Lead Opinion
Dеfendant was convicted of two counts of wilfully furnishing to his employer, in Baltimore, Maryland, false and fraudulent statements of federal income tax withholding exemptions, contrary to 26 U.S.C.A. § 7205. He was convicted on each count, and sentenced to consecutive one-year terms of imprisonment, with eligibility for release at any time the Board of Parole might determine, pursuant to 18 U.S.C.A. § 4208(a) (2).
Defendant assails his convictions, inter alia, upon the ground that they were obtained in part by the use of statements which had been obtained from him without compliance with Miranda v. Arizona,
There is no dispute about the events which led to defendant’s convictions. Sometime during the late 1950’s the ownership of certain business and residential property shifted from the defendant to other persons. Defendаnt believed that the transfer was unlawful and that he was the rightful owner. This uneducated and emotionally disturbed man was sincerely convinced that the loss of his properties was the result of a conspiracy between a former business associate and various state and local оfficials.
For several years defendant attempted to secure the help of the state and federal governments in regaining his property. When these efforts proved unavailing, he determined to use the novel device of refusing to pay federal income taxes as a means of prodding the government into taking some action with respect to his grievance. His decision was implemented by his claiming a ridiculously large number of exemptions on the Withholding Exemption Certificate (Form W-4) which he was required to file with his employer. Thus, although entitled to only two exemptions, defendant claimed eleven in 1965 and twenty in 1966. In order to insure that the significance of .this action was not missed, he wrote to the Internal Revenue Service (IRS) to notify them of his action and the reason for it.
Although his previous attempts to communicate with the government had gоne without reply, this action evoked a re-ponse from IRS. Sometime in early 1967, Special Agents of the Intelligence Division of the IRS made a preliminary investigation, which disclosed that defendant was not entitled to the number of exemptions which he had claimed. The agents then arrаnged for an interview with defendant at a local IRS office.
There followed a delay of over nine months. Then, on November 30, 1967, defendant was again invited to the IRS local office. Again, however, he was neither warned of the purpose of the investigation nor advisеd that he could retain counsel. Upon request, he signed a transcribed version of the interview of the previous February.
Over timely objection, the Special Agent’s testimony concerning defendant’s incriminating statements in the February interview was admitted at trial. We hold that this was reversible еrror.
On October 3, 1967, the IRS issued instructions to all Special Agents of the Intelligence Division. These instructions were réported in “IRS News Release No. 897, Oct. 3, 1967,” reprinted in 7 CCH 1967 Stand.Fed.Tax Rep. § 6832:
“In response to a number of inquiries, the Internal Revenue Service today described its procedure for protecting the Constitutional rights of persons suspected of criminal tax fraud, during all phases of its investigations.
“Investigation of suspected criminal tax fraud is conducted by Special Agents of the IRS Intelligence Division. This function differs from the work of Revenue Agents and Tax Technicians who exаmine returns to determine the correct tax liability.
“Instructions issued to IRS Special Agents go beyond most legal requirements to assure that persons are advised of their Constitutional rights.
“On initial contact with a taxpayer, IRS Special Agents are instructed to produce their credentials and state: 'As a special agent, I have the function of investigating the possibility of criminal tax fraud.’
“If the potential criminal aspects of the matter are not resolved by preliminary inquiries and further investigation becomes necessary, the Special Agent is required to advise the taxpayer of his Constitutional rights to remain silent and to retain counsel.
* * * -X- *
“IRS said although many Special Agents had in the past advised persons, not in custody, of their privilegе to remain silent and retain counsel, the recently adopted procedures insure uniformity in protecting the Constitutional rights of all persons.” (emphasis supplied.)
Thus, voluntarily, IRS took upon itself the obligation to give taxpayers, before interrogation, notice that they were suspected of criminаl tax fraud and the further obligation to give the full Miranda warnings before seeking incriminating statements.
The November 30 interview with defendant occurred almost two months after these instructions had been announced. Yet in two particulars the Special Agent failed to comply with them. First, he never warned the defendant that “[a]s a special agent, I have the function of investigating the possibility of criminal tax fraud.” Second, the defendant was never advised that he could “retain counsel.”
