Louis Sager Hunsucker, Jr. v. Robert L. Phinney, District Director of Internal Revenue

effect,3 nei of the contract was Sager Jr., brandy HUNSUCKER, Louis nor offered to did make ther Plaintiff-Appellant, crop. peach from the Monarch persuaded are record conclusive We. general ly that, under demonstrates PHINNEY, Robert L. District Director of principles Revenue, commercial law4 Internal Defendant- Appellee. pertinent sections of the Uniform Com by Georgia,5 adopted mercial parties Code No. 71-2580. reached and consummated Appeals, States Court terminating agreement settling be Fifth Circuit. ques rights, tween them all claims and July 10, 1974. arising por executory out of the tions Rehearing 29, 1974. Aug. Denied agree segment tion of the 1969 ment. supports

Insofar as the record anticipatory breach, we claim of comprehended set within and think it agreement. Pir tled As suggestion duress motivated rone’s agreement, the claim his assent to this fringes doc is far on the outer Georgia trine. We have been shown supports proposition case6 which resulting hardship from mere com brings breach of terms mercial contract play, into doctrine and the havoc holding which such a would work with disputed claims desirable settlements Georgia do Several obvious. exists, suggest that even where duress one such as who continues ac Pirrone agreement cept benefits under an taint ed it after the is removed duress may not later raise it7 It no evidence 8 there was follows meeting Boeing Shipman standards jury supporting the under verdict Count 2. summary affirm the court’s In we findings

judgment jury’s based on judgment 1 and and we reverse the Counts it is

insofar as based finding jury’s on Count 2. part, part. Affirmed reversed filing agree party’s 3. California action Novem- is none Until And briefs there ber, afterthought point. a clear as to this claim. Banking Co., specifically displaced. 4. Preserved where 7. E. v. Rente Williams (1966). Ga.App. 778, Ann. § Ga.Code 109A-1-103. S.E.2d 1969). (5th 5. Ga.Code Ann. 8. 411 Cir. §§ 109A-2-207 to 109A-2- F.2d 365 Douglass Tex., Hearne, Austin, D. plaintiff-appellant. Silverstein, Dept, Morris U. S. of Jus- tice, Atty. Gen., Div., Crampton, Tax Scott P. Asst. Powell, B. Carlton D. Fred Meyer Ugast, Atty. Gen., Act. Asst. Div., Rothwacks, Dept, Attys., Tax Washington, Justice, C.,D. S. William Tex., Sessions, Atty., Antonio, U. San S. defendant-appellee. GEE, GODBOLD, DYER Before Judges. Circuit

