United States v. Leslie B. Ponder, Jr.
444 F.2d 816
5th Cir.
1971
Check Treatment

*2 BROWN, Chief Before JOHN R. Judge, RONEY, Circuit WISDOM Judges. Judge: RONEY, I. Circuit Use of Defendant’s Records appeals a two count The trial court denied motions making false income conviction for sought suppress which defendant all years tax and 1961 returns evidence obtained or of leads derived out of Title violation United States from certain of his business and finan- *3 (l).1 The trial last- Section 7206 alleged cial of records because violations witnesses, weeks, ed seven involved rights (search of his under the Fourth documentary pieces and some 600 evi- seizure) (self-incrimina- and and Fifth received or identified. tion) Amendments to the appeal ques- This raises constitutional Constitution. concerning question tions defendant’s The use of records in were voluntari- grand ly and records submitted to the Internal Revenue jury, concerning questions during Taxpayer trial and Service a civil audit.3 instructions, sufficiency court’s contends that he and when wrote evidence, evidence, return, quested the admission of their ter- the civil audit and minated, investigation a statute of defense to limitations a criminal was reject commenced, return count. all of We and his records then were copied claims and affirm. in violation of his constitutional rights.4 copying He reasons such attorney Defendant Ponder illegal of his records was an and search Amite, Tangipahoa Parish, in Louisiana. seizure, and that their use in evidence During yea.r the indictment he also own- compelled was self-incrimination. He ar- operated Amite, ed and in a small hotel gues duty “a was corporation ownership held various in- change to advise in status directorships, participat- and terests and of a criminal case.” ed, through joint sepa- either or ventures rately, operations We hold in otherwise. business and agreed supply capital sales of records or of in- assets collections voluntarily payments stallment delivered them the from in rev such sales agents. prior years. point enue separate At that there was a His search, valid consent to a carries that of wife his for each indict- right alleged photo year. with it the to examine and The indictment under- copy. McGarry Riley, reporting of 1960 law business income (1st fees, law director’s busi- income, ness director’s fees and interest L.Ed.2d 433 Tucker, Boren v. income.2 under-reporting § 7206. Fraud and false law business statements. who — n by by Any person $11,580.80, $1,- income his interest (1) 160.40, by penalties $1,000.00. per- and his fees Declaration under director jury. Willfully makes and subscribes — “Receipts 3. The of a consisted statement, document, or other photocopied, Book” which was admitted which contains or a writ- is verified evidence, against in and its contents used ten declaration that it is made under the Ponder; deposit and numerous penalties perjury, and which does giving shown on check stubs names of true not believe to be and correct paid those him of set- who and amounts * * * every matter; material shall be clients, tlements claims of not gpilty felony and, upon conviction evidence, troduced but which thereof, shall be fined more than as sources used for leads. $5,000, imprisoned not more than 3 Although years, together Court both, District found costs actually investigation the criminal prosecution. begin already until after the records had copied by division, civil claimed the evi- The unimportant under-reporting to the result whether dence shows defendant copied $12,358.- for civil or criminal law business income his 1960 usage. by $600.00, fees director but never told him that criminal investi- been a waiver had Likewise there gation progress right self- and never advised constitutional rights. him of Amendment his constitutional incrimination. suppressed compelled crimi District Court all evidence ob- right “to following against” In- one’s tained referral to be a witness nal case telligence against compulsion and not Division. This reversed. protects self voluntary asserted acts, must be Similarly, Tonahill involved a referral in a refusing case to deliver records Intelligence Division after civil States, 186 F. Hanson as this. following appearance There, audit. gov After 2d special along origi- agent, aof with the possession of the in ernment obtained agent, inquir- nal revenue consent, too it was with his formation agents why ed of the the examination was claim constitu Ponder then late for taking long fraud was *4 whether immunity. v. United Nicola tional agents involved. The did advise 1934). (3rd States, Cir. F.2d 780 72 a defendant whether crime was fraud government There is no doubt involved, they but were at- stated legitimately obtain information can use large discrepan- tempting to reconcile prosecution during a audit civil cies see if were the of in- result United Donaldson v. criminal case. upon Prudden, nocent In reliance errors. 