United States v. Tonahill, 29426 Summary Calendar.
| Decision Date | 13 August 1970 |
| Docket Number | No. 29426 Summary Calendar.,29426 Summary Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Joe H. TONAHILL, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard B. Hardee, U. S. Atty., Beaumont, Tex., Johnnie M. Walters, Asst. Atty. Gen., Joseph Howard, Lee A. Jackson, Robert H. Purl, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
Sander Shapiro, Donald S. Thomas, Clark, Thomas, Harris, Denius & Winters, Austin, Tex., Gilbert T. Adams, John G. Tucker, Beaumont, Tex., for defendant-appellee.
Before GOLDBERG, DYER and SIMPSON, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied August 13, 1970.
The defendant was charged with three counts of willfully attempting to evade and defeat his individual income tax for the years 1960 through 1962 in violation of Section 7201 of the Internal Revenue Code of 1954. He moved to suppress from evidence oral statements he had made to treasury agents and documentary evidence seized by them, claiming that the evidence was illegally obtained because Miranda warnings were never given to him and because the agents induced him to furnish the evidence by fraud and deceit by misleading him into thinking that there would be no criminal charges against him. The District Court granted this motion and the Government has appealed. Finding this case controlled by our recent decision in United States v. Prudden, 5 Cir. 1970, 424 F.2d 1021, we reverse and remand.1
The defendant is a criminal attorney in Texas of wide experience and reputation. The investigation began as a civil audit of defendant's business in October, 1962. The Revenue Agent lingered on the case for over a year and during that period formed a suspicion that defendant had violated Section 7201. In March, 1964, he referred the case to the Intelligence Division of Internal Revenue, and the case was assigned to a Special Agent. There was no contact between the Revenue Service and defendant from January, 1964, until September, 1964, when the original investigating Revenue Agent and the Special Agent met with the defendant and his accountant.
The District Judge found that neither defendant nor his accountant knew the significance of the term "Special Agent." However, defendant and his accountant were apprehensive enough (because of the length of time involved in the investigation) to ask the agents on the several occasions when they met, what they were doing, why the audit was taking so long, and whether fraud was involved. The District Judge found that the Agents must have known that the defendant and his accountant did not understand that the audit or investigation was criminal and that, Relying on United States v. Prudden, M.D.Fla.1969, 305 F.Supp. 110, and Goodman v. United States. C.D.Cal.1968, 285 F.Supp. 245, the District Judge found that the Revenue Agents had concealed the nature of the investigation from taxpayer and his accountant and that this amounted to fraud, trickery and deceit on their part. Accordingly, he granted the motion to suppress.2
Prudden was subsequently reversed by this Court and Goodman was distinguished in that opinion on the ground that the taxpayer there "had only a grammar school education and was affirmatively led to believe that the information which he was giving the revenue agents was part of the investigation of another taxpayer," elements not present either in Prudden or in the instant case. 424 F.2d 1021, at p. 1035.
With the legal underpinnings swept away from the District Court's order granting his motion to suppress, the defendant attempts to turn the Fifth Circuit decision in Prudden to his advantage by arguing that, although Prudden approved silence on the part of investigating Revenue Agents, it expressly disapproved affirmative misrepresentations and said there was a duty not to leave unanswered an inquiry where doing so would be intentionally misleading. He argues that the inquiries of himself and his accountant to the Revenue Agents imposed a duty on them to inform him that a criminal investigation was under way and that their answer affirmatively misled them.
We find no distinction between the instant case and Prudden...
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