*1 agreement future not contain against ty did recovery of the debt The dispositive of this is not clause re advances 3505(b) exist could under § the bank out- still has because the bank issue escrow gardless existence of the standing $47,000in overdrafts. over Hence, the sec liens. or of the fund Ross, reme i. e. requirement of ond questions have been raised Other dy, is satisfied. parties appeal but have on both Ross, listed The third factor to be without merit. found ju- practical limitations abilities for further Modified and remanded here. present no difficulties ries, should proceedings this inconsistent with jury be would issue The central opinon. knowledge6 notice or bank’s actual pay or intent not to employer’s payroll pay taxes. inability to its its appropriate peculiarly question is This Moreover, the § jury resolution. easily from 3505(b) severable issues are in the action. raised the other issues the third to both

These issues sub- be quarters of 1969 should

fourth jury determination.

mitted for UNITED STATES of America and Gerald that it is entitled The bank asserts Culver, Plaintiffs-Appellees, T. recovered the amount set-off outstand- C.B.S.’s rent account WHITE, Defendant-Appellant. I. Robert Apparently ing liability. the bank No. 71-2381. right arguing law common this is a over precedence and therefore takes one Appeals, United States Court Ann. lien. See Tenn.Code a federal tax Fifth Circuit. (1964). court district 47-9-310 April § pass issue. specifically on this did not Rehearing July 10, En Banc Granted however, inference, held court By right, no since that the such bank

the court amount subtracted in- the bank’s

rent account from secured Wagner & v. Citizens Bank

terest. Co., Tenn.

Trust 122 S.W. (1909), on this result. some doubt easts dictum, court, albeit that case the recognized

apparently common such a Tennessee. also Com-

law See 47-4-208 Tenn.Code Ann. § express opinion no We be since we feel that it should

specifically dealt with the district however, observe, court on We remand. finding original

that the securi- 6. 26 U.S.C. as rewritten transaction § § to have actual notice or (a), knowledge any Lien Tax Act of de- Federal fact from the time fining “knowledge” pur- brought “notice” or fact such to the attention of poses provides 3505(b), part: conducting § individual transac- such (i) Special tion, any Rules.— and in event from the time (1) knowledge.— brought notice Actual fact such have been organization shall attention individual’s the or- purposes particular ganization diligence. deemed for had exercised due (cid:127)758 *2 Tex., proceeding Houston, Hrdlicka, White asserted George A. privilege as amendment clients’ fifth defendant-appellant. compelled bar Atty., Farris, Anthony P. U. S. J. possession. The in his dis Crampton, Houston, Tex., Asst. P. Scott D.C., court, F.Supp. 459, held trict Atty., Gen., Meyer Rothwaeks, Atty. no fifth amendment Powell, Justice, Dept. Tax D. Carleton rights respect *3 plaintiffs- Washington, C., Div., D. for attorney’s possession ordered their appellees. obey the From this to summons. White GEWIN, AINSWORTH Before appeals.2 order White We affirm. Judges.

