United States v. Parenti, Crim. No. 23204.

• Decision Date: 31 March 1971
• Docket Number: Crim. No. 23204.
• Citation: 326 F. Supp. 717
• Parties: UNITED STATES of America v. John C. PARENTI.
• Court: U.S. District Court — Eastern District of Pennsylvania

326 F. Supp. 717

UNITED STATES of America v. John C. PARENTI.

Crim. No. 23204.

United States District Court, E. D. Pennsylvania.

March 31, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

L. C. Bechtle, U. S. Atty., Philadelphia, Pa., for plaintiff.

Benjamin R. Donolow, Philadelphia, Pa., for defendant.

OPINION

TROUTMAN, District Judge.

Following an extended trial by jury, the defendant was found guilty of attempting to evade and defeat the payment of his 1961, 1962 and 1963 income taxes in violation of 26 U.S.C. § 7201. The defendant now seeks a judgment of acquittal or, in the alternative, a new trial. In support of his motion, the defendant has submitted an extended brief raising multiple points not all of which are wholly consistent and some of which are partially duplicitous. We shall treat each point seriatim:

I.

The defendant first contends that the Court erred in denying the defendant's motion for inspection and disclosure by the Government of all exculpatory material, information and evidence. Relying heavily upon Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defendant contends that the Court erred "in not requiring that the Government go through its file, and produce any and all exculpatory matter that may exist therein, and give same to the defendant as was requested"¹. He otherwise contends that "* * * a defendant is entitled, as a constitutional right, to have any and all exculpatory material made known to him where such material or witnesses are known to the Government"². In another instance the defendant contends that it was the duty of the Court to require the Government "to expose its entire file" to the Court, "and it was then the duty of the Court to see if there was contained therein any material which could possibly be beneficial to the defendant, and * * * to require that the Government turn over all af this material to the defendant"³.

Apparently, the defendant neither suspects nor knows of the existence of any such "exculpatory material" in the possession of the Government either now or at the time of trial. On the contrary, the Government represented and presently represents that it had and has no exculpatory material or evidence in its possession or control⁴.

The defendant contends that the law relating to deliberate or bad faith suppression of evidence by the Government, of which there is no evidence, or its refusal to honor a proper request to produce, of which there is no evidence, somehow obligates the Government to expose its entire file to the defendant or at least to the Court for inspection and possible delivery to the defendant. The cases do not so hold. Certainly Brady, which involved a charge of murder and, the extra-judicial confession of an accomplice, did not suggest exposure of the Government's entire file. United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763 (1955), likewise a murder charge, involved the suppression of evidence regarding the defendant's state of intoxication. United States ex rel. Butler v. Maroney, 3 Cir., 319 F.2d 622 (1963) involved a statement given by the defendant to the police regarding a struggle between the defendant and the victim at the time of the shooting. While the Brady doctrine has been refined in subsequent decisions, no case suggests that the defendant has the right, or the Court the obligation, to peruse, the Government's file to determine whether exculpatory material or evidence is contained therein. United States v. Keogh, 2 Cir., 391 F.2d 138 (1968); United States v. Miller, 2 Cir., 411 F.2d 825 (1969); Barbee v. Warden, 4 Cir., 331 F.2d 842 (1964); United States v. Manhattan Brush Company, D.C., 38 F.R.D. 4. The interests of justice would not be served by allowing the defendant unlimited access to and perusal of the Government's entire file, especially where, as here, the defendant knows of no exculpatory evidence which has been suppressed and the Government affirmatively represents that it has none.

II.

