Otto Kuhn v. United States of America, William Clyde Deming v. United States
415 F.2d 111
6th Cir.
1969
Check Treatment

*1 Ill ultimate with the in accord While amI agencies enforcement goal of law organized in this

stamping crime agencies

country, must neverthe- these proceed a manner consistent

less congressional decisions, existing court

mandate, limitations. constitutional and they my failed to have It is this.

do pur my the sole belief that it Since investigation in gather for evidence use prosecution, authority” within the

not “other lawful of the Communications Accordingly, the information Act. not be disclosed in the toll 605; Commissioners. Alderman v. (1969). 961, 22 L.Ed.2d 176 information, the Govern Without for not meet the standards

ment could Spinelli

probable v. cause established (1969), Aguilar 21 L.Ed.2d 637 Texas, (1964). L.Ed.2d 723

I would therefore reverse. Brooks, (Court-appoint-

Arthur L. Jr. ed), Lexington, Ky., appellant for KUHN, Defendant-Appellant, Otto Dammarell, Berg, H. William J. B. Cincinnati, Ohio, appellant America, UNITED STATES Gary, Philip R. Michael and Robert D. Plaintiff-Appellee; Justice, Washington, Attys., Dept. of D. C., Atty. appellee; Wilson, Asst. Will Clyde DEMING, William Defendant- Gen., Gary, Joyce, Robert D. Appellant, Edward T. Washington, Attys., Dept. Justice, D. C., on brief. America, UNITED STATES of Plaintiff-Appellee. Before PHILLIPS CELEBREZ- ZE, Nos. Judges, McALLISTER, Circuit Judge. Senior Circuit Court Sixth Circuit. PHILLIPS, Judge. from, Deming appeal Kuhn and their

convictions under 18 U.S.C. §§ 1952 on five counts of use interstate carrying facilities on a enterprise gambling business in viola- *2 112 them under 605 of the Communications of con- § and one count law

tion of state Act, carry 605. spiracy on that business. § to so guilty They on all counts. were special January 1966, In of I.R.S. by appellant agents purporting error raised All claims of to act únder the au- Deming Congress Deming thority spelled by in dealt with 26 have been in They telephone F.2d States, 415 99. com- summoned United 76021 U.S.C. § Deming’s telephone pany further. toll will not be discussed records for calls numbers. These records disclosed Appellant the issue Kuhn raises same telephones Deming by to from two used States, 390 under Marchetti v. United La., Orleans, telephone a in number .New 39, 697, 889 and 19 L.Ed.2d 88 S.Ct. by DiPiazza, telephone used and two 62, 88 v. United Grosso Lexington, by in numbers used Kuhn 906, as did L.Ed.2d Kentucky. agents summoned The then respect to the no error find with We company toll records search warrant. Lexington Kuhn’s These numbers. alleges District that the Kuhn also large records showed of calls number Agent permitting Special Court erred in going Deming’s telephones. In to two Carrington, con- the testified as to who 1966, lead, June of on the basis of this put gambling operation, to duct of the agent special an Lex- I.R.S. called Kuhn’s were dates on certain bet which ington telephone placed numbers and Appellant’s introduced into evidence. wagers 22, parties July there. On theory is that this done without was agents obtained Government introducing the from which documents simultaneously search warrants Carrington How- determined the dates. premises by Deming occupied raided ever, not in- were while the chartbooks Appellants convicted the on troduced, racing are the the forms which basis of the evidence seized in these original information form in which the raids. published into were introduced evi- opportunity dence. Thus Kuhn had the suppress to the evi- moved Carrington’s accuracy to of testi- test the During hearing dence on the seized. the by comparison mony documents on to the agent motions, special the I.R.S. who slips. the which he dated the bet basis of charge investigation in in these permitting no error the There was in against Deming’s led the raid dating slips. of the bet premises testified that he made his in- vestigation purpose Affirmed. prosecu- “for the of Caplin, tion.” In Reisman v. 440, 449, 508, 513, 84 11 L.Ed.2d Judge CELEBREZZE, (dis- (1964), however, Supreme the U.S. senting) . Court held the that 7602 summons improper pur- reasons set forth I dissent for the be “for not used the my dissenting obtaining in DiPiazza v. of evidence for use in a Deming prosecution.” Consequently, I my opinion, In by 415 F.2d 99. that the summons used the agents procurred Appellants’ the search Government Government to toll obtain by occupied premises records warrants were not “other lawful authori- through ty” Deming the and Kuhn abuse of within the of 605. Since judgments authorized un- I believe administrative the be should basis, express opin- in a which resulted reversed on der 26 U.S.C. no rights regarding wrongful Appellants’ ion invasion of secured contention person agents any any authorizes I.R.S. internal revenue tax Section purposes: liability equity any or law summon records at or fiduciary [ing] any person the correctness transferee or ascertain “[T]o * * * respect any any tax, none has where internal revenue or return * * liability collecting any liability made, such determin[e] been decisions Supreme Court’s the U.S. States, 390 U.S. Marchetti (1968) 19 L.Ed.2d 88 S.Ct. States, 390 U.S. v. United and Grosso (1968) bar 19 L.Ed.2d seized the evidence the introduction *3 premises. during of their raid ASSOCIATION OF

INTERNATIONAL AEROSPACE AND MACHINISTS WORKERS, NO. Petition- DISTRICT er, LABOR RELATIONS

NATIONAL BOARD, Respondent.

No. 19322. States Court Eighth Circuit.

Rehearing Denied Oct.