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7203:  Willful Failure to File Return, Supply Information, or Pay Tax: Appeal, Timeliness

 

[80-2 USTC ¶9761] United States of America , Petitioner-Appellant, v. Roger S. Baskes, Defendant-Appellee

(CA-7), U. S. Court of Appeals, 7th Circuit, No. 79-1774, 640 F2d 48, 10/23/80, Reversing District Court, 79-2 USTC ¶9437

[18 U. S. C. §371]

Crimes: Conspiracy to defraud the U. S.; Evidence: Suppression: Illegal search.--A district court order suppressing evidence in the defendant's trial for conspiracy to defraud the United States and for violation of the Internal Revenue laws was reversed and the case remanded. The present case was indistinguishable from Payner, 80-2 USTC ¶9511, in which the Supreme Court reversed a similar suppression order arising out of the same search and seizure that yielded the evidence sought to be used against the defendant and the Supreme Court's opinion made it clear that the use of evidence acquired as a result of unlawful activity against a defendant whose rights were not violated was not a denial of due process.

Thomas P. Sullivan, United States Attorney, Chicago, Ill. 60604, M. Carr Ferguson, Assistant Attorney General, Department of Justice, Washington, D. C. 20530, for petitioner-appellant. Theodore A. Sinars, 135 S. LaSalle St. , Chicago , Ill. 60603 , Harvey M. Silets, Silets & Martin, Ltd., 10 S. LaSalle St. , Chicago , Ill. 60603 , for defendant-appellee.

Before FAIRCHILD, Chief Judge, CUMMINGS and BAUER, Circuit Judges.

PER CURIAM:

This court entered an order on August 6, 1980, directing the defendant to show cause why the order appealed from should not be summarily reversed and remanded in light of United States v. Payner [80-2 USTC ¶9511], 48 U. S. L. W. 4829 (June 13, 1980). The district court had exercised its supervisory power to suppress evidence tainted by the Government's violation of the Fourth Amendment rights of third parties and set aside the jury's verdict finding the defendant guilty of conspiracy to defraud the United States and of violation of the Internal Revenue laws. During the pendency of this appeal, the Supreme Court, in Payner, reversed a similar suppression order arising out of the identical search and seizure at issue in the present case. The district court had refused to ground its order on the theory that the use against defendant of evidence acquired as a result of the unlawful activity was a denial of due process. Defendant argued in its brief on appeal that the refusal was error, and that the due process theory was an alternative ground for affirmance. In response to our order to show cause, defendant maintains that his due process survives Payner. We disagree.

Although the due process issue was not raised in the petition for certiorari in Payner (presumably because the court of appeals did not decide that question), it had been considered by the district court, which had alternatively grounded its suppression order on that rationale, and was apparently briefed and argued before both the court of appeals and the Supreme Court. The unambiguous language of Justice Powell's majority opinion (48 U. S. L. W. at 4832, n. 9) and the majority's implicit rejection of the dissenters preference (48 U. S. L. W. at 4835, n. 15 (Marshall, J., dissenting)) that the case be remanded to the court of appeals for consideration of the due process issue leave no doubt that a majority of the justices considered the question properly before the Court and decided it adversely to Payner. That being so, the position of the Supreme Court is clear: "even if . . . the unlawful briefcase search was so outrageous as to offend fundamental `canons of decency and fairness,'" . . ., the fact remains that '[t]he limitations of the Due Process Clause . . . come into play only when the Government activity in question violates some protected right of the defendant'" (48 U. S. L. W. at 4832, n. 9) (citations omitted; emphasis in original). We deem oral argument unnecessary. Because the defendant cannot show that his rights were violated by the Government activity, indeed, because the present case is indistinguishable from Payner, the order appealed from is reversed and the case remanded to the district court for further proceedings.

REVERSED AND REMANDED.

 

 

[80-2 USTC ¶9511] United States , Petitioner v. Jack Payner

Supreme Court of the United States, No. 78-1729, 447 US 727, 6/23/80, Reversing CA-6, 79-1 USTC ¶9149

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.

[18 U. S. C. §1001]

Crimes: Defrauding the government: Filing false tax returns: Evidence: Suppression: Illegal search.--The Supreme Court reversed the acquittal of the taxpayer on charges of defrauding the United States government by filing a tax return falsely denying that he had a foreign bank account. It held that the district court improperly exercised its supervisory powers in suppressing evidence obtained by the Internal Revenue Service from the briefcase of an officer of the foreign bank in which the taxpayer had an account. The Court noted that the taxpayer had no standing under the Fourth Amendment to suppress the evidence because it was seized from a third party and because the taxpayer had no reasonable expectation of privacy with regard to records of the foreign account. It then held that to permit the district court to exclude the evidence under its supervisory powers would be to allow the balance of interests embodied in its Fourth Amendment decisions to be upset at the district court's standardless discretion. Therefore the Fourth Amendment standards were held to control the supervisory power and the evidence was properly admissible.

Syllabus

At respondent's nonjury trial for falsifying a federal income tax return by denying that he maintained a foreign bank account, respondent moved to suppress a loan guarantee agreement in which he pledged the funds in the bank account as security. The District Court found respondent guilty on the basis of all the evidence, but then (1) found that the Government had discovered the guarantee agreement as the result of a flagrantly illegal search of a bank officer's briefcase, (2) suppressed all the Government's evidence except for respondent's tax return and related testimony, and (3) set aside the conviction for failure to demonstrate knowing falsification. The court held, inter alia, that, although the illegal search did not violate respondent's Fourth Amendment rights, the inherent supervisory power of the federal courts required it to exclude evidence tainted by the illegal search. The Court of Appeals affirmed.

Held:

1. Respondent lacks standing under the Fourth Amendment to suppress the documents illegally seized from the bank officer. A defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party, and respondent possessed no privacy interest in the documents seized in this case. Cf. Rakas v. Illinois , 439 U. S. 128; United States v. Miller [76-1 USTC ¶9380], 425 U. S. 435. Pp. 4-6.

2. The supervisory power of the federal courts does not authorize a court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court. Under the Fourth Amendment, the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. And the values assigned to the competing interests of deterring illegal searches and of furnishing the trier of fact with all relevant evidence do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. Such power does not extend so far as to confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing. Pp. 6-9.

590 F. 2d 206, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BURGER, C. J., filed a concurring opinion. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined.

MR. JUSTICE POWELL delivered the opinion of the Court.

The question is whether the District Court properly suppressed the fruits of an unlawful search that did not invade the respondent's Fourth Amendment rights.

I. Respondent Jack Payner was indicted in September 1976 on a charge of falsifying his 1972 federal income tax return in violation of 18 U. S. C. §1001. ¹ The indictment alleged that respondent denied maintaining a foreign bank account at a time when he knew that he had such an account at the Castle Bank and Trust Company of Nassau , Bahama Islands . The Government's case rested heavily on a loan guarantee agreement dated April 28, 1972, in which respondent pledged the funds in his Castle Bank account as security for a $100,000 loan.

Respondent waived his right to jury trial and moved to suppress the guarantee agreement. With the consent of the parties, the United States District Court for the Northern District of Ohio took evidence on the motion at a hearing consolidated with the trial on the merits. The court found respondent guilty as charged on the basis of all the evidence. The court also found, however, that the Government discovered the guarantee agreement by exploiting a flagrantly illegal search that occurred on January 15, 1973. The court therefore suppressed "all evidence introduced in the case by the Government with the exception of Jack Payner's 1972 tax return . . . and the related testimony." United States v. Payner [77-1 USTC ¶9389], 434 F. Supp. 113, 136 (1977). As the tax return alone was insufficient to demonstrate knowing falsification, the District Court set aside respondent's conviction. ²

The events leading up to the 1973 search are not in dispute. In 1965, the Internal Revenue Service launched an investigation into the financial activities of American citizens in the Bahamas . The project, known as "Operation Trade Winds," was headquartered in Jacksonville , Fla. Suspicion focused on the Castle Bank in 1972, when investigators learned that a suspected narcotics trafficker had an account there. Special Agent Richard Jaffe of the Jacksonville office asked Norman Casper, a private investigator and occasional informant, to learn what he could about the Castle Bank and its depositors. To that end, Casper cultivated his friendship with Castle Bank vice-president Michael Wolstencroft. Casper introduced Wolstencroft to Sybol Kennedy, a private investigator and former employee. When Casper discovered that the banker intended to spend a few days in Miami in January of 1973, he devised a scheme to gain access to the bank records he knew Wolstencroft would be carrying in his briefcase. Agent Jaffe approved the basic outline of the plan.

Wolstencroft arrived in Miami on January 15 and went directly to Kennedy's apartment. At about 7:30 p. m., the two left for dinner at a Key Biscayne restaurant. Shortly thereafter, Casper entered the apartment using a key supplied by Kennedy. He removed the briefcase and delivered it to Jaffe. While the agent supervised the copying of approximately 400 documents taken from the briefcase, a "lookout" observed Kennedy and Wolstencroft at dinner. The observer notified Casper when the pair left the restaurant, and the briefcase was replaced. The documents photographed that evening included papers evidencing a close working relationship between the Castle Bank and the Bank of Perrine, Fla. Subpoenas issued to the Bank of Perrine ultimately uncovered the loan guarantee agreement at issue in this case.

The District Court found that the United States , acting through Jaffe, "knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase. . . ." 434 F. Supp., at 120. According to that court, "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties. . . ." Id. , at 132-133. The District Court also found that the documents seized from Wolstencroft provided the leads that ultimately led to the discovery of the critical loan guarantee agreement. Id. , at 123. ³ Although the search did not impinge upon the respondent's Fourth Amendment rights, the District Court believed that the Due Process Clause of the Fifth Amendment and the inherent supervisory power of the federal courts required it to exclude evidence tainted by the Government's "knowing and purposeful bad faith hostility to any person's fundamental constitutional rights." Id. , at 129; see id., at 133, 134-135.

The Court of Appeals for the Sixth Circuit affirmed in a brief order endorsing the District Court's use of its supervisory power. United States v. Payner, 590 F. 2d 206 (1979) (per curiam). The Court of Appeals did not decide the due process question. We granted certiorari, -- U. S. -- (1979), and we now reverse.

II. This Court discussed the doctrine of "standing to invoke the [Fourth Amendment] exclusionary rule" in some detail last Term. Rakas v. Illinois , 439 U. S. 128, 138 (1978). We reaffirmed the established rule that a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights. Id. , at 133-140. See, e.g., Brown v. United States, 411 U. S. 223, 229-230 (1973); Alderman v. United States, 394 U. S. 165, 171-172 (1969); Simmons v. United States, 390 U. S. 377, 389 (1968). And the defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. Rakas v. Illinois, supra, at 143; id., at 149-152 (POWELL, J., concurring); Combs v. United States, 408 U. S. 224, 227 (1972); Mancusi v. DeForte, 392 U. S. 364, 368 (1968).