SIMPSON, Circuit through taxpayers’ From 1968 1962 prepared were income tax returns Stanley GEWIN, Judge: public Voelkel, Circuit certified ac- H. taxpayers’ was not countant. Voelkel this we decide whether In case must personal employee rather an in- com constitutional dependent contractor with his own office may in pulsory self-incrimination Using and numerous other clients. taxpayer by in his at voked behalf supplied by taxpay- to information him prevent production in of to workpapers ers, compile Voelkel would attorney’s workpapers in his come tax and other which summarized possession. Pursuant to U.S.C. §§ pertinent preparation the data to the of 7402(b) 7604(a),1 the return; tax the information income petitioned District the United States workpapers in contained would then Tex for District of the Southern complete year’s each return. be used to reve as for of an internal enforcement filing After a return Voelkel retained issued on December nue summons workpapers in his files. investigation 1970 in connection with an liability taxpayers of D. necessary of the tax Louis and Caro In found it lyn years R. Roberts to draft and submit to the Internal Rev- through compromise inclusive. in enue Service an offer White, Appellant liability years tax to was addressed their tax attorney, through payers’ him to and directed them in 1965.3 Voelkel assisted produce workpapers preparation, compiling workpa- docu and other its more prepared pers process. Upon receipt tax which had been in ments payers’ then compromise, accountant and which were In- offer in possession. assigned in In the enforce- White’s ternal Revenue Service a reve- mony, books, papers, of district Jurisdiction courts. § or any per- (b) records, to summons. —If enforce or other data. rev- son is summoned under the internal taxpay 2. The also denied the district court testify, appear, or to enue laws to request in ers’ to intervene the enforce books, papers, data, produce or other proceeding protect their in order district States for court United ruling may Although this have interests. person resides the district which such erroneous, compare Donaldson may jurisdic- have or be found shall 517, 91 S.Ct. United 400 U.S. compel appropriate process to tion (1970) with Reisman L.Ed.2d 580 testimony, attendance, produc- or such Caplin, books, papers, other data. tion or (1964), we con 11 L.Ed.2d 459 do not Enforcement of summons. § 7604. ap taxpayers it because not sider have (a) of district court. —If Jurisdiction pealed. any person under the in- is summoned ed.) (1964 permits appear, 3. 26 § laws to to testi- U.S.C. ternal revenue accept records, books, papers, fy, produce a set- Internal Revenue Service or to compromise liability data, of the tax dis- tlement other States purpose any taxpayer. fa- Its is to district trict court person liabilities the settlement cilitate resides or found shall such litigation. jurisdiction appropriate proc- without have attendance, compel testi- ess investigation scope it nue to examine and to make a officer its into tax- payers’ acceptability. as to its affairs to recommendation include a review of apparently in- The revenue officer found their tax returns for the through taxpayers dications that quately did ade- order to determine making among things their assets in other disclose correct tax lia- bility years. the settlement offer. discoveries for those His connection eventually reported expanded investigation to the Intelli- gence of the summons in Division Internal Revenue was issued and- assigned Although special served on Service which White.4 the Inter- agent join thorough initially sought him a investi- nal Revenue Service all gation workpapers compromise. possession, of the offer Un- White’s investiga- doubtedly purpose subsequently it one of this modified its demands to encompass only tion was to whether those determine used preparing taxpayers’ had committed Voelkel in criminal violations in- *4 making years come tax the settlement offer. returns through 1968. to When White refused they special learned that a in- When produce workpapers, govern- these vestigation underway, taxpayers was petitioned the district court for en- counsel; turned of- to White was forcement of the summons. At the time ficially appointed their requested, enforcement was there had representative-in-fact on a prosecute been no to recommendation ei- power of form filed with the respect ther with to the un- tax returns Internal Revenue White imme- Service. investigation respect der or with to the diately contacted and Novem- Voelkel compromise. offer in ber of 1969 had obtained from him not only workpapers prepar- he used begins Resolution of this case with compromise offer in but also all White’s contention that the summons preparing used in upon pursuant served him to 26 U.S.C. § income tax returns for the 1962 7602 is unenforceable because the Serv- through agreed It 1968. was that White objective issuing ice’s sole it was to keep indefinitely could Voelkel’s obtain evidence for use a criminal but that he would return them prosecution of his clients. Donaldson completion representation of his of tax- Supreme v. United States5 the payers. refused to hold that a 7602. internal § taxpayers

