United States v. Kessler

• Citation: 474 F.2d 995
• Decision Date: 02 March 1973
• Docket Number: No. 72-1454.,72-1454.
• Parties: UNITED STATES of America and Richard C. Pfeiffer, Special Agent, Internal Revenue Service, Petitioners-Appellees, v. Berry L. KESSLER, Secretary, Brittany Builders, Inc., Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

474 F.2d 995 (1973)

UNITED STATES of America and Richard C. Pfeiffer, Special Agent, Internal Revenue Service, Petitioners-Appellees, v. Berry L. KESSLER, Secretary, Brittany Builders, Inc., Respondent-Appellant.

No. 72-1454.

United States Court of Appeals, Sixth Circuit.

Argued December 1, 1972.

Decided March 2, 1973.

Joseph F. Dillon, Raymond, Fletcher & Dillon, Detroit, Mich., for respondent-appellant.

Charles Anderson, Atty., Tax Div., Dept. of Justice, Washington, D. C., for petitioners-appellees; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., W. Robinson Watters, Asst. U. S. Atty., Columbus, Ohio, of counsel.

Before WEICK, PECK and KENT, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the District Court enforcing an Internal Revenue summons, Title 26 U.S.C. § 7602, requiring the respondent to produce certain books and records of an alleged Ohio corporation.

A brief review of the proceedings in the District Court is appropriate. The petition for enforcement of the summons was filed on September 27, 1971. On the same day an order was issued requiring the respondent to show cause why the summons should not be enforced. After various interim proceedings an order was entered on December 3, 1971, which provided in part:

"For these reasons, it is Ordered that respondents be allowed reasonable discovery of petitioner\'s agents and witnesses prior to the adversary hearing in this cause, * * * and it is Further Ordered that said discovery be completed by December 20, 1971, * * *." App. pgs. 46a & 47a.

Thereafter, and on December 13, 1971, the petitioners filed a motion "For Temporary Suspension of Discovery or Protective Order." On December 15, all counsel appeared in the Court's chambers and had extensive argument as to which Government Agents should be deposed and the timing of the depositions. During the course of the December 15 hearing, the Court said at one point:

"Now, let me return, then, so that there will be no question. I am not determining that Mr. Dillon may not at any time expand these depositions. At the moment, I am going to permit him to take the depositions of Miss Leggett, Mr. Deal and Mr. Pfeiffer * * *." App. pg. 142a.

Later during the same hearing the Court said:

"Well, Mr. Dillon, let me go into this for just a moment. I am satisfied to permit you to take Mr. Pfeiffer\'s deposition twice. Is there any reason why that can\'t be done in just that fashion, that you take two depositions of Pfeiffer, if you so choose, before you take Leggett and Deal?" App. pg. 154a.

The first deposition of Mr. Pfeiffer, Special Agent, Internal Revenue Service, was taken December 23, 1971, and the parties again met with the Court on January 26, 1972. In the period between the taking of Mr. Pfeiffer's deposition and the proceedings in the Court's chambers, on January 26, 1972,...