United States v. Mathews, 71-3158.

• Decision Date: 24 August 1972
• Docket Number: No. 71-3158.,71-3158.
• Citation: 464 F.2d 1268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay E. MATHEWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 1268 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Jay E. MATHEWS, Defendant-Appellant.

No. 71-3158.

United States Court of Appeals, Fifth Circuit.

August 2, 1972.

Rehearing Denied August 24, 1972.

Lawrence E. Hoffman, Hoffman & St. Jean, Miami Beach, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Richard B. Buhrman, John P. Burke, Attys., Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before WISDOM and INGRAHAM, Circuit Judges, and BOOTLE, District Judge.

PER CURIAM:

Mathews appeals from his conviction for having wilfully attempted to evade income taxes due and owing to the United States for the calender years 1964, 1965 and 1966, all in violation of 26 U.S.C. § 7201. We affirm.

Defendant contends that the trial court erred in not granting his motion to suppress statements made by him to a special agent of the Internal Revenue Service. As grounds for the motion defendant states that prior to the interviews during which the statements were made, the agent did not give complete Miranda warnings as, defendant argues, were required by IRS News Release No. 897, dated October 3, 1967. That release, recognizing that it went "far beyond most legal requirements to assure that persons are advised of their Constitutional rights," provided in pertinent part that:

"On initial contact with a taxpayer, IRS Special Agents are instructed to produce their credentials and state: `As a special agent, I have the function of investigating the possibility of criminal tax fraud.\'

"If the potential criminal aspects of the matter are not resolved by preliminary inquiries and further investigation becomes necessary, the Special Agent is required to advise the taxpayer of his Constitutional rights to remain silent and to retain counsel."¹

The defendant argues that the motion to suppress should have been granted because an agency of the government must scrupulously observe rules, regulations, or procedures which it has established and that when if fails to do so, its action cannot stand and courts will strike it down, citing: United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), and United States v. Leahey, 434 F.2d 7 (1 Cir. 1970). It is unnecessary for this court to decide the question thus posed for we find that the revenue agent substantially complied with both News Releases, Nos. 897 and 949. Literal compliance is not required.

Prior to the initial interview the special agent presented his credentials to defendant, telling him that he was a special agent with the Intelligence Division of the Internal Revenue Service and "that we (another agent was also present) were more or less in the criminal or fraudulent division of the Internal Revenue Service." The agent further advised defendant "that anything he said could be used against him; that he had a right to an attorney; that he...