United States v. Mansfield, 15802.
| Decision Date | 08 September 1967 |
| Docket Number | No. 15802.,15802. |
| Citation | 381 F.2d 961 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clarence E. MANSFIELD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Max A. Rheinstein, Julius Lucius Echeles, Chicago, Ill., Woodrow Hodge, Chicago, Ill., of counsel, for appellant.
Edward V. Hanrahan, U. S. Atty., Richard G. Schultz, Chicago, Ill., John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel, for appellee.
Before KNOCH, SWYGERT and FAIRCHILD, Circuit Judges.
Rehearing Denied September 8, 1967, en banc.
Dr. Clarence E. Mansfield, the defendant-appellant, was found guilty in a trial by the Court sitting without a jury on a four-count indictment charging wilful evasion of income tax through filing false and fraudulent returns for 1957, 1958, 1959 and 1960, in violation of Title 26, U.S.C. § 7201. He was sentenced to serve one year on each count, the sentences to run concurrently.
Dr. Mansfield contends that:
1. the Court erred in denying his motion to suppress books and records made available to Russell Armstrong, an internal revenue agent, who did not advise Dr. Mansfield that he was conducting an investigation which could lead to criminal prosecution for income tax evasion;
2. giving due regard to the defendant's age, long hours of work, inept book-keeping methods, and forgetfulness, the government did not prove the element of wilfulness;
3. the computations of the government were in error and duplicated some figures;
4. full recognition was not given to certain allowable deductions which would decrease the amount of tax.
In November, 1960, Dr. Mansfield had spoken to Gertrude Anderson, a tax technician in the Audit Section of the Internal Revenue Department, respecting his 1959 return. She had warned Dr. Mansfield that an agent might visit him.
John Creen testified that he was a special agent of the Internal Revenue Service; that he and Special Agent Ralph Bergstrom visited the defendant at his combined office and residence in Chicago; that they identified themselves and told him they wanted to speak to him about his income tax return. Dr. Mansfield had replied that he thought the matter was closed at the office, but the agents informed him that the matter had been referred to the special agents' office which looked into these matters to see whether there had been any wilful attempt to evade and defeat taxes, that there was a possibility of criminal prosecution and that Dr. Mansfield did not have to talk to the agents or show them any records.
Later in the same visit, when they asked to see his medical records, the agents again informed the Doctor that he did not have to talk to them or submit any records to them. When asked whether repeated warnings were not unusual, Agent Creen said that the practice varied from time to time pursuant to current court rulings. He testified that Dr. Mansfield said that he understood and that he had nothing to hide; that the Doctor had then instructed an employee of his to give the agents two record books for 1959 which they were allowed to examine in his absence and made available to them an adding machine.
When Dr. Mansfield testified concerning this visit, he said he thought it occurred in January 1961. He also described the records given to the agents as more extensive than the two volumes described by the agents. He testified further that he was given no warnings, that the agents showed him cards identifying them only as from "Internal Revenue" and asked to see his office records, that he had to go out and he had left them at work in his office with his records. He said he later received a bill from Internal Revenue for $10, which he paid, and he considered the matter closed.
On July 2, 1962, Russell Armstrong, an internal revenue agent in the Audit division, was assigned to this case to make the field investigation which was a "joint" investigation for 1957, 1958 and 1959, as he advised Dr. Mansfield when he telephoned him to make an appointment. Dr. Mansfield denied that he was told even that much. Agent Armstrong said he did not explain what a "joint" investigation was, state that he was conducting a criminal investigation in conjunction with the Intelligence Unit of the Bureau of Internal Revenue, or repeat the warnings to which Agent Creen testified.
In a joint investigation a special agent is in charge of the investigation, and some time after the assignment of Agent Armstrong, Special Agent William Sandroff of the Intelligence Unit was also assigned to this investigation.
During July, August and September, 1962, Agent Armstrong made periodic visits to the Doctor's office where he examined a cardboard box of cancelled checks, bank statements, etc., and log books showing income for daily walk-in patients. From time to time he discussed the investigation with Special Agent Sandroff.
At a conference with the special agent assigned to the case prior to William Sandroff, Agent Armstrong said it was decided that it was unnecessary for him to advise Dr. Mansfield of his rights because he had already been so advised by another agent. Dr. Mansfield argues that this was deliberate deceit amounting to subterfuge and misrepresentation and that all evidence obtained by Agent Armstrong ought to have been suppressed.
In the course of oral argument, counsel for the government suggested frankly that agents must sometimes decide whether unnecessary repetition of warnings will not frighten off co-operation which might otherwise be forthcoming. We agree that in this case the tactical decision not to repeat full warnings already given did not render the books and records produced subject to suppression as evidence.
The government observes that Dr. Mansfield made no change in his continued permission for examination of his records even after Agent Sandroff did repeat the prior warnings at the time of his own first interview with Dr. Mansfield in October 1962. This fact is at least equally persuasive of the government's contention, that the Doctor was never misled, as of the defendant's own assertion that the damage was already done and revocation of the permission would have served little purpose. In any event, during the entire investigation, Dr. Mansfield withheld his records regarding personal injury patients with claims for damages. The District Court did not err in denying the motion to suppress. United States v. Spomar, 7 Cir., 1964, 339 F.2d 941, 943, cert. den. 380 U.S. 975, 85 S.Ct. 1336, 14 L.Ed.2d 270, reh. den. 381 U.S. 956, 85 S.Ct. 1800, 14 L.Ed.2d 728; United States v. Achilli, 7 Cir., 1956, 234 F.2d 797, 805-806, affd. 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918.
The defense points out such circumstances as the following:
1. the Doctor's forgetfulness: he couldn't say when testifying whether he was 60 or 61 years old, because he didn't recall the exact year of...
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