The foregoing authorities establish, as the District Court recognized, that respondent lacks standing under the Fourth Amendment to suppress the documents illegally seized from Wolstencroft. 434 F. Supp., at 126. The Court of Appeals did not disturb the District Court's conclusion that "Jack Payner possessed no privacy interest in the Castle Bank documents that were seized from Wolstencroft." 434 F. Supp., at 126; see 590 F. 2d, at 207. Nor do we. United States v. Miller [76-1 USTC ¶9380], 425 U. S. 435 (1976), established that a depositor has no expectation of privacy and thus no "protectable Fourth Amendment interest" in copies of checks and deposit slips retained by his bank. Id. , at 437; see id., at 442. Nothing in the record supports a contrary conclusion in this case. ⁴

The District Court and the Court of Appeals believed, however, that a federal court should use its supervisory power to suppress evidence tainted by gross illegalities that did not infringe the defendant's constitutional rights. The United States contends that this approach--as applied in this case--upsets the careful balance of interests embodied in the Fourth Amendment decisions of this Court. In the Government's view, such an extension of the supervisory power would enable federal courts to exercise a standardless discretion in their application of the exclusionary rule to enforce the Fourth Amendment. We agree with the Government.

III. We certainly can understand the District Court's commendable desire to deter deliberate intrusions into the privacy of persons who are unlikely to become defendants in a criminal prosecution. See 434 F. Supp., at 135. No court should condone the unconstitutional and possibly criminal behavior of those who planned and executed this "briefcase caper." ⁵ Indeed, the decisions of this Court are replete with denunciations of willfully lawless activities undertaken in the name of law enforcement. E.g., Jackson v. Denno, 378 U. S. 368, 386 (1964); see Olmstead v. United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dissenting). But our cases also show that these unexceptional principles do not command the exclusion of evidence in every case of illegality. Instead, they must be weighed against the considerable harm that would flow from indiscriminate application of an exclusionary rule.

Thus, the exclusionary rule "has been restricted to those areas where its remedial objectives are most efficaciously served." United States v. Calandra, 414 U. S. 338, 348 (1974). The Court has acknowledged that the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case. E.g., Rakas v. Illinois, supra, at 137-138; United States v. Ceccolini, 435 U. S. 268, 275-279 (1978); Stone v. Powell, 428 U. S. 464, 489-491 (1976); see Michigan v. Tucker, 417 U. S. 433, 450-451 (1974). ⁶ Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury. E.g., Stone v. Powell, supra, at 485-489; United States v. Calandra, supra, at 348. After all, it is the defendant, and not the constable, who stands trial.

The same societal interests are at risk when a criminal defendant invokes the supervisory power to suppress evidence seized in violation of a third party's constitutional rights. The supervisory power is applied with some caution even when the defendant asserts a violation of his own rights. ⁷ In United States v. Caceres, 440 U. S. 741, 754-757 (1979), we refused to exclude all evidence tainted by violations of an executive department's rules. And in Elkins v. United States, 364 U. S. 206, 216 (1960), the Court called for a restrained application of the supervisory power.

"[A]ny apparent limitation upon the process of discovering truth in a federal trial ought to be imposed only upon the basis of considerations which outweigh the general need for untrammeled disclosure of competent and relevant evidence in a court of justice." 364 U. S. , at 216.

See also Nardone v. United States, 308 U. S. 338, 340 (1939).

We conclude that the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court. Our Fourth Amendment decisions have established beyond any doubt that the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. Rakas v. Illinois, supra, at 137; Alderman v. United States , supra, at 174-175. ⁸ The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. In either case, the need to deter the underlying conduct and the detrimental impact of excluding the evidence remain precisely the same.

The District Court erred, therefore, when it concluded that "society's interest in deterring [bad faith] conduct by exclusion outweigh[s] society's interest in furnishing the trier of fact with all relevant evidence." 434 F. Supp., at 135. This reasoning, which the Court of Appeals affirmed, amounts to a substitution of individual judgment for the controlling decisions of this Court. ⁹ Were we to accept this use of the supervisory power, we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing. We hold that the supervisory power does not extend so far.

The judgment of the Court of Appeals is

Reversed.

¹ 18 U. S. C. §1001 provides in relevant part: "Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . . make any false, fictitious or fraudulent statements or representations, . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both."

² The unusual sequence of rulings was a byproduct of the consolidated hearing conducted by the District Court. The court initially failed to enter judgment on the merits. At the close of the evidence, it simply granted respondent's motion to suppress. After the Court of Appeals for the Sixth Circuit dismissed the government's appeal for want of jurisdiction, the District Court vacated the order granting the motion to suppress and entered a verdict of guilty. The court then reinstated its suppression order and set aside the verdict. Respondent does not challenge these procedures.

³ The United States argued in the District Court and the Court of Appeals that the guarantee agreement was discovered through an independent investigation untainted by the briefcase search. The Government also denied that its agents willfully encouraged Casper 's illegal behavior. For purposes of this opinion, we need not question the District Court's contrary findings on either point.

⁴ We are not persuaded by respondent's suggestion that the Bahamian law of bank secrecy creates an expectation of privacy not present in United States v. Miller, 425 U. S. 435 (1976). At the outset, it is not clear that secret information regarding this respondent's account played any role in the investigation that led to the discovery of the critical loan guarantee agreement. See p. 3, supra. Even if the causal link were established, however, respondent's claim lacks merit. He cites a provision, Ch. 96.9 of the Statute Law of the Bahama Islands (1909), that is no longer in effect. Bank secrecy is now safeguarded by §19 of the Banks Act, I Bah. Rev. Stat. ch. 96 (1965), as amended, 1965 Bah. Acts No. 65, which provides in relevant part:

"Except for the purpose of the performance of his duties or the exercise of his functions under this Act or when lawfully required to do so by any court of competent jurisdiction within the Colony or under the provisions of any law of the Colony, no person shall disclose any information relating to . . . the affairs of . . . any customer of a [bank] licensee which he has acquired in the performance of his duties or the exercise of his functions under this Act."

See also the Banks and Trust Companies Regulation Act, 1965 Bah. Acts No. 64, §10, as amended, 1968 Bah. Acts No. 33, 1969 Bah. Acts No. 20, 1971 Bah. Acts No. 15. The statute is hardly a blanket guarantee of privacy. Its application is limited; it is hedged with exceptions; and we have been directed to no authority construing its terms. Moreover, American depositors know that their own country requires them to report relationships with foreign financial institutions. 31 U. S. C. §1121; 31 CFR §103.24. See generally California Bankers Assn. v. Shultz, 416 U. S. 21, 59-63, 71-76 (1974). We conclude that respondent lacked a reasonable expectation of privacy in the Castle Bank records that documented his account.

⁵ "The security of persons and property remains a fundamental value which law enforcement officers must respect. Nor should those who flout the rules escape unscathed." Alderman v. United States , 394 U. S. 165, 175 (1969). We note that in 1976 Congress investigated the improprieties revealed in this record. See Oversight Hearings into the Operations of the IRS before a Subcommittee of the House Committee on Government Operations (Operation Tradewinds, Project Haven, and Narcotics Traffickers Tax Program), 94th Cong., 1st Sess. As a result, the Commissioner of Internal Revenue "called off" Operation Trade Winds. Tr. of Oral Arg. 35. The Commissioner also adopted guidelines that require agents to instruct informants on the requirements of the law and to report known illegalities to a supervisory officer, who is in turn directed to notify appropriate state authorities. IRS Manual Supp. 9-21, §§ 9373.3(3), 9373.4 (Dec. 27, 1977). Although these measures appear on their face to be less positive than one might expect from an agency charged with upholding the law, they do indicate disapproval of the practices found to have been implemented in this case. We cannot assume that similar lawless conduct, if brought to the attention of responsible officials, would not be dealt with appropriately. To require in addition the suppression of highly probative evidence in a trial against a third party would penalize society unnecessarily.

⁶ See also Kaufman v. United States, 394 U. S. 217, 237-238 (1969) (Black, J. dissenting); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 736-746, 755-756 (1970).

⁷ Federal courts may use their supervisory power in some circumstances to exclude evidence taken from the defendant by "willful disobedience of law." McNabb v. United States, 318 U. S. 332, 345 (1943); see Elkins v. United States, 364 U. S. 206, 223 (1966); Rea v. United States, 350 U. S. 214, 216-217 (1956); cf Hampton v. United States, 425 U. S. 484, 495 (POWELL, J., concurring in the judgment). This Court has never held, however, that the supervisory power authorizes supression of evidence obtained from third parties in violation of Constitution, statute or rule. The supervisory power merely permits federal courts to supervise "the admin istration of criminal justice" among the parties before the bar. McNabb v. United States, supra, at 340.

⁸ "The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States , supra, at 174-175. See also Stone v. Powell, 428 U. S. 464, 488-489 (1976); United States v. Calandra, 414 U. S. 338, 348 (1974).

The dissent, post, at 8, urges that the balance of interests under the supervisory power differs from that considered in Alderman and like cases, because the supervisory power focuses upon the "need to protect the integrity of the federal courts." Although the District Court in this case relied upon a deterrent rationale, we agree that the supervisory power serves the "two-fold" purpose of deterring illegality and protecting judicial integrity. See post, at 7. As the dissent recognizes, however, the Fourth Amendment exclusionary rule serves precisely the some purposes. Ibid., citing, inter alia, Dunaway v. New York , 442 U. S. 200, 218 (1979), and Mapp v. Ohio , 367 U. S. 643, 659-660 (1961). Thus, the Fourth Amendment exclusionary rule, like the supervisory power, is applied in part "to protect the integrity of the court rather than to vindicate the constitutional rights of the defendant. . . ." Post, at 10; see generally Stone v. Powell, 428 U. S. 465, 486 (1976); United States v. Calandra, supra, at 486.

In this case, where the illegal conduct did not violate the respondent's rights, the interest in preserving judicial integrity and in deterring such conduct is outweighed by the societal interest in presenting probative evidence to the trier of fact. See supra; see also, e.g., Stone v. Powell, supra, at 485-486. None of the cases cited by the dissent, post, at 7-9, supports a contrary view, since none of those cases involved criminal defendants who were not themselves the victims of the challenged practices. Thus, our decision today does not limit the traditional scope of the supervisory power in any way; nor does it render that power "superfluous." Post, at 12. We merely reject its use as a substitute for established Fourth Amendment doctrine.

⁹ The same difficulty attends respondent's claim to the protections of the Due Process Clause of the Fifth Amendment. The Court of Appeals expressly declined to consider the Due Process Clause. But even if we assume that the unlawful briefcase search was so outrageous as to offend fundamental `canons of decency and fairness,'" Rochin v. California, 342 U. S. 165, 169 (1952), quoting Malinski v. New York, 324 U. S. 401, 417 (1945) (opinion of Frankfurter, J.), the fact remains that "[t]he limitations of the Due Process Clause . . . come into play only when the Government activity in question violates some protected right of the defendant." Hampton v. United States, supra, at 490 (plurality opinion).

Concurring Opinion

MR. CHIEF JUSTICE BURGER, concurring.

I join the Court's opinion because Payner--whose guilt is not in doubt--cannot take advantage of the Government's violation of the constitutional rights of Wolstencroft, for he is not a party to this case. The Court's opinion makes clear the reason for that sound rule.

Orderly government under our system of separate powers calls for internal self-restraint and discipline in each Branch; this Court has no general supervisory authority over operations of the Executive Branch, as it has with respect to the federal courts. I agree fully with the Court that the Exclusionary Rule is inapplicable to a case of this kind, but the Court's holding should not be read as condoning the conduct of the IRS "private investigators" disclosed by this record, or as approval of their evidence-gathering methods.

Dissenting Opinion

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN join, dissenting.

The Court today holds that a federal court is unable to exercise its supervisory powers to prevent the use of evidence in a criminal prosecution in that court, even though that evidence was obtained through intentional illegal and unconstitutional conduct by agents of the United States , because the defendant does not satisfy the standing requirement of the Fourth Amendment. That holding effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person's Fourth Amendment rights in order to obtain evidence against another person. Unlike the Court, I do not believe that the federal courts are unable to protect the integrity of the judicial system from such gross government misconduct.