27 400 U.S. granting Court reversed the v. United 580 Venn L.Ed.2d suppress. motion (5th Cir. 400 F.2d 207 Prudden and Tonahill Thus Two recent decisions hold that evidence received from the argument directly that the deal taxpayer investigation after the criminal duty owed a Internal Revenue Service though admissible, commenced is even no government to advise Ponder warnings given. notice or Miranda investigating possible criminal was A the evidence received from fortiori implications in his returns. investigation Ponder the criminal before Prudden, F.2d 1021 States v. commenced rendered inadmissible 1970), den., cert. merely copied because it thereafter. was 62, and United 27 L.Ed.2d S.Ct. Tonahill, recognize These cases that evi 1970), den., cert. for criminal obtained use 242, 27 L.Ed.2d 247. ceit, might misrepresentation fraud and Prudden, agent suppressed, be In was but held that failure to the revenue conducting taxpayer audit of defendant’s advise the that a criminal in civil fraud, vestigation being Finding he did not return. indications made Intelligence argues amount to such Ponder referred the matter conduct. However, government’s demand, continued Division. he after his letter answer and the retention further examination and practiced fraud, misrepresenta There- from the defendant. formation against after, tion and deceit that he him. ex he defendant advised change provide being of letters that another insufficient ba transferred and certainly agent argument, sis for such an The suc- continue. revenue ground upsetting agent appeared ceeding furnish no on revenue finding special agent Intelli- the District Court that “there scene with a slightest any is not gence Division, hint of over identified as who was bearing threat, trickery, deception agents on defend- told the such. The two returns, government’s part.” findings examining Such ant Messrs. Wiltenmuth & Peter: Dear June my because Please return 1961 records & Mr. Peter Mr. Wiltenmuth I We need them in business. have sev- Internal Revenue Building to run we have eral references down that Bank 301 American soon, up Rouge, out that we must close held Baton clearly First, for return are this Court unless demand conclusive on basis, Montos, assert a constitutional erroneous. United States hand indicated needed the records for reasons. L.Ed.2d 532 business placed It on the use restriction government. question remains by retaining whether or not Ponder’s Second, experienced an businessman records after had demanded their re lawyer, as a was bound be turn, government a rea converted investigation aware that could civil one, sonable search into an unreasonable charges inquiry lead to criminal if the compelled give evi wrongdoing revealed rec- dence that could not be over obtained gave ords he objection Stuart might activity evidenced criminal We held Cf., used him. United States v. taxpayer successfully there that a can swpra, Prudden, and United States v. production resist Tonahill, supra. grounds investiga Amendment when the inquiry tion has become with domi Third, having voluntarily once overtones, though nant criminal even response submitted records in to a sum previously the records had examin *5 mons, only it is reasonable to assume that government. ed conclude its would ex holdWe that Ponder’s demand for the copy prior amination and such records return his records did not transform demand, to even after compulsion to voluntary an otherwise to should have reasonable time do submission to the Internal Revenue Serv- Klavans, F.Supp. so. Glotzbach v. 196 ice, and did not make the continued ex- vacated, (E.D.Va.1961), 685 11 order amination of the records an unreason- 15,- 1191, AFTR 2d 62-2 U.S.T.C. Par. able metamorpho- search. That no such 1962); Bingler, 452 Cir. Caro v. place readily sis took apparent F.Supp. (W.D.Pa.l965).5A several reasons. 