United States v. Lehman

• Citation: 468 F.2d 93
• Decision Date: 30 June 1972
• Docket Number: No. 18332.,18332.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David LEHMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

468 F.2d 93 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. David LEHMAN, Defendant-Appellant.

No. 18332.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 1971.

Decided June 30, 1972.

Rehearing Denied July 18, 1972.

Certiorari Denied October 24, 1972.

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Harvey M. Silets, Theodore A. Sinars, Chicago, Ill., for defendant-appellant; Harris, Burman & Silets, Chicago, Ill., of counsel.

James R. Thompson, U. S. Atty., Robert A. Filpi, Asst. U. S. Atty., William J. Bauer, U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before MAJOR¹ and HASTINGS, Senior Circuit Judges, and PELL, Circuit Judge.

Certiorari Denied October 24, 1972. See 93 S.Ct. 273.

PELL, Circuit Judge.

This is an appeal from a judgment following the conviction by a jury of Dr. David Lehman, an oral surgeon, of violating 26 U.S.C. § 7201.² The four count indictment had charged Lehman with filing false and fraudulent joint income tax returns on behalf of himself and his wife for the years 1962 through 1965. The returns failed to include substantial amounts of cash receipts from Lehman's professional practice. The district court sentenced him to prison for three years on each count, the sentences to run concurrently, and imposed a $5000 fine plus costs.

On this appeal, Lehman raises many objections to his conviction, ranging from the erroneous admission of his confession and certain documents to the invalidity of the sentence levied upon him. The sweep of the defense, both here and at trial, does not negative that Dr. Lehman for the years in question had paid significantly less income tax than he should have if correct returns had been filed.³

I

In January 1966, Lehman received a notice that the Internal Revenue Service was conducting an audit of his tax returns. He called his accountant who told him that the IRS would interview him and that he, the accountant, wished to be present when that interview occurred. The next month, Lehman received and signed a Form 872, extending the statute of limitations on his tax returns. Thereafter, Dr. Lehman, apparently in anticipation of the expected interview, caused the reconstruction of some patient receipts that had been destroyed. He also, in the words of the district court, "read a do-it-yourself article in a dental journal that recommended the self-handling of interviews with Internal Revenue Agents without the participation of auditors or attorneys."

On the morning of June 8, 1966,⁴ a few days after Lehman had read the article, Special Agent Barrett and Revenue Agent Fatten met Dr. Lehman in the parking lot behind his office. They told him their names and titles, presented their credentials for inspection, and informed him they "were going to make an investigation of his income tax returns." The agents had not arranged beforehand with Lehman for an appointment. The doctor said that he had a longstanding golfing date, but he agreed to spend an hour or so with the agents. They waited while Lehman treated two patients. The doctor made no effort to call his accountant at that time nor thereafter until subsequent to the departure of the agents.

The actual interview took place from about 10:30 a. m. until 5:15 p. m. However, the crucial part of the conference occurred in mid-afternoon.

At that time, Agent Barrett told Dr. Lehman that he wanted to see his patient receipt records and asked him to pull a drawer of the patient cards. The two agents then randomly compared some of the patient records with the cash receipts journal. The first card pulled had been properly recorded in the journal. The next card was not reflected in the entries. Barrett asked why it was not, and, when the doctor responded that he did not know, the agent said, "there must be some explanation." The doctor became very nervous, the exchange of remarks was repeated, and Barrett went on to the next card, which also had not been recorded. Dr. Lehman stated that he could not explain the discrepancies.

Barrett then propounded a series of questions directed at uncovering possible reasons for the nonreporting of the receipts: could any of the "girls" in the office have been embezzling from Lehman; could Mrs. Lehman have taken the funds; did the doctor have a drinking problem, a gambling problem, or a drug problem; had he loaned any money; was he involved with "another woman." Dr. Lehman denied each suggestion. He also denied that there was a double set of records.