I. The facts as found by the District Court need to be more fully stated in order to establish the level of purposeful misconduct to which agents of the United States have sunk in this case. Operation Trade Winds was initiated by the Internal Revenue Service (IRS) in 1965 to gather information about the financial activities of American citizens in the Bahamas . The investigation was supervised by Special Agent Richard Jaffe in the Jacksonville , Fla. , office. It was not until June 1972 that the investigation focused on the Castle Bank and Trust Company of the Bahamas . In late October 1972 Jaffe asked one of his informants, Norman Casper, to obtain the names and addresses of the individuals holding accounts with the Castle Bank. Casper set to work soon thereafter. He was already an acquaintance of Michael Wolstencroft, Vice-President and Trust Officer of the Castle Bank. Casper knew that Wolstencroft frequently visited the United States carrying a briefcase with documents from the Castle Bank. Casper therefore introduced Wolstencroft to Sybol Kennedy, a private detective who worked for Casper . In early January 1973, Casper learned that Wolstencroft planned a business trip to the United States on January 15, 1973, and that he would have Castle Bank records with him on that trip. Plans for the "briefcase caper," as Casper called it, began in earnest.

As found by the District Court, Casper discussed the details of the plan with Jaffe on several occasions during the week before Wolstencroft's trip. ¹ Casper told Jaffe that he could get the needed documents from Wolstencroft, but that Jaffe would have to supply photographic services. On January 11, Casper specifically informed Jaffe that he planned to enter an apartment and take Wolstencroft's briefcase. Jaffe then stated that he would have to clear the operation with his superior, Troy Register, Jr., Chief of the IRS Intelligence Division in Jacksonville . Clearance was obtained, and Jaffe told Casper to proceed with the plan. ² Casper called Jaffe the following day and asked if the IRS could refer him to a locksmith who could be "trusted." Jaffe gave him such a referral. ³

The plans were finalized by the time of Wolstencroft's arrival on January 15. Wolstencroft went directly to Sybol Kennedy's apartment. The couple eventually went to a restaurant for dinner. ⁴ Using a key provided by Kennedy, ⁵ Casper entered the apartment and stole Wolstencroft's briefcase. Casper then rendezvoused with the IRS-recommended locksmith in a parking lot five blocks from the apartment; the locksmith made a key to fit the lock on the case. Casper took the briefcase and newly made key to the house of an IRS agent. Jaffe had selected that location for the photographing because it was only eight blocks from the parking lot where Casper met the locksmith and Jaffe knew there was a need to act with haste. ⁶ The briefcase was opened in Jaffe's presence. Jaffe, Casper , and an IRS photography expert then photographed over 400 documents. ⁷ Casper had arranged for Kennedy and Wolstencroft to be watched on their date, and this lookout called Casper at the IRS agent's home when the couple finished their dinner. After all the documents had been copied, Casper relocked the briefcase and returned it to Kennedy's apartment. The entire "caper" lasted approximately one and one-half hours.

The illegalities of agents of the United States did not stop even at that point, however. During the following two weeks, Jaffe told Casper that the IRS needed additional information. Casper therefore sent Kennedy to visit Wolstencroft in the Bahamas . While there, acting pursuant to Casper 's instructions, Kennedy stole a rolodex file from Wolstencroft's office. This file was turned over to Jaffe, who testified in the District Court that he had not cared how the rolodex file had been obtained. ⁸

The IRS paid Casper $8,000 in cash for the services he rendered in obtaining the information about Castle Bank. Casper in turn paid approximately $1,000 of this money to Kennedy for her role in the "briefcase caper" and the theft of the rolodex file.

The "briefcase caper" revealed papers which showed a close relationship between the Castle Bank and a Florida bank. Subpoenas issued to that Florida bank resulted in the uncovering of the loan guarantee agreement which was the principal piece of evidence against respondent at trial. It is that loan agreement and the evidence discovered as a result of it that the District Court reluctantly ⁹ suppressed under the Due Process Clause of the Fifth Amendment and under its supervisory powers.

The District Court made several key findings concerning the level of misconduct of agents of the United States in these activities. The District Court found that "the United States , through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase, and encouraged its informant, Norman Casper, to arrange the theft of a rolodex from the offices of Castle Bank." 434 F. Supp. 113, 120-121 (ND Ohio 1977) (footnotes omitted). The District Court concluded that "the United States was an active participant in the admittedly criminal conduct in which Casper engaged. . . ." Id. , at 121. The District Court found that "the illegal conduct of the government officials involved in this case compels the conclusion that they knowingly and purposefully obtained the briefcase materials with bad faith hostility toward the strictures imposed on their activities by the Constitution." Id. , at 130 (footnote omitted) (emphasis in original). The District Court considered the actions of Jaffe and Casper "outrageous," ibid., because they "plotted, schemed and ultimately acted in contravention of the United States Constitution and laws of Florida , knowing that their conduct was illegal." Ibid.

The most disturbing finding by the District Court, however, related to the intentional manipulation of the standing requirements of the Fourth Amendment by agents of the United States , who are, of course, supposed to uphold and enforce the Constitution and laws of this country. The District Court found:

"It is evident that the Government and its agents, including Richard Jaffe, were, and are, well aware that under the standing requirement of the Fourth Amendment, evidence obtained from a party pursuant to an unconstitutional search is admissible against third parties who's [sic] own privacy expectations are not subject to the search, even though the cause for the unconstitutional search was to obtain evidence incriminating those third parties. This Court finds that, in its desire to apprehend tax evaders, a desire the Court fully shares, the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel. Such governmental conduct compels the conclusion that Jaffe and Casper transacted the 'briefcase caper' with a purposeful, bad faith hostility toward the Fourth Amendment rights of Wolstencroft in order to obtain evidence against persons like Payner." Id. , at 131-133 (footnotes omitted).

The Court of Appeals did not disturb any of these findings. 590 F. 2d 206 (CA6 1979) (per curiam). Nor does the Court today purport to set them aside. See ante, at 3, n. 3. But cf. ante, at 6, n. 5. It is in the context of these findings--intentional illegal actions by Government agents taken in bad-faith hostility toward the constitutional rights of Wolstencroft for the purpose of obtaining evidence against persons such as the respondent through manipulation of the standing requirements of the Fourth Amendment--that the suppression issue must be considered.

II. This Court has on several occasions exercised its supervisory powers over the federal judicial system in order to suppress evidence that the government obtained through misconduct. See, e.g., McNabb v. Untied States, 318 U. S. 332 (1943); Upshaw v. United States, 335 U. S. 410 (1948); Mesarosh v. United States, 352 U. S. 1 (1956); Mallory v. United States, 354 U. S. 449 (1957); Elkins v. United States, 364 U. S. 206 (1960). Cf. Rea v. United States , 350 U. S. 214 (1956) (supervisory powers used to enjoin federal agent from testifying in state criminal prosecution concerning illegal search and from turning over to the State evidence illegally seized). The rational for such suppression of evidence is two-fold: to deter illegal conduct by government officials, and to protect the integrity of the federal courts. McNabb v. United States, supra, at 342, 345, 347; Mesarosh v. United States , supra, at 14; Elkins v. United States , supra, at 217, 222-223. Cf. Mapp v. Ohio , 367 U. S. 643, 659-660 (1961) (Fourth and Fourteenth Amendments); Brown v. Illinois , 422 U. S. 590, 599-600 (1975) (Fourth and Fourteenth Amendments); Dunaway v. New York , 442 U. S. 200, 218 (1979) (Fourth and Fourteenth Amendments). The Court has particularly stressed the need to use supervisory powers to prevent the federal courts from becoming accomplices to such misconduct. See, e.g., McNabb v. United States, supra, at 345 ("Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law"); Mesarosh v. United States, supra, at 14 (the Court should use its supervisory powers in federal criminal cases "to see that the waters of justice are not polluted"); Elkins v. United States, supra, at 223 (federal courts should not be "accomplices in the willful disobedience of a Constitution they are sworn to uphold").

The need to use the Court's supervisory powers to suppress evidence obtained through governmental misconduct was perhaps best expressed by Mr. Justice Brandeis in his famous dissenting opinion in Olmstead v. United States, 277 U. S. 438, 471-485 (1928):

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the admin istration of the criminal law the end justifies the means--to declare that the Government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Id. , at 485.

Mr. Justice Brandeis noted that "a court will not redress a wrong when he who invokes its aid has unclean hands," id., at 483, and that in keeping with that principle the court should not lend its aid in the enforcement of the criminal law when the government itself was guilty of misconduct. "Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the admin istration of justice; in order to preserve the judicial process from contamination." Id. , at 484. See also id., at 469-471 (Holmes, J., dissenting); id., at 488 (Stone, J., dissenting); Lopez v. United States, 373 U. S. 427, 453, n. 3 (1963) (BRENNAN, J., dissenting). ¹⁰

The reason for this emphasis on the need to protect the integrity of the federal courts through the use of supervisory powers can be derived from the factual contexts in which supervisory powers have been exercised. In large part when supervisory powers have been invoked the Court has been faced with intentional illegal conduct. It has not been the case that "[t]he criminal is to go free because the constable has blundered," People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926). In these cases there has been no "blunder" by the government agent at all; rather, the agent has intentionally violated the law for the explicit purpose of obtaining the evidence in question. Cf. Lopez v. United States , supra, at 440 (supervisory powers should be exercised only if there has been "manifestly improper conduct by federal officials"). If the federal court permits such evidence, the intended product of deliberately illegal government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness and thereby taints its own integrity.

The present case falls within that category. The District Court found, and the record establishes, a deliberate decision by government agents to violate the constitutional rights of Wolstencroft for the explicit purpose of obtaining evidence against persons such as Payner. The actions of the government agents--stealing the briefcase, opening it, and photographing all the documents inside--were both patently in violation of the Fourth Amendment rights of Wolstencroft ¹¹ and plainly in violation of the criminal law. ¹² The Government knew exactly what information it wanted, and it was that information which was stolen from Wolstencroft. Similarly, the Government knew that it wanted to prosecute persons such as Payner, and it made a conscious decision to forego any opportunity to prosecute Wolstencroft in order to obtain illegally the evidence against Payner and others. ¹³

Since the supervisory powers are exercised to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant, it is hard to see why the Court today bases its analysis entirely on Fourth Amendment standing rules. The point is that the federal judiciary should not be made accomplices to the crimes of Casper , Jaffe and others. The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first place. If the IRS is permitted to obtain a conviction in federal court based almost entirely on that illegally obtained evidence and its fruits, then the judiciary has given full effect to the deliberate wrongdoings of the government. The federal court does indeed become the accomplice of the government lawbreaker, an accessory after the fact, for without judicial use of the evidence the "caper" would have been for nought. Such a pollution of the federal courts should not be permitted. ¹⁴

It is particularly disturbing that the Court today chooses to allow the IRS deliberately to manipulate the standing rules of the Fourth Amendment to achieve its ends. As previously noted, the District Court found that "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel." 434 F. Supp., at 132-133 (emphasis supplied). Whatever role those standing limitations may play, it is clear that they were never intended to be a sword to be used by the Government in its deliberate choice to sacrifice the constitutional rights of one person in order to prosecute another.

