Appeal Right
to
7203:
Willful Failure to File Return, Supply Information, or Pay Tax: Appeal,
Right to
[81-2
USTC ¶9494]
United States of America
, Plaintiff-Appellee v. James Doyle
Rob
bins, Defendant-Appellee
(CA-6),
U. S. Court of Appeals, 6th Circuit, No. 81-1121, 4/17/81, Dismissing
the taxpayer's appeal of an unreported District Court order
[Code Sec. 7203 and 28 U. S. C. §1291]
Failure to file income tax returns: Order denying dismissal of
indictment: Appealability.--The Court of Appeals dismissed the
taxpayer's appeal, seeking review of an unreported district court order
denying his motion to dismiss an indictment for failure to file income
tax returns, because the order was not appealable, leaving the appellate
court without jurisdiction.
James
S. Brady, United States Attorney,
Grand Rapids
,
Mich.
49503
, for plaintiff-appellee. James Doyle
Rob
bins, Route 2,
Box
38
, Howard City, Mich. 49329, pro se.
Before
LIVELY, KENNEDY, and MARTIN, Circuit Judges.
This
appeal has been referred to a panel of the court pursuant to Rule 9(a),
Rules of the Sixth Circuit. After examination of the record, this panel
agrees unanimously that oral argument is not needed. Rule 34(a), Federal
Rules of Appellate Procedure.
After
carefully reviewing the district court record, it is determined that
this Court does not possess jurisdiction to review the district court's
order denying defendant's motion to dismiss the indictment charging him
with failure to file income tax returns in violation of 26 U. S. C. §7203.
Applying the Cohen considerations which militated in favor of
appealability in Stack v. Boyle, 342 U. S. 1 (1951) and Abney
v. United States, 431 U. S. 651 (1977), it is apparent that the
district court's judgment is not appealable under 28 U. S. C. §1291 or
under the collateral order doctrine. Cf.
United States
v. MacDonald, 435
U. S.
850 (1978).
It
is, accordingly, ORDERED that this appeal be and hereby is dismissed for
lack of jurisdiction pursuant to Rule 9(d)1, Rules of the Sixth Circuit.
[74-2
USTC ¶9825]Donn VonderAhe and Barbara VonderAhe, Plaintiffs-Appellants
v. Roy H. Howland, et al., Defendants-Appellees
(CA-9),
U. S.
Court of Appeals, 9th Circuit, No. 71-1982, 508 F2d 364, 11/7/74, Rev'g
and rem'g, District Court, 71-1 USTC ¶9315, CA-9. Opinion at 73-1 USTC
¶9333 withdrawn
[Code Secs. 7201 and 7206(1)]
Crimes: Tax evasion: False statements: Evidence: Injunction against:
Constitutional rights: Money damages.--A dentist and his wife
obtained an injunction against the use of any evidence IRS agents seized
from his office and home, except for certain cards and sheets that the
agents had probable cause to believe contained evidence of tax evasion
and false statements. The general search warrants pursuant to which the
searches were executed were overly broad. The plaintiffs' contention
that use of the evidence seized would violate their privilege against
self-incrimination was premature, since no proceeding had yet been
instituted. Moreover, they were entitled to have their claim for money
damages because of the agents' acts adjudicated.
One
concurrence and dissent.
Neil
F. Horton, Johnston, Klein & Horton & Solomon, 833 United Calif.
Bank Bldg., 1330 Broadway, Oakland, Claif., for plaintiffs-appellants.
Crombie J. D. Garrett, Department of Justice,
San Francisco
,
Calif.
, for defendants-appellees.
Before
MOORE, * BARNES and
ELY, Circuit Judges.
MOORE,
Circuit Judge:
Just
after 8:00 A. M., on the morning of June 16, 1970, a group of four
Special Agents of the Internal Revenue Service (IRS) arrived at the
office of Dr. Donn VonderAhe, a dentist practicing in
Fremont
,
California
. Simultaneously, a second group of three agents arrived at the home of
the doctor and his wife, Barbara, in
Newark
,
California
. Each group was armed with a search warrant issued by a United States
Commissioner. The Agents then proceeded to search or, more accurately,
to ransack both office and home and to asport practically every piece of
paper they could lay their hands on.
The
background to this rather extraordinary procedure is best portrayed
somewhat chronologically.
Dr.
VonderAhe (usually referred to herein as the "doctor")
apparently has a successful dental practice. On June 16th his office
consisted of eight rooms and a hallway. He had one or more employees who
kept his patients' records and recorded bills and payments.
The
doctor and his wife, Barbara, filed joint income tax returns. In the
early part of 1969, i.e., between early January and late March, an IRS
Agent (Holmes) made an audit of their 1966 and 1967 income tax returns.
There were made available to him six sets of records for the years in
question: (1) combined cash-receipts-cash-disbursements journal; (2)
bank statements and cancelled checks; (3) savings account passbooks; (4)
daily patient appointments book with amounts charged and amounts
collected; (5) patient cards containing dental information together with
charges and collections; and (6) cash receipts books. Agent Holmes found
that the books and records examined accurately reflected the income
reported, and recommended acceptance of the taxpayers' returns as filed.
This
recommendation was not long to endure because a telephone call from a
former employee, Lynette Bush, to IRS revealed that the doctor during
her period of employment had maintained two sets of records. This former
employee was most specific concerning the records and the location
thereof. She stated that the records of "regular" patients
were recorded on white "Banco" cards; those of
"emergency" patients on yellow sheets--subsequently green
cards. She further disclosed that checks received for services from
patients listed on the yellow sheets or green cards were hand endorsed
by the doctor and cashed by another employee.
In
the office, according to Mrs. Bush and Mrs. Van Order, another former
employee of Dr. VonderAhe, the "emergency" cards were kept in
a portable file cabinet maintained in the "opratory" room,
separate and apart from the other file cabinets (Bush, Aff., June 14,
1970) or, during Van Order's regime, in the third drawer of the cabinets
on the right side of the office.
There
were four "emergency receipt books" during the period of
employee Bush's employment, and three during employee Van Order's
tenure, which were relevant to VonderAhe's allegedly unreported income.
The books in question were described as "approximately one inch
thick with six receipts per page." When filled, they were taken to
the doctor's home.
Agent
Romano was assigned to investigate further. To him it was obvious that
if only the white card income had been disclosed to Agent Holmes, the
doctor's income would have been understated by the amount of the yellow
sheet/green card "emergency" income. At least an investigation
was in order to ascertain whether it had been reported. This suspicion
was strengthened by remarks made by another employee, a Mrs. Comegys,
who told the Agent that she and the doctor had removed the yellow sheets
and green cards from the files when the 1969 audit was pending; that the
doctor had taken these records to his home so that they would not be
available to the Examining Agent; and that the doctor had instructed her
to remain at home on the day of the audit so that she would not give any
"wrong" answers. In addition to information about the cards
and books, Mrs. Comegys stated that she had, in 1968, arranged the
opening of a Swiss bank account for her employer and had deposited a
check for $6,050 therein.
The
Search Warrant
Having
received this information, IRS was alerted to the fact that there
existed previously unexamined yellow sheets and green cards and books in
which entries therefrom had been made. There were various ways by which
these records could have been obtained. The doctor had voluntarily made
available to Agent Holmes all records of income received from his
"regular" patients. Confronted with the knowledge that IRS
knew of the withheld records, the doctor was scarcely in a position to
place the undisclosed records in a different category from the
disclosed. The Agents could have asked for them; they could have
subpoenaed them; or, if they thought that there was danger of
destruction, they could have sought a warrant. The service chose this
last course of action.
In
spite of the fact that the "things" to be seized and the
places to be searched were known to the Service with a high degree of
specificity, the warrants as they were requested and issued were, for
all practical purposes, "general warrants." The property
allegedly concealed was described as: "Fiscal records relating to
the income and expenses of Dr. Donn VonderAhe from his dental practice
and other sources since January 1, 1966, to date, including, but not
limited to dental patient cards, appointment books, combined
appointment-cash receipts books, combined cash receipts and cash
disbursements journals, business ledgers, expense records, bank ledger
sheets and statements, cancelled checks, bank savings account pass
books, records and correspondence relating to the opening of and
deposits and withdrawals from a bank account maintained by said Doctor
at the Banaue Romande in Geneva, Switzerland, plus copies of invoices
and bills sent to patients of the aforesaid Doctor."
