United States v. DeVaughn, Crim. No. K-75-0112.

• Decision Date: 26 March 1976
• Docket Number: Crim. No. K-75-0112.
• Parties: UNITED STATES of America v. John A. DeVAUGHN.
• Court: U.S. District Court — District of Maryland

414 F. Supp. 774

UNITED STATES of America v. John A. DeVAUGHN.

Crim. No. K-75-0112.

United States District Court, D. Maryland.

March 26, 1976.

COPYRIGHT MATERIAL OMITTED

Jervis S. Finney, U. S. Atty., Herbert Better and Jeffrey S. White, Asst. U. S. Attys., D.Md., Baltimore, Md., for plaintiff.

Peter G. Angelos, Stephen B. Caplis and Jack Rubin, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.^*

The defendant, John A. DeVaughn, is indicted in this case under thirty counts charging, inter alia, extortions under 18 U.S.C. § 1951, income tax violations under 26 U.S.C. § 7201 and § 7206(1), and perjuries under 18 U.S.C. § 1621. Three counts, namely, Counts 8, 9 and 10, pertain to charges pursuant to 18 U.S.C. § 1621. The defendant has moved to quash those counts of the indictment, and in the alternative to suppress the use by the Government of a transcript of a question and answer proceeding at which defendant made certain statements upon which those latter charges are based.

On May 24, 1973, the defendant DeVaughn¹ and his wife, Carolyn M. DeVaughn, in the status of taxpayers, were asked to come to the office of the Intelligence Division, Internal Revenue Service (hereinafter IRS), Baltimore, Maryland. At that time, questions were asked by a Special Agent of the IRS and answers were given by both Mr. and Mrs. DeVaughn. The interview was recorded. Both taxpayers were represented by counsel who was present throughout the question and answer proceeding. This Court has previously determined, as set forth orally on the record in a pre-trial proceeding, that the defendants were appropriately advised of their "Miranda"-type rights. Neither Mr. nor Mrs. DeVaughn during or subsequent to the question and answer proceeding requested the opportunity to examine or to correct the transcript of that proceeding.

At the time of the said proceeding on May 24, 1973, there were in force and effect the following provisions of the Handbook for Special Agents utilized by the IRS:

246.541(1)(j)—Offer to allow subject to make any statement for the record, and, if advisable, an opportunity to examine and sign the transcript.

246.6(1)—Review and corrections—Every record of an interview should be carefully reviewed for any typographical errors, and for accuracy of context. If the statement is to be examined by the subject, he may be permitted to correct typographical errors or to make minor modifications of his testimony. The subject should never be permitted to alter the record, or delete any of his testimony. He may, however, submit an affidavit or give testimony modifying his original statements. 246.6(3)—Persons entitled to copies— Upon request, a copy of an affidavit or transcript of a question and answer statement will be furnished a witness promptly, except in circumstances deemed by the Regional Commissioner to necessitate temporarily withholding a copy.

Additionally, at that time there was in force and effect the following policy statement of the Commissioner of Internal Revenue:

P-9-31—

Upon request, a copy of an affidavit or transcript of a question and answer statement will be furnished a witness promptly, except in circumstances deemed by the Regional Commissioner to necessitate temporarily withholding a copy.

Defendant's primary contention herein with regard to the above-cited provisions of the Handbook and the Policy Statement is that those provisions required the IRS specifically to inform the DeVaughns in May 1973, as taxpayers who had been subjected to a question and answer proceeding, that each of them had the right to examine and correct the transcript thereof. The regulations, on their face, do not themselves so provide.² Defendant has secondarily taken the position that as a matter of practice and policy the IRS in May 1973, and thereafter, if not before, did in many cases inform a taxpayer of his right to see his transcript and correct it. This Court has held an evidentiary hearing with regard to that latter contention and has made findings on the record which, in the opinion of this Court, have called upon and continue to call upon this Court to find and to hold that the IRS had no such uniform and customary policy and that it did not discriminate against or treat in an unequal or unfair manner the defendant as a taxpayer as opposed to other taxpayers.

Defendant's third line of contention is that the failure of IRS officials to publish in the Federal Register any of the above referenced provisions of the Handbook or Policy Statement, and/or to make said documents available to the public on or before May 24, 1973, was violative of the provisions of the Federal Register Act and of the Freedom of Information Act.

The Federal Register Act, 44 U.S.C. § 1501 et seq., provides, in pertinent part:

(a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress. There shall be published in the Federal Register—

(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof;

(2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and

(3) documents or classes of documents that may be required so to be published by Act of Congress.

For the purposes of this chapter every document or order which prescribes a penalty has general applicability and legal effect.

44 U.S.C. § 1505.

5 U.S.C. § 552, the Freedom of Information Act, provided, on May 24, 1973, in pertinent part:³

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—

(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and

(C) administrative staff manuals and instructions to staff that affect a member of the public;

unless the materials are promptly published and copies offered for sale. * *

(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. Except as to causes the court considers of greater importance, proceedings before the district court, as authorized by this paragraph, take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way.

* * * * * *

(b) This section does not apply to matters that are—

(1) * * *

(2) related solely to the internal personnel rules and practices of an agency;

(3)-(9) * * *

(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

On or shortly after December 28, 1973, Policy Statement P-9-31 was placed in the Freedom of Information Reading Room of the IRS. On November 13, 1974, the IRS Handbook for Special Agents, which Handbook included sections 246.541:(1)(j), 246.6:(1), and 246.6:(3), was transmitted to the Director of the Public Affairs Division of the IRS for placement in the said Reading Room. At no time have the said Policy Statement or the said sections of the...