The Court's decision to engraft the standing limitations of the Fourth Amendment onto the exercise of supervisory powers is puzzling not only because it runs contrary to the major purpose behind the exercise of the supervisory powers--to protect the integrity of the court--but also because it appears to render the supervisory powers superfluous. In order to establish that suppression of evidence under the supervisory powers would be proper, the Court would also require Payner to establish a violation of his Fourth or Fifth Amendment rights, ¹⁵ in which case suppression would flow directly from the Constitution. This approach is totally unfaithful to our prior supervisory power cases, which, contrary to the Court's suggestion, are not constitutional cases in disguise.

I also do not understand the basis for the Court's assertion that this is not a case in which the District Court was supervising the admin istration of justice "among the parties before the bar," ante, at 8, n. 7, and therefore supervisory powers are inapplicable. Clearly the Government is before the bar. Equally clearly, the Government embarked on this deliberate pattern of lawless behavior for the express purpose of gaining evidence against persons such as Payner, so there can be no legitimate claim that the illegal actions are only tangentially related to the present prosecution. Instead, the Government misconduct is at the very heart of this case; without the evidence produced by the illegal conduct, there would have been no case at all, and Payner would never have been brought before the bar. This is simply not a case in which a federal court has attempted to exercise "general supervisory authority over operations of the Executive Branch," ante, at 1 (BURGER, C. J., concurring). Rather, this is a case where the District Court refused to be made an accomplice to illegal conduct by the IRS by permitting the agency to use the proceeds of its crimes for the very purpose for which they were committed--to convict persons such as Payner.

Contrary to the Court's characterization, this is also not a case in which there has been "indiscriminate" or "unbending" application of the exclusionary rule. The District Court noted that "exclusion on the basis of supervisory power is only done as a last resort," 434 F. Supp., at 134, n. 74. That court concluded that suppression was proper only where there had been "purposefully illegal" conduct by the Government to obtain the evidence or where the Government's conduct was "motivated by an intentional bad faith hostility to a constitutional right." Id. , at 134-135 (footnotes omitted). In this case, both those threshold requirements were met, and the District Court in addition concluded that absent suppression there was no deterrent to continued lawless conduct undertaken by the IRS to facilitate these types of prosecutions. ¹⁶ This is not "a 'chancellor's foot' veto [by the District Court] over law enforcement practices of which it did not approve," United States v. Russell, 411 U. S. 423, 435 (1973); Hampton v. United States, 425 U. S. 484, 490 (1976) (plurality opinion). As my Brother POWELL noted on a prior occasion, "[t]he fact that there is sometimes no sharply defined standard against which to make these judgments [of fundamental fairness] is not itself a sufficient reason to deny the federal judiciary's power to make them when warranted by the circumstances. . . . Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the 'chancellor's' 'fastidious squeamishness or private sentimentalism.'" Hampton v. United States, supra, at 495, n. 6 (POWELL, J., concurring). That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad-faith hostility to constitutional rights.

I would affirm the judgment of the Court of Appeals and suppress the fruits of the Government's illegal action under the Court's supervisory powers. ¹⁷ Accordingly, I dissent.

¹ The Court rather blandly states that "Agent Jaffe approved the basic outline of the plan," ante, at 2. Such a characterization is misleading in light of the findings of the District Court. As is noted in the text infra, Jaffe knew explicit details of the operation in advance and helped to make the arrangements by recommending a locksmith who could be "trusted," by providing a safe and convenient location for the photographing of the documents, and by providing a photographer from the IRS.

² Jaffe testified in the District Court that "[w]hatever I knew, he [Register] knew." See 434 F. Supp. 113, 121, n. 40; Tr. in CR 76-305 (ND Ohio ), p. 513.

³ It was clear why Casper needed a locksmith who could be "trusted." Casper testified as follows in the District Court:

"Q. Isn't it a fact, Mr. Casper, you knew you were committing an illegal act, and you wanted somebody who could be trusted to keep his mouth shut about it?

"A. There is that possibility, yes.

"Q. Isn't that the fact?

. . .

"A. Yes." 434 F. Supp., at 119, n. 20; Tr. in CR 76-305 (ND Ohio ), pp. 452-453.

It is interesting to note that even the locksmith who could be "trusted" refused to enter Kennedy's apartment with Casper . Tr. in CR 76-305 (ND Ohio ), p. 451.

The Government contends that when Agent Jaffe made the referral he did not know what use Carter intended to make of such a locksmith. Brief for United States 6, n. 4. The District Court found, however, that Jaffe already knew at the time of the referral that Casper intended to enter Kennedy's apartment and to take and open Wolstencroft's briefcase. There were, then, only two logical alternatives why Casper would want such a locksmith: to make a key to enter the briefcase, or to make a key to enter the apartment. Either way, Jaffe must have known that Casper 's conduct was improper, and yet Jaffe made the referral anyway.

⁴ It was not established at trial what occurred in Kennedy's apartment prior to the couple's departure for dinner. Since it was peculiarly within the power of the United States to produce Kennedy as a witness and since the Government did not explain her absence from the trial, the District Court inferred that Kennedy's testimony "would be unfavorable to the Government by further delineating the improprieties" of the "briefcase caper." 434 F. Supp., at 119, n. 22.

⁵ The District Court, after hearing the testimony of both Casper and Jaffe, disbelieved Jaffe's assertion that Casper had informed him beforehand that Kennedy had given Casper a key with which to enter the apartment. See 434 F. Supp., at 119, n. 15; id., at 121, n. 40. See also n. 3, supra.

⁶ 434 F. Supp., at 120, n. 25; Tr. in CR 76-305 (ND Ohio ), pp. 494-496.

⁷ As noted previously, Casper had told Jaffe to provide the photographic equipment. Jaffe testified that one of the cameras used was a "micro-filmer" which was "much quicker" than a regular camera. This camera had been brought by the IRS because " Casper had to get the documents and the briefcase back to the apartment prior to the return of the owner." Tr. in CR 76-305 (ND Ohio ), pp. 493-495. This testimony again shows that Jaffe was fully aware in advance that the activities of the evening were improper.

⁸ See 434 F. Supp., at 120, and n. 34; Tr. in CR 76-305 (ND Ohio ), p. 501.

⁹ See 434 F. Supp., at 124, 129, 134, n. 74.

¹⁰ The Court's opinion inexplicably ignores this basic thrust of our prior supervisory powers cases, and instead implies that the only value served by suppression is deterrence of future misconduct. See ante, at 9. Deterrence is one purpose behind the suppression of evidence in such situations, but it is by no means the only one.

¹¹ The Government conceded below that Wolstencroft's Fourth Amendment rights had been violated. 434 F. Supp., at 126. See Tr. in CR 76-305 (ND Ohio ), p. 502. See also Brief for United States in No. 78-5278 (CA6), p. 20. Cf. Tr. of Oral Arg. 14; Brief for United States 39. The Court agrees that the conduct was unconstitutional. Ante, at 6.

¹² The Court characterizes the actions of Jaffe and Casper in the briefcase incident as "possibly criminal behavior," ante, at 6. The District Court concluded that the actions of the IRS appeared to constitute a prima facie case of criminal larceny under Florida law, and possibly violated other criminal laws of that State as well. 434 F. Supp., at 130, n. 66. Casper admitted in the District Court that he knew he was committing an illegal act. Tr. in CR 76-305 (ND Ohio ), pp. 452-453. The stealing of the rolodex file from Wolstencroft's office was also both unconstitutional and criminal. That theft, however, produced no additional evidence against Payner. See 434 F. Supp., at 123, n. 56.

¹³ See 434 F. Supp., at 129, n. 65; id., at 131-133, and n. 69. See also Tr. in CR 76-305 (ND Ohio), p. 505.

Wolstencroft in fact was indicted for aiding and abetting Payner. Brief for United States 3, n. 2. However, Wolstencroft is a Bahamian resident, and did not return to the United States to answer the indictment. Ibid. The mere fact that the Government went through the steps of indicting Wolstencroft does not in any way undermine the District Court's finding, based on substantial evidence in the record, that Wolstencroft was never the target of the IRS investigation. In light of the Government's concession that Wolstencroft's Fourth Amendment rights were violated, it is hard to see how the banker could be successfully prosecuted on the aiding and abetting charge.

¹⁴ It is simply not a sufficient cure for the Court to denounce the actions of the IRS, ante, at 6, while at the same time rewarding the Government for this conduct by permitting the IRS to use the evidence in the very manner which was the purpose of the illegal and unconstitutional activities.

¹⁵ The Court appears to suggest that there can be no suppression of evidence based on a violation of the Due Process Clause in this case because it was not Payner who was the immediate victim of the Government's outrageous conduct. Ante, at 9, n. 9. Although the District Court concluded that the evidence should be suppressed under the Due Process Clause as well as under its supervisory powers, the Court of Appeals specifically did not reach that issue, 590 F. 2d 206 (CA6 1979) (per curiam), and the Government purposely did not raise the issue in this Court. See Pet. for Cert. 21, n. 13. The Court therefore should not reach out to address the issue in a footnote.

In addition, the only authority cited by the Court for its suggestion is Hampton v. United States, 425 U. S. 484, 490 (1976) (plurality opinion). Hampton was only a plurality opinion, and the issue for which the Court purports to cite it was not raised by the facts of that case. Similarly, in the Court of Appeals below the United States was able to cite only Sims v. Georgia, 389 U. S. 404, 407 (1967), a case plainly not on point, and the sentence from the Hampton plurality opinion quoted by the Court, ante, at 9, n. 9, for the proposition that Payner lacked standing to raise a due process argument. See Brief for United States in No. 78-5278 (CA6), pp. 21-22; Reply Brief 6. The issue whether the standing limitations this Court has imposed for challenging Fourth Amendment violations also apply for violations of the Due Process Clause based on outrageous government conduct has not yet been settled by this Court. Cf. 434 F. Supp., at 129, n. 65, and authorities discussed therein. The due process issue should be left for consideration in the first instance by the Court of Appeals on remand.

¹⁶ There is no suggestion by the Government that any action has been taken against Casper , Jaffe or others for the conduct exposed in this case. The Court admits that the corrective measures taken by the IRS "appear on their face to be less positive than one might expect from an agency charged with upholding the law," ante, at 6, n. 5. The District Court specifically found that the Government agents knew they were violating the Constitution at the time, 434 F. Supp., at 135, n. 79, and that continued manipulation of the standing limitations of the Fourth Amendment by the IRS could be deterred only by suppression of the evidence, id., at 133.

¹⁷ The Government argues that Rule 402 of the Federal Rules of Evidence stripped the federal judiciary of its supervisory powers to exclude evidence obtained through gross misconduct by agents of the United States . In the Court of Appeals this argument was relegated to one footnote, see Brief for United States in No. 78-5278 (CA6), p. 41, n. 27. The Court does not address the issue. I would merely note that the Government's discussion of the legislative history behind Rule 402 fails to convince me that it was Congress' intent to attempt such a radical curtailment of the longestablished supervisory powers of the federal judiciary. See United States v. Jacobs, 547 F.2d 772, 777 (CA2 1976), cert. dismissed as improvidently granted, 436 U. S. 31 (1978).

 

 

[79-1 USTC ¶9149] United States of America , Plaintiff-Appellant v. Jack Payner, Defendant-Appellee

(CA-6), U. S. Court of Appeals, 6th Circuit, No. 78-5278, 590 F2d 206, 1/12/79, Affirming unreported District Court order

[18 U. S. C. §§ 1001 and 3731]

Criminal tax prosecution: Motion to suppress: Proper exercise of District Court's supervisory powers.--A District Court's suppression of all evidence obtained from an illegal search and seizure of a brief case was sustained as a proper exercise of that Court's supervisory powers. The Appeals Court found it unnecessary to review the constitutional issues raised on appeal.