The
grounds for search and seizure were stated as: "now and have been
used as a means of committing and constitute evidence of offenses in
violation of the provisions of the Internal Revenue laws; particularly
Sections 7201 and 7206(1) of Title 26 United States Code; and which
further comprise and constitute evidence of offenses committed in
violation of the laws of the United States within the meaning of Section
1001 of Title 18, United States Code."
There
was no allegation in the supporting affidavit of Agent Holmes that he
sought to re-audit the material listed by him as already audited and
reconciled. In the principal affidavit of Agent Romano, he states that
he has "reason to believe that the amount of fees collected from
patients during the years 1966 and 1967 whose names appeared on yellow
information sheets were intentionally segregated by Dr. VonderAhe and
Mrs. Comegys and not made available to Revenue Agent Holmes for the
audit examination of early 1969." Thus, what had been revealed
and what had been concealed had already been made abundantly
clear.
The
Execution of the Warrants The Office
According
to Dr. VonderAhe, at about 8:15 A. M., on June 16, 1970, three
(elsewhere stated as four or five) Treasury Agents forced their way into
his inner office. They apparently took over the premises, and continued
their search until 1:15 P. M. The search necessitated cancellations of
patient appointments because the Agents seized patient cards and records
and virtually were in charge of the office. The doctor alleges that he
was unable to resume his practice for approximately two weeks when most
of the original records were returned.
The
extent of the seizure may be judged by the list ("Document
Receipt") made by the Agents, which consisted of thirty-two pages
of papers and records which were carted away in cartons in a small
truck. By way of brief illustration, the Agents took the contents of the
drawers of the doctor's desk in his private office, including
correspondence relating to the purchase of property in
Bull River
,
Montana
, a U-Haul rental contract, an application for insurance, personal
letters, notes relating to the VonderAhe's planned new home, and
correspondence with an investment advisory service. Hundreds of patient
record cards were taken. The receptionist's desk was also searched.
The
Home
The
warrant enforcement technique employed by the Agents at the home was
quite similar to that used at the office. They forced their way in, made
a room by room search of the premises, searched the contends of Mrs.
VonderAhe's purse and even that of a Mrs. Perez, a visting friend. Items
were seized in an unused bedroom involving the VonderAhe's real estate
and records labeled "New House." Again, over objection, an IRS
Agent forced his way into the VonderAhe's car which was parked in their
garage and searched it. Papers taken from the garage included many
folders of patients' records, "lab slips," etc. Several
cartons of seized material were loaded into a truck and taken away.
The
oral protests of the VonderAhes were quickly followed by legal protests.
From a procedural point of view, Rule 41(e) of the Federal Rules of
Criminal Procedure was unavailable to the doctor because neither he nor
his wife had been indicted and there was no criminal case in being
against them. However, they were well aware of potential civil and
criminal consequences of the alleged concealment of records. They quite
naturally desired to cause these records to be unavailable for use by
the Commissioner or by a Grand Jury. Accordingly, they brought "an
independent civil action prior to indictment pursuant to the Court's
inherent equity power seeking return of property seized and its
suppression as evidence in any subsequent criminal proceedings."
(Applts' Br. p. 14). By this "independent equitable action"
they sought to avoid the appealability question which might have
otherwise arisen. Thus, having invoked the equity powers of the court,
they must abide by this standard. In their complaint, filed July 7,
1970, they sought (1) the return of their books and records; (2) an
injunction against the use of their property, allegedly illegally
seized, in any investigation and prosecution against them; (3) an
injunction against the use of copies or notes made from the material
seized for prosecution purposes; (4) an injunction against contacting
persons or businesses, the names of which were disclosed in the seized
material; (5) the suppression of the property seized as evidence in any
"criminal proceeding" and in any proceeding to determine the
tax liability of the VonderAhes; and (6) a hearing to be held by the
court, prior to the presentation of evidence to a Grand Jury or a
Commissioner, at which the defendants "shall prove that said
evidence was not illegally obtained." By leave of court, the
complaint was amended to assert damages suffered by the disruption to
the doctor's dental practice caused by the Agent's action in the amount
of $15,000.
The
government moved to dismiss the complaint on the grounds that (1) the
United States
had not consented to be sued; (2) the court lacked jurisdiction over the
subject matter; and (3) that the complaint failed to state a claim upon
which relief could be granted.
In
the meantime, the government had photocopied the seized records and
returned the originals.
The
District Court denied the VonderAhes' motion for a preliminary
injunction and granted the government's motion to dismiss. The doctor
and his wife appealed.
Jurisdiction
A
threshold question is posed with respect to our jurisdiction to
entertain this appeal. The government contends that we are without
jurisdiction because the decision of the district did not result in a
final order as required by 28 U. S. C. §1291. We have held that an
order dismissing an action for the return of documents and for the
suppression of evidence is final and appealable when a plaintiff, as
here, seeks recovery of copies and when no criminal action is pending. Goodman
v. United States [66-2 USTC ¶9774], 369 F. 2d 166 (9th Cir. 1966); Selinger
v. Biglar [67-1 USTC ¶9420], 377 F. 2d 542 (9th Cir. 1967). Our
finding of appealability is reinforced by United States v. Ryan
[71-1 USTC ¶9404A], 402
U. S.
530 (1971), in which the Supreme Court said: "We have thus
indicated that review is available immediately of a denial of a motion
for the return of seized property, where there is no criminal
prosecution pending against the movant. See DiBella v.
United States
, supra, at 131-32." 402
U. S.
at 533. Accordingly, we conclude that the order of the court below was
final and that we have appellate jurisdiction under 28
U. S.
C. §1291.
The
Fourth Amendment
Initially,
the search and seizure must be considered within the confines of the
Fourth Amendment. In fact, limitation to consideration of this appeal
within the confines of the Fourth Amendment is suggested by the
taxpayers themselves in arguing (Appellants' Brief, pp. 12, 13) that
"assuming the Court finds probable cause for a search warrant to
exist, the government's showing of probable cause did not justify the
extent of the searches and seizures at bar," and that "the
affidavits only justified the search for the records which the taxpayers
allegedly had withheld, the location of which an employee of the
VonderAhes had described to the Treasury Agents."
The
Fourth Amendment declares the "right of the people to be secure in
their persons, houses, papers and effects" but only against "unreasonable
searches and seizures" (emphasis supplied). Any warrant therefor
shall issue "upon probable cause" and shall describe "the
place to be searched, and the persons or things to be seized." As
to "probable cause," the district court found that "the
affidavits submitted were more than sufficient to provide probable cause
to believe that plaintiffs were violating the income tax laws."
But
the words "probable cause" are not
self-defining--"probable cause" for what? The supporting
affidavits were quite specific in describing the allegedly concealed
property, namely, yellow sheets and green cards. No facts were alleged
which showed probable cause for the issuance of a general warrant. No
charge was made that the books and records submitted to Agent Holmes
were false and that they should be subject to a re-audit. To proceed by
the "warrant" method without first seeking the desired papers
by request or subpoena should be based upon the strongest showing of
necessity but if such drastic procedure is to be availed of, it should
be strictly limited as constitutionally required. Therefore, although
there may have been "probable cause" to search for and seize
the yellow sheets and green cards for 1966 and 1967, there was no
probable cause shown for a seizure of all the doctor's dental books and
records, or his personal and private papers.
In
seeking and executing such a general warrant, the agents themselves must
assume the responsibility for its breadth. They could have restricted it
to the concealed items and thus have avoided the ransacking procedure in
which they, in executing the warrant, indulged.
There
remain for consideration specificity and unreasonableness, issues which
are subject to a similar analysis. Although the District Court noted
that "general warrants which fail to adequately specify the area to
be searched or the items to be seized have historically met with
judicial disapproval," it held that "the warrants were as
specific as practical" and while recognizing their "broad
scope," they were "not overly broad in a constitutional
sense."
What
is "overly broad" cannot be resolved in an abstract or
academic manner but only in relation to the facts, circumstances under,
and the purpose for, which the warrants were issued. The warrants here
were, in effect, general warrants. They sought all fiscal records of the
doctor from January 1, 1966 to date [June 1970] relating to his income
and expenses "but not limited to [books and records enumerated] * *
*." In short, except for the yellow sheets and green cards, this
was the identical material which had been delivered to and examined by
Agent Holmes.
The
Supreme Court has stated that there are certain permissible standards to
be applied in connection with the issuance of search warrants. Thus in Berger
v.
New York
, 388
U. S.
41, 48 (1967), the Court said:
"The
proceeding by search warrant is a drastic one," Sgro v. United
States, 287
U. S.
206, 210, 53 S. Ct. 138, 140, 77 L. Ed. 260 (1932), and must be
carefully circumscribed so as to prevent unauthorized invasions of
"the sanctity of a man's home and privacies of life." Boyd
v. United States, supra, 116
U. S.
616, 630, 6 S. Ct. 524, 532.
