United States v. Dawson

• Decision Date: 13 December 1973
• Docket Number: No. 73-1900. Summary Calendar.,73-1900. Summary Calendar.
• Citation: 486 F.2d 1326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul DAWSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

486 F.2d 1326 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Paul DAWSON, Defendant-Appellant.

No. 73-1900. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 5, 1973.

Rehearing and Rehearing Denied December 13, 1973.

Stanley L. Drexler, Leslie H. Wald, Denver, Colo., for defendant-appellant.

William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 13, 1973.

THORNBERRY, Circuit Judge:

Paul Dawson was convicted by a jury on a one count indictment for willfully and knowingly making and subscribing a false joint individual income tax return for the calendar year 1968 in violation of 26 U.S.C. § 7206(1).¹ He now appeals from that conviction on the grounds that defendant's motion to suppress should have been granted and that the assistant U.S. Attorney asserted to the jury in his closing argument his personal belief in the guilt of the defendant. Since we find that neither of these contentions warrants reversal, we affirm.²

The Motion to Suppress

Sometime prior to May 1, 1970, the Dallas Region of the Intelligence Division of the Internal Revenue Service was contacted in reference to an S.E.C. investigation of certain individuals arising out of their dealings in a corporation known as United Australian Oil. Pursuant to the request from the S.E.C., an I.R.S. special agent was assigned to this investigation to determine whether these individuals were using the corporate entity to understate their personal income.

On May 1, 1970, two special agents arrived at appellant's home, presented their credentials to him, and informed him that they were investigating the tax matters of five other individuals associated with United Australian Oil, but not the defendant. At that time, there was no pending investigation of the defendant. The special agents advised appellant that he had the right to decline to answer any questions or to furnish any information to them which he thought might incriminate himself and that he had the right to consult with an attorney before any interview. At that point, the appellant indicated that he did wish to consult with his attorney and in fact called and contacted his attorney's partner at that moment. Having conferred with an attorney, appellant told the agents that he was willing to answer their questions and that if at any point he would like to talk with his attorney he would so advise the special agents. Dawson testified that at this interview the agents applied no psychological or physical pressure to force him to answer questions and that he felt free to leave at any time.

On May 12, 1970, the special agents met with the appellant, his attorney, and his accountant, in the office of his attorney. Prior to the arrival of the appellant, the special agents advised his attorney that they were investigating the income tax matters of other individuals who had worked with the appellant and that they were contacting the appellant as a potential witness. They also advised the attorney, however, that if they determined that the appellant had willfully understated his income, the special agents were under an obligation to recommend prosecution against him.

Thereafter, the special agents recommended a civil audit of appellant's income tax returns. On July 20, 1970, a revenue agent and a special agent interviewed the appellant in his attorney's office with counsel present in reference to civil and possibly criminal tax liability. The special agent gave the appellant Miranda-like warnings and informed the appellant that one of his functions is the investigation of possible criminal tax violations.³

Appellant does not contend that his motion to suppress should have been granted because the special agents' failure to give full Miranda warnings constituted a violation of his Fifth Amendment right against self-incrimination, a contention rejected previously by this and eight other circuits which have faced the question.⁴ Rather, he contends that evidence was obtained from him during the May 1970 interviews by deception and trickery in violation of the Fourth and Fifth Amendments and that he was denied due process because the agents failed to follow established I.R.S. procedures requiring Miranda-like warnings in these circumstances.

Before this court will find trickery or deceit which vitiates proceedings below, there must be acts by the agents which materially misrepresent the nature of the inquiry, the record must disclose some affirmative misrepresentation, and this showing must be clear and convincing. United States v. Tonahill, 5th Cir. 1970, 430 F.2d 1042, 1044-1045. The agents did not say or indicate in any way that their investigation was not criminal or that there was no possibility of a criminal prosecution. Their statement to the appellant at the initial interview that they were investigating the tax matters of other individuals was not an affirmative and material misrepresentation since the record indicates that the appellant was not a principal in the investigation at that time. Nevertheless, they advised appellant at their very first meeting that he had the right to refuse to answer any questions or to produce any information which he thought incriminating and that he had the right to counsel, a right which appellant exercised from the start. It strains our credulity to believe that the appellant, an experienced businessman, could have been tricked or deceived under such circumstances. We cannot say on this record that there was a material misrepresentation which clearly and convincingly shows deceit. In this contention, the appellant has failed to meet his burden. United States v. Prudden, supra; United States v. Tonahill, supra.

Appellant's final line of defense is that his motion to suppress should have been granted because an agency of the government must scrupulously observe rules, regulations, or procedures which it has established and that when it fails to do so, its action is no longer consistent with due process, citing United States v. Heffner, 4th Cir. 1969, 420 F.2d 809, and United States v. Leahey, 1st Cir. 1970, 434 F.2d 7. It is unnecessary for this court to decide the question thus posed for we find from the facts recited earlier that the special agents substantially complied with both IRS News Releases Nos. 897 and 949. Literal compliance is not required.⁵ United States v. Mathews, 5th Cir. 1972, 464 F.2d 1268, 1270. Thus the motion to suppress was properly denied.

Prosecutorial Comment

In his closing argument to the jury, the prosecutor ended his remarks with the following comment :

. . . It will be your verdict, Ladies and Gentlemen, but I wish it was mine.

Defense counsel interposed no objection at trial. Thus we cannot reverse unless the prosecutor's remark constituted "plain error," an obvious error affecting substantial rights. Dupoint v. United States, 5th Cir. 1967, 388 F.2d 39, 45. And we must view that remark in the context of the entire record. Sykes v. United States, 5th Cir. 1966, 373 F.2d 607, 612.

Appellant directs our attention to the Code of Professional Responsibility adopted by the American Bar Association which reads in part:

DR 7-106(C) In appearing in his professional capacity before a tribunal, a lawyer shall not :

* * * * * *

(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused ; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.⁶

The language of the prosecutor was surely an unnecessary rhetorical flourish and was probably an insinuation that the defendant was guilty. But, while we do not encourage such language, this court has consistently held that a prosecutor may express his belief in the guilt of a defendant if such belief is based solely on the evidence introduced and if the jury is not led to believe that other evidence, unavailable to them, justifies that belief. McMillian v. United States, 5th Cir. 1966, 363 F.2d 165; United States v. Martinez, 5th Cir. 1972, 466 F.2d 679. There is absolutely no indication in the record that the prosecutor attempted to lay the inference that the government held "other evidence." There is likewise no indication that the prosecutor was relying on anything but the evidence introduced.

We are especially mindful of the heavy responsibility imposed on government prosecutors to conduct criminal trials with an acute sense of fairness and justice.⁷ Even with that strict duty in mind, however, it is clear from the record that the prosecutor's comment does not constitute plain error.

Appellant's reliance on Handford v. United States, 5th Cir. 1958, 249 F.2d 295, is misplaced. In that case, the defendant was convicted of illegal possession of non-tax-paid whiskey in violation of 26...