James R. Williams, United States Attorney, M. Carr Ferguson, Assistant Attorney General, Gilbert E. Andrews, Rob ert E. Lindsay, James A. Bruton, Department of Justice, Washington, D. C. 20530, for plaintiff-appellant. Bennet Kleinman, 1300 Bond Court Bldg., Cleveland , Ohio 44114 , for defendant-appellee.

Before PHILLIPS, Chief Judge, KEITH, Circuit Judge, and PECK, Senior Circuit Judge.

PER CURIAM.

This is the second appeal by the Government from the decision of the district court granting the motion of defendant to suppress evidence. In United States v. Payner [78-1 USTC ¶9305], 572 F. 2d 114 (6th Cir. 1978), this court dismissed the appeal for want of jurisdiction.

Jack Payner was indicted for making false statements on his income tax return. The case was tried before the district court sitting without a jury. A motion to suppress was made in advance of trial, but no ruling was made at that time. Instead the district judge proceeded to try the defendant on the merits of the case along with the motion to suppress. After all the evidence had been heard, the district court granted the motion of defendant to suppress, but made no decision on the merits. ¹

After this court dismissed the appeal in Payner I, the district court ordered that its previous suppression order be vacated and entered a verdict of guilty. Then the district court reinstated its suppression order and set aside the verdict of guilty. The Government again appeals from the suppression order.

Reference is made to the comprehensive opinion of the district court, United States v. Payner [77-1 USTC ¶9389], 434 F. Supp. 113 (N. D. Ohio 1977) for a recitation of the facts upon which the suppression order is grounded.

Upon consideration of the briefs and arguments of counsel and the entire record, we conclude that the district court did not err in suppressing the evidence in the exercise of its supervisory powers. We agree with the district court that suppression was justified. Since we base our decision upon the exercise of supervisory powers, it is not necessary to reach the constitutional questions raised on the appeal.

Affirmed.

¹ In his concurring opinion in Payner I, Judge Engel pointed out that the difficulty with the procedure followed by the district court is that it "unduly suspends the adjudicatory process after jeopardy has attached and leads to unnecessary confusion and a very real danger that the final judgment may be rendered on stale and long-forgotten evidence." 572 F. 2d at 146.

 

 

 

 

[78-1 USTC ¶9305] United States of America , Plaintiff-Appellant v. Jack Payner, Defendant-Appellee

(CA-6), U. S. Court of Appeals, 6th Circuit, No. 77-5200, 572 F2d 144, 3/17/78, Dismissing appeal from District Court, 77-1 USTC ¶9389, 434 F. Supp. 113 and 77-2 USTC ¶9492

[18 U. S. C. §§ 1001 and 3731]

Court of appeals: Jurisdiction: Appeal: Motion: Criminal tax prosecution.--The court of appeals lacked jurisdiction to consider the government's appeal from the district court's grant, in a prosecution for making a false statement on a tax return, of the defendant's motion to suppress the government's evidence. The appeal was undertaken after the hearing of the evidence of the trial on its merits and before a verdict on the indictment.

One concurrence.

William D. Beyer, United States Attorney, Cleveland, Ohio 44114, John F. Hyland, Jr., Dora A. Saharuni, M. Carr Ferguson, Rob ert E. Lindsey, James A. Bruton, Department of Justice, Washington, D. C. 20530, for plaintiff-appellant. Bennett Kleinman, Bernard J. Stuplinski, Kahn, Kleinman, Yanowitz & Arnson, 1300 Bond Court Bldg., Cleveland, Ohio 44114, for defendant-appellee.

Before PHILLIPS, Chief Judge, and ENGEL and KEITH, Circuit Judges.

PHILLIPS, Chief Judge, delivered the opinion of the Court, in which KEITH, Circuit Judge, joined. ENGEL, Circuit Judge filed a separate concurring opinion.

PHILLIPS, Chief Judge.

The Government appeals from the decision of the district court suppressing evidence in a prosecution for knowingly and wilfully making a false statement on a federal income tax return. Reference is made to the comprehensive opinion of the district court for a recitation of pertinent facts. United States v. Payner [77-1 USTC ¶9389], 434 F. Supp. 113 (N. D. Ohio 1977).

The case was tried before the district judge sitting without a jury. A motion to suppress was filed in advance of the trial, but no ruling was made upon the motions at that time. After a jury had been waived, "by agreement of the parties, the court proceeded to try the defendant on the merits of the indictment together with the motion to suppress." 434 F. Supp. at 118. After all the evidence had been heard, the district judge granted defendant's motion to suppress the Government's evidence. No decision on the merits of the case has yet been made.

In a federal criminal prosecution, the Government's right to appeal is limited to the authorization contained in 18 U. S. C. §3731. We construe this statute to forbid by express language the appeal undertaken in the present case:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purposes of delay and that the evidence is a substantial proof of a fact material in the proceeding. (Emphasis added).

As stated above, this appeal was undertaken after the hearing of the evidence of the trial on its merits and before a verdict on the indictment. The Government argues that the purpose of the statute is to permit a governmental appeal in all cases where constitutionally permissible and that the statute is to be construed liberally, relying upon United States v. Wilson, 420 U. S. 332 (1975), and United States v. Beck, 483 F. 2d 203 (3rd Cir. 1973), cert. denied, 414 U. S. 1132 (1974). No matter how liberally this statute may be construed, however, we hold that it cannot be interpreted to grant to the Government a right to appeal under the facts of the present case.

It is further contended by the Government that double jeopardy has not occurred. We express no opinion on the double jeopardy issue. We simply hold that under the facts of this case, the express language of the statute bars an appeal by the Government.

Although the district judge is to be commended for the care with which he has researched the issues and the comprehensive opinion he has prepared, the procedure followed in the present case should not be encouraged or condoned. There should have been a separate hearing on the motion to suppress and disposition of that motion should have been made before the beginning of the trial on the merits. If this procedure had been followed, the Government would have preserved its right, before the beginning of the trial on the merits, to appeal under 18 U. S. C. §3731 from the decision of the district court granting the motion to suppress.

The Government filed a petition in this court on July 22, 1977, seeking a writ of mandamus directing the district court to vacate its order suppressing the Government's evidence and to render a verdict on all the evidence. The petition for writ of mandamus was denied by an order of this court dated September 30, 1977, in which we said:

The Government has filed a petition for writ of mandamus seeking an order from this court directing United States District Judge John M. Manos to vacate an order entered on April 28, 1977 suppressing the government's evidence in a criminal prosecution, United States v. Jack Payner, and further directing the district judge to render a verdict on all of the evidence introduced at the trial. Prior to filing the petition for writ of mandamus, the Government filed a notice of appeal from an order of the district court suppressing certain evidence in the case of United States v. Payner. The appeal which the Government has commenced will present every issue properly before the court pursuant to the Government's limited right of appeal in criminal cases pursuant to 18 U. S. C. §3731. The Government may not expand the limited right of appeal under [the statute] by resort to the extraordinary writ of mandamus. The effect of the order of the district court suppressing the evidence in United States v. Payner is an issue, in any event, left to the decision of the panel to whom that appeal is assigned.

The appeal is dismissed for want of jurisdiction.

Concurring Opinion

ENGEL, Circuit Judge, concurring:

Since in my opinion it is clear that the defendant had been put in jeopardy before the trial court entered its order suppressing the evidence, I concur in the conclusion that we are without jurisdiction to hear the government's appeal. The language of 18 U. S. C. §3731 is too clear to be ignored.

Aside from the plain command of the statute, the difficulty with the procedure followed by the district court is that it unduly suspends the adjudicatory process after jeopardy has attached and leads to unnecessary confusion and a very real danger that the final judgment may be rendered on stale and long-forgotten evidence.

 

[71-1 USTC ¶9391] United States of America , Plaintiff-Appellee v. Ray F. Wilson and Ruby J. Wilson, Defendants-Appellants

(CA-5), U. S. Court of Appeals, 5th Circuit, No. 30340 Summary Calendar ^*, 440 F2d 1103, 3/30/71, Aff'g an unreported District Court decision

[Code Secs. 7201 and 7206--Result unchanged by '69 Tax Reform Act]

Crimes: Tax evasion: False return: Suppression of evidence: Finality of judgment.--H and W were convicted of willful tax evasion and making a false return. Since he had been sentenced on only three of the six counts of the conviction, H's appeal was dismissed for want of a final judgment. W's conviction was affirmed. The District Court had properly denied a motion for new trial and acquittal based on the prosecution's alleged failure to prove willfulness and a motion to suppress evidence allegedly gathered illegally.

United States Attorney, Houston , Tex. , for plaintiff-appellee. Ray F. Wilson, 3502 Arbor, Houston, Tex., pro se. Rob erson L. King, 203 Professional Arts Bldg., 4720 Dowling St., Houston, Tex., for defendants-appellants.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

Ray F. Wilson and Ruby J. Wilson appeal following conviction and sentence for violations of 26 U. S. C. §§ 7201 and 7206(1). ¹ They contend that the District Court erroneously denied their motion to suppress the evidentiary fruits of an allegedly illegal governmental seizure and interrogation. Moreover, they claim that because the Government failed to prove willfulness, the court erroneously denied their motions for new trial and for acquittal. We dismiss the appeal as to Ray F. Wilson and affirm the trial court's judgment as to Ruby J. Wilson.

After a jury found Ray F. Wilson guilty of six counts of income tax evasion and failure to report income, the District Judge orally imposed sentence from the bench. Subsequently he published a written judgment reiterating his oral pronouncement. On both occasions the judge sentenced Wilson on three counts but imposed no sentence "at this time" on the other three. The Government argues that the judge's action has made Ray Wilson's appeal premature: there has been no final judgment with regard to three counts for which Wilson has been found guilty.

In criminal cases the sentence is the "final judgment" for which appeals may be taken. Parr v. United States, 1956, [56-2 USTC ¶9641] 351 U. S. 513, 518; Berman v. United States, 1937, 302 U. S. 211, 212; Yeloushan v. United States, 5 Cir. 1963, 313 F. 2d 303, 304, cert. denied, 373 U. S. 912; see Corey v. United States, 1963, 375 U. S. 169, 172; United States v. Hark, 1944, 320 U. S. 531, 534. Only probation comporting with 18 U. S. C. A. §3651 obviates the necessity for imposition or execution of sentence to create a final decree in criminal proceedings. See, e.g., Andrews v. United States , 1963, 373 U. S. 334, 340. Cognizant of the problems of piecemeal litigation, the Supreme Court has often emphasized the pre-requisite of finality for appeal. See id. at 340. Furthermore, when a multi-court indictment and verdit is involved, it is essential for post-conviction review that the record disclose the precise sentence for each count. White v. United States , 5 Cir. 1968, 396 F. 2d 822, 826. This Court has strongly expressed its disapproval of general sentences in such instances. E.g., Putt v. United States , 5 Cir. 1968, 392 F. 2d 64, 67, cert. denied, 393 U. S. 929; Benson v. United States, 5 Cir. 1964, 332 F. 2d 288, 292; see Stone-cipher v. United States , 5 Cir. 1969, 409 F. 2d 745, 746.