And
in Coolidge v.
New Hampshire
, 403
U. S.
443 (1971), the Court said:
The
second, distinct objective is that those searches deemed necessary
should be as limited as possible. Here, the specific evil is the
"general warrant" abhorred by the colonists, and the problem
is not that of intrusion per se, but a general exploratory
rummaging in a person's belongings. [Citations omitted.] The warrant
accomplishes this second objective by requiring a "particular
description" of the things to be seized.
Upon
the information available to it, the government knew exactly what it
needed and wanted and where the records were located. There was no
necessity for a massive re-examination of all records bearing on income
and expenses. Where this the law, the Commissioner, upon finding any
suspicious deficiency, could order a seizure of every such taxpayer's
records upon the mere allegation that the omission or an inaccurate
statement of one item might bespeak inaccuracies as to others which, in
his opinion, necessitates a seizure of all records, at office and home.
Important as it is to enable the government to obtain information to
assure itself of the correct reporting of taxes, it is difficult to
believe that the draftsmen of the Fourth Amendment did not insert
"unreasonable" to avoid just as an in terrorem state as
the Agents created and wreaked here.
Moreover,
just as "unreasonable" can be applied to the breadth of the
warrant, so much the more can it be applied to the manner of execution
because it is the "manner" which, as vividly illustrated by
the facts of this case, can create and constitute the prohibited
invasion. As previously mentioned, the Agents could have sought the
allegedly concealed records by other means. If they had desired to
question the accuracy of patient payments, they could have made a
patient check. All this court have occurred in an orderly way without
the sudden assault causing not only damage to the doctor's finances and
prestige but undoubtedly inconvenience and possibly pain and suffering
to the many patients who could not be treated for weeks due to the
disruption.
The
Fifth Amendment
Appellants
have addressed much of their argument to the point that the use of any
of the seized papers would be a violation of their Fifth Amendment
rights against self-incrimination. The district court held, in answer to
appellants' contention, that such records is seized under a search
warrant, would compel them to incriminate themselves, that "the
requirement that all individuals subject to tax liability keep accurate
financial records" is not sufficiently related to the investigation
of criminal activity to require the protection of the Fifth Amendment.
Two
recent cases are directly apposite to the issue addressed by the
District Court. Hill v. Philpott, 445 F. 2d 144 (7th Cir. 1971), cert.
denied, 404
U. S.
199 (1971). The facts are strikingly similar to those now before us. A
Dr. Hill allegedly kept a set of financial records referred to as
"red letter folders" separate and apart from his regular
patient records. There, as here, disclosure to the IRS came from the
doctor's former employees, who said that they had been instructed by Dr.
Hill to incinerate these particular records if any "taxman"
sought to make an investigation. Pursuant to a search warrant, agents of
the IRS searched both the doctor's office and home, indiscriminatingly
seizing as much material as was seized in this case. No criminal
proceedings were pending against Dr. Hill. Dr. Hill immediately
petitioned for the return of the seized property and its suppression on
the ground of violation of his constitutional rights--particularly under
the Fourth and Fifth Amendments. The district court denied the petition.
On appeal the majority reversed but restricted its opinion to "only
the first contention, which is based on the petitioner's privilege
against self-incrimination." Then followed a lengthy discussion and
review of cases from a Fifth Amendment self-incrimination point of view.
Judge Fairchild in dissent, assuming that the seizure was based on an
"adequately grounded warrant," wrote that
Assuming,
however, that there is a class of papers so intimately confidential and
so much a part of personhood that they ought to enjoy a superlative
privacy and be protected from seizure upon an adequately grounded
warrant, it does not seem to me that the records in question here have
the required character. They appear to have been maintained for business
and professional purposes, with the knowledge and assistance of
employees, and the manner in which they were allegedly kept and used,
made them, in a sense, instrumentalities of the tax evasion offense
claimed.
Hill
v. Philpott, supra, was
followed in point of time by United States v. Blank, 459 F. 2d
383 (1972), in the Sixth Circuit. There the search warrant was executed
on June 3, 1971, gambling records were seized on June 15, 1971, and
indictment was returned and on August 3, 1971, a motion to suppress was
filed. The district court, relying on Philpott, supra, granted
the motion and held the records to be "per se
self-incriminatory." The Court of Appeals vacated the judgment and
remanded the case for further proceedings. That court, in reaching this
result, said that: "No claim is advanced that there has been any
violation of the specific language of the Fourth Amendment" and
that since "the papers are not communicative in nature; that papers
are business records rather than personal and private writings; and that
they are on their face instrumentalities of the crime with which
appellant [Blank] is charged" they were subject to seizure under
Fourth Amendment search warrant procedures and therefore should not have
been suppressed. Blank, supra, at 387. The court rejected
"the rationale which underlies the majority decision of the Seventh
Circuit [Philpott] * * *" and noted Judge Fairchild's
dissent in Philpott wherein he "concerned himself more with
the nature of the evidence under consideration than the method employed
to obtain it" (quoting the portion of Judge Fairchild's opinion
previously quoted herein).
Nevertheless,
it would appear from the Blank opinion that the ultimate decision
as to admissibility or Fifth Amendment protection had to await such
further proof as might be adduced upon a trial. Thus, the court said:
Here,
in fact, we have no way of knowing that the instant records are
connected with the defendant beyond his counsel's statement in the
motion to suppress that they "may be" in his handwriting.
This, however, is an important fact upon which the government must at
trial bear the burden of proof and upon which, for all we know, there
may be strong dispute.
In
our opinion, appellant's Fifth Amendment contention is premature.
Resolution will depend upon facts and developments not before us at this
time. As stated, no civil or criminal proceedings are currently pending.
When, as and if such proceedings are brought, there will be ample
opportunity for the taxpayers to make appropriate objection of Fifth
Amendment grounds as the situation may warrant.
Were
we to attempt to decide the Fifth Amendment
"self-incrimination" problem at this time far more facts would
be needed for its resolution. Did the doctor waive these rights by
showing Agent Holmes all (except the yellow sheets and green cards) his
books? Were the books kept for business purposes with entries made,
possibly not by the doctor, but by third persons, actual declarations by
and against himself? What instructions, if any, did he give to his
employees? What entries, if any, did he personally make? These are but a
few of the many questions which may arise. The records might even be
placed in a "required records" category. The privilege of
practicing a profession and gaining income thereby from the public might
well not carry with it the shield of Fifth Amendment immunity. If so,
both government and appellants will have an opportunity when, as and if
the yellow sheets and green cards are offered in any proceeding,
criminal or civil, to argue the effect of 26 U. S. C. §6001.
Conclusion
The
problem here is one of resolving the equities. The government should not
be benefitted in any forthcoming actions against the VonderAhes, civil
or criminal, by using books and records illegally seized. On the other
hand, the VonderAhes should not benefit from their own acts of
concealment and thus avoid the payment of taxes legally due and also the
possible consequences of illegal concealment. Our equitable powers would
be much distorted were we to hold that the allegedly concealed records
(yellow sheets and green cards) were improperly seized.
The
VonderAhes have asked us to invoke in their favor what has become known
as the "exclusionary rule," i. e., to decree at this time that
all records seized, including yellow sheets and green cards and any
leads therefrom cannot be introduced in any proceeding, civil or
criminal against them. However, if the facts are, as represented, that
the taxpayers by their own wrong, deliberatedly concealed income and
failed to pay taxes thereon, it would seem to be the height of inequity
for the courts to enable them to profit thereby. Using equity as the
standard, the warrants as issued restricted to the yellow sheets and
green cards would have been reasonable; beyond these records they were
too broad. Although the manner of execution was quite unjustified, the
penalty of exclusion which the taxpayers would impose is equally
unjustified. Our present task is to place the government's allegedly
unlawful procedure in obtaining and executing the warrants and the
VonderAhes' allegedly unlawful concealment on the mythical scales of
justice, and observe the balance. Observing this balance (or possibly
imbalance), we believe that justice can best be achieved by reversing
the order of the District Court dismissing the complaint and upon
remand, directing the District Court to grant the injunctive relief
sought by appellants except as to the yellow sheets and green cards,
copies of which the government may retain and use subject, however, to
any all objections thereto, including objections based on the Fifth
Amendment, in any proceeding, civil or criminal, which may be raised by
the VonderAhes.
