstances he may be required to produce them. 1954 I.R.C. § 7602. To what extent the "required records doctrine" of Shapiro v. United States, 1948, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, which denies the privilege to records that the law properly requires certain classes of persons to keep, is applicable to tax records is uncertain. See generally Meltzer, The Privilege Against Self-Incrimination and Required Income Tax Records, 30 Taxes 45 (1952). We may assume for present purposes, however, that personal records, even though discoverable for civil purposes, may be withheld by a defendant in a criminal case. See Scanlon v. United States, 1 Cir., 1955, 223 F.2d 382; cf. United States v. Blue, 1966, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510. The court's finding, however, that defendant's actions were voluntary in fact was manifestly correct. It is apparent that defendant produced what he wanted, and retained what he wanted. The motions were properly denied. D.C., 261 F.Supp. 265.

At the trial the defendant unsuccessfully sought a lengthy voir dire of prospective jurors. The court's limitation was within its discretion. Principally what it excluded were questions purportedly designed to discover whether the juror would accept various instructions of law favorable to the defendant that might be expected to be in the charge. We have long viewed with disfavor the practice prevailing in certain jurisdictions under which a party, ostensibly engaged in exploring the jury's qualifications, is in fact exercising hopefully sophisticated advocacy upon jurors whom it has no real intention of challenging. See Strickland v. Perry, 5 Cir., 1957, 244 F.2d 24, cert. den. 355 U.S. 847, 78 S.Ct. 72, 2 L.Ed.2d 56, disapproving. This not only corrupts the purpose of the voir dire, but places undue emphasis upon those points the party so chooses to make.

With respect to the other inquiries which the court precluded, in our opinion the purpose of the voir dire is to ascertain disqualifications, not to afford individual analysis in depth to permit a party to choose a jury that fits into some mold that he believes appropriate for his case. Even if a party has some special matter in mind, a broad discretion as to its appropriateness must be reposed in the district court. Stephan v. Marlin Firearms Co., 2 Cir., 1965, 353 F.2d 819, cert. den. 384 U.S. 959, 86 S.Ct. 1584, 16 L.Ed.2d 672; United States v. Mackey, 7 Cir., 1965, 345 F.2d 499, cert. den. 382 U.S. 824, 86 S.Ct. 54, 15 L.Ed.2d 69; Sellers v. United States, 1960, 106 U.S. App.D.C. 209, 271 F.2d 475.

Next, we find entirely without merit defendant's extensive argument that the evidence did not warrant conviction. Even if, which we in no way grant, all of the damaging testimony for which the witness Warrick is criticized were to be disregarded, there was ample evidence to support a conviction. We recognize that counsel are, and should be, zealous advocates, and that guilty as well as innocent defendants are entitled to full representation. We have said before, however, Stack v. United States, 1 Cir., 1966, 368 F.2d 788, 790, cf. White v. Hancock, 1 Cir., 1966, 355 F.2d 262, 263 n. 2, and we repeat, that full representation does not include the making of points which are clearly frivolous. Cf. Anders v. State of California, 5/8/67, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. We so regard this one. Even today, defendant has been unable to suggest a reason, other than that he never studied bookkeeping, why a man capable of running his own business for twenty-two years, a business grossing well over $100,000 annually by the time in question, could think that he should not account either in gross receipts...