In light of these authorities, it becomes clear that Ray Wilson has not received a final judgment entitling him to appellate review. See Carroll v. United States , 1957, 354 U. S. 394, 412; 28 U. S. C. A. §1291. By no stretch of the imagination can a sentence, or fine, imposed on three counts of a six-count conviction be equated with a sentence imposed on all six counts. Nor can the trial judge's decision to withhold sentence on three counts be categorized as probation. Finally, the specific language of the District Court's judgment pretermits our consideration of the sentence as "general." Consequently, we dismiss Ray F. Wilson's appeal and remand this cause to the District Court for resentencing on all six counts. See White v. United States , supra at 825-26.

Ruby J. Wilson, however, has satisfied the requirements of 28 U. S. C. A. §1291, for the District Judge imposed specific fines on all six counts for which she was convicted. Having considered the record and the District Court's careful findings of fact and conclusions of law, we conclude that Mrs. Wilson's motion to suppress was properly denied. United States v. Prudden, 5 Cir. 1970, [70-1 USTC ¶9336] 424 F. 2d 1021, cert. denied, 400 U. S. 831; see United States v. Tonahill, 5 Cir. 1970, [70-2 USTC ¶9511] 430 F. 2d 1042, 1044-45; Marcus v. United States, 5 Cir. 1970, [70-1 USTC ¶9213] 422 F. 2d 752, 756. Furthermore, examining the evidence in the light most favorable to the Government, the court committed no error in denying her motions for new trial and for acquittal on the ground that the Government had failed to prove willfulness. See United States v. Jernigan, 5 Cir. 1969, [69-1 USTC ¶9397] 411 F. 2d 471, 473, cert. denied, 396 U. S. 927; Graves v. United States, 10 Cir. 1951, [51-2 USTC ¶9431] 191 F. 2d 579, 582; cf. Marcus v. United States , supra at 755. See also United States v. Kolsky, 5 Cir. 1970, 423 F. 2d 1111, 1113; United States v. Rob ertson, 5 Cir. 1969, 417 F. 2d 873, 875-76; Hale v. United States, 5 Cir. 1969, 410 F. 2d 147, 149, cert. denied, 396 U. S. 902.

The judgment as to Ruby J. Wilson is Affirmed. The appeal of Ray F. Wilson is Dismissed.

^* Rule 18, 5 Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York , et al., 5 Cir. 1970, 431 F. 2d 409, Part I.

¹ Section 7201 provides:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Section 7206 provides in pertinent part:

Any person who--

(1) . . . Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . .

shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.

 

 

 

[88-1 USTC ¶9283] United States of America , Plaintiff-Appellee v. Glenn M. Wade, Defendant-Appellant

(CA-9), U.S. Court of Appeals, 9th Circuit, 87-3035, 3/9/88, Affirming an unreported District Court decision

[Code Sec. 7203 --Result unchanged by the Tax Reform Act of 1986 ]

Criminal penalties: Failure to file return: Appeal, timeliness.--Although the taxpayer's notice of appeal of his conviction for failure to file income tax returns was premature, it was a mere technical irregularity that was to be disregarded because it was an error that did not affect substantive rights. The taxpayer filed his notice of appeal after the jury verdict but before the judgment and sentence had been entered.

Mark R. Davis, Assistant United States Attorney, Anchorage , Alas. 99513 , for plaintiff-appellee. Glenn M. Wade, Boron, Calif. , pro se.

Before BROWNING, Chief Judge, NORRIS and O'SCANNLAIN, Circuit Judges.

OPINION

Per Curiam"

EC: Wade appeals pro se his conviction on three counts of willful failure to file income tax returns in violation of 26 U.S.C. §7203 . Wade filed his notice of appeal on April 13, 1987--after the jury verdict (4/3/87), but before entry of the final judgment and sentence (5/7/87). No new notice was filed after sentencing. The government challenges Wade's appeal as untimely under Fed. R. App. P. 4(b).

Rule 4(b) requires that "[i]n a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from." Final judgment in a criminal case means the sentence. Berman v. United States , 302 U.S. 211, 212-213 (1937). Although Wade's notice of appeal was premature, we agree with the Third, Seventh, and Eleventh Circuits that a notice of appeal filed after a verdict but before sentencing ripens into an appealable order when the judgment of sentence is entered. United States v. Hashagan, 816 F.2d 899 (3rd Cir. 1987) (en banc); United States v. Curry, 760 F.2d 1079 (11th Cir. 1985); United States v. Moore, 616 F.2d 1030 (7th Cir. 1980). Following these circuits, we hold that premature notice under the circumstances of this case is a mere technical irregularity governed by the requirement of Fed. R. App. P. 52(a) that: "Any error, defect or irregularity or variance which does not affect substantive rights shall be disregarded."

As the other circuits have noted, our holding accords with the Supreme Court's reasoning in Lemke v. United States, 346 U.S. 325 (1953), in which the Court upheld the validity of a notice of appeal filed after sentencing but before the formal entry of judgment. Construing the requirements of Rule 4(b) in light of its purpose to prevent prejudice from prematurity, the Court found the premature filing to be harmless error under Rule 52(a) because it provided full notice of the judgment challenged. Id. at 326. As in Lemke, Wade's notice of appeal was on file when formal judgment was entered and "gave full notice after that date, as well as before, of the sentence and judgment which [defendant] challenged." Id.

Our holding does not conflict with the Supreme Court's recent decision in Acosta v. Louisiana Department of Health and Human Resources, 106 S.Ct. 2876 (1986) in which the Court strictly construed the language of Rule 4(a)(4) and found ineffectual a notice of appeal in a civil case filed after the announcement of a decision on a Rule 59 motion but before the order denying the motion was filed. The Court's decision rested entirely on its reading of the specific language of Rule 4(a)(4) which explicitly mandates that "[a] notice of appeal filed before disposition of [a Rule 59 motion] shall have no effect." No such language appears in Rule 4(b) at issue in this case.

On the merits, we AFFIRM Wade's conviction for the reasons stated in an unpublished memorandum disposition filed herewith.

 

 

[61-1 USTC ¶9105] Rob ert E. Funkhouser, Appellant v. United States of America , Appellee

(CA-4), U. S. Court of Appeals, 4th Circuit, No. 8094, 9/7/60, Vacating and remanding an unreported District Court order

[1939 Code Sec. 145(b) and corresponding 1954 Code Sec. 7201]

Tax evasion: Timeliness of appeal: Factual issue on appeal.--The factual issue of whether the taxpayer, as a criminal defendant in a tax evasion trial, had given sufficient notice of appeal by addressing a letter to the trial judge cannot be decided on appeal when first raised on brief. The cause was therefore remanded for further proceeding.

Rob ert E. Funkhouser, Pro Se. Rob ert E. Cahill, Assistant United States Attorney, Post Office Bldg., Baltimore, Md. (Leon H. A. Pierson, United States Attorney, Post Office Bldg., Baltimore, Md. on brief) for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and CHARLES F. PAUL, District Judge.

PER CURIAM:

The instant appeal in a post-conviction proceeding, the second prought here by Rob ert E. Funkhouser, is the latest step of a number taken by him to "correct an illegal sentence." The sentance, imposed on June 6, 1952, following his conviction of income tax evasion in the years 1943 to 1947 inclusive, was imprisonment for one year and a fine of $25,000. ¹ Funkhouser's chief claim, both in the District Court and here, is that he was illegally deprived of his right of appeal. He insists that he gave notice of appeal within the ten day period provided by law.

An unusual feature of the defendant's present effort is that he presented, for the first time, as an appendix to his brief in this Court, an unauthenticated photostatic copy of a previously undisclosed letter which he claims to have sent Judge W. Calvin Chesnut, who presided at his trial and passed sentence upon him. The letter bears date of June 6, 1952, the very day of the sentence, and, according to the defendant, was a timely notice of appeal which the Judge should have filed in the Clerk's office among the papers of the case, but which the defendant claims the Judge mailed back to the defendant's wife.

Since submitting its additional brief the Government now calls our attention to the discovery of a letter in Judge Chesnut's file which is dated June 6, 1952, but its text is entirely different from that of the photostat bearing the same date, which the defendant submitted. The Government contends that while this newly discovered letter does not sustain the theory which it has heretofore advanced, the letter does in fact completely refute the defendant's contention and shows the photostat submitted by the defendant to be spurious.

The issue which has now developed between the parties is not one we should attempt to decide upon documents not in the record and explanations unsupported by sworn testimony. "It is not appropriate to make the initial tender of factual issues in the Court of Appeals." Holly v. Smyth, F. 2d (4th Cir., 1960). In the circumstances we vacate the order and remand the case to the District Court for the reception of evidence from both parties upon the above issue and others raised by the defendant. The District Judge should then make specific findings of fact and conclusions of law upon all such issues.

Order vacated and case remanded for further proceedings.

¹ It is not free from doubt under United States v. Morgan, 346 U. S. 502 (1952), whether, the prison term having been served, the sentence is now open to attack; but it would seem at least that the fine, if illegal, might be restored. At all events the U. S. Attorney makes no point of this.

 

 

[60-1 USTC ¶9476]Oral J. Wilkinson, Appellant v. United States of America , Appellee

(CA-10), U. S. Court of Appeals, 10th Circuit, No. 6338, 278 F2d 604, 4/16/60, Appeal from an unreported District Court decision

[1954 Code Sec. 7201]

Appeals: Timeliness: Income tax evasion: Mandatory time: Jurisdictional question: Notification of entry of judgment.--The mailing of a certified copy of a judgment convicting taxpayer of income tax evasion did not extend the time to file an appeal, the requirement that the appeal be filed within 10 days after entry of judgment being mandatory and jurisdictional.

David K. Watkiss, 721 Continental Bank Building, Salt Lake City , Utah (Calvin L. Rampton, 721 Continental Bank Building, Salt Lake City , Utah , with him on brief), for appellant. William J. Adams, Assistant United States Attorney, Salt Lake City, Utah (A. Pratt Kesler, United States Attorney, Salt Lake City, Utah, with him on brief), for appellee.

Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.

PER CURIAM:

The United States moves to dismiss this appeal upon the ground that the notice of appeal was not filed within time. The defendant Wilkinson, after having been found guilty of income tax evasion in violation of Title 26, §145(b), (I. R. C. 1939), and Title 26, §7201, (I. R. C. 1954), appeared before the United States District Court for the District of Utah for sentencing on January 4, 1960 and was sentenced to serve a term of 6 months and to pay total fines of $15,000. On January 6, 1960 the judgment and commitment was filed with the Clerk of the aforesaid court and was entered upon the docket January 7, 1960. A certified copy thereof was mailed to the attorney for the defendant and received in his office sometime during the work week of January 11-15, 1960. On January 21, 1960 notice of appeal was filed.

[Time to Appeal]

Rule 37(a)(2) of the Federal Rules of Criminal Procedure provides that a defendant may take an appeal within 10 days after entry of a judgment or order appealed from. It is conceded that the notice of appeal was not filed within 10 days from either the pronouncement of the sentence from the bench or from the formal entry of the judgment upon the docket. The law is well settled that the taking of an appeal within the prescribed time is mandatory and jurisdictional. ¹ United States v. Rob inson, 361 U. S. 220; Martin v. United States , 10 Cir., 263 F. 2d 516; Lujan v. United States , 10 Cir., 204 F. 2d 171; Swithart v. United States , 10 Cir., 169 F. 2d 808.