242 418 appreciate your returning Internal Revenue Service them as possible. soon as Florida Boulevard 3954 very truly, Rouge, Yours Baton Louisiana Ponder, L. B. Jr. Dear Mr. AATiltenmuth: TjBP:bs your July 2, I letter 1963 my garding U. S. TREASURY the return of 1961 records. DEPARTMENT you cooperate Internal Revenue with fel- I have tried to gave you Office of these March District Director lows 29, 3954 than a Florida I think is more Boulevard which 1963 you keep Rouge, length Baton time for Louisiana reasonable July 2, upon their insist 1963 and I must the records Ponder, Mr. L. B. Jr. return. only year P. Box O. 217 will month of the be the This Amite, enough long will be out of Court I payments I can Dear Mr. Ponder: out some check trying my check, your through only AVeare will return hence 1961 rec- do you quickly my im- appreciate ords as return of we can. How- ever, mediately. we them need for a little while longer. truly, very Your Ponder, get Just as soon we Jr. can L. B. we’ll them you. back to LBP/mr Sincerely, AA’iltenmuth, what Ponder’s John P. not consider 5A. need Jr. AAre /s/ AA’iltenmuth, de he had position John P. been if would have Jr. Group Supervisor, for the Group of his manded protecting July 3, purpose con declared Wiltenmuth, rights. Mr. John B. Jr. stitutional Treasury Department U. S. grand jury.” United Rabinowitz v. Jury II. Grand States, 34, the in attacks The defendant home that defendant’s grand fact ground that on the render parish does not not included drawn jury it was returned which improper. United Lewis v. list The contention improper list.6 States, Agnew supra; States, United v. persons from some of excluded the list 235, 41 L.Ed. de parishes Division in the the 12 (1897). 1865(a) Title United feated specifically authorizes States by Judge Hand: Learned As stated parts jurors from which, to select the the court power “The statute confers section, need, district.7 This power, like Judiciary original Act from the scended can, only approx indeed use re has been held constitutional exactness; engaged, it is imate peatedly. 279 U. Lewis exercise, prac a scholastic L.Ed. 615 justice.” S. Unit tical administration Ruthenberg (2d v. United Gottfried, 165 F.2d 360 (1918). 168, 62 L.Ed. 414 38 S.Ct. L.Ed. 1139 As fully Having de- grand considered each of jury, fails defendant’s evidence grand jury, objections to the fendant’s support list contention find no Court’s we the District represent community,8 did not the in- denial of the motion dismiss the order of the District Court dictment.9 not followed. Jackson Section 1865 was 1968); Morrow, III. Instructions Bloomer v. United 1969); States v. Skid objected to Defendant certain *6 more, 123 F.2d given by court instructions as the trial 626, 800, 86 L.Ed. grounds they gave on the various that jury prosecu- an the instruction that the correct; “The focus of the law on the list tion evidence was assumed to be they gave jury from which the is drawn and that the burden innocence; particular jury proving they on the of that January 5, 20, 1967, pro- District Court of Defendant was indicted December viding jurors 1967, prior Jury that would be the selected from Selection parishes 1861, the of Service Act of seven Division; the New Orleans 28 U.S.C. § seq. a list of the the of et members Jury subsequently Grand venire district; Apportionment within defendant; indicted a Louisiana commissioners, jury (a) additional Gránd map. Highway jurors petit time shall from time to parts from be selected of the dis- originally March 9. Ponder indicted on to be trict court directs as orig 1967, the 1967. On October impartial trial, favorable to most grounds indictment inal was dismissed on unnecessary expense un- to incur Jury the Grand returned duly any part burden the citizens of improperly indictment was constituted. jury service. this the district with To superseding in December a On may end the court direct maintenance by returned separate jury for some or all boxes Jury selected this a new after Grand holding places the dis- decision in Rabinowitz v. United Court’s jury may appoint a commis- trict place. sioner for each such January 20, 1967, under The order of Jury hearing was consti new Grand 8. At on the motion to dismiss indictment, only the District tuted was scrutinized evidence offered Brown, in United States Gov- the defendant was showing Supp. (E.D.La.1968). population F. ernmental Guide parishes; an order of of the various weeks, defense; or three stated be executed. After two not cover his signed erroneously; to the she the defendant’s name were the law in, accepted at return and sent but claims that rules not in accord with to the time did she show the return Defendant made certain instructions. requests defendant and that he did not authorize which were for instructions sign her to it. fused. Taking Having carefully all of view the evidence studied whole, government, most favorable to the Glass we conclude the instructions as jury er they fairly instructed (1942), preju applicable L.Ed. 680 there contain no law and objections present are sufficient error, circumstances dicial that the jury properly which a in reasonable could find that overruled and the Zeig filing properly the defendant did authorize the refused. structions were the return Co., name ler subscribed v. Seaboard Coast Line R. prepared it. 1971); Knight