Judge: GODBOLD, Circuit Hunsucker, against Appellant whom or criminal was

no civil prejudice. prohibit appears seeking dismissal pending, sued based on alternative conclusions that ei against any action, civil or him use (a) documentary ther of whether or determination evidence criminal, of illegally illegally not the premature, evidence seized was seized. he claims had (b) sought pursuant search war specifically he More adequate rant was issued with an show declaratory judgment stat the federal ing probable 2201-2202, of cause and was not inval ute, declara illegally §§ U.S.C. by subsequent in idated the decisions material was tion that the States, 39, 41(e), Marchetti v. and, pursuant 390 U.S. F. seized, Rule to 697, (1968), R.Crim.P.,1 19 L.Ed.2d and property S.Ct. of return the seized 62, evi Grosso v. United prohibiting as its use and an order (1968). 709, 19 against S.Ct. L.Ed.2d dis was dence him. His suit appeals. prejudice, and he missed with Hunsucker that is not a asserts concerning controversy tax case but a facts, found are the relevant These search and seizure. characteriza- That by On December District Court. the because, necessary tion is a as we apartment was Hunsucker’s below, discuss does not confer § agents by of States searched the United judgments power declaratory enter to by pursuant to a issued search warrant injunctions cases, tax the of and use Bet Commissioner. against of or collection fed- assessment wager slips, recap slips, and ad- names by eral taxes is barred 26 U.S.C. § seized. items were and other dresses 7421(a) (subject to ex- certain narrow day on the same was arrested Hunsucker ceptions). Having attempted remove to charged of U.S.C. and with violations field, himself from the tax Subsequently 4901, 7203, and 7262. §§ early adjudication of seeks to obtain an by the the criminal action was dismissed legality by invoking the of the seizure Attorney, materials and the seized U.S. concept equi- supervisory limited of agent In- to the were over an of turned powers table and a seldom court who, basis ternal Revenue Service jurisdictional statute, used 28 U.S.C. § materials, of that an these recommended against $36,167 made assessment of delinquent excise taxes. Hunsucker for Equitable supervisory A. had or of assessment At the time trial no actually made. Prior to trial seized materials the District the Court Hunsucker contends that cases enter- Hunsucker, the were returned but taining pleas suppression for and return copies some of IRS made and retained unconstitutionally property seized items. indictment establish that ju- had jurisdiction. held that it the The District Court District had Court the hold risdiction and dismissed even the District had Court 41(e), trial, issued, (5) Rule F.R. At the time of rant was or the warrant was Crim.P., provided: illegally judge executed. The shall receive (e) Property necessary and to Return of evidence on Motion for issue of fact aggrieved person Suppress A Evidence. the decision of the motion. If the motion by may granted property search seizure unlawful the shall be restored subject the court district unless move district otherwise to lawful detec- property the re- which the was seized for tion and it shall admissible evi- suppress property any hearing turn of the dence at or trial. The motion anything suppress may the use as evidence so obtained evidence also be made in ground (1) property district where the trial is to be had. warrant, (2) illegally without The seized motion shall be made before trial or face, hearing opportunity on its the warrant is insufficient unless therefor did (3) property that de- seized not exist or the defendant was not aware (4) warrant, grounds there was motion, scribed believing probable cause for the exis- its discretion entertain grounds hearing. on which the war- tence of the motion at the trial or adjudicate power statutes, 1331-1358, ten- the issues 28 U.S.C. in vain §§ grant grant requested, power dered the relief for a and to power tempered jurisdictional the exercise of'that where amount re justi- equitable quired satisfied, 1331(a) considerations which is not fied the District Court’s conclusion Grant v. United attempt Judge (CA2, 1960), .Wyzanski relief was Hunsucker’s to obtain premature. power has referred to the as “the anom jurisdiction,” Kelley, alous Lord v. body precedent appeal (D.Mass.1963), A substantial dis missed, courts establishes federal district cert. denied, have to order the 13 L. S.Ct. unlawfully property (1965). seized Ed.2d 556 