United States v. Bowden

• Citation: 579 F. Supp. 337
• Decision Date: 19 January 1983
• Docket Number: Crim. A. No. 82-10012.
• Parties: UNITED STATES of America, Plaintiff, v. Robert Anthony BOWDEN, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

579 F. Supp. 337

UNITED STATES of America, Plaintiff, v. Robert Anthony BOWDEN, Defendant.

Crim. A. No. 82-10012.

United States District Court, M.D. Tennessee, Columbia Division.

December 8, 1982.

On Motion for New Trial January 19, 1983.

James C. Thomason, Asst. U.S. Atty., Nashville, Tenn., for plaintiff.

Bob Lynch, Nashville, Tenn., for defendant.

MEMORANDUM OPINION

NEESE, Senior District Judge.

Among the 14 or so pretrial motions interposed by the defendant Mr. Robert Anthony Bowden herein was a motion "* * * to suppress certain statements made by him during the government's investigation of this case for the reason that these statements were taken in violation of defendant's Fifth Amendment constitutional right to remain silent. In addition, defendant moved to suppress all evidence obtained by the government as a result of statements given the government sic by defendant. * * *" Rules 12(b)(3), 41(f), F.R.Crim.P. An evidentiary hearing was conducted December 6, 1982 in the hope it would enable the Court to rule thereon. Rule 12(e), F.R.Crim.P.

The Court inquired of defense counsel at the outset thereof regarding the specifics of the claimed constitutional violation and received no satisfactory explanation; while asserting that his purpose was not that of mere discovery, counsel for the defendant insisted that he was entitled to a hearing on the issue of the voluntariness of Mr. Bowden's "confession" under 18 U.S.C. § 3501(a). The prosecuting attorney represented he would offer the statements thus obtained from the defendant, not as his confession, but as incriminating out-of-court admissions.¹

The Court heard all the evidence offered, which consisted of the testimony of Mr. Fred Moore, Jr., a special agent of the Internal Revenue Service (IRS), criminal division, and that of Mr. W.C. Barron, a certified public accountant who, at all or some of the pertinent times, served Mr. Bowden relative to accounting matters. There being not the slightest indicia whatever of any infringement of the defendant's right of silence by the IRS agents or others, the motion was summarily

OVERRULED, DENIED and STRICKEN.

The Court was disturbed by the ostensible fact that defense counsel may have advanced that motion as a defense which was unwarranted under existing law (noting judicially that such attorney is a former assistant United States attorney of this District); he asserted no claim such a defense could be supported by any good-faith argument for some extension, modification, or reversal of existing law. Cf. Code of Professional Responsibility, DR 7102(A)(2). Mr. Bob Lynch, Jr., (such defense attorney), was unable to point to any matter in evidence on the hearing which suggested an inference of coercion to any degree of Mr. Bowden by IRS agents or others with reference to his client's right of silence.

The purported admissions were obtained from Mr. Bowden in a series of four interviews, the latter three of which had been arranged through his former attorney who was in attendance at all times. Two of the interviews actually took place in the office of such former attorney. The singular complaint by Mr. Lynch, Esq. was that the first interview of his client occurred so "early in the morning * * *"; the evidence was uncontradicted that such interview began about 10:30 o'clock, a.m., and continued until 2:00 or 2:30 o'clock, p.m., on September 24, 1980. Although urged insistently by the Court to advance an argument warrantable under existing law, Mr. Lynch, Esq. could not — or, certainly, did not — do so.

The existing law of self-incrimination appears to be well-settled and well-known; as the Chief Justice exemplified it fairly recently, as follows:

* * * The Fifth Amendment * * * does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. "It does not preclude a witness from testifying voluntarily in matters which may incriminate him," * * * for "those competent and freewilled to do so may give evidence against the whole world, themselves included."

* * * Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a "genuine compulsion of testimony." * * * Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, respondent's the defendant's incriminating testimony cannot conflict with any constitutional guarantees of the privilege

* * * * * *

* * * The constitutional guarantee is only that the witness be not compelled as in original to give self-incriminating testimony. The test is, considering the totality of the circumstances, whether the free will of the witness was overborne. * * * Citations and footnote reference omitted. * * *

United States v. Washington, 431 U.S. 181, 186-188, 97 S.Ct. 1814, 1818-18193, 4, 52 L.Ed.2d 238 (1977). There was not one word, syllable, letter, or sign in the evidence adduced at the hearing of any circumstance whatever by means of which Mr. Bowden's free-will was overborne!