Insofar
as the complaint seeks money damages because of the Agents' acts, the
serious pecuniary loss caused thereby would appear to bring this case
within the Bivens doctrine. In Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 (1971), the Supreme Court upheld
federal jurisdiction over such a suit and held that money damages may be
recovered for any injuries consequent upon a violation of the Fourth
Amendment by federal officials. Mr. Justice Harlan in his concurring
opinion pointed to the judiciary's "particular responsibility to
assure the vindication of constitutional interests such as are embraced
by the Fourth Amendment." Bivens, supra, at 407.
The
amended complaint seeks damages of $15,000 for the description of the
doctor's practice. Upon the facts set forth, appellants are entitled to
have these issues adjudicated. Therefore, the complaint as amended
should not have been dismissed.
Order
affirmed in part, reversed in part.
*
The Honorable Leonard P. Moore, Senior Circuit Judge for the Second
Circuit, sitting by designation.
Concurring
and Dissenting Opinions
ELY,
Circuit Judge (Concurring in part; Dissenting in part):
I
concur in my Brother Moore's majority opinion insofar as it condemns, on
Fourth Amendment grounds, the overbreadth of the warrant and the
absolutely unreasonable scope of the search. I would go further,
however, and hold in favor of the appellants as to the so-called yellow
sheets and green cards because their seizure, in my opinion, was
thoroughly corrupted by the intolerable process under which the search
and seizure were conducted. Moreover, I do not retreat from the Fifth
Amendment views originally set forth by me and which were originally
endorsed by both Judges Moore and Barnes, 1 I note at
the beginning that I see no irreconcilable conflict between my original
opinion and our court's opinion in United States v. Murray, 492
F. 2d 178 (9th Cir. 1973). In our case, the flagrant abuse of the search
and seizure process necessitated our judicial disapproval. In
Murray
, on the other hand, despite a substantial question as to whethr
a certain address book was testimonial, the seizure of the book was
properly upheld as resulting from a search incident to a lawful arrest.
Because
the original opinion written by me for a unanimous court does not wholly
conflict with the present opinion of Judge Moore, no useful purpose
would be served by now reproducing the whole of my first opinion. That
portion which remains pertinent, and to which I adhere, reads as
follows:
As
we have said, the appellants contend that the searches and seizures of
their books and records violated the privilege against compulsory
self-incrimination under the Fifth Amendment. It is clear that had the
Government attempted to acquire possession of these records and writings
pursuant to a subpoena, appellants would have been privileged under the
Fifth Amendment to refuse their production. Boyd v. United States,
168
U. S.
616 (1886); United States v. Cohen [68-1 USTC ¶9140], 388 F. 2d
464 (9th Cir. 1967); United States v. Judson [63-2 USTC ¶9658],
322 F. 2d 460 (9th Cir. 1963). The District Court, however, ruled that
the use of a warrant, rather than a subpoena, removed "the
impermissible aspect of compulsion" from these seizures. It
reasoned that, under the warrant procedure, appellants were "merely
passive agents not required to do anything that would tend to be
incriminating." No authority was cited for this proposition, but
the reasoning is consistent with that recently adopted by our Brothers
of the Sixth Circuit in United States v. Blank, 459 F. 2d 383,
385 (1972), cert. denied, 409 U. S. 887 (1972).
"We
believe that there is a valid and important distinction between records
sought by subpoena and records sought by search warrant. The subpoena
compels the person receiving it by his own response to identify the
documents delivered as the ones described in the subpoena. The search
warrant involves no such element of compulsion upon an actual or
potential defendant."
See
8 J. Wigmore, Evidence §2264 (McNaughton rev. 1961).
We
cannot accept the substantive merit of this approach. One need ask only
what would happen if the addressee of a warrant refused to allow the
search to be conducted to appreciate the magnitude of compulsion
produced by a search warrant. Without the slightest hesitation his doors
would be broken down, he would be placed under arrest, and the desired
material would be seized. How the imminence of such force can be
considered as anything other than compulsion escapes us. In this
respect, we are in full agreement with the result reached by our
Brothers of the Seventh Circuit as expressed in Hill v. Philpott,
445 F. 2d 144, 149 (7th Cir. 1971); cert. denied, 404 U. S. 991
(1971), cited with approval in Couch v. United States [73-1 USTC
¶9159], 409 U. S. 322, 330 (1973):
The
facts in Hill are strikingly similar to those at bar. The
Affidavits in support of the warrant alleged that a doctor maintained
two sets of financial records for two categories of patients and that he
had instructed an employee to destroy one set "if any tax man
visited the office to make an investigation. . . ." 445 F. 2d at
145. The Government, as in the case at bar, argued that because the
records were obtained by a search warrant, the only question was whether
the warrant complied with the Fourth Amendment.
"In
short, the government takes the position that once the validity of a
search is established under the Fourth Amendment--and by that fact
alone--the Fifth Amendment is not and cannot be violated."
445
F. 2d at 146.
Relying
on Boyd v.
United States
, infra, and Gouled v.
United States
, supra, the Hill court rejected the Government's argument.
It read Warden v. Hayden, 387 U. S. 294 (1967), as overruling
only Gouled's fourth amendment ("mere evidence rule")
pronouncements, leaving intact the Fifth Amendment holding that personal
books and records are privileged against seizure by search warrant. In
such a situation, the Hill court pointed out, the accused remains
the unwilling source of the evidence:
"The
jury knows the books and records belong to the defendant and the entries
he has made therein speak against him as clearly as his own voice. This
seems particularly true in a prosecution for violation of the income tax
laws."
445
F. 2d at 149.
Further,
the suggestion that the presence of a search warrant, in and of itself,
removes the impermissible aspects of compulsion, is particularly
untenable in light of several Supreme Court cases describing the form of
compulsion covered under the Fifth Amendment. In Boyd v. United
States, 116
U. S.
616 (1886), the Supreme Court considered a customs statute that required
the defendant to produce certain documents upon pain of an adverse
finding of fact if he failed to obey. The Supreme Court, considering the
Fourth and Fifth Amendments as "almost running into each
other," struck down the statute:
"It
is true that certain aggravating incidents of actual search and seizure,
such as forcible entry into a man's house and searching amongst his
papers are wanting, and to this extent the proceeding under the act of
1874 is a mitigation of that which was authorized by the former acts;
but it accomplishes the substantial object of those acts in forcing from
a party evidence against himself. It is our opinion, therefore, that a
compulsory production of a man's private papers to establish a criminal
charge against him, or to forfeit his property, is within the scope of
the Fourth Amendment to the Constitution, in all cases in which a search
and seizure would be; because it is a material ingredient, and effects
the sole object and purpose of search and seizure."
116
U. S.
at 622.
Thus
in Boyd, the Court found a procedure requiring the production of
private books and papers pursuant to a subpoena unconstitutionally
compelling despite the fact that ". . . the proceeding in question
is divested of many of the aggravating incidents of actual search and
seizure. . . ." The Court said:
"It
may be that it is the obnoxious thing in its mildest and least repulsive
form; but illegitimate and unconstitutional practices get their first
footing in that way, namely, by silent approaches and slight deviations
from legal modes of procedure."
Id.
at 635. See Hale v. Henkel, 201
U. S.
43, 76 (1906) ("the substance of the offense is the compulsory
production of private papers, whether under a search warrant or a subpoena
duces tecum, against which the person, be he individual or
corporation, is entitled to protection.")
At
the very least, Boyd suggests that a search for private books and
papers is an even more egregious form of compulsion than that struck
down under a subpoena procedure. That, of course, is the antithesis of
the position taken by the District Court in this case. See also Wright,
Federal Practice and Procedure: Criminal, §665, n. 88 (1969) ("It
is much less clear that such a distinction [between the compulsion
produced by a subpoena and that produced by a search warrant] would be
sound, or fully consistent with the interest protected by the privilege
against self-incrimination"); Lipton, Search Warrant in Tax
Frand Investigations, 56 A. B. A. J. 941, 943 (1970) ("It is
unthinkable that the courts will grant carte blanche for the
seizure of documents that could not be reached by an
admin
istrative or judicial subpoena").
Similarly,
in Schmerber v. California, 384
U. S.
757, 761 (1965) (citing Boyd with approval), petitioner was
hospitalized following an automobile accident. A police officer smelled
liquor on petitioner's breath and noticing other symptoms of drunkenness
placed him under arrest. After informing petitioner of his rights, the
officer directed the physician to take a blood sample despite
petitioner's refusal, on advice of counsel, to consent thereto. A report
of the chemical analysis of the blood, which indicated intoxication, was
admitted into evidence over objection. On appeal, the Supreme Court
upheld the admission of the evidence but said:
"It
could not be denied that in requiring petitioner to submit to the
withdrawal and chemical analysis of his blood the State compelled him to
submit to an attempt to discover evidence that might be used to
prosecute him for a criminal offense. He submitted only after the police
officer rejected his objection and directed the physician to proceed.
