United States v. Frank, Cr. A. No. 14538.
| Decision Date | 04 January 1956 |
| Docket Number | Cr. A. No. 14538. |
| Citation | 151 F. Supp. 864 |
| Parties | UNITED STATES of America v. Joseph FRANK. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
D. Malcolm Anderson, Jr., U. S. Atty., Pittsburgh, Pa., for plaintiff.
Robert M. Taylor, Philadelphia, Pa., Alexander Cooper, Pittsburgh, Pa., for defendant.
This is a motion and petition to suppress evidence and for the return of property under Fed.R.Crim.P. 41(e), 18 U.S.C.A. in a criminal action for attempted income tax evasion. Defendant contends that the evidence in question relating to his income tax liability was obtained in violation of the fourth and fifth amendments to the federal constitution. A hearing upon the factual questions thus raised was held November 18, 1955, at which time the court heard the testimony of defendant, the Internal Revenue agents who investigated defendant's case, and defendant's tax accountant from whom the revenue agents obtained much of the evidence in question.
Defendant contends that he was deceived by the Internal Revenue agents into turning over and allowing his employees and accountants to turn over his books and records to government agents, and that he was also deceived into allowing himself to be interrogated by them. It need not be doubted that defendant's motion should be granted if defendant's records were obtained through fraud and deceit. Cf. Smith v. United States, 1954, 348 U.S. 147, 150-151, 75 S.Ct. 194, 99 L.Ed. 192; Gouled v. United States, 1921, 255 U.S. 298, 305-306, 41 S.Ct. 261, 65 L.Ed. 647. The evidence, however, fails to sustain defendant's contention that fraud and deceit were practiced by the government agents. No false statements or other representations were made to defendant, his employees, or his accountants, to the effect that only civil liability was contemplated or that the government agents did not suspect or have reason to suspect that there would be grounds for a criminal action against him. Therefore, the court does not pass upon the question whether such representations would constitute fraud or deceit so as to sustain defendant's motion.
Robert Cornell, the Internal Revenue agent who first approached defendant with respect to his tax liability, was at that time a member of the "racket squad" of the Internal Revenue Service. From that fact and from other evidence adduced, it may be inferred that the government agents involved suspected from the beginning that defendant had been engaged in illegal activities possibly resulting in illegal income which had not been reported. Therefore, defendant contends that, in seeking to obtain his records and statements, the agents at the outset should have advised him of his constitutional rights and the possibilities of criminal action, which they admittedly did not do until a substantial amount of the evidence in question had been obtained. Of course, defendant's real grievance does not lie in the failure to give such legal advice, and there is no basis for an assertion that defendant and his accountant were deceived as to points of constitutional or...
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