["Entry of Judgment"]

Defendant contends the phrase "entry of the judgment," contained in Rule 37, refers to the actual entry on the docket in the clerk's office, but he also urges that the time for appeal does not being to run until the defendant has actual or constructive knowledge of the entry. The requirement that the defendant have knowledge is said to arise from the district court's procedural custom of mailing copies of formal judgments to defense attorneys. We hold that the running of the 10-day period for filing the notice of appeal is not delayed until the defendant is notified of the entry of the judgment in the clerk's records. The mailing of a copy of the judgment is not required by the rules, ² and if the district judge requires such mailing, it is for the convenience of defendants and their attorneys. The Rob inson case holds that a district judge is without jurisdiction to extend the statutory time for appeal. That case is controlling here.

Motion sustained.

¹ A notice of appeal filed out of time confers no jurisdiction on the appellate court.

² Rule 49(c), Fed. Rules Crim. Proc., provides that upon the entry of an order made upon written motion after arraignment, the clerk shall immediately mail each affected party notice thereof. The rule does not require notice of the entry of a judgment and sentence.

 

 

[61-2 USTC ¶9504]H. A. Lott et al., Petitioners v. United States

Supreme Court of the United States, No. 238, 367 US 421, 81 SCt 1563, 6/12/61, Rev'g and rem'g CA-5, 60-2 USTC ¶9542, 280 F. 2d 24

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.

[Title 18, U. S. C., Rules of Criminal Procedure 34 and 37(a)(2); 1954 Code Sec. 7201]

Criminal evasion: Timeliness of appeal: Plea of nolo contendere: Motion to arrest judgment.--An appeal from a judgment of conviction and sentence was timely filed when the notice of appeal was filed within 10 days after the denial of a motion in arrest of judgment even though the notice was not filed within 10 days after the date on which oral judgment and sentence were pronounced or within 10 days after the date on which formal judgment was signed and filed. A plea of nolo contendere, tendered and accepted by the trial court some 3 months earlier, was not such a "determination of guilt" as to make the motion in arrest of judgment untimely under Rule 34. The judgment of conviction and sentence, not the tender and acceptance of the plea of nolo contendere, constitutes the "determination of guilt" under Rule 34, and the motion in arrest of judgment was filed within 5 days after both the oral and formal judgments were made.

Four dissents.

John H. Crooker and Joe S. Moss, Bank of the Southwest Bldg., and Denman Moody, Esperson Bldg., Houston, Tex., for petitioner. Archibald Cox, Solicitor General, Louis F. Oberdorfer, Assistant Attorney General, Bruce J. Terris, Assistant to the Solicitor General, Meyer Rothwacks, and Richard B. Buhrman, Department of Justice, Washington 25, D. C., for respondent.

Mr. Justice WHITTAKER delivered the opinion of the Court:

This case is concerned with the timeliness of an appeal from a judgment of conviction and sentence in a criminal case under Rule 37(a)(2) of the Federal Rules of Criminal Procedure. ¹

These three petitioners having been jointly indicted, with two others, on five counts in the United States District Court for the Southern District of Texas for willfully attempting and conspiring to evade the federal income taxes of their corporate employer, ² entered, and the court accepted, pleas of nolo contendere on March 17, 1959. But the court decided that pronouncement of its judgment should await conclusion of the impending jury trial of the other two defendants. ³ Soon after the conclusion of that rather protracted trial, the court, on June 19, 1959, orally pronounced its judgment convicting petitioners and sentencing them to imprisonment. ⁴ Three days later, on June 22, formal judgment was prepared, signed by the judge and filed with the clerk. The next day, June 23, petitioners filed their separate "motion[s] in arrest of judgment." ⁵ These motions were denied on July 13. Two days later, on July 15, petitioners filed their separate notices of appeal from the judgment to the United States Court of Appeals for the Fifth Circuit. ⁶

[CA-5 Dismissed Appeals]

On the Government's motion, that court dismissed the appeals as untimely under Rule 37(a)(2). 280 F. 2d 24. It held, in effect, that, although there is no such express limitation in the Rules, the provisions of Rule 34 ⁷ impliedly modify and limit the provisions of Rule 37(a)(2). And it concluded that, although "motion[s] . . . in arrest of judgment" had, in fact, "been made within the 10-day period" after entry of the judgment appealed from (Rule 37(a)(2)), it cannot be so regarded under these Rules because the tender by petitioners and acceptance by the court of the pleas of nolo contendere on March 17 constituted the "determination of [their] guilt," and, inasmuch as the motions in arrest were not made "within 5 days after [that] determination of guilt" as required by Rule 34, it followed that, to be timely under Rule 37(a)(2), the appeals had to "be taken within 10 days after entry of the judgment or order appealed from" (Rule 37(a)(2)), or by June 30 or July 2--depending upon whether it was the oral pronouncement of June 19 or the formal entry of June 22 that constituted the judgment--and not "within 10 days after entry of the order denying the motion." (Rule 37(a)(2).) 280 F. 2d, at 27-28. Because of a conflict between the circuits upon the question presented ⁸ and of its importance to the proper admin istration of the criminal Rules, we granted certiorari. 364 U. S. 813.

[Opposing Arguments]

Buttressed by Lujan v. United States, 204 F. 2d 171 (C. A. 10th Cir.), and Smith v. United States, 273 F. 2d 462 (C. A. 10th Cir.), holding, on similar facts, that Rule 37(a)(2) alone and unaffected by any other Rule prescribes the time within which an appeal must be taken to a Court of Appeals in a criminal case, and further buttressed by their belief that this Court, too, so held, even if sub silentio, in exercising jurisdiction, under facts virtually identical to those here, in Sullivan v. United States [54-2 USTC ¶9716], 348 U. S. 170, petitioners point to the facts that Rule 37(a)(2) is captioned "Time for Taking Appeal"; that it is the only Rule that purports to deal with the subject; that it does not speak of motions filed within five days, nor after "verdict or finding of guilty" (Rule 33), nor after "determination of guilt" (Rule 34)--whatever that term may mean--and makes no reference to timeliness, under any other Rule, of the motions of which it speaks, but that it simply says in plain and unmistakable language that "An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion . . . in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion." Then, after pointing to the admitted fact that their motions in arrest were "made within the 10-day period"--actually within three days--after entry of the judgment appealed from, and that they appealed on the second day after their motions were denied, petitioners strenuously insist that their appeals were timely. They contend that to hold their appeals to have been untimely, in these circumstances, would be to mutilate the plain language of Rule 37(a)(2) and to make of it a trap even for the wary--including their experienced and competent counsel who were doing their best to protect petitioners' rights of appeal. And they insist that such a snare should not be permitted to deprive one of the valuable right of an appeal upon which his liberty, or even his life, may well depend.

[Not Necessary to Reconcile Rules]

Though we are impressed by this demonstration and argument, as also by the legalisms of the Government's countervailing argument, and although recognizing, as we do, the obscurity, if not inconsistency, in these Rules that has been exposed by this case, we need not here decide whether Rules 33 and 34 modify Rule 37(a)(2) so as to limit the time which it specifies for the taking of an appeal--but may and should leave that problem and its kindred ones, brought to the fore in this case, for resolution by the rule-making process, ⁹ United States v. Rob inson, 361 U. S. 220--for we have concluded that it was the judgment of conviction and sentence, not the tender and acceptance of the pleas of nolo contendere, that constituted the "determination of guilt" within the meaning of Rule 34. And, inasmuch as the motions in arrest were "made within 5 days after [that] determination of guilt," as required by Rule 34, and thus, in any view, were also "made within the 10-day period" after entry of the judgment appealed from, as required by Rule 37(a)(2), the appeal, taken "within 10 days after entry of the order denying the motion," was timely.

[Effect of Plea of Nolo Contendere]

Although it is said that a plea of nolo contendere means literally "I do not contest it." Piassick v. United States, 253 F. 2d 658, 661, and "is a mere statement of unwillingness to contest and no more," Mickler v. Fahs [57-1 USTC ¶9598], 243 F. 2d 515, 517, it does admit "every essential element of the offense [that is] well pleaded in the charge." United States v. Lair, 195 F. 47, 52 (C. A. 8th Cir.). Cf. United States v. Frankfort Distilleries, 324 U. S. 293, 296. Hence, it is tantamount to "an admission of guilt for the purposes of the case," Hudson v. United States, 272 U. S. 451, 455, and "nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record," United States v. Norris, 281 U. S. 619, 623. Yet the plea itself does not constitute a conviction nor hence a "determination of guilt." It is only a confession of the well-pleaded facts in the charge. It does not dispose of the case. It is still up to the court "to render judgment" thereon. United States v. Norris, supra, at 623. At any time before sentence is imposed--i. e., before the pronouncement of judgment--the plea may be withdrawn, with the consent of the court. Rule 32(d), Fed. Rules Crim. Proc. Necessarily, then, it is the judgment of the court--not the plea--that constitutes the "determination of guilt." Apart from the opinion below, we have not been cited to any case, and have found none, that holds or even intimates the contrary.

[Defendants' Other Contentions Not Considered]

In view of this disposition of the jurisdictional question, we need not decide petitioners' alternative contentions that their motions in arrest should be treated as motions under Rule 12(b)(2) of the Federal Rules of Criminal Procedure (see Finn v. United States, 256 F. 2d 304, 306 (C. A. 4th Cir.); Hotch v. United States, 208 F. 2d 244, 250 (C. A. 9th Cir.); United States v. Holmes, 110 F. Supp. 233, 234 (D. C. S. D. Tex.)), or as motions to vacate sentences under 28 U. S. C. §2255 (see Marteney v. United States, 216 F. 2d 760 (C. A. 10th Cir.); Finn v. United States, supra).

The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.

Reversed and remanded.

¹

"Rule 37

"TAKING APPEAL; AND PETITION FOR WRIT OF CERTIORARI

"(a) Taking Appeal to a Court of Appeals.

. . .

"(2) Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion. . . ."

² The corporate employer and taxpayer was Farnsworth & Chambers Co., Inc. Petitioners were employee-officers of that corporation, and collectively owned approximately 7 percent of its issued and outstanding capital stock. The first four counts of the indictment charged willful attempt to evade the corporation's income taxes for the years 1951, 1952, 1953 and 1954, respectively, and the fifth count charged a conspiracy to commit the four substantive offenses charged.

³ The two codefendants who stood trial were Richard A. Farnsworth, Sr., and his son. They owned a major part of the corporation's capital stock. Their trial, which began on April 6, 1959, and continued through June 9, resulted in a verdict of acquittal of the son on all counts, and a failure of the jury to agree on any of the counts as to the father.

⁴ Petitioners were sentenced to imprisonment--Blocker for three years, Lott and Frazier for two years, on each count, the sentences to run concurrently, and each was fined $20,000.

⁵ Each of the motions in arrest prayed, inter alia, "that the judgment and sentence . . . be arrested and set aside, that the indictment . . . be dismissed, and that [there] be granted such other relief as justice may demand."

⁶ Actually, only Lott appealed on July 15. Blocker and Frazier appealed two days later, on July 17.

⁷ "Rule 34. Arrest of Judgment.

"The court shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 5 days after determination of guilt or within such further time as the court may fix during the 5-day period."

⁸ In accord with the decision below is United States v. Bertone, 249 F. 2d 156 (C. A. 3d Cir.). And see O'Neal v. United States, 264 F. 2d 809 (C. A. 5th Cir.); Drown v. United States, 198 F. 2d 999 (C. A. 9th Cir.); Godwin v. United States, 185 F. 2d 41 (C. A. 8th Cir.). To the contrary are Lujan v. United States, 204 F. 2d 171 (C. A. 10th Cir.); Smith v. United States, 273 F. 2d 462 (C. A. 10th Cir.); and see Sullivan v. United States [54-1 USTC ¶9333], 212 F. 2d 125 (C. A. 10th Cir.), affirmed [54-2 USTC ¶9716], 348 U. S. 170.

