United States v. Charamella

• Decision Date: 19 November 1968
• Docket Number: Crim. A. No. 1885.
• Citation: 294 F. Supp. 280
• Parties: UNITED STATES of America, Plaintiff, v. Italo CHARAMELLA, Defendant.
• Court: U.S. District Court — District of Delaware

294 F. Supp. 280

UNITED STATES of America, Plaintiff, v. Italo CHARAMELLA, Defendant.

Crim. A. No. 1885.

United States District Court D. Delaware.

November 19, 1968.

Alexander Greenfeld, U. S. Atty., Wilmington, Del., for plaintiff.

Joseph H. Geoghegan, Potter, Anderson & Corroon, Wilmington, Del., for defendant.

OPINION

STEEL, District Judge.

Defendant was indicted on March 7, 1968, for willfully attempting to evade federal income taxes for the calendar years 1961, 1962 and 1963, in violation of 26 U.S.C. § 7201.

On March 19, 1968, defendant filed a motion, pursuant to Rule 41(e), Fed.R.Crim.P., to suppress certain evidence against him claiming that the Government had illegally seized it without warrant and in violation of his constitutional rights under the Fourth, Fifth and Sixth Amendments of the Constitution of the United States. The same motion also asked the Court to order a return of this evidence, which consists of photocopies of defendant's records made by the Government. These records had been obtained from defendant during the course of the Government's investigation of his income tax returns. Defendant has requested a hearing "on the factual issues related to the seizure of such evidence." Such a hearing is authorized by Rule 41 (e) if there is any issue of fact necessary to the decision of the motion.

In support of the motion, defendant on April 24, 1968, filed an affidavit in which he stated that he met with agents of the Internal Revenue Service several times at his office, that he handed over various personal records at their request, and that he received from them inadequate warnings of his constitutional rights against self-incrimination and to have counsel. (Par. 11, 17.)

On September 26, 1968, defendant moved under Rule 17.1, Fed.R.Crim.P., for a pre-hearing conference, to consider the procedural and evidentiary problems that might arise at the hearing on defendant's motion to suppress and return the copies of the documents. The same motion prayed, under Rule 17(a), (c), Fed.R.Crim.P., for the issuance and service of a subpoena duces tecum on the two agents of the Internal Revenue Service who investigated defendant's income tax returns and their group supervisor. The purpose of the subpoena was to require these persons to appear and produce at the pre-hearing conference various documents relating to the investigation of defendant's income tax returns, for the purpose of permitting defendant's attorney to inspect them.¹ The reason for defendant attempting to inspect the documents is alleged in paragraph IV. of the motion as follows:

"IV. The documents pertain to the proof of when and the circumstances under which the civil audit of defendant's federal income tax liabilities for the years 1960 through 1963 reached an accusatory or adversary stage and focused on defendant as one suspected of having violated the federal criminal income tax laws thus giving rise to defendant's constitutional protections under the Fourth, Fifth and Sixth Amendments to the Constitution of the United States. Cf. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. Arizona, 384 U.S. 436 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Turzynski, 268 F.Supp. 847 (N.D.Ill.1967); U. S. v. Kingry, 67-1 USTC ¶ 9262 (N.D.Fla.1967)."

The motion further alleged that the documents are not otherwise procurable reasonably in advance of the hearing on defendant's motion to suppress, that defendant cannot properly prepare for that hearing without a pre-hearing inspection of the documents, and that the failure of defendant to obtain such inspection will tend to unreasonably delay the hearing.

The pre-hearing conference was held on October 10, 1968. Despite defendant's motion to have the documents subpoenaed and inspected in advance of the conference, no order for the issuance of the subpoena was entered prior to that time. At the conference the Government resisted the motion for the issuance of the subpoena duces tecum upon the ground that many of the documents to be covered by it were internal Government documents and hence protected under the second sentence of Rule 16 (b), Fed.R.Crim.P. Defendant argued that it had shown good cause for the documents being produced under Rule 17(c) even though they were internal Government records.

At the conference the parties agreed, with the Court's approval, that the documents which defendant sought to have produced for its inspection should be submitted to the Court so that it might determine whether any of the documents were internal Government documents within the meaning of Rule 16(b) and if so whether they were protected by that Rule.² We believe that Rule 17(c) authorizes production and inspection of internal Government documents, among others, for good cause at the Court's discretion, if the documents are sought in a bona fide attempt to obtain evidence. Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951); United States v. Wolfson, 294 F.Supp. 279 (D.Del., Nov. 27, 1968); United States v. Jannuzzio, 22 F.R.D. 223 (D.Del.1958); United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y.1952); 8 Moore's Federal Practice ¶ 17.07 (2d ed. 1968). Here it appears that such was the defendant's purpose.