The officer's direction to the physician to
admin
ister the test over petitioner's objection constituted compulsion for
the purposes of the privilege."
384
U. S.
at 621. See Gilbert v. California, 388 U. S. 266-67 (1967)
(holding that the taking of handwriting exemplars is a form of
compulsion within the meaning of the Fifth Amendment, but that, "A
mere handwriting exemplar, in contrast to the content of what is
written, like the voice or body itself, is an identifying physical
characteristic outside its protection" because it is not the kind
of "communication" covered by the privilege) (emphasis added.)
Following
the reasoning of the court below, and that of the Sixth Circuit, one
would have expected the Court in Schmerber to hold that there was
no "compulsion" involved in the taking of the blood sample.
Schmerber was in no way forced to make "assurance, compelled as an
incident of the process, that the articles produced are the ones
demanded." Wigmore, supra §2264 at 380. Further, the nature
of the blood sample taken was such that "the proof of [its]
authenticity, or other circumstances affecting [it], may and must be
made by the testimony of other persons, without any employment of the
accused's oath or testimonial responsibility."
Id.
However, the
Schmerber Court
, as noted above, expressly held that the taking of the blood sample
over defendant's objection was "compulsion" within the meaning
of the Fifth Amendment.
In
the present case, as in Schmerber and Gilbert, appellants
were "passive agents" to these searches through no choice of
their own. They repeatedly objected to the searches of their home and
office, specifically claiming their constitutional rights, including
their fifth amendment privilege. Thus, the search warrants employed in
this instance were coercive tools, and it is totally unrealistic to say
that they did not involve "compulsion."
Compulsion
alone, however, is not enough to constitute a violation of the Fifth
Amendment. As noted in Schmerber, 384
U. S.
at 764, "compulsion to submit to fingerprinting, photographing, or
measurements, to write or speak for identification, to appear in court,
to stand, to assume a stance, to walk, or to make a particular
gesture," is not prohibited under the Fifth Amendment:
"The
distinction which has emerged, often expressed in different ways, is
that the privilege is a bar against compelling 'communications' or
'testimony,' but that compulsion which makes a suspect or accused the
source of 'real or physical evidence' does not violate it."
Id.
Thus, our inquiry must narrow to a determination of whether the papers,
books and records seized in the instant case were
"testimonial" or "communicative" in nature such that
the accused were forced to bear witness against themselves.
In
Schmerber, the Court expressly noted that ". . . compulsion
of responses which are also communications, for example, compliance with
a subpoena to produce one's papers . . .," is within the fifth's
privilege. 384
U. S.
at 764. One year after Schmerber was decided, the Court overruled
the long criticized "mere evidence" rule of Gouled v.
United States, 255 U. S. 297 (1921), and upheld the admission of
certain evidence despite petitioner's Fifth Amendment claims. Warden
v. Hayden, 387
U. S.
294 (1967); see also 18
U. S.
C. §3103(a) (authorizing the issuance of a warrant "to search for
and seize any property that constitutes evidence of a criminal offense
in violation of the laws of the
United States
"). The objects seized in Hayden were trousers, a jacket and
a cap, items previously immune from seizure under Gouled. The
Court's opinion, however, contained a significant caveat:
"The
items of clothing involved in this case are not 'testimonial' or
'communicative' in nature, and their introduction therefore did not
compel respondent to become a witness against himself in violation of
the Fifth Amendment. Schmerber v. State of
California
, 384
U. S.
757. This case thus does not require that we consider whether there are
items of evidential value whose very nature precludes them from being
the object of a reasonable search and seizure."
387
U. S.
at 302-03.
See note accompanying the recent amendments to the Federal Rules of
Criminal Procedure, 48 F. R. D. 629-30 (1970) (disclaiming any intention
to abrogate the protection of the Fifth Amendment against
self-incrimination and stating that, "items which are solely
'testimonial' or 'communicative' in nature might well be inadmissible on
those grounds").
Further
light was cast upon the meaning of the phrases "testimonial"
and "communicative" in Schmerber when the Court noted,
in dictum, that the results of a compelled lie detector test would be
"testimonial" for the purposes of the Fifth Amendment,
notwithstanding the fact that such tests are seemingly directed towards
the elicitation of "physical evidence." 384
U. S.
at 764. In contrast, California v. Byers, 402 U. S. 424, 431-33
(1971), held that it would be an "extravagant" extension of
the privilege to apply the Fifth Amendment to a California statute
declaring it illegal for a motorist to fail to stop after an accident
and to furnish his name and address. The Court held that the requirement
of stopping is no more testimonial than requiring a person in custody to
speak or walk and that the disclosure requirement is an essentially
neutral, non-testimonial act. See United States v. Wade, 388 U.
S. 218, 222-23 (1967) (requiring an accused to exhibit his person to
prosecution witnesses at a police lineup involved ". . . no
compulsion of . . . testimonial significance"); Gilbert v.
California, 388 U. S. 263, 266-67 (1967) ("A mere handwriting
exemplar, in contrast to the content of what is written, like the
voice or body itself, is an identifying physical characteristic outside
its [Fifth Amendment] protection. . . .") (emphasis added).
In
the case here, the books and writings seized under warrant included
items on which appellants alone, rather than any third party, made
entries. The 30 page description in the government's inventory of seized
items runs the gamut from personal checks to insurance applications, and
includes almost anything that had writing on it. The list includes, for
example: a map of Bull River, Sanders, Montana, several personal
letters, approximately 67 pages of "miscellaneous notes,"
business cards, sheets of paper with names but no dates, three pages of
survey information on Montana property, miscellaneous sheets of paper
"with figures appearing," a rental contract from U-Haul,
appointment books, an envelope containing "employment forms,"
"letters of correspondents relative to the purchase of
property," "design estimates."
The
scope of these searches went well beyond a perscrutation for "real
or physical evidence." The Internal Revenue Agents were obviously
looking for writings that would bespeak appellants' guilt, and, indeed,
they may have found them. The numerous sheets of notes, figures and
estimates, and the several letters of correspondence are the kind of
"communicative act or writing" that would reflect the author's
personal thoughts, opinions and conclusions. Schmerber v. California,
supra.
Finally,
the testimonial compulsion levied against these appellants violated that
"private inner sanctum of individual feeling and thought"
which the Fifth Amendment seeks to protect. Couch v. United States
[73-1 USTC ¶9159], 409
U. S.
322, 327 (1973). The subject records were clearly in the possession, not
to mention the ownership, of the appellants at the time of their seizure
and "possession bears the closest relationship to the personal
compulsion forbidden by the Fifth Amendment.
Id.
at 331. Thus, these records were protected from seizure by the Fifth
Amendment.
I
would reverse the District Court's Order in its entirety, directing that
the injunction sought by the appellants be granted.
1
That opinion, which has now been withdrawn, was originally issued in
slip form on March 26, 1973. Its official publication was withheld
pending our reconsideration, but it was unofficially published at 31
AFTR 2d 73-1075 (1973).
My
original opinion's resolution of the Fifth Amendment issue was approved
by at least two law review commentators. See Filler, Protesting Your
Client: Advice to Accountants and Attorneys, 2 Hofstra L. Rev. 238,
259 n. 578 (1974); Comment, Use of the Summons, Intervention, and
Constitutional Rights, 2 Hofstra L. Rev. 135, 177-8 (1974).
I
disagree with Judge Moore's position that there is a need for additional
development of further factual elements before the need for the
application of the Fifth Amendment arises. My reasons, I think, can be
sufficiently discerned from the substance of my comments. If the
so-called yellow sheets and green cards were not prepared by the doctor
himself, it is obvious that any notations thereon could only have been
placed by his amanuensis.
[73-1
USTC ¶9470]
United States of America
, Appellant v. Albert Goldstein, Alfred Caesar, Sam Jacobson,
Murray
Geller and
Rob
ert Wisch, Appellees
(CA-2),
U. S. Court of Appeals, 2nd Circuit, Docket No. 73-1165, 479 F2d 1061,
5/25/73, Reversing and remanding unreported order of 1/8/73 subsequent
to Dist. Ct., 73-1 USTC ¶9163
[Code Secs. 7203 and 7402]
Court of Appeals: Government's right to appeal: Double jeopardy.--Appeal
lay to Court of Appeals where District Court erroneously dismissed a
grand jury indictment on the ground that a mistrial declared in a prior
trial on the same indictment was unwarranted, and that reprosecution
would violate the double jeopardy clause of the fifth amendment.