In 1970 revenue their summons is invalid issued withdrew of- investigation compromise. Shortly might fer in aid a tax thereafter of which expanded Internal Revenue result crimi- Service recommendation that a pursuant any person having possession, custody, 4. The summons was issued to 26 (1964 ed.), containing provides: U.S.C. or § which care of books of account relating Examination of entries to Books Witnesses. the business of the purpose ascertaining person required per- For of liable for tax or to form, any return, act, any making person correctness of a re- or other made, Secretary delegate may turn where none been or has deter- his deem mining liability Secretary any person proper, appear to before any place delegate internal revenue tax or the lia- or his time and bility equity any produce at law or in named the summons and to trans- fiduciary any person books, papers, records, feree or in re- such or other any spect data, give testimony, tax, and to under internal' revenue or such any oath, may collecting liability, to such as be relevant or material Secre- tary delegate inquiry; or his such authorized— testimony (1) any (3) per- books, papers, To take To examine such rec- may may oath, ords or other data son concerned under as be rele- inquiry. inquiry; vant or material relevant or material to such (2) person To summon the liable for tax required perform act, any or L.Ed.2d or S.Ct. U.S. employee person, officer or of such Although investigation definitely prosecution be instituted nal taxpayer. possibility rejected carried with it the crimi- The Court a conten- consequences, no recommendation for with nal tion these obser- similar White’s prosecution criminal made ei- : vations was ther summons issued at the time the “Congress clearly has authorized the sought. or at time enforcement investigating use the summons In these issuance circumstances may prove to be criminal con what the summons was authorized § There duct no .... statu problems are raised More substantial meaningful tory any suggestion for by appellant’s his contention that clients’ distinction, for civil com line of against compul- constitutional pared purposes, criminal at the sory would be violated self-incrimination agent’s special point appearance. produce compelled to if he were workpapers spe a line To draw where a . possession. Since agent appears require the cial permission in- denied Service, suspected in a situation proceeding, tervene enforcement forego fraud, to ei undetermined personally to were unable assert ther or the the use of privilege. In- fifth amendment potentiality of an ultimate recommen attorney asserted it stead White as their prosecution. dation for We refuse question, threshold their behalf. A stultify thus to draw that line and en standing then, attorneys is whether have forcement of federal law. . . proceedings in internal to assert revenue *5 We hold that under 7602 an inter- § privilege the in of their clients. behalf may nal revenue summons in be issued question This has been considered investigation aid if of an it is issued courts, and, several federal as is lower good prior in faith and recom- a conflicting case, so often the decisions prosecution.” criminal mendation for have resulted. In of it one the traditional view Donaldson can On hand there is hardly privilege disputed permits be that view that the fifth amendment § permit purely personal; an revenue not internal summons to be is it does plead sued and in the fact enforced aid tax inves a witness to that another tigation might party pur in testi- which civil and criminal be incriminated his poses intertwined; mony though party’s even that are the cau he is Court attorney.7 only agent tioned the hand that the must On other good prior position the issued in faith and some courts have taken to a rec prosecution. heavy of criminal that too a burden ommendation for terms imposed money plainly on The in this time and taxpayers would be record case reveals required that were to be the summons addressed if to White present personally at internal reve- issued connection with an investi gation hearings proceed- which, enforcement purpose nue the of at least ings part, their order to exercise constitu- was to ascertain the correct income rights.8 liability view tional this an at- of Under the standing through invoke 1969. The trial does have court con privilege in re- ducted client’s behalf an camera examination his of sponse to internal revenue summons motives which Service’s substantiated production presented of open that seeks the incriminat- evidence court. Application House, 535-536, F.Supp. 6. Id. 8. at of 91 S.Ct. (N.D.Cal.1956). Accord Bouschor v. United F.2d (9th Judson, F.2d 460 States v. Cir. (8th 1963). Fahey, Accord In Cir. Re 1963). (6th 1961). 300 F.2d Cir. Both rely language on these eases Hale Henkel, 43, 69-70, 50 L.Ed. As an interve Assuming, in herself. de- to the records without documents. proceeding the enforcement nor is correct view ciding, the latter against accountant, standing brought she as her has that White and therefore against privilege self-incrimi privilege, serted her a second clients’ to assert production a bar to necessarily nation as question arises—whether from records.12 his clients shields fifth amendment compelled production of taxpayer’s rejecting the prepared their accountant owned ownership than rather contention attorney’s possession. held in boundaries of defines the to be successful In order for White protection the fifth amend afforded question must be answered appeal, this again ment, emphasized once Court though affirmative; for even in the personal the intimate and privilege. nature standing, no use may it is of have pre privilege The does amend- have no fifth him his clients discovering government from vent papers rights respect to the incriminating pre evidence but rather possession.9 in his extorting evidence it from cludes the accused himself. from Without standing, question Like ingredient personal compul essential elicited contradic has also against accused, fifth sion a amend tory responses federal lower necessarily ment claim founders. When Supreme Fortunately courts.10 government the might seeks guidance with provided has some implicate taxpayer, the Court opinion in Couch v. United its recent ingredient personal concluded that the presented in Couch The issue States.11 privi compulsion, to a essential claim taxpayer could success was whether invariably missing lege, is almost unless fully self- invoke her actually taxpayer’s are prevent incrimination following possession. are remarks incriminating in her ac revealing: particularly possession. The documents countant’s sought by pos- do indeed believe actual the tax “We *6 session of documents bears the most payer’s which over the business records significant relationship Fifth given to her had been to accountant against gov- protections preparing Amendment purpose her income for the of compulsions upon indi- taxpayer ernmental the title tax returns. The retained obey- 11. 