United States v. Brevik, 19726.

• Decision Date: 01 June 1970
• Docket Number: No. 19726.,19726.
• Citation: 422 F.2d 449
• Parties: UNITED STATES of America, Appellee, v. Elton M. BREVIK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.2d 449 (1970)

UNITED STATES of America, Appellee, v. Elton M. BREVIK, Appellant.

No. 19726.

United States Court of Appeals, Eighth Circuit.

March 11, 1970.

Certiorari Denied June 1, 1970.

Richard A. Rohleder, St. Paul, Minn., for appellant.

Ralph E. Koenig, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., on the brief.

Before MATTHES, GIBSON and LAY, Circuit Judges.

Certiorari Denied June 1, 1970. See 90 S.Ct. 1861.

GIBSON, Circuit Judge.

Elton M. Brevik was tried in November, 1968 on two counts of income tax evasion, one each for 1961 and 1962, before Judge Phillip Neville in the United States District Court for Minnesota. The jury returned verdicts of guilty on both counts and Brevik was sentenced to three years imprisonment. Motions for judgment n. o. v. and in the alternative for new trial were denied and the defendant appealed. Since Brevik does not challenge the sufficiency of the evidence upon which he was convicted and since proof of his guilt was in fact substantial we need only discuss those facts germane to the two questions of law upon which this appeal is based.

Brevik contends first that his statements to a special agent of the Internal Revenue Service were obtained in violation of the guidelines laid down by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966), and should not have been received in evidence, and second that testimony of several other government witnesses and exhibits related thereto were irrelevant and prejudicial and improperly admitted into evidence.

The first contention arises out of testimony given at trial by Government witness and IRS agent Samuel P. Doonan. Agent Doonan testified to statements made by the defendant at an interview which occurred on August 9, 1965 in the Minneapolis office of the IRS. Present at the interview were Special Agent Doonan, Revenue Agent Earl Williams, and the defendant. Agent Doonan had previously requested a meeting with Brevik and requested that Brevik bring his personal business records. It is undisputed that Brevik's compliance with these requests was voluntary. At the meeting itself Brevik's freedom of movement, including the right to leave, was not restricted. Agent Doonan testified that he informed Brevik before proceeding with the interview that Brevik had a right under the Fifth Amendment not to furnish any information to him or to talk to him. However, Agent Doonan did not advise Brevik of his right to counsel. Before Agent Doonan testified to the substantive events at the August 9th interview Brevik's counsel objected to further testimony regarding the interview on the ground that under the Miranda decision Brevik was entitled to be informed of his right to counsel and any statements made without such advice being given are not admissible in evidence. This objection was overruled.

Agent Doonan testified to only two statements made by Brevik at the interview. The first was that Brevik told him that in compliance with the request to bring in his records, he (Brevik) had placed them in the glove compartment of his automobile from which they were stolen while his car was parked at the airport where he had left it while temporarily out of town. Agent Doonan testified also that Brevik attempted to explain the payment of a check in the amount of $2500.00 to his brother-in-law, James P. Korstad, drawn on the corporate account of Selective Investment Corporation, as being in exchange for financial advice regarding the corporate structure of the company. Korstad had previously testified that the payment was reimbursement of a long standing personal debt.

In light of the totality of the evidence proving defendant's purposeful tax evasion, these statements testified to by Agent Doonan taken together amount to only an insignificant part of the evidence upon which the defendant was convicted and were used largely to question Brevik's credibility rather than as substantive proof of his guilt. Furthermore, the Court's ruling admitting this evidence was correct. We held in Cohen v. United States, 405 F.2d 34 (8th Cir. 1968), cert. denied, 394 U.S. 943, 89 S. Ct. 1274, 22 L.Ed.2d 478 (1969), that where an interview is of a non-custodial nature, as was concededly the case here, statements elicited or volunteered at such an interview are not tainted or inadmissible due to failure to give all of the Miranda warnings, even where such interview has reached the accusatory stage. Cohen, supra, like the case before us, was a case involving a non-custodial interview by IRS agents. Virtually all the circuits have ruled on the issue of the application of the Miranda warnings to non-custodial tax investigations and only the 7th Circuit in United States v. Dickerson, 413 F.2d 1111 (1969) opposes the rule that Miranda does not apply to such situations. The case of Mathis v. United States, 391 U. S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), cited by defendant, is not applicable since it involved a clearly custodial situation. In light of Cohen and the many cases in the other circuits supporting the proposition in Cohen, we hold that it was not error to admit the testimony of Agent Doonan.

Defendant next objects to the admission of certain testimony given by four Government witnesses, Frank...