It is likewise well-known that, ordinarily, the mere holding of an interview does not require the giving of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (cited by the defendant herein); such warnings are necessary only where the taxpayer is in "custody" of the IRS agents, i.e., where there is a significant restraint on his or her bodily freedom. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 16151, 48 L.Ed.2d 1 (1976); United States v. Nuth, 605 F.2d 229, 2341 (6th Cir.1979). "* * * It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily * * *," United States v. Mendenhall, 446 U.S. 544, 555-556, 100 S.Ct. 1870, 1877-1878, 64 L.Ed.2d 497, 510 (1980), reh. den. 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980); "* * * `Any statement given freely and voluntarily without any compelling influences is,² of course, admissible in evidence.' * * *" Rhode Island v. Innis, 446 U.S. 291, 299-300, 100 S.Ct. 1682, 1688-1689, 64 L.Ed.2d 297, 3073 (1980), quoting from Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. at 1629.

Our local Rule 8(a)(1) required that the motion of the defendant for a suppression of evidence " * * * be signed as required by Rule 11 of the Federal Rules of Civil Procedure * * *." Mr. Lynch, Esq. signed that motion as the trial attorney for the defendant: "* * * The signature of an attorney constitutes a certificate by him that he has read the pleading; and that to the best of his knowledge, information, and belief there is good ground to support it * * *." Rule 11, F.R.Civ.P. "* * * The effect of Rule 11 is to place a moral obligation upon the attorney to satisfy himself that there are good grounds for the action or defense. However, the cases do not make it clear to what extent an attorney must investigate his client's case prior to signing. Questions concerning an attorney's good faith arise infrequently. * * *

"* * * Rule 11 does provide a positive standard of conduct against which to measure an attorney's behavior. For those lawyers who need reminding, this rule is intended to minimize tendencies toward untruthfulness in pressing a client's suit or, here, defense footnote references omitted. * * *" 5 Wright & Miller 499-500: Civil § 1333.

Until Mr. Lynch, Esq., an officer of this Court, gave in open court his assurance of his belief that the suppression defense of Mr. Bowden was warranted by his (the attorney's) initial consideration of the circumstances surrounding the obtaining of his admissions, the Court would have proceeded without hesitation to have invoked appropriate sanctions. It is trusted that neither Mr. Lynch, Esq. nor others will need further reminder of what to expect if there is repetition of ostensibly frivolous motions which waste judicial time and energy with no gain to anyone implicated.

MEMORANDUM OPINION AND ORDER

On Motion For New Trial

The defendant Mr. Robert Anthony Bowden made timely a motion for a new trial, Rule 33, F.R.Crim.P., or, in the alternative, for entry of a judgment of acquittal as to count three of the indictment herein, Rule 29(c), F.R.Crim.P. The motion has no merit in either alternative.

Four of the grounds of the former motion relate to the sufficiency of the evidence to support the submission of the case to the jury and the conviction of Mr. Bowden on such count. As did the defendant by brief, the Court considers such grounds together.

I

The jury found obviously beyond a reasonable doubt under the Court's instructions that the defendant and his (then) wife, residents of Lewisburg, Tennessee, caused to be prepared, signed and mailed or caused to be mailed on April 16, 1979 in this District, a report to the Internal Revenue Service that their joint taxable-income for the calendar-tax year, 1978, was $35,908.23 and that due and owing thereon was tax of $7,317.44; that the defendant Mr. Bowden, in so doing, wilfully and knowingly attempted to evade and defeat $3,073.60 of the income-tax due and owing by them for that period by filing an income-tax return which was false and fraudulent, because he well knew his and his wife's joint taxable-income in that period was $42,138.03 on which they owed an income-tax which was $3,073.60 more than they reported and paid; and, thus, that the defendant Mr. Bowden was guilty as charged in count 3 of the indictment of September 8, 1982 herein of violating the provisions of 26 U.S.C. § 7201.¹

The prosecution claimed that Mr. and Mrs. Bowden had additional and...