34 L.Ed.2d 9. As an alternative reason for not argued (1973). summons, might argued The instant case was 548 the White have ago, by protected some time but our decision has been that the the documents were delayed awaiting attorney-client argument privilege. decision of the the Su- This preme uniformly rejected in Couch. Court the courts has been ground pre-existing on the that documents By sought government en- the time the workpapers as an can- such accountant’s of the issued to forcement not a confidential communica- constitute accountant, the documents Couch’s tion between the and his client. question had been delivered to Couch’s Judson, See, g., e. v. United States attorney. treat- Nevertheless the Court 1963). (9th But see The F.2d 460 Cir. if the had re- ed the case as documents Attorney Privileges. and His Client’s possession be- mained accountant’s Yale L.J. 539 the of a sum- cause otherwise command simply House, Compare Application trans- mons could evaded F. of ferring possession is (N.D.Cal.1956) Supp. before enforcement with Bouschor obligations sought. rights (8th and Thus the F.2d 451 Cir. v. United parties Judson, fixed 1963). involved become when of the See also United States served, (9th 1963) ; a transfer can- is and In the summons re 322 F.2d 460 Cir. (6th ; 1961) Fahey, alter them. not F.2d 383 Cir. F.Supp. Boccuto, 175 States v. United dismissed, (D.N.J.) appeal 274 F.2d (3d 1959). Cir. argument Appellant’s situa- that tax Yet best is accused of crime. vidual payers possession of may construc- are in constructive well arise where tions White, re- the ac possession or the the because clear so tive is possessor, only in his possession tem- tual obtained them linquishment of is so capacity re insignificant leave porary as to only upon tained them of conven compulsions the ac- sake personal the Couch, representing ience them. substantially But intact. cused acknowledged possibility the Court case before us.” not the is possession of a case constructive taxpayer’s it was accountant Since might governmental be sufficient there taxpayer was herself who than rather taxpayer compulsion exerted possession actually the documents legitimatize privilege. As a claim of sought by government, not she could examples possible a case legitimately claim that enforcement cited Schwimmer compel in- her to the summons States and United v. Guterma.16 States criminate herself.14 In both of these a claim cases The drawn from lesson to be privilege successfully asserted then, taxpayer Couch, is that unless obtaining government prevent actually possession of documents is parties temporarily clearly sought by the —or premises corporations. stored on possession will be constructive has —he The reference these cases Couch fifth of the unable to seek the shelter might indicates that a claim of he will not be amendment because possession on the be valid constructive governmen object any impermissible theory placed papers taxpayer has alleged clients, compulsion. White’s tal entity person hands of another or ly object govern impermissible thereby, safekeeping, re for custodial compulsion, not own the work- mental do taining posses to immediate sought government, nor though having possess sion actual they possession ever have ion.17 their at these documents. It is White respond to the who is forced to conception But this of construc governmental The essence of summons. possession to fit cannot tive be extended potentially complaint in White’s in which clients the situation White’s divulged criminating undisputed will be information find themselves. For it being government, it is not that for an instant been have never acquired subjecting sought self-accusation, the cruel dilemma of government. ob himself White perjury, contempt. fifth amend *7 their ac documents from tained these against ment, protects however, controlling the not Although not of countant. only production of such information but importance, there is no evidence against its accused extraction from the instruc did so record that he himself. they had that he even knew tions or that 618, 322, 333, 611, taxpayer possession U.S. than here. is the tive 548, taxpayer L.Ed.2d the herself raised the Couch she Furthermore fifth amendment claim. 14. The Court also held that the Fourth sought by actually the documents owned taxpayer Amendment did not afford the pos- government in her and had them the any protection against production the relinquished had at one She session time. by sought government. the documents the possession so her accountant of them to (8th 1956). preparing 15. 232 F.2d 855 Cir. her assist her that lie could Nevertheless, possibility that the returns. (2d 1959). F.2d 344 Cir. by possession in constructive she was given many respects taxpayer scant was 17. In in Couch by position in a Court. was better claim construc- attention workpa- White, on them. At the time the ice summons Robert I. attor- secured by government, ney law, represented pers taxpayers, demanded at who were possession Roberts, for over Mr. and Mrs. his under a written Service, power year. the nec- In these circumstances filed with the ingredient compulsion essary personal demanding of certain work lacking, totally papers pertaining taxpayers’ clients is federal White’s papers in its the fifth amendment income tax and absence returns. These work prohibit government prepared by taxpayers’ not accountant does obtaining to the en-