articulat though by jurisdic even been re ed no has most of the is that indictment cases prosecution suppression turned and tion order or return thus criminal yet Though firmly by is in existence.2 es to indictment exists not virtue of tablished, jurisdiction excep this is in statute rather derives from the Judge Friendly authority tional one. observed has herent over of the court those may jurisdictional that one search the who are its officers.3 g., Importing Attorneys court, e. Go-Bart v. are Co. United officers of the States, 344, attorney 153, 282 51 U.S. S.Ct. 75 L.Ed. the United States does not (1931) ; Jury taking Proceedings, escape species 374 In re Grand office from this (CA3, 1971), professional discipline. nom., power 450 F.2d 199 aff’d sub Thus to en- States, depends 41, Gelbard v. United 408 92 tertain this motion U.S. S. on the fact 2357, (1972) ; against party proceeded Ct. 33 L.Ed.2d 179 Smith v. is an at- U.S.App.D.C. Katzenbach, 113, torney, 122 351 F.2d not that he official known is an as 810, (1965) ; attorney. 815-816 Austin v. United the United It States further States, (CA4, right 1961), F.2d 297 356 mandate true that move does not all at appeal dismissed, depend recalled and F.2d 353 512 the existence of this indict- (1962) ; ; States, might made, prosecu- v. Grant United 282 F.2d it ment were no 1960) (CA2, ; pending. Bradshaw, 165 Eastus v. 94 tion (CA5, 1938), denied, also, g., Importing F.2d 788 cert. 304 U.S. See Go-Bart Co. v. 576, 1045, Foley 1539; States, 344, 153, 58 S.Ct. 82 L.Ed. v. 282 51 United S.Ct. 75 U.S. States, (CA5, 1933), (1931) ; Jury United 64 F.2d 1 cert. L.Ed. 374 In re Grand Pro denied, 762, 766, ceedings, 1971) (CA3, ; 289 U.S. 53 S.Ct. 77 L.Ed. 450 F.2d 199 Smith 1505; Lane, U.S.App.D.C. Katzenbach, 113, (CA8, v. Goodman 48 F.2d 32 v. 122 351 1931) ; Bell, F.Supp. 810, (1965) United v. States 120 F.2d States, 815-816 Grant v. United (D.C.D.C.1954) ; Yellowley, (CA2, 1960); 670 Friedman v. 282 F.2d 165 Centrac (E.D.N.Y.1923) ; Garrity, (CA1, 1952), F. 290 248 United States chio v. 198 382 F.2d Hee, (D.N.J.1915). denied, 866, 108, v. 219 F. 1019 In re 73 cert. 344 U.S. S.Ct. 97 Cf. Fried, (CA2, 1947), 672; Bradshaw, 161 F.2d 453 cert. L.Ed. Eastus v. 94 F.2d 788 804, granted, 1755, 1938) ; Foley (CA5, States, 331 U.S. 67 91 S.Ct. L. 64 F. v. United 1826, dismissed, 807, 1933) ; Applybe (CA5, Ed. cert. 68 2d 1 v. United 105, sup (pre-indictment States, (CA9, 1929), S.Ct. 92 L.Ed. 384 32 F.2d cert. 873 de pression nied, of confession on fifth amendment 280 74 50 S.Ct. L.Ed. grounds). 641; Fifth Avenue Peace Parade Committee Hoover, (S.D.N.Y.1971) ; F.Supp. v. 327 238 3. The classic statement of the is that F.Supp. States, v. 275 Silbert United 765 Judge Hough’s opinion contained in in Unit (D.Md.1967) ; Bodgers v. United Maresca, (S.D. ed States v. 266 F. F.Supp. (S.D.Cal.1958), mandamus de N.Y.1920) : D.C., F.Supp. nied, 684; see United Whenever an officer of court has Bell, F.Supp. (D.C.D.C. v. States 1954) ; possession or under his control books Mahon, 42 F.2d papers, (by parity reasoning) any (S.D.N.Y.1930) ; Stuart, 291 F. Sims v. other articles which has offi- court (S.D.N.Y.1922) ; Hee, States v. interest, any person cial and of which (D.N.J.1915). F. 1019 (whether party pending litigation to a not) Foley unlawfully deprived, has been A few cases—e. person petition may Katzenbach, supra, supra, and In court restitu- Smith elementary Fried, (CA2, 1947) tion. This I take to be an re —refer depending upon principle, jurisdiction dis- theoretical the inherent to the basis of this ciplinary power power court of of the record. “reach forward jurisdiction removed zation which the anomalous Whether one, in the criminal trial determination cases, where such as this extends likely proceeding on which the indictment is at least the evidence future re See In nominally based inadmissible. rather than was nature civil 1947) Fried, theoretical is uncertain. The criminal Frank, J.). (opinion of in the court’s jurisdiction basis argues that even if a threatened crimi- seem unaf- officers would over its necessary, only prosecution usually nal encountered We have fected. gam- unpaid threat of an assessment for appears that case, however, in which bling sufficiently resembles taxes exercised the anomalous bring only likely threat of criminal indictment future where dealing with within cases one, ease it was and in that was a civil pre-indictment discussion. simply exercised without threat- indictment 180 where a criminal Blank, United