An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its actiоn cannot stand and courts will strike it down. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy,
It is of no significance that the procedures or instructions which the IRS has established are more generous than the Constitution requires. In Service v. Dulles, supra, the Supreme Court vitiatеd the discharge of a foreign service officer because of the State Department’s failure to follow its own procedures. The Court concluded that it made no difference that the State Department had no statutory or constitutional obligation to establish the procedure in question:
While it is of course true that * * * the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards, * * * having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.
Nor does it matter that these IRS instructions to Special Agents were not promulgated in something formally labeled a “Regulation” or adopted with strict regard to the Administrative Procedure Act; the Accardi doctrine has a broader sweep. The Supreme Court in Vitarelli v. Seaton, supra, aрplied it to a Department of the Interior “Order.” The Second Circuit has applied it to the Army’s “Weekly Bulletin 42,” § 4(c) (Oct. 20, 1967). Smith v. Resor,
These cases are consistent with the doctrine’s purpose to prevent the arbitrariness which is inherently characteristic of an agency’s violation of its own procedures. As the Second Circuit said in Hammond v. Lenfest,
The Aceardi doctrine furthermore requires reversal irrespective of whether a new trial will produce the same verdict.
It matters not that part of the interrogation which produced defendant’s admissions occurred in February before the IRS instructions were promulgated. As the IRS News Release stated, the purpose of the instruction was to “insure uniformity” in protecting all persons from unknowledgeable relinquishment of their rights. The obligation to fulfill this purpose by giving the Miranda warnings arose on November 30 when defendant was asked to sign the written transcript — and thus to create indisputable prоof — of his previous damaging admissions. If given the warnings, perhaps defendant would have decided to sign without the advice of counsel. An equal possibility is that defendant, alerted to the prosecutorial purpose of the interview, would have requested counsel. In either event thе uniformity which the IRS sought would have been achieved.
Finally, it also matters not that at trial the government offered testimony which dealt solely with the February 19 interview without formal introduction of the signed statement into evidence. A copy of the statement was in the agent's hands during the entirety of his tеstimony. The trial judge referred to it as a “statement” and indicated in the jury’s presence that it had been signed. Although the agent did not read the admissions verbatim from the statement on direct examination, he did read whole paragraphs verbatim from the statement on preliminary matters before recounting the defendant’s incriminating utterances. Furthermore, the Assistant United States Attorney three times referred to the defendant’s “statement” in his closing argument to the jury. Probably, from these incidents of the trial, the jury knew that there existed a signed, written confession.
If the jury had any doubt of this, it was аllayed by cross-examination, for defense counsel brought out that the statement had been signed on November 30 and had the agent read the entire statement to the jury. This, however, constituted no waiver of defendant’s rights; nor did it render the error harmless. Given the fact that the government hаd utilized the statement to incriminate the defendant, defense counsel had no choice but to pursue the strategy which he adopted. He attempted to press the
Reversed and remanded.
Notes
We need not assume that the United States Attorney will elect to try defendant again. Defendant began service, of sentence on August 26, 1968, and he will have served more than sixteen months of this total sentences of two years by the date of this decision. ‘‘In view of the time served, the mental and emotional conditiоn of defendant, and 1ns apparent purpose to protest what seemed to him injustice rather than actually to succeed in obtaining exemptions to which he was not entitled, this may be a case in which the government concludes to dismiss the indictment.
Dissenting Opinion
(dissenting):
I cannot concur in the оpinion of the majority because the ground for the reversal is, in my view, entirely unsound in the circumstances of this case. It was not even suggested in brief or oral argument. On the facts here .1 do not think the authorities cited require that the judgment of the District Court be overturned.
I would simply add these obsеrvations. In my judgment the prosecution was not only justified but compelled. There was a flouting of the law that gave the Government no choice, unless it was to allow every taxpayer the same privilege. The Internal Revenue agents extended him every possible consideration. His statements to them were made without importunity by word, surroundings or otherwise. The District Judge with apprehension and caution inquired into the appellant’s mental condition. Psychiat-rical scrutiny was pursued, and evidence on this concern was finely sieved by the judge before concluding that the appellant was fully competent in mind.
For all of these reasons I feel I must record my dissent.