Agent Barrett noticed that some of the patient cards had an "x" in the upper right hand corner. He proceeded to leaf through the tray, looking for cards so marked. One at a time, he pulled them out and handed them to Agent Fatten to verify their recording. After each card was found to be unrecorded, Barrett asked the doctor why it was not entered. Each time the doctor responded that he did not know. This procedure continued for some ten cards, with the doctor becoming increasingly nervous and perspiring profusely. After the tenth card was examined, Dr. Lehman told the agents not to pull any more cards and asked if he could lie down on a couch in a recovery room.

While for the purpose of this opinion we are assuming that Lehman asked the agents not to pull any more cards, the record is not entirely persuasive that Lehman was in fact ordering a cessation of the examination of the cards as opposed to his merely wanting momentary relief from the exposure of his record situation. Thus, apparently about the time he retired to his couch, he stated with regard to the examination of the records, "I cannot take it at this time."

While Lehman was lying down, Agent Barrett continued to question him about the unreported receipts. The doctor said, "I just don't know what to do" and inquired whether not having the receipts recorded on the books was criminal fraud. The agent replied that it could be if no "plausible excuse or . . . answer" could be found for the failure. Dr. Lehman then asked, "What advice can you give me?", to which the agent said that he could not give him any advice.⁵ However, he suggested that Dr. Lehman could tell him the truth so that they could "get at the root of the trouble." Shortly thereafter, Dr. Lehman arose from the couch and paced up and down the corridor. He questioned Barrett about Dr. Mortimer, a Joliet physician who had been convicted of tax evasion.

Despite the doctor's request that the agents not look at any more cards, Barrett pulled another file drawer and leafed through it. Barrett's testimony was candid as to this matter:

"Along about then I got up and went back to the patient record cards and reached up and pulled out the tray of cards for the letter `A\' and I came back and sat them on the table.

"The doctor said, `Don\'t look at any more of those cards, don\'t look at any more cards.\'

"I said, `Well, why not? Am I going to find more cards that are not recorded in your records?\'

"He said, `I just don\'t know.\'

"I was leafing through the cards and finally took two more out with `X\'s\' on them and we found that these had not been recorded and I went to look for some more and he said, `Please don\'t take any more cards out,\' and with that, I didn\'t take any more cards out of the tray."

A brief lull in the conversation followed. After asking what would happen to him, his family and his business, Dr. Lehman confessed that he had not been recording all his patient receipts. This admission was made between 3 and 4 p. m. He then explained his scheme for not recording a portion of his receipts and indicated that he had not reported in excess of $40,000.⁶

He expressed concern about the matter becoming public. Agent Barrett said that if Lehman cooperated with him, he would not have to make any third party contacts. Thereafter, the doctor agreed to give the agents his books.

At the end of the interview, when the agents had gone to the parking lot to leave, Dr. Lehman called them back to get the books so that they could get started on the audit that night. Lehman said he was glad it was over and thanked the agents for the consideration they had shown him.⁷

II

The conduct of the IRS agents at the June 8th interview was the basis for Dr. Lehman's pretrial motion to suppress. In that motion he alleged that the agents had obtained his oral statements, books and records in violation of his fourth, fifth and sixth amendment rights.

A pretrial hearing lasting more than two days was held to determine the validity of these contentions. In addition, the district court afterwards was provided with legal and factual memoranda. In reaching a decision, the district court, although questioning the necessity, did apply the standard of "beyond a reasonable doubt" to the voluntariness issue.⁸ While "not condoning the acts of the agents," the court concluded that Lehman had voluntarily offered the statements, books and records. As a result of this determination, the materials—which the appellant correctly characterizes as "the keystone of the Government's case"—were submitted to the jury.

In a multi-pronged attack upon the admission of the evidence, Lehman points out that he was not told on June 8 that he was the subject of a criminal fraud investigation⁹ nor that he had the right to remain silent, the right to have an attorney represent him and the right not to produce any books or records that might tend to incriminate him.

Although Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is inapplicable to Lehman's interview,¹⁰ the Supreme Court has cautioned the courts to be aware when reviewing voluntariness in pre-Miranda cases that the failure to advise a defendant "of his right to remain silent or of his right respecting counsel at the outset of interrogation . . . is a significant factor in considering the voluntariness of statements later made." Davis v. North Carolina, 384 U.S. 737,...