information vital and delivered to Mr. quest re- White at his They the collection on re- forcement its laws and behalf his clients.1 possession approxi- court cor- revenues. The district mained his for of its rectly mately year sum- when ordered enforcement the summons was it re- directed to White insofar as served.2 mons produce account- quired him to all of the Attorney produce White declined to per- papers that ant’s demanded the summons to his returns tain clients’ income tax proceeding present and the enforcement through Its 1969.18 begun February on

judgment is affirmed. Special Agent and States Culver summons, pur- Affirmed. enforcement 7402(b) suant 7604(a). to 26 U.S.C. §§ Judge (dis- AINSWORTH, Circuit senting) : hearing A was held before district deference I dissent because With court on March at time strongly held con- belief that Special Agent Culver testified that rights against stitutional self-incrimina- any had not reached conclusions relative being tak- action tion are violated prosecution to criminal affirming majority the dis- en violation of federal revenue be- statutes court in trict this case. completed cause he had gation. his investi- Agent Special On December The district court resumed Intelligence T. Di- Culver Gerald hearing again April 5, 1971, Spe- served an vision Internal Revenue Serv- Agent cial “In further Culver testified: 18. There has been some as you confusion Q. Were aware of the fact seeking, what Mr. White time was the at- confusion that no doubt exacerbated representing Mr. Roberts? the reference the district court’s order was, A. I did assume that he and it was compromise to offer For implied represented files. that he Mr. Rob- clarity govern- sake of we refer Otherwise, to the giv- I erts. wouldn’t have page ment’s brief at 12: en him the files. workpapers We do not know that you Q. turned the So files over to Mr. prepare returns, were created to the tax attorney? Mr. White Roberts’ I think the summons is in that clear A. Yes. pertain we want any specific Q. Was there time limitation the correctness of returns. We on Mr. White’s as Mr. Robert’s any regard do not seek keep possession information with of those compromise. to the offer in records? Well, A. he was to return them to me accountant, Stanley Voelkel, 1. The *8 H. tes when he finished with them in con- tified as follows: representation with nection of Mr. Voelkel, acquired Mr. when Q. Mr. White Roberts. possession you did period possession Q. So that of his acting? know on whose behalf was he you as far as were concerned was in- Yes, A. sir. definite, is that correct? your understanding Was it Q. Mr. White A. Yes. acquiring was him- those records for self or on behalf of generally Lyon, Mr. Roberts? 2. See Government Power On A. Rights behalf of Mr. Roberts. Investiga and in Citizen a Tax tion, Lawyer (1971). 25 Tax 79