Rob
ert A. Morse, United States Attorney, L.
Kevin Sheridan, Assistant United States Attorney, Brooklyn, N. Y.,
Michael B. Pollack, Dennis E. Dillon, Department of Justice, Washington,
D. C. 20530, for appellant. James M. La Rossa, Joseph E. Brill, Thomas
J. O'Brien, Kostelanetz & Ritholz, 52 Wall. St., New York, N. Y.,
for Goldstein, Caesar, Jacobson, and Geller, appellees, Jerome Lewis, H.
Elliot Wales on brief, 299 Broadway, New York, N. Y., for Wisch,
appellee.
Before
CLARK, Associate Judge, * WATERMAN and
FEINBERG, Circuit Judges.
[Order]
FEINBERG,
Circuit Judge:
The
United States seeks to appeal from a pre-trial order of the United
States District Court [73-1 USTC ¶9163] for the Eastern District of New
York, Jack B. Weinstein, J., dismissing an indictment against appellees
on the ground that a mistrial declared in a prior trial on the same
indictment was unwarranted, and that reprosecution would violate the
double jeopardy clause of the fifth amendment. Under the recently
amended Criminal Appeals Act, 18
U. S.
C. A. §3731 (1972-73 Supp.), the Government may appeal from an
order
of a district court dismissing an indictment or information as to any
one or more counts, except that no appeal shall lie where the double
jeopardy clause of the United States Constitution prohibits further
prosecution.
We
thus must answer two questions. First, does the language of section 3731
prevent an appeal by the Government? And second, was Judge Weinstein
correct in holding that the double jeopardy clause barred a second
trial? For reasons which follow, we conclude that an appeal does lie to
this court from the order below, and, further, that the indictment was
erroneously dismissed. Accordingly, we reverse and remand for further
appropriate proceedings.
[Facts]
I.
On January 7, 1972, appellees were indicted in the Eastern District of
New York, on 20 counts charging various violations of federal internal
revenue laws, 26 U. S. C. §§ 7201, 7206, and conspiracy to violate
those provisions. 1 Trial
commenced on September 5, 1972, before Judge Orrin G. Judd. Jury
deliberation began on the morning of October 5. 2 The jury was
excused for the evening after failing to reach a verdict with respect to
any defendant on any count. That evening, Judge Judd had a brief
exchange wit Juror No. 2 (Mrs. Rappaport), which he related to counsel
after jury deliberation had recommenced the following morning. As he
explained it, she had asked to see him "on a personal matter."
The judge had observed her "sniffling" and "quite ill at
ease during the day" and he "started commiserating with her on
her illness." She replied that she was "all right" but
just felt "incapable."
At
11:30 A. M. on this second--and last--day of deliberation, the jury
requested and received a re-reading of the charge. At 3:10, the jury
sent a note to the judge stating it was
apparently
not able to reach a unanimous verdict on any count except number 20.
Please advise.
In
discussion with counsel, the judge indicated that he intended to tell
the jury to deliberate "another couple of hours," but doubted
that he would ask them to come back on Tuesday. 3 Defense
counsel first objected to
your
Honor saying that they should be returned for deliberation for a couple
of more hours because it may well be that what that amounts to is an
incarceration against their will
And
then pointed out with respect to requiring the jury's return on Tuesday:
There
would be Friday night, all day Saturday, all day Sunday, all day Monday.
So there would be three full days and four nights of separation during
which it would be impossible to avoid pollution of the jury. . . .
Judge
Judd then called the jury back into the courtroom and told them that he
would ask them "to go back and consider further and tell me whether
further deliberation would be useful," although he pointed out that
he did not intend to have them stay "late tonight" or return
on the following Tuesday. He then gave what the Government accurately
describes as a modified "Allen charge." Thereafter, defense
counsel moved for a mistrial on the ground that the jury was in
"deadlock, which apparently is a hopeless one." The motion was
denied.
At
approximately 5 o'clock, the jury foreman sent a second note, which
said:
[A]fter
receiving most of the testimony and raising what arguments and
persuasion we could bring to bear, Mrs. Rappaport has insisted that
under no circumstances can she vote guilty on any of the Counts.
Judge
Judd thereupon stated his view that this meant "a disagreement on
seventeen counts" and resolved to "bring the Jury in and
see." The jury was brought in; they announced a verdict of not
guilty on count 20, involving only appellee Goldstein, and were polled
at the Government's request. The judge then asked: "And it's clear
that you are in disagreement on the rest of the counts?", to which
the foreman replied "I am afraid so." The judge then
continued:
I
appreciate the time you have put in, the effort that's been made. I
might have given a more coercive charge, but I thought it was improper.
I think we should respect the conscience of anybody on the Jury.
I
would like to keep you for five or ten minutes just to give you a little
picture of things behind the scenes. You are entitled to wonder about
what happened at all these side bars, and this has been only an income
tax case. But it has been an important case for everybody.
You
have heard some of the best defense counsel in this City for the last
five weeks. The Government attorney is not an ordinary assistant
U. S.
Attorney. . . .
The
judge then went on to disclose, among other things, that the government
attorney was from the Organized Crime section of the Justice Department,
that defendant Goldstein's tax returns disclosed income from gambling,
and that certain defendants had threatened a witness prior to the trial.
Counsel took vigorous exception to these comments--a concern which we
share--and moved to dismiss the indictment. The motion was denied.
The
case was set for retrial before Judge Weinstein, but prior to trial,
defendants moved to dismiss the indictment principally on the ground of
double jeopardy. The judge granted the motion; while his order of
January 8, 1973 dismissing the indictment contained no express findings,
the bases for the order were carefully stated during the course of the
hearing held on the motion. We set these out extensively:
.
. . I am particularly impressed with the transcript of October 6, 1972
[the second day of jury deliberation described above] at 5:00 o'clock
P.M.
The
Court said there is "still disagreement on all but one count."
There is no indication that disagreement was fixed or that there could
not be some agreement had there been further consultation. There were 18
counts undisposed of at that time. Many of them involved a number of
defendants and all of them involved at least two defendants.
The
Jury was then polled on Count 20 and the defendant in that count was
found not guilty. There's no inquiry made by the Court as to whether the
Jury wished to consult further with each other. There is no indication
that they disagreed with respect to each defendant on each count. In
fact, it is not clear that they had considered in any detail each
defendant as to each count.
Immediately
after the Jury was polled, the Judge began to address the Jury and there
would be nothing from which their counsel could determine the nature of
the remarks that would be made up until line 15 of page 6 of the
transcript. Then reference is made to the organized crime section of the
Department of Justice. Thereafter very quickly there is reference to
highly prejudicial material which undoubtedly had taken counsel by
surprise and it would be only at that point I would think that the
normal practice was not going to be followed, that inquiry was not going
to be made to the Jury with respect to whether they might possibly reach
an agreement given more time or whether they might possibly reach an
agreement on any of the counts as to any of the defendants.
*
* *
I
must reluctantly conclude that the Court acted without proper
consultation with the attorneys and without proper consultation with the
Jury and that the case was improperly taken from the Jury at this point
without the consent of the defendants and before it had been determined
that no agreement could be reached.
Under
the circumstances, therefore I reluctantly find that defendants should
be placed in double jeopardy if they were to be tried . . ..
From
the subsequent order dismissing the indictment, the Government appeals. 4
[Government's Right to Appeal]
II.
At the outset, appellees claim that the Government cannot appeal from
Judge Weinstein's order dismissing the indictment on double jeopardy
grounds. The 1970 amendments to the Criminal Appeals Act, enacted as
Title III, §14 of the Omnibus Control Act of 1970, P. L. 91-644, 84
Stat. 1880, 1890, 91st Cong., 2d sess., were designed to eliminate much
of the tortuous statutory construction, e.g., United States v.
Sission, 399 U. S. 267 (1970), and United States v. Apex
Distributing Co., 270 F. 2d 747 (9th Cir. 1959) (en banc), to which
federal courts had been put in interpreting the coverage of the
predecessor act. See S. Rep. No. 91-1296, 91st Cong., 2d sess., at 2
(1970). But a principal purpose of the amendments was to broaden
considerably those situations in which the Government could appeal. Id. 5 While the
predecessor act was to be strictly construed against the Government's
right to appeal, e.g., United States v. Sission, supra, 399 U. S.
at 291, the present statute expressly directs that its provisions
"shall be liberally construed to effectuate its purposes."
