U.S. v. Beattie, 1305
| Citation | 541 F.2d 329 |
| Decision Date | 13 September 1976 |
| Docket Number | D,No. 1305,1305 |
| Parties | 76-2 USTC P 9667 UNITED STATES of America and Donald M. Cerra, Special Agent of the Internal Revenue Service, Petitioners-Appellees, v. John L. BEATTIE, Jr., Respondent-Appellant. ocket 75-6041. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Sydney R. Rubin, Rochester, N. Y., for respondent-appellant.
Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Jr., Robert E. Lindsay, Daniel F. Ross, Attys., Tax Div., Dept. of Justice, Washington, D. C. (Richard J. Arcara, U. S. Atty., W. D. N. Y., Buffalo, N. Y., of counsel), for petitioners-appellees.
Before MOORE, FRIENDLY and VAN GRAAFEILAND, Circuit Judges.
Our opinion in this case, filed on August 18, 1975, 522 F.2d 267, generally affirmed an order of the District Court for the Western District of New York enforcing an Internal Revenue Service summons directing taxpayer Beattie despite his claim of self-incrimination to produce various papers described in the summons, 522 F.2d at 268, which papers, he had retrieved from his accountant, Arthur Robeson. 1 We held, however, 522 F.2d at 279, that
Insofar as the summons requests copies of any communications between Beattie and Robeson, it should not be enforced, and we modify the order to so provide.
Both Beattie and the Government petitioned for certiorari. After rendering its decision on the closely related problem raised in Fisher v. United States and United States v. Kasmir, --- U.S. ----, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the Court on May 19, 1976, --- U.S. ----, 96 S.Ct. 2163, 48 L.Ed.2d 791, denied Beattie's petition for certiorari but granted the Government's and remanded the case to this court for further consideration in light of the cited decisions. On July 1, 1976, we entered an order reciting that we thought it apparent that the only issue the Court desired us to reconsider was the point we had "decided against the Government, namely, the modification of the order to exclude copies of any communications between Beattie and Robeson." We invited the parties to submit memoranda of the issue.
The Fisher summons had not demanded copies of correspondence, --- U.S. at ----, 96 S.Ct. at 1572. The summons in Kasmir sought, inter alia, "(r)etained copies of reports and other correspondence" between the accountants and the taxpayer. While the Court ordered this portion of the summons enforced along with the rest, it made the following caveat, --- U.S. at ---- n. 13, 96 S.Ct. at 1582 n. 13:
In seeking the accountant's "retained copies" of correspondence with the taxpayer in (Kasmir), we assume that the summons sought only "copies" of original letters sent from the accountants to the taxpayer the truth of the contents of which could be testified to only by the accountant.
Kasmir shows that so much of our previous decision as refused enforcement of the summons with respect to Robeson's retained copies of letters from him to Beattie was in error. The open question is whether the same...
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