765 517, 536, 534, 545, my know at opinion, on what I 400 based U.S. 91 S.Ct. (1971), complied vi- point, a criminal L.Ed.2d I think there is have been compro- involving points with- offer and since the evidence most olation strongly good that to an faith on the financial statement absence mise and part Government, required accompanied filed which was that offer by Donaldson, issuing by [taxpayer] Mr. Cul- in the summons. Roberts.” Mr. federal criminal listed several ver then Nevertheless, my I not rest do dissent by taxpay- apparently violated statutes impor- ground, on this on the but more 1001, ers, namely, U.S.C. 18 U.S.C. § ground taxpayers’ tant that constitution- 7206(5). 7206(1) and §§ rights al the Fifth Amendment under against compulsory pending, appeal self-incrimination been has While this papers in- The work furnished have been counsel has violated. that volved here are documents that to effect with information court privileged Intelligence under the Fifth Amendment Division the Chief of the possessed actually when Director of District office taxpayer, See the summons was issued. United written Revenue had Internal Cir., 1967, Cohen, Roberts, v. has States 388 F.2d recommendation that a Mr. Regional issued crimi- 464.3 In Cohen a summons was to to Counsel been made papers prepared attempted in- to obtain tax- nally prosecute work him for taxpay- payer’s making then accountant in evasion, and sub- for come tax possession. The Ninth Circuit scribing income er’s false and fraudulent taxpayer’s wilfully attempting to Fifth Amendment returns, maintained for tax, privilege payment for con- self-incrimination of income evade taxpayer require produce cealing property evade declined to intent with filing papers response taxes, the summons. for defeat the collection statement, for mak- false financial present the work In the ease in an offer com- false statements prepared by taxpayers’ accountant response promise. is The Government’s not in tax their books and records irrelevant be- that this information is payers’ possession of a third that is- at the time the summons cause charged person, at law prosecution no sued recommendation representing responsibility of them had been made. At tax matters. their federal income strong thus constructive White was There is reason believe good acting on be of these work was not Government During the enforce sum- instant half of his clients. faith when it served the initially the consti proceeding, claimed been inves- ment mons. The case had of his privilege behalf tigated time an Internal tutional for some Roberts, Agent taxpayer, agent Mr. Special clients. Then Revenue and the “to Intelligence to intervene called motion for leave Division was filed a though constitution certain the benefit of later. Even a recommendation claim provisions to his prosecution inured bene al had not been made fit,” district issued, denied which was time the summons Serv- clear, therefore, Mr. judge. ice information available It had sufficient his con attempted to assert also which to base a recommendation. Roberts though However, privilege. not have The recommendation should stitutional one, personal advantage there delayed civil is a take why doubt, therefore, be asserted it cannot I no reason summons. States, at law. requisites of Donaldson v. United clients’ behalf favorably Cir., Widelski, Couch cited Cohen 3. But see United States 12, 322, n. 1, (declining 409 U.S. 452 F.2d to follow Cohen), denied, n. 34 L.Ed.2d cert. (1973). 32 L.Ed.2d This S.Ct. *9 Supreme case was decided before 766 Judson, Cir., an