States suggest do in this case (N.D.Ohio 1966). ened. not determine Some cases juris- passing jurisdic- exercise of anomalous whether that exercise instances where diction is limited to of threatened tion is limited nor prosecution criminal is threatened in Lord Thus criminal indictment. (D.Mass. whether the threat do we determine Kelley, 223 surrogate gambling Judge Wyzanski is a stated, tax assessment Rather, prosecution. we threatened for usually be perhaps will —it Often — the for reason or have assumed that one prudent to a trial more for dealing pre-indict- the cases other indictment be- the return of an await applica- suppression or return are ment granting in For relief. fore ble here. be many the trial court not eases persuaded risk the that substantial immedi- The which are the documents aggrieved person facing a crim- the is subject present dispute of are ate the distinguished prosecution, as inal agents apparently the in the of of hands pro- from an or civil administrative ques- Service, and the Internal Revenue ceeding. persons are tion arises whether these subject power its of- the over Parade to court’s See also Fifth Avenue Peace sug- Hoover, A of older ficers. number Committee v. gest not,4 (S.D.N.Y.1971). a more indi- Certainly where recent cases power supervisory one the is threatened cate that court’s criminal indictment agents adequate early adjudication to well of the ad- reach IRS as reason for traditionally regarded missibility of which as those who are evidence exists only present proceed- pretermit of the where a civil officers court.5 We as ing question purposes of the criminal indict- the and assume for is threatened: stigmati- danger ment itself this had su- carries a of case that the District Court improper preparation subject to control the of evi- an officer to the court’s direction or coming power only which to ’in a case dence be used whether the over officers should it, by summary proce- ... be before exercised where some future oppressive contemplated [to] dure restrain or unlawful before the same court. Cf. Foley supra. Bradshaw, conduct of own officers.” Eastus its Unit- ed States at 3. We doubt “reach- See, g., Bradshaw, e. Eastus v. 94 F.2d ing image ju- represents forward” a distinct (CA5, 1938) ; Applybe v. United help appears it risdictional basis. Rather (CA9, 1929) ; power define the occasions in de- which Hee, (D.N.J.1915). States v. 219 F. 1019 from, authority rived over officers of Katzenbach, court should be exercised. of Our resolution Smith v. case, however, unnecessary App.D.C. 113, (1965) ; it this makes for 351 F.2d ju- finally Kelley, us to decide here Lord either whether 688-689 (D.Mass.1963) “reaching Bell, be maintained a risdiction could on F.Supp. 670, (D.C.D.C.1954). forward” circumstances where person possession goods agents governed pervisory power over IRS Hunsueker seeks invoke is by equitable principles, inquire possession of the we must documents. juris principles those whether warrant But even if District Court’s government diction in this The case. ar power provides theo over its officers a gues and concluded the District Court case, in this retical basis remedy adequate had that Hunsueker an automatically this does not follow that it at law that he could wait until as unique should exercised made, pay tax for one sessment was juris Rather wherever exists. wager claim, necessary and file diction should “cau be exercised with suit, refund.9 Hunsucker’s coun restraint,”6 “subject tion and required ter-argument, he would be equitable principles.” applicabil prevail to incriminate himself in order ity equitable principles same is the suit, argument in the refund is the same present whether is viewed majority of en which a this Court banc brought 41(e), under Rule F.R.Crim. “unpersuasive” found Lucia P., premised jur equity or as one (CA5, 1973). There isdiction the District Court. In either irreparable injury showing wás jurisdic event basis of theoretical waiting result would from vindicate pre-indictment tion to order until a refund suit could be grounded suppression is court’s brought. Judge specifically The District supervisory power over its As officers. that, plaintiff pre found “The has Appeals Court the District sented he evidence show observed, Columbia Circuit has Rule 41 irreparably injured would unless crystallization “is principle of a granted requested,” relief equity jurisdiction. juris equity That finding appeal. was not contested persists spe diction as to situations not Nor since the search