UNITED STATES of America, Plaintiff-Appellant, v. Joe H. TONAHILL, Defendant-Appellee.
No. 29426
United States Court of Appeals, Fifth Circuit.
July 13, 1970.
Rehearing Denied and Rehearing En Banc Denied Aug. 13, 1970.
430 F.2d 1042
Summary Calendar.
The due process issue previously discussed, of course, requires us to vacate the judgment and sentence in this case. But that fact does not mean that appellant‘s problems are finally resolved. The obligation to serve in the armed forces is a continuing one and the Local Board and Appeal Board may again undertake his classification under procedures which protect his right to a fair hearing.
We find it intolerable, however, to send appellant back for reclassification by a board which the United States government has stipulated to be improperly constituted under the Selective Service regulation without any practical remedy for such violation. The principle of administration of the Selective Service system by potential draftees’ “friends and neighbors” is deeply buried in the history of the Selective Service Act.2 Allegations of violation of the regulation in the constitution of Selective Service Boards are frequent3 and usually tied to suggestions that such violations are racially motivated. DuVernay v. United States, 394 F.2d 979 (5th Cir.), aff‘d by an equally divided court, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969); Clay v. United States, 397 F.2d 901 (5th Cir. 1968), vacated and remanded on other grounds sub nom., Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). See also United States v. Brooks, 415 F.2d 502 (6th Cir. 1969).
In view of its stipulation and the adjudication of the issues hereinbefore set forth in this case, the government should (and we assume will) move promptly to reconstitute the Selective Service Board concerned in accordance with the applicable regulation. In no event will applicant be subject to reclassification until this is done.
The judgment of the District Court is vacated and the complaint is dismissed. Jurisdiction is retained for any further proceedings which may be necessary.
Sander Shapiro, Donald S. Thomas, Clark, Thomas, Harris, Denius & Winters, Austin, Tex., Gilbert T. Adams, John G. Tucker, Beaumont, Tex., for defendant-appellee.
Before GOLDBERG, DYER and SIMPSON, Circuit Judges.
DYER, Circuit Judge:
The defendant was charged with three counts of willfully attempting to evade and defeat his individual income tax for the years 1960 through 1962 in violation of
The District Judge found that neither defendant nor his accountant knew the significance of the term “Special Agent.” However, defendant and his accountant were apprehensive enough (because of the length of time involved in the investigation) to ask the agents on the several occasions when they met, what they were doing, why the audit was taking so long, and whether fraud was involved. The District Judge found that the Agents must have known that the defendant and his accountant did not understand that the audit or investigation was criminal and that, “Not once did the Agents reply in the affirmative [to the questions of defendant and his accountant] that ‘fraud’ or a ‘crime’ was involved. Instead, they stated their function was to reconcile the large discrepancies, to see if they were the result of innocent errors.” Relying on United States v. Prudden, M.D.Fla.1969, 305 F.Supp. 110, and Goodman v. United States, C.D.Cal.1968, 285 F.Supp. 245, the District Judge found that the Revenue Agents had concealed the nature of the investigation from taxpayer and his accountant and that this amounted to fraud, trickery and deceit on their part. Accordingly, he granted the motion to suppress.2
Prudden was subsequently reversed by this Court and Goodman was distinguished in that opinion on the ground that the taxpayer there “had only a grammar school education and was affirmatively led to believe that the information which he was giving the revenue agents was part of the investigation of another taxpayer,” elements not present either in Prudden or in the instant case. 424 F.2d 1021, at p. 1035.
With the legal underpinnings swept away from the District Court‘s order granting his motion to suppress, the defendant attempts to turn the Fifth Circuit decision in Prudden to his advantage by arguing that, although Prudden approved silence on the part of investigating Revenue Agents, it expressly disapproved affirmative misrepresentations and said there was a duty not to leave unanswered an inquiry where doing so would be intentionally misleading. He argues that the inquiries of himself and his accountant to the Revenue Agents imposed a duty on them to inform him that a criminal investigation was under way and that their answer affirmatively misled them.
We find no distinction between the instant case and Prudden which justifies different results in the two cases. Of course, there is no question, as Prudden pointed out, that Revenue Agents cannot obtain information from taxpayers by fraud, trickery or deceit which misrepresents the nature of the search. But there must be “acts by the agent[s] which materially misrepresent the nature of the inquiry” before there is
We cannot say on this record that there was a material misrepresentation which clearly and convincingly shows fraud and the defendant has therefore failed to meet his burden.3 The agents did not say or indicate in any way that their investigation was not criminal or that there was no possibility of a criminal prosecution. They said their function was to reconcile large discrepancies to see if they were the result of innocent errors. If anything, such a statement to an attorney and his accountant, especially when accompanied by prolonged investigation, should have put the taxpayer on guard that if the agents determined that the large discrepancies were not the result of innocent errors he would be subject to criminal prosecution.
The order granting defendant‘s motion to suppress is reversed and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (
Notes
“The members of the local boards thus assume a great and important responsibility which they carry out under the continuous observation of all other members of the local community. This in itself is the best assurance both of efficiency and impartiality and justice. It is about as far removed from bureaucracy and dictatorship as anything that can be imagined.” Statement of Representative Mott at 86 Cong.Rec. 11678 (1940).
Because he found the agents had obtained the evidence from the defendant-taxpayer by fraud, trickery and deceit, the District Judge did not reach the question whether the agents were required to give Miranda warnings when the nature of the investigation changed from civil to criminal. If there was any doubt about this question before, it was resolved by United States v. Prudden, 5 Cir. 1970, 424 F.2d 1021, which held that Miranda warnings are not required.