See United States v. 9 Internal Revenue Service summons 460; 1963, House, challenged 322 F.2d In re N.D. directed an accountant was Cal.1956, Judson, by taxpayer F.Supp. 144 an 95.4 based on the Fifth Amend privilege Internal Revenue was served ment self-incrimina attorney possession on of clients’ tion. The Court held that the constitu demanding papers, production privilege of the tional for was not available possession documents. Ninth main documents in The Circuit the account privilege clearly distinguishable tained the Fifth Amendment ant. The case is by taxpayers’ attorney asserted in their because the accountant-client relation princi ship essentially behalf. There no difference in is from the at is different ple present torney-client relationship. between and case. no Judson There is expectation privacy in the account majority attempts The to make a dis- relationship. ant-client On the other principle tinction in the fact based hand, relationship attorney-client is present in the the work case personal one, guaranteed by the Sixth belong are not owned right counsel, the Amendment attor taxpayers’ prepared accountant who ney-client privilege,5 re and ethical taxpayers’ them from books and records. attorney- attorney.6 straints on the The However, ownership actual of the docu- relationship depend on client does not necessary ments to the assertion client whether privilege. v. United See Couch possesses the documents. Professor As States, 322, 12, 409 U.S. 330 n. 93 S.Ct. Wigmore follows, then, “It concluded: 611, (1973). 12, 617 n. 34 L.Ed.2d 548 when the client himself The critical of a is the privileged production from the docu possessor rather than that of an owner. ment, party either as a at common law present though case, In the claiming person or as a third or as title possession taxpayers, not in are they exempt self-incrimination, the at possession are torney having possession of the docu attorney, constructively produce.” ment is not bound to More benefit. over, recognized: “The the Ninth Circuit majority heavily The relies most and his are so identical client Supreme respect the recent Court decision to the function of the evi States, 322, 93 proceedings Couch v. United 409 U.S. dence to the call which 611, (1973), any S.Ct. L.Ed.2d 548 where for his distinction contrary. See, attorney-client 4. There are eases to the 4-4 notes: “The g., Cir., States, obligation e. Bouschor v. the ethical United 8 Fahey, more limited than 1963, 451, 458; lawyer guard 316 F.2d In re the confidences and Cir., 1961, precept, F.2d 383. But secrets of his client. This ethical rely Supreme evidentiary privilege, on dicta from Court cases unlike exists agency relationship regard where a mere existed without to the nature or source of entity public benefit of the fact that others share information or privilege, knowledge.” had no Fifth Amendment Rogers 340 U.S. regard This rule is stated without 367, (1951) ; 438, 71 S.Ct. L.Ed. pol- path traveled the documents. No 694, White, United States v. 322 U.S. icy by requiring would be served the client 1248, (1944) ; 64 S.Ct. 88 L.Ed. 1542 first to touch documents before turn- 90, Henkel, McAlister v. 201 U.S. 26 S.Ct. lawyer. import- them over to his The (1966) ; Hale L.Ed. 671 gave ant fact this case is that Voelkel Henkel, L. after the documents to White assurances Ed. that he took See for Roberts. Comment, Attorney 5. See Rule also and His Rules of Evidence for Unit- Privileges, Magistrates, ed 41 L.W. Client’s 74 Yale L.J. States Court and (1965) (for 21, 1972). rationale). (U.S.Sup.Ct. an alternative Nov. 6. The ABA Re- new Code of Professional sponsibility in its Consideration Ethical *10 sophistry.” United States is mere Judson, Cir., 467.8 F.2d seriously my weaken- we are view ing relationship attorney-client Amendment Fifth majority self-incrimination what the opinion I ac- decides in this case. would cordingly deny the Government of attorney.

I, therefore, respectfully dissent.

ON PETITION FOR REHEARING REHEAR-

AND PETITION FOR

ING EN BANC BROWN, Before R. Chief JOHN BELL, WISDOM,

Judge, GEWIN, THORNBERRY, COLEMAN, GOLD- GODBOLD,

BERG, AINSWORTH, DY- MORGAN, CLARK, ER, SIMPSON, IN- Judges. RONEY, Circuit GRAHAM

By the Court: A serv- member the Court active having requested poll appli- a

ice cation for jority on the rehearing en ma- banc and a judges in active hav- service granting voted rehear- favor a ing en banc. It is ordered that the re- cause shall be heard en the Court banc with ar- oral gument on a date fixed. hereafter specify briefing The Clerk will schedule filing supplemental briefs.

UNITED STATES of America ex rel. LITTLE, Alexander Petitioner- Appellant, TWOMEY, Warden,

John J. Respondent-Appellee.

No. 71-1743. Appeals, States Court of

Seventh Circuit.

Argued Dec. 1972. April 19,

Decided privilege, torney-client also because Justice Marshall his dissent to Couch expectation ordinary suggested attorney’s possession is that publicize protected lawyer example party what will not further third cus- tody: given. has been lawyer L.Ed. protected, at A transfer S.Ct. simply recognized because there is a at- 2d 548.