issue was con cifically covered the Rule. Alterna pursuant ducted to a issued in warrant tively the same can result be reached say normal the manner could that the we reading a broad of the Rule.” v. Smith action which Hunsueker seeks to attack Katzenbach, 113,351 U.S.App.D.C. 122 disregard a involved “callous for . . . (1965)8. F.2d 814 rights.”10 constitutional The material Having sought concluded that exercise return of which is of consists jurisdiction the anomalous copies which made the IRS of bet memoran- 6. Fifth exception Avenue pertinent here, Peace Parade 8. Committee With an the Hoover, F.Supp. (S.D.N.Y. 327 Advisory 242 notes of the Committee on Rules 1971). concerning 41(e), F.R.Crim.P., Rule state existing that the rule “is a restatement of law Kelley, (D. 7. Lord v. 223 689 practice.” and Mass.1963), citing Garrity, Centracchio 9. note that is a We this case where at the (CA1, 1952). 198 F.2d 382 See also Donlon appeared likely time of trial it that a future F.Supp. 979, (D. 331 980 proceeding would be I-Iun available which Del.1971) (“[A] pre-indictment motion to rights. sucker could vindicate his Indeed the existing return evidence not tied to an crimi threat assessment seems have proceeding grounded upon equitable nal prompted what this Hunsueker to file action. jurisdiction considerations. The Court has Where no future in which the . . . but in its discretion refuse to plaintiff may vindicate his seems like merits.”) Wright, hear on its C. 3 Fed ly, it becomes more an difficult to find ade Procedure, eral Practice and Criminal § remedy quate however, [consider, at law the p. (1969) (“This [pre-indictment mo possibility trespass of state court actions quite tions for an return] replevin, Nirenberg, United States v. cf. jurisdiction. anomalous Recent cases have (E.D.N.Y.1956) F.R.D. 421 and exercise ] that indicated it should be exercised with jurisdiction may of the anomalous conceiva restraint, caution and that motion the bly appropriate. Jury In re Grand Cf. equity should be dismissed for want if the Proceedings, (CA3, 1971). F.2d moving party adequate remedy has an other inju irreparable wise if he cannot show 10. See Silbert United ry.”)' Judge (D.Md.1967), which Frank finding records, jurisdiction support mileage sports sional for da, telephone and book, the under section this telephone case. schedules, address a gin.” signals and hand “face for (2 Mayberry, In Slocum v. re Hunsucker that do doubt Wheat.) (1817), 1, 4 L.Ed. Chief copies sufficient in the an -interest original tains interpreted Justice Marshall the their him to demand to allow Judiciary provision Act from which § already originals, restored held 1356 is drawn. He that where unlawfully him, seized. were officer of the United was without (S.D. Kraus, States v. F. authority property United to seize or hold question J.). N.Y.1921) (Hand, But juris- courts of the United States had right not whether he has here is diction to entertain the owner’s action legality of the seizure but when for relief11 that the state re- courts orig adjudicated. of the The return proper mained a forum for such actions. District Court to trial inals forty years One hundred later equitable possibility that forecloses applied deny Ninth Circuit Slocum to justified might have been intervention jurisdiction claim of In under 1356. § of these mate some that Earle, Johnston v. legiti necessary to conduct rials were plaintiff brought an action of sub otherwise were mate business damages against agents of the IRS Eastus to Hunsucker. value stantial Cf. alleged plain- tortious conversion of (CA5, 1938). Bradshaw, 94 F.2d court, reasoning tiff’s tractor. The equitable considera we find no In short part alleges complaint that “the invoking the would warrant tion which any seizure was not under law adjudicate jurisdiction anomalous States,” (original emphasis) held this merits of case. jurisdiction did not confer § 1356 damage proper and that re- forum B. 28 U.S.C. § plevin lay in actions the state courts.12 complaint claimed In his Similarly allegation Hunsueker’s jurisdiction based on 28 § U.S.C. under seizure was not authorized ap pressed this claim While probable F.R.Crim.P., Rule because peal, it. must nevertheless consider we lacking. analysis cause was of Slo- upon district courts 1356 confers Section applied cum as indicates Johnston “original ... allegation cognizable is not un- under law seizure der upon land waters not with States on admiralty jurisdiction.” in and maritime have found no construction We subject