The returns were v. Unit defendant’s law office the defendant’s secretary from the defendant’s records period over a of weeks. The return in Judgment Acquittal IV. Motion for extraordinary volved a number of items. The defendant contends that the Court signed It was under a declaration that granted judgment should ac- penalties perjury applied quittal proof for lack of that the returns return. The defendant had been under signed by defendant, or author- previous scrutiny of the Internal Reve signed ized to be on his behalf. Service, jury might nue and the well have believed that Mrs. Smith would Although urges signed not have without au this matter must be considered as thority and the defendant let the evidence stood at "the the time that go tax time come and without either chief, rested its case in making filing his own return or au clearly not the law. When a defend thorizing do someone to it for him. ant introduces evidence after a denial of acquittal a motion for the close of We conclude there was sufficient evi- government’s case, reviewing dence from which the could connect record, court should consider the preparation entire defendant with the including defendant’s the return evidence. United for 1961. United *7 Cashio, Barnes, 420 F.2d 397 U.S. 90 S.Ct. (1970). 25 L.Ed.2d 420 The Cashio V. Statute of Limitations case also statutory pre decided that the Defendant seeks sumption reversal of the sign that an individual’s name conviction as to the 1960 return on the prima to a return furnishes facie ground prosecution was barred signed evidence that the document was year the six statute of limitations. him preclude judg is sufficient acquittal ment of gov at the close of brought The first indictment within ernment’s case. 26 year U.S.C. period the six § was dismissed on 11, 1967, improp- October because of an secretary, Smith, The defendant’s Mrs. erly grand jury. By constituted testified for the defendant the de- time, year period expired, the six had signed fendant the 1960 but that within six months signed of the dismissal a she new had his name to the 1961 re- indictment was returned on December turn. She further testified that had she prepared the 1961 return and that it was first submitted to the Internal Revenue presents complete U.S.C. § unsigned. It was sent back to answer to the statute of de- limitations purpose of express Section The he deems fense.10 conduct the Court which of limita- statute prejudicial, is to extend to his case. As to all of these charged discussed, has been person who previously tions as to a find issues we “is dismissed an indictment none which mer- reversible irregularity with any error, defect or for it discussion. grand jury.” respect sig- The trial lasted seven weeks. A grand jury argument portion transcript nificant of the of the beyond re its actions was “void” proceedings is before this Court. It has defend demption not advance does read, arguments all been of counsel Using de past ant Section carefully considered, concept, indictment first fendant’s viewing whole, appears the case aas “voidable,” de because most from this review that had unless waived have been fects would a fair trial his convictions must timely presented. Therefore 12(b) jurisdictional. appeal. Rule on are sustained fects (2), Proce Rules of Criminal Federal Affirmed. Mfg. dure; Co. v. Shotwell 448, L.Ed. ON PETITION FOR REHEARING 2d 357 AND PETITION FOR REHEAR- exactly the- is The instant situation ING EN BANC 18 U.S.C. kind of to which § case prosecution apply was intended PER CURIAM: barred. Rehearing Petition for is denied of Evidence Admission VI. and no panel Judge member nor Appeal regular Points Other active service on the Court having requested that polled the Court be rehearing rulings banc, (Rule appeals en several Federal Defendant objec- Appellate Procedure; admitting over Rules evidence Local 12) of evi- Circuit denying admission Rule Petition for tion Rehearing cites sought He En Banc is to introduce. denied. jurisdiction that: 10. 18 U.S.C. 3288 states “When- within six calendar months ever an for of the in- indictment is dismissed date dismissal error, regular defect, irregularity information, or, with re- dictment or if no spect grand jury, grand jury appro- or an indictment session in defendant, jurisdiction priate or information filed after when the indictment or prosecution by open dismissed, waives in information is within six calen- is found otherwise defective dar months of the date when the next convened, any cause, grand jury pe- regular after insufficient by any applicable prescribed new indictment shall not be barred statute riod expired, of limitations.” has a new indict- statute of limitations appropriate may be returned