⁹ In light of the confusion that has arisen under these Rules, as exposed by this case, it is hoped that those who advise the Court with respect to the exercise of its rule-making powers--more particularly of course the Judicial Conference of the United States (28 U. S. C. §331) and the Advisory Committee on Federal Rules of Criminal Procedure--will give these problems their early attention.

[Dissenting Opinion]

Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting:

The Court characterizes "determination of guilt," as used in Rule 34, ¹ by the significant phrase, "whatever that term may mean." It then finds that the acceptance of a nolo contendere plea is not such a determination. I submit that this Court has held that acceptance of such a plea is a "determination of guilt," and that today's decision is not only contrary to prior cases, but is also out of tune with the long-accepted practice of both federal and state courts. Believing that it will result in such confusion as to the requirements of our Rules that the admin istration of criminal justice will be adversely affected, I must respectfully dissent.

At the time petitioners Blocker and Frazier offered their pleas (March 17), the Government objected to their acceptance by the court, as it did when Lott offered his (March 20). The court heard counsel and warned the parties of the seriousness of the charge, i. e., that the charge was willful tax avoidance, that the plea was voluntarily made without promises, and that the sentence might be five years' confinement in addition to a large fine. After being assured by each of the parties that he wished to enter his plea, the court accepted them. Orders were entered in the minutes of the court as to each defendant, accepting the pleas and directing that a "pre-sentence investigation" be undertaken "for sentence at conclusion of entire case." The delay as to sentence was occasioned by the awaited trial of two additional defendants who had pleaded not guilty. The record shows that on June 19, after that trial was concluded (one defendant being acquitted and the other having a hung jury), petitioners appeared in court "on the criminal action docket for sentence . . .." (Italics added.) The court, in addressing the parties, said, "[a]ll three of you have entered a plea of nolo contendere, and that is equivalent to a plea of guilty." (Italics added.) Neither counsel nor the parties made any comment on this characterization of their pleas. Thereafter, petitioners and their counsel made statements in mitigation, after which sentence was pronounced. At no time were any motions made for permission to withdraw the pleas. On June 22, the formal judgments and commitments on the sentences were entered and each petitioner filed a motion in arrest of judgment on the next day. It is these motions that the Court of Appeals held should have been filed within five days of the acceptance of the pleas of nolo contendere in March. The Court, however, holds that the crucial date on which the "determination of guilt" was made was the day of the judgment of conviction and sentence. ² Since the motions in arrest came within five days thereafter, the Court says they were timely under Rule 34, as were the appeals that followed, under Rule 37(a)(2). ³

Rule II(2) of the Criminal Appeals Rules, 1933, 292 U. S. 661, the predecessor of present Rule 34, stated that "motions in arrest of judgment shall be made within three days after verdict or finding of guilt." Certainly "verdict" referred to a jury verdict of guilt. A plea of guilty has always been considered the equivalent of a jury finding of guilty. See United States v. Norris, 281 U. S. 619 (1930); United States v. Bradford , 194 F. 2d 197. The same is true of a plea of nolo contendere. Our cases have long and consistently held that it, "like a plea of guilty, is an admission of guilt for the purposes of the case." Hudson v. United States , 272 U. S. 451, 455 (1926). As this Court said in United States v. Norris, supra, after its entry, "the plea of nolo contendere upon that question [of guilt or innocence] and for that case, was as conclusive as a plea of guilty would have been. The court was no longer concerned with the question of guilt, but only with the character and extent of the punishment. The remedy of the accused . . . was to withdraw, by leave of court, the plea of nolo contendere . . .." At p. 623. (Italics added.)

Rule 34, the successor to Rule II(2), is likewise clear and unambiguous--it says the motion must be filed within five days of "determination of guilt," not the time of judgment or sentence. The Court today, however, rewrites the Rule by holding that the judgment date is the controlling one. "[I]t is the judgment of the court . . . that constitutes the 'determination of guilt.'" Ante, p. --. It has, however, long been recognized that determination of guilt and entry of judgment are disparate. United States v. Norris, supra; Fed. Rules Crim. Proc., 32(b). If the framers of the Rules had intended to have the time for filing the motion in arrest run from the date of judgment, they would have said so. Instead they said that Rule 34 "continues existing law except that it enlarges the time for making motions in arrest of judgment from 3 days to 5 days. See Rule II(2) of Criminal Appeals Rules of 1933, 292 U. S. 661." ⁴ (Italics added.) "Existing law" did not allow motions in arrest unless made within three days of "verdict or finding of guilt."

The majority notes petitioner's argument that Sullivan v. United States [54-2 USTC ¶9716], 348 U. S. 170 (1954), supports today's decision "even if sub silentio." With due deference, I say it does not. No question of jurisdiction was raised or considered in that case, either in the Court of Appeals or in this Court. ⁵ The case dealt solely with the merits of motions to dismiss and to withdraw a plea of nolo contendere under Rule 32(d) after sentence.

[Nolo Contendere v. Guilty Plea or Jury Verdict]

The Court attempts to bolster its decision by noting that a noto contendere plea "does not constitute a conviction," that it "does not dispose of the case" and that "[i]t is still up to the court 'to render judgment' thereon." However, these statements are just as true when a guilty plea is accepted or the jury returns a verdict of guilty. They certainly were equally true under former Rule II(2). The judgment sentencing and committing the defendant in each of these instances would still have to be entered. In actual practice, then, nothing more is left to be done by the court after accepting a nolo contendere plea than is necessary after accepting a guilty plea or after a jury returns a verdict of guilty. In each of the three situations, guilt has been determined upon the acceptance by the court of the, 5/29/61. jury. In each case, motions to withdraw the pleas or to set aside the verdict may be made, and might be granted, but their availability does not alter the fact that, until any such motion is granted, there has been a determination of guilt

It appears rather unseemly to me for the Court to enlarge, through judicial decision, the time for filing motions in arrest and, in consequence, that for taking an appeal. Only last Term, we said in United States v. Rob inson, 361 U. S. 220, 229 (1960), that this should be effected "through the rulemaking process . . ." As was pointed out there, Rule 45(b) specifically provides that "the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal." The Court has, by today's opinion, enlarged the time provided in these Rules, contrary to their express provision, contrary to our prior cases, and contrary to the long-established practice at the Bar. In so doing, it places these Rules in a state of utter confusion, and must thereby surely drive the Bar and the trial courts to procedural distraction. I would affirm.

¹ Rule 34 states in pertinent part that "[t]he motion in arrest of judgment shall be made within 5 days after determination of guilt or within such further time as the Court may fix during the 5-day period."

² Whether this date is June 19, when the court orally pronounced sentence, or June 22, when the court formally entered judgments and commitments, is not made clear for under the Court's rationale, these appeals would be timely if either date were considered that of the "determination of guilt."

³ While the Court does not place its decision solely on the language of Rule 37(a)(2), it is well to note that under that Rule an appeal must be taken "within ten days after entry of the judgment." If, however, a motion "in arrest of judgment has been made within the ten day period" the appeal period is tolled until the motion is overruled. Petitioners argue that since their motions in arrest were filed within the "ten day period" subsequent to judgment and were not overruled until July 13, their appeals (filed July 17) are timely. I assume that the Court considers this contention--making Rule 34 mere surplusage--entirely untenable since it specifically refuses to pass upon it.

⁴ S. Doc. No. 175, 79th Cong., 2d Sess. 56.

⁵ Petitioner's plea of nolo contendere was entered on April 8 and immediately accepted by the court. His motion in arrest of judgment was filed on May 29 and denied on June 23. The District Court gave no reason for its denial. The appeal was filed June 23.

 

 

[57-2 USTC ¶10,046]Solomon P. Rosenbloom, also known as Sol. Rosenbloom, Petitioner v. United States of America

Supreme Court of the United States , No. 451. October Term 1957, 355 US 80, 78 SCt 202, 11/25/57, Granting petition for certiorari and reversing and remanding U. S. Court of Appeals, 8th Circuit, 57-2 USTC ¶9927

[1954 Code Secs. 7201-7203--similar to 1939 Code Sec. 145]

Tax evasion: Timeliness of appeal.--An appeal from a judgment of conviction of tax evasion was timely where it was conceded that the clerk of the District Court did not send a notice of the entry of the order denying the taxpayer's motion for a new trial and judgment of acquittal. The record did not establish with certainty that the taxpayer or his attorney had actual notice of the entry of that order. Two dissents.

Solomon P. Rosenbloom, Pro se, and Israel Treiman, 1955 Railway Exchange Bldg., St. Louis, Mo., for petitioner. J. Lee Rankin, Solicitor General, Charles K. Rice, Assistant Attorney General, Joseph F. Goetten and Richard B. Buhrman, Attorneys, Dept. of Justice, for respondent.

PER CURIAM:

The petition for a writ of certiorari is granted. The Court of Appeals has held, without opinion, that petitioner's notice of appeal from the District Court, filed on July 8, 1957, was untimely. The government has conceded that the clerk of the District Court did not mail to petitioner or his attorney a notice of the entry of the order of June 14 denying petitioner's motion for a new trial and judgment of acquittal, as required by Rule 49(c), Federal Rules of Criminal Procedure. In our opinion the record in this case fails to show with sufficient certainty that petitioner or his attorney had actual notice of the entry of that order by reason of the proceedings which took place in the District Court on June 14. ^* Cf. Huff v. United States , 192 Fed. (2d) 911; Gonzales v. United States , 233 Fed. (2d) 825, 827, reversed on other grounds, 352 U. S. 978. What transpired at these proceedings is too ambiguous to permit the conclusion that petitioner and his attorney were not justified in believing that petitioner's time to appeal would begin to run on July 8. In these circumstances we think that the Court of Appeals erred in holding that petitioner's notice of appeal was untimely. Rule 37(A)(2), Fed. Rules Crim. Proc.; see Carter v. United States, 168 Fed. (2d) 310. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

[Dissent]

MR. JUSTICE BURTON, with whom MR. JUSTICE CLARK concurs, dissenting.

Petitioner was present in open court with his attorney at the time the court overruled his motion for a new trial. He thus had actual notice of the denial of his motion and was not entitled to rely upon an additional notice in writing from the clerk to the same effect. The colloquy quoted by the court took place later, "after calling other motions in other cases." At that time this case "was again called by the judge and the proceedings as indicated in the transcript of the official court reporter took place." Especially in the light of the time interval between the denial of the motion and the colloquy quoted in the opinion, I believe the Court of Appeals was justified in concluding that petitioner's counsel should have understood that his motion had been denied on June 14.

^* The record shows the following:

"The Court . . .

"Do you want some time for your client before he turns in?

"Mr. Shaw. Your Honor, I was going to ask for some time in which to get his affairs straightened out, and within which to file an appeal, should we so desire to do.

"The Court. Very well. If you file an appeal, of course, if you apply for bond, I will tell you now that I will grant you bond. Be permitted to go under the bond you are under now. How much time do you want?

"Mr. Shaw. About two weeks, your Honor,

"The Court. How about Monday, July 1st, or do you want it the 8th, the following Monday?

"Mr. Shaw. That will be all right.

"The Court. Be given until July 8th.

"Mr. Shaw. Thank you.