Appellees
do not--and cannot--dispute this reading of statutory purpose. They
contend, nonetheless, that the plain language of the 1970 amendments
forecloses our appellate jurisdiction. Any need to undertake a detailed
refutation of this assertion has been obviated by this court's recent
opinion in United States v. Castellanos, slip op. 3285, 3287-88
(2d Cir. May 4, 1973). Like this case, Castellanos involved an
appeal from an ordered dismissing an indictment on grounds of double
jeopardy prior to the impaneling of a new jury. In holding that order
appealable, Judge Smith observed that such an order was plainly
appealable under the predecessor statute in light of United States v.
Jorn, 400 U. S. 470 (1971), and that "[n]othing in either the
legislative history or the language of the new statute . . .
indicates the slightest intention to cut back the scope of former §3731.
Indeed, quite the opposite seems true . . .." (Emphasis added.) 6 The same
conclusions govern here.
Appellees
further contend, however, that Judge Weinstein's dismissal was, "as
a matter of substantive law tantamount to an acquittal." There is
no merit to the argument. United States v. Hill, 473 F. 2d 759
(9th Cir. 1972), on which appellees rely, is not in point. Hill
involved indictments charging the sending of obscene advertisements
through the mail. Defendant's motion to dismiss the indictments was
granted on the ground that the advertisements were not obscene as a
matter of law. In finding reprosecution prohibited by the double
jeopardy guarantee, the court noted that the judge had received evidence
limited to a necessary element of the offense; the dismissal thus
decided the general issue of guilt and was the equivalent of a directed
acquittal. See
United States
v. Sisson, supra, 399
U. S.
at 290 n. 19; United States v. Ponto, 454 F. 2d 657, 663-64 (7th
Cir. 1971) (en banc). Judge Weinstein's dismissal, by contrast, in no
sense turned on the general issue of guilt or required the taking of
evidence remotely related to any element of the crime. 7
Thus,
the Government's appeal is properly before us, and appellee's motion to
dismiss the appeal is denied.
[Double
Jeopardy]
III.
We turn now to the merits of Judge Weinstein's dismissal order. Plainly,
technical jeopardy had attached in the trial before Judge Judd because
the jury had been impanelled, but equally plainly, as a century and a
half of cases illustrate, that did not end the matter. See
United States
v. Perez, 22 U. S. (9 Wheat.) 579 (1824);
Illinois
v.
Somerville
, 41
U. S.
L. W. 4319, 4320 (U. S. Feb. 27, 1973). What would have ended the
matter, however, was defendants' consent to Judge Judd's order declaring
a mistrial. See United States v. Gori, 282 F. 2d 43, 47 & n.
5 (2d Cir. 1960), aff'd, 367
U. S.
364 (1961); cf. United States v. Jorn, supra, 400
U. S.
at 485. We conclude that defendants did so consent.
On
the afternoon of the second day of deliberation, the jury notified Judge
Judd that it was "apparently not able to reach a unanimous verdict
on any count except number 20"; the judge then gave a modified
"Allen charge." Defense counsel immediately moved for a
mistrial because the jury was hopelessly deadlocked. Had the judge
granted this request, of course, no meritorious double jeopardy claim
could later have been made. See
United States
v. Tateo, 377
U. S.
463, 467 (1964). We are at a loss to understand what transpired
thereafter to breathe life into such a claim. Defendants argue that the
situation was completely changed less than two hours later by the jury's
second note. At that point, according to defendants, counsel realized
that they had a favorable jury, that "at worst there would be a
hung jury," and that they "decided they did not want a
mistrial." 8 The initial
problem with this position is that defense counsel did not communicate
this change in attitude to Judge Judd. Defendants now argue, as they
successfully did before Judge Weinstein, that they never had an
effective chance to make their new position known to Judge Judd. We do
not understand why that is so, as a recounting of the events of that
afternoon indicates.
After
the judge read the second note to defense counsel, he stated that this
"means a disagreement on seventeen counts. We will bring the Jury
in and see." The jury then came back to the courtroom and reported
its verdict of not guilty on count 20; each juror was then polled on
that verdict. On completion of the polling, the foreman confirmed to the
judge that the jury was "in disagreement on the rest of the
counts." As anyone familiar with trial court procedure knows, all
of this took considerable time. It was certainly sufficient for defense
counsel, whose performance up to that time had not been marked by
excessive timidity, to make their changed views known to the court. Nor
was that all. Judge Judd did not immediately launch into his
behind-the-scenes discussion which, defendants correctly maintain, made
it impossible for the same jury to continue. Instead, the judge took
another moment or two in introductory remarks--at which point his
intention to order a mistrial became plain--before characterizing the
government attorney as "not an ordinary assistant," but from
"the section on Organized Crime." This interlude gave defense
counsel yet another chance to say that they did not want a mistrial. It
is thus apparent to us that defense counsel had adequate opportunity to
disabuse the judge of the idea that they still wanted the jury
discharged because it was deadlocked; Judge Weinstein's contrary view is
not supportable. 9
Judge
Judd obviously assumed that defendants continued to favor mistrial.
Certainly, he would not have proceeded as he did had he thought the
trial was to continue before the same jury. There was ample warrant for
the judge's assumption. Less than two hours before, defense counsel had
characterized a proposed instruction to the jury to deliberate "for
a couple of more hours" as "incarceration against their
will," and had opposed requiring the jury to continue after the
weekend recess because "it would be impossible to avoid pollution
of the jury." In addition, the judge's assumption as to defendants'
position was buttressed by common sense. When defendants had earlier
moved for a mistrial, they had no way of knowing the jury's vote: It
might have been anything from 11-1 for acquittal to 11-1 for conviction.
Any one of these possibilities except the last would indicate a jury
sentiment more--rather than less--favorable than the 11-1 vote for
conviction on all remaining counts revealed by the jury's second note.
To all appearance, defendants' position had worsened in the time between
the first and second notes. Defendants argued before Judge Weinstein,
however, that they were then in a better position because they knew that
they could not be hurt, and that
They
could only get a hung jury and it is possible, as it happens in the
movies at any rate, that one person can change the minds of eleven other
people.
Anything
is possible, of course, but the self-serving nature of this hindsight
assertion is patent. Moreover, the silence of defense counsel on this
issue was even more deafening after Judge Judd had discharged the jury.
At that point, defense counsel argued at length that the judge's
disclosure of material not in evidence had hopelessly prejudiced
defendants, and required dismissal of the indictment. But this claim
itself assumed that another trial would be held, a position inconsistent
with their present contention that the double jeopardy clause would bar
such a trial, because the discharge of the jury had been premature.
We
disagree, therefore, with Judge Weinstein's belief that a mistrial was
declared without defendants' consent. 10 Consent
need not be express, but may be implied from the totality of
circumstances attendant on a declaration of mistrial. United States
v. Gori, supra, 282 F. 2d at 46; see Scott v. United States,
202 F. 2d 354 (D. C. Cir.), cert. denied, 344
U. S.
879 (1952); cf. Raslich v. Bannan, 273 F. 2d 420 (6th Cir. 1959)
(per curiam). Defendants had moved for a mistrial a scant two hours
before one was declared, at the first suggestion of jury deadlock;
little, if anything, had occurred thereafter to warrant a belief that
their position had changed; and even if it had, they failed to make this
change in position knwon to the trial judge notwithstanding adequate
opportunity to do so. See United States v. Pappas, 445 F. 2d
1194, 1199-1200 (3d Cir.), cert. denied, 404
U. S.
984 (1971). 11
Under
these circumstances, their consent to mistrial can be properly implied,
Judge Judd did not really act sua sponte, and defendants cannot
successfully argue double jeopardy.
IV.
In what may be an excess of caution, we turn finally to the argument
made by the Government that, even if defendants did not consent to the
mistrial, reprosection was consistent with the policies served by the
double jeopardy clause.
In
deciding to abort a criminal trial short of a verdict and without a
defendant's consent, after jeopardy has attached, the trial judge is
typically afforded "broad discretion," Illinois v.
Somerville, supra, 41 U. S. L. W. at 4321, since he is "best
situated intelligently to make such a decision," Gori v. United
States, 367 U. S. 364, 368 (1961). On the other hand, it is
recognized that the double jeopardy clause of the fifth amendment
safeguards the defendant's "valued right to have his trial
completed by a particular tribunal," Wade v. Hunter, 336 U.