Using the so-called "net worth method", the Government procured from the defendant's accountant, to whom the Government agents were directed and referred by the defendant, a net worth statement, cash flow sheets, summary sheets and statement. (G-231, 232, 235, 236, 238, 239, 240 and 243.) To the use and admission of these documents, and particularly the net worth statement (G-243) the defendant objects, contending that when the investigation became criminally oriented and focused upon the defendant, he was entitled to the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant concedes⁵ that the present state of the law does not require the Miranda warnings where, as here, there was no "custodial" interrogation. However, he argues that the rationale of Miranda and related cases suggests that the Government owes to an individual who is suspected of income tax evasion some type of warning advice or notice albeit something less than the Miranda warnings. However, all cases relied upon by the defendant involve either active deception by Government officers (or agents) or custodial interrogation. The defendant's contentions have been overwhelmingly rejected by a great majority of the Courts. The basis for such rejection is best stated in the case of United States v. Squeri, 2 Cir., 398 F.2d 785 (1968), where at page 790 the Court said as follows:

"Thus, we reject the view * * * that I. R. S. agents must give the Miranda warnings even though there is no custodial interrogation, if the investigation has reached the accusatory stage * * *. The Fifth Amendment privilege prohibits the government from compelling a person to incriminate himself. It was the compulsive aspect of custodial interrogation, and not the strength or extent of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning. We believe that the presence or absence of compelling pressures, rather than the stage to which the government's investigation has developed, determines whether the Miranda requirements apply to any particular instance of questioning." (Emphasis ours.)

The so-called "focus" test seems to have originated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1963), and was rejected by the Miranda Court which reasoned as follows, 384 U.S. at page 444 (Fn. 4), 86 S.Ct. at page 1612:

"* * * questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way * * *

* * * * * *

"* * * is what we meant in Escobedo when we spoke of an investigation which was focused on an accused * * *". (Emphasis ours.)

In United States v. Jaskiewicz, 3 Cir., 433 F.2d 415 (1970), also an income tax evasion case, the Third Circuit more recently rejected the "focus" test. In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), the taxpayer was in custody on an unrelated charge and the Government sought to apply the "focus" test in determining whether the defendant was entitled to the Miranda warnings. The Court rejected the Government's argument and applied the "custody" test. Likewise, see Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Kohatsu v. United States, 9 Cir., 351 F.2d 898 (1965), cert. denied 384 U.S. 1011, 86 S.Ct. 1915, 16 L.Ed.2d 1017 (1966), rehearing denied 385 U.S. 891, 87 S.Ct. 15, 17 L.Ed.2d 122 (1966). To hold otherwise would violate the clear language of the Miranda court, 384 U.S. at page 477, 86 S.Ct. at page 1629:

"* * * Our decision is not intended to hamper the traditional function of police officers in investigating crime * * * seek(ing) out evidence in the field * * *. Such investigations may include inquiry of persons not under restraint * * *. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present * * *".

The defendant in the instant case, having completed an eighth grade education, was engaged in several businesses and had retained the services of a qualified, able and reputable accountant with whom the Government agents dealt at the direction and request of the defendant. The defendant may safely be designated an "ordinary taxpayer". Therefore, the following language used by the Court in United States v. Sclafani, 2 Cir., 265 F.2d 408, 414, 415 (1959) becomes particularly pertinent:

"A `routine' tax investigation openly commenced as such is devoid of stealth or deceit because the ordinary taxpayer surely knows that there is inherent in it a warning that the government's agents will pursue evidence of misreporting without regard to the shadowy line between avoidance and evasions, mistake and willful omission.

"Moreover, it is unrealistic to suggest that the government could or should keep a taxpayer advised as to the direction in which its necessarily fluctuating investigations lead. The burden on the government would be impossible to discharge in fact, and would serve no useful purpose."

In United States v. Prudden, 5 Cir., 424 F.2d 1021, at page 1033 (1970), the Court said:

"* * * We conclude that mere failure of a revenue agent (be he regular or special) to warn the taxpayer that the investigation may result in criminal charges, absent any acts by the agent which materially misrepresent the nature of the inquiry, do not constitute fraud, deceit and trickery * * *". (Emphasis ours.)

There is no evidence that the nature of the inquiry was misrepresented and no evidence of fraud, trickery or deceit. Absent such acts no obligation was imposed upon the agents to warn the defendant of the possible outcome of the investigation. In Spahr v. United States, 9 Cir. 409 F.2d 1303, at page 1306, the Court said as follows:

"* * * If the agents procured their invitation through guile or fraud, the * * * examination

...