If the documents sought to be produced and inspected pursuant to Rule 17(c) can have no relevance or evidentiary value to defendant in the conduct of his defense, the Court should decline to permit a pre-trial inspection. United States v. Jannuzzio, supra; United States v. Iozia, supra.

Defendant attempts to show that the documents sought are material and relevant to his case because they will help him prove when and under what circumstances the civil audit of defendant's federal income tax liabilities for the years 1960 through 1963 "reached an accusatory or adversary stage and focused on defendant as one suspected of having violated the federal income tax laws, thus requiring Miranda warnings."³ Defendant's Letter Memorandum, October 18, 1968.

For these documents to be relevant and evidentiary, the defendant must actually have been entitled to Miranda warnings when the investigation "reached an accusatory or adversary stage." If he was not then entitled to such warnings, the documents relating to the time when the accusatory or adversary stage was reached are irrelevant.

Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 1630 (1966) requires that the constitutional warnings be given to a defendant before he is questioned only when he has been "taken into custody or otherwise deprived of his freedom by the authorities in any significant way." It is true that earlier in Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977 (1963), the Court said:

"We hold only that when the process shifts from investigatory to accusatory —when its focus is on the accused and its purpose is to elicit a confession— our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer."

The Court in Miranda, however, interprets this language by stating that "custodial interrogation" was what it had meant when it spoke in Escobedo of an investigation which had focused on an accused. 384 U.S. at 444 n. 2, 86 S.Ct. 1602.

The Court in Miranda takes pains to distinguish "the compelling atmosphere inherent in the process of in-custody interrogation," 384 U.S. at 478, 86 S.Ct. at 1630, from questioning "conducted by police officers visiting the house or place of business of the suspect." 384 U.S. at 478 n. 46, 86 S.Ct. at 1630 (quoting Chalmers v. H. M. Advocate, 1954 Sess.Cas. 66, 78 (J.C.)). The need for warnings concerning the suspect's rights when he is questioned in custody as contrasted with interrogations in his own home or office is again pointed out by the Court, 384 U.S. at 449-450, 86 S.Ct. at 1615 (quoting O'Hara, Fundamentals of Criminal Investigation 99 (1956)):

"In his own home the suspect may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law."

Hence, under the present state of the law, as enunciated in Miranda, no constitutional warnings need be given to one suspected of an income tax delinquency even after the suspicion has reached an accusatory or adversary stage, if the suspect is neither in custody nor deprived of his freedom of movement by the authorities in any significant way.

This conclusion is supported by many decisions. See, e. g., United States v. Mackiewicz, 401 F.2d 219 (2d Cir., July 10, 1968), cert. denied, 393 U.S. 923, 89 S. Ct. 253, 21 L.Ed.2d 258 (1968); Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967), cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967); United States v. Maius, 378 F.2d 716 (6th Cir. 1967), cert. denied, 389 U.S. 905, 88 S.Ct. 216, 19 L.Ed.2d 219 (1967); United States v. Mancuso, 378 F.2d 612 (4th Cir. 1967), modified on other grounds, 387 F.2d 376 (1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1051, 19 L.Ed.2d 1149 (1968); Morgan v. United States, 377 F.2d 507 (1st Cir. 1967); Selinger v. Bigler, 377 F.2d 542 (9th Cir. 1967), cert. denied, 389 U.S. 904, 88 S.Ct. 212, 19 L.Ed.2d 218, reh. denied, 389 U.S. 998, 88 S.Ct. 462, 19 L.Ed.2d 503 (1967); Rickey v. United States, 360 F.2d 32 (9th Cir. 1966), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 69 (1966); Kohatsu v. United States, 351 F.2d 898 (9th Cir. 1965), cert. denied, 384 U.S. 1011, 86 S. Ct. 1915, 16 L.Ed.2d 1017 (1966), reh. denied, 385 U.S. 891, 87 S.Ct. 15, 17 L.Ed. 2d 122 (1966); United States v. White, 293 F.Supp. 692 (E.D.Pa., Aug. 13, 1968); United States v....