S. 684, 689 (1949), which "he might believe to be favorably
disposed to his fate," United States v. Jorn, supra, 400 U.
S. at 486. With due regard for this right, as well as for other
defendant interests served by the double jeopardy clause, see Note,
Double Jeopardy: The Reprosecution Problem, 77 Harv. L Rev. 1272, 1274
(1964), the Supreme Court has limited that discretion and has
occasionally held a second prosecution barred where a trial judge sua
sponte and mistakenly had declared a mistrial. See United States
v. Jorn, supra; Downum v. United States, 372 U. S. 734 (1963). In
defining standards for the exercise of discretion in this sort of case,
the Court has continually adhered to the formulation of Justice Story in
United States v. Perez, 22 U. S. (9 Wheat.) 579, 580 (1824):
[T]he
law has invested Courts of justice with the authority to discharge a
jury from giving a verdict, whenever, in their opinion, taking all the
circumstances into consideration, there is manifest necessity for the
act, or the ends of public justice would otherwise be defeated.
Beyond
these general guidelines, the Court has emphasized, each case must turn
on its own facts. E.g., Illinois v. Somerville, supra, 41 U. S.
L. W. at 4321.
Turning
to the facts in this case, Perez itself and Logan v. United
States, 144 U. S. 263, 297-98 (1892), among others, establish that a
jury's genuine inability to agree on a verdict constitutes
"manifest necessity" warranting the declaration of a mistrial.
See United States v. Lansdown, 460 F. 2d 164, 168 (4th Cir.
1972). Requiring a jury to continue deliberations despite genuine and
irreconcilable disagreement more often than not defeats the ends of
public justice; not only will such compulsion needlessly waste valuable
judicial resources, it may coerce erroneous verdicts. On this view of
the case, the only question presented to us, therefore, is whether Judge
Judd abused his discretion in concluding when he did that the jury was
in fact genuinely hung.
The
question is a close one. Judge Weinstein believed that Judge Judd had
erred because the trial had been lengthy; the evidence and factual
issues were complex, as demonstrated by the jury's request to have the
charge reread; the jury had only deliberated eight hours even though
there were almost 50 possible verdicts to render and no indication that
agreement was impossible as to all. Finally, Judge Weinstein felt that
no sufficiently in-depth attempts had been made, in accord with
"the normal practice," to ascertain the scope of disagreement
among jurors, or to determine whether further deliberation might produce
some agreement. These are appropriate factors to consider. See ABA,
Project on Minimum Standards for Criminal Justice, Trial by Jury §5.4(c);
(approved draft 1968); id. at 156-57.
Nonetheless,
"taking all the circumstances into consideration," as Perez
requires, we are left with the firm conviction that Judge Judd committed
no error. The complexity of a case and the amount of time requested by
12 reasonable jurors to reach unanimity on some or all of many possible
verdicts are determinations best left to a trial judge and are difficult
to gauge by another district judge or by appellate judges on a cold
record. The jury twice reported itself unable to agree--in the second
instance, less than two hours after the first and after a modified Allen
charge in which the judge had instructed the jury to tell him
"whether further deliberation would be useful." The second
note itself appears to answer the question in the negative and suggests
growing frustration on the part of the jurors. Indeed, the second note
and final oral response of the jury foreman were unequivocal in tone:
Mrs. Rappaport could vote guilty "under no circumstances" and
it was "clear" that they were in disagreement on all counts.
With the dissenting juror so identified, Judge Judd was entitled to
recall his conversation with her on the previous evening, and to
conclude that her previously vague reference to feeling
"incapable" meant that she was in fact unable or unwilling to
vote guilty.
Appellees
call our attention to but one case in which the trial court's erroneous
decision to order mistrial due to an apparently hung jury has been held
to bar reprosecution. United States v. Lansdown, supra. Our
research has disclosed no other federal case. But cf. Commonwealth v.
Baker, 196 A. 2d 382 (Pa. 1964) (premature discharge of jury bars
retrial on state constitution double jeopardy ground). This itself
suggests how rarely the informed judgment of a trial court is disturbed
in these or similar circumstances. Moreover, factual differences between
this case and Lansdown are striking. In Lansdown, the
trial judge ordered a mistrial solely because he felt that the many
hours of jury deliberation after a one-day trial had been long enough. 12 The court
of appeals noted that no rule of thumb in terms of hours deliberated
could be extrapolated from precedent. 460 F. 2d at 169 & n.2. Of far
more significance, however, the jury foreman had told the Lansdown
trial judge, immediately before mistrial was declared, that they were
"on the verge" of a verdict; another juror took it upon
himself to request an additional ten minutes of deliberations. In light
of this, the trial judge's action was arbitrary and manifestly an abuse
of discretion. In this case, on the other hand, no member of the jury
ever suggested that any verdict was remotely possible. We believe that
Judge Judd could have reasonably concluded that the jury was hopelessly
deadlocked. 13 If so, it
follows that there was manifest necessity for declaring a mistrial and
that doing so was not an abuse of discretion.
Reversed
and remanded for further proceedings consistent with this opinion.
*
Retired Associate Justice of the Supreme Court of the United States,
sitting by designation.
1
Count 5 of the indictment was later dismissed and was replaced by a
superseding information.
2
At the outset, the jury's deliberation involved 18 counts, defendants
having successfully moved for acquittal on counts 16 and 19.
3
The second day of deliberation was a Friday. Monday, October 9, 1972 was
Columbus Day.
4
The statute, 18 U. S. C. A. §3731, provides that:
The
appeal . . . shall be taken within thirty days after the . . . order has
been rendered and shall be diligently prosecuted. The Government's
notice of appeal was filed on February 1, 1973, within 30 days of Judge
Weinstein's order dated January 8. The Government's brief, however, was
not filed until March 12, nearly six weeks after the notice of appeal.
In view of the statutory command of diligent prosecution, we believe
that the Government's brief in appeals of this sort should ordinarily be
filed within 30 days after the notice of appeal. Cf. Local Appellate
Rule §34(f).
5
The amendments also eliminated direct appeals to the Supreme Court,
lightening the caseload of the Court. S. Rep., supra, at 13-18.
6
In addition to Judge Smith's persuasive analysis, see S. Rep., supra, at
7-9, 12, which details the reasons for the change in language.
7
Appellees also rely on United States v. Oppenheimer, 242 U. S.
85, 87-88 (1916), but the case is patently inapposite on its facts and
rationale.
8
Brief for Appellees Goldstein, et al., at 14.
9
Toward the end of the morning session of the hearing, Judge Weinstein
stated:
[A]
mistrial was granted here at a time when the defendants . . . would have
opposed it had they been given an adequate opportunity to be heard.
In
the course of his remarks set forth earlier in this opinion, he again
commented that Judge Judd had acted "without proper consultation
with the attorneys . . .." Even if this be a finding of fact, we
believe that it must be set aside, regardless of whether the
"clearly erroneous" standard applies. We doubt that it does,
however. While the "clearly erroneous" standard is applicable
to analogous findings in criminal cases, see 8A Moore's Federal Practice
¶41.09, at 97, Judge Weinstein's view as to the "opportunity to be
heard" turned on his reading of the trial transcripts, and these
are as available to us as they were to him. Cf. In the Matter of Beck
Industries, Inc., slip op. 3179, 3181 n. 3 (2d Cir. April 30, 1973)
and authorities there cited.
10
Indeed, the record before us is somewhat contradictory as to whether
such a finding was in fact made. Judge Weinstein made such a comment at
the hearing. On the other hand, in his subsequent order after stating
that "the case was improperly taken from the jury," the judge
deleted additional language proposed by defendants, i. e., that this was
"without the consent of the defendants and before it had been
determined that no agreement could be reached . . .."
11
We need not go so far as to hold that in the absence of an express
objection to discharging the jury, consent is, in effect, to be
presumed, see United States v. Phillips, 431 F. 2d 949 (3d Cir.
1970); we believe instead that the failure to object is one of the
several probative factors here from which consent may be implied.
12
The trial judge referred to "20 hours" of deliberation. The
court of appeals pointed out, "In fact, the jury had deliberated
slightly in excess of 11 hours." 460 F. 2d at 168 n. 1.
13
Cf. the standard proposed by §5.4(c) of the ABA Minimum Standards, supra,
defining the scope of a trial judge's discretion to declare a mistrial sua
sponte:
"The
jury may be discharged without having agreed upon a verdict if it
appears that there is no reasonable probability of agreement."
(Emphasis added.)