jurisdic a This section has seldom 1356 which would confer § litigation. reported The few cases tion over to cre this action. decline existing provide uniformly to fail ate one. deci- suggests allega deprivation Kaufman that whether show “a clear of their constitu- complaint rights” determining tions of show such “callous tional is a factor disregard” equitable granted.) is a factor to he considered de whether relief should be jurisdiction termining whether to exercise 11. Unless the action was one could be which involving pre-indictment suppression eases sitting admiralty. entertained the court return. See also United States Newspapers, Harte-Hanks 254 F.2d 366 12. We do not read Bivens v. Six Unknown (CA5, 1958), denied, 938, Agents cert. 357 U.S. 78 Named Federal Bureau of Narcot- (“It 1385, ics, 388, 1999, 2 1551 403 S.Ct. L.Ed.2d estab 91 29 L.Ed.2d U.S. S.Ct. analysis (1971), implicitly change lished law that of evidence 619 only concurring to an § indictment should considered 1356. As Justice Harlan’s showing opinion jurisdiction clear, when there is clear and definite makes in that cáse premised 1331(a). constitutional have been violat was on 28 U.S.C. See § ed.”) States, 398, 2005, Parrish v. 256 403 91 United U.S. at S.Ct. at 29 L.Ed.2d (E.D.Va.1966), appeal dismissed, 793 376 at 628. 1967) (whether plaintiffs (CA4, F.2d 601 36 ing. judgment pro- C. U.S.C. The is amended to § vide dismissal without was Hunsucker did contend prejudice and as so amended is af- question 28 U.S.C. 1331 federal that jurisdiction § firmed. exists in this We be case. making he was correct lieve ON PETITION FOR REHEARING only which a contention. means ju could Hunsucker have satisfied PER CURIAM: requirement amount would risdictional Appellant’s Re Petition by conceptually linking action to hearing urges as two bases additional says $36,000 was assessment he jurisdiction for District Court U.S.C. threatened at the time this action 1346(a)(2) 1361. Reliance §§ begun. linking But as threatened Act,” 1346(a)(2), the “Tucker mis § present to the would sessment action placed. applies only That Act suits compel a conclusion which damages money appellant while seeks assiduously denied, im has for it would equitable relief. Wells present ply that a contro States, (CA9, 280 F.2d 275 versy' concerning federal taxes rather Clay 1960); relating solely than searches 119, (CADC, App.D.C. 210 F.2d 686 case, seizures. And is a tax it is denied, 927, cert. 347 U.S. 74 S.Ct. which case lacks 530, (1954); grant L.Ed. 1080 Bower v. declaratory requested,13 relief (W.D. injunctive which relief is not Pa.1972). Assuming deciding without exceptional available absent circum jurisdiction 1361 mandamus § present not shown stances to be here. available, potentially those found factors 7421(a); See U.S.C. Miller v. § original opinion preclude in the exer Margarine Co., Nut Standard 284 U.S. equitable supervisory jurisdic cise of (1932) ; 52 S.Ct. 76 L.Ed. 422 inap tion also make mandamus relief Naviga Packing Enochs v. Williams & propriate. Co., Inc., tion 82 S.Ct. (1962). also, 8 L.Ed.2d 292 See Brit tingham v. United Commissioner Revenue, of Internal 1971); Coyle, Koin v. F.2d 468 (CA7, 1968); Philpott, Zamaroni (CA7, 1965); Burton, F.2d 365 Vuin v. America, UNITED STATES of (CA6, 1964). F.2d Camp Cf. Plaintiff-Appellee, Guetersloh, bell v. (CA5, 1961). Accepting Hunsucker’s argument CARMICHAEL, case, Jean this is Defendant- tax Appellant. be, at least that he did not intend it to

we are unable find under No. 73-3304 Summary Calendar.* non-statutory equitable Exercise of Appeals, United States Court of supervisory jurisdiction is not warrant- Fifth Circuit. case, ed in this and we find no basis July 3, 1974. statutory jurisdiction. The District correctly action, Court dismissed the that dismissal should have without prejudice adjudication Hunsucker’s appropriate proceed-

claims future Declaratory Judgments 13. The Act excludes other . . . declare grant tax legal party federal cases from declara- relations interested tory authority. provides Title that, * controversy Cir.; Enterprises, “In case of actual within its Rule see Isbell Inc. jurisdiction, except respect al., Casualty to Feder- Co. York et Citizens of New taxes, any al court of the United States Cir.

Case Details

Case Name: Louis Sager Hunsucker, Jr. v. Robert L. Phinney, District Director of Internal Revenue

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 29, 1974

Citation: 497 F.2d 29

Docket Number: 71-2580

Court Abbreviation: 5th Cir.