The opinion of the court was delivered by: FRANKEL
This is a prosecution for attempted tax evasion against two women, Ann Gleason and Mollye Karp, who ran a business together during the pertinent years, and their accountant, Frank Pitkin, who kept their books and prepared the tax returns in question. During the period of nearly three years since the indictment, defendant Gleason has made a series of three motions - (1) for a bill of particulars, (2) to inspect grand jury minutes and dismiss certain counts, and (3) for a severance. Karp has made four motions - (1) for dismissal, (2) for a bill of particulars and inspection of documents, (3) for inspection of various statements, and (4) for a severance and discovery. Now, Gleason has moved again for a severance and for suppression of evidence. Karp has likewise moved for suppression, and, in addition, for disclosure of any exculpatory evidence the Government may have, including specified kinds of evidence mentioned below. Since the motions to suppress are essentially similar, it has seemed convenient and appropriate to hear and decide them together, along with the disparate branches of the two motions.
Gleason's motion for severance
As noted above, this is Gleason's second application for a severance. The first was denied on November 1, 1965, by Judge Tyler. Thereafter, however, defendant Karp applied for a severance from co-defendant Pitkin on the claim that this relief was essential in view of her plan and desire to call Pitkin in her own defense. That motion was granted. 259 F. Supp. 282. Following that development, Gleason moves again for a severance, urging that she should be tried separately because (1) she would prefer to be tried in a case where Pitkin was not called as a defense witness and (2) she should not be tried with Pitkin because a number of the counts against him do not concern her.
The first (and only new one) of her points is not impressive. In the bland form of its submission here - that defendants do not agree about the desirability of calling a particular witness - this kind of contention could serve substantially to vitiate Rule 8, Fed. R. Crim. P. When the case comes on for trial, Karp may have decided not to call Pitkin. Or Gleason may come to believe he should be called. Or the trial plans may remain divergent while the threat of prejudice to Gleason remains as speculative and unsubstantial as it now appears to be. At this stage, in any event, there is no sufficient showing warranting an order to preclude the joint trial of Karp and Gleason.
The problem may be obviated, moreover, if the Government chooses to try Gleason with Pitkin. She opposes this, too, but on grounds that have long since been considered and rejected by Judge Tyler. Nothing is shown to warrant revision of his judgment on this renewed attempt.
The motion for severance will be denied.
While their cases were being investigated, both Karp and Gleason gave net worth statements and made oral statements to the Special Agent who was exploring the question of possible fraud. In addition, their accountant, now co-defendant, Pitkin, armed with their power of attorney, delivered to the Special Agent books and records which now appear destined to be used as evidence against them. Seeking suppression of the foregoing materials, Karp and Gleason urge two points:
(2) That Pitkin was a faithless agent who "was double-dealing his clients and intentionally incriminating them" (Affidavit of Karp's counsel, par. 48); that the government agents must have known this, and that Pitkin may, indeed, have "worked outright for the Government on the promise of personal immunity, or favorable treatment" (Brief for Gleason, p. 8); and that, in either event, the Governments' agents knew or should have known of Pitkin's treachery, knew or should have known that his authority to represent Karp and Gleason was thereby dissipated, and should therefore have realized that accepting delivery of the books and records from his custody would amount to an illegal search and seizure.
Since the factual assertions underlying these contentions were disputed in the papers, and since some of the factual issues appeared potentially to be material, an evidentiary hearing was held. The hearing has served in large measure to erase the asserted grounds for suppression. What remains is disposed of because the movants' legal theory, under the first of their two arguments on this subject, seems erroneous.
1. We disbelieve the testimony of Karp and Gleason that they had no idea they faced a threat of criminal liability until long after they gave statements to the Special Agent. We find, on the contrary, that they were warned by the Special Agent of this danger, told of their right to silence, and warned that things they said could later be used against them. However, they were not advised by him of the right to counsel, and thus were not afforded the full range of warnings and advice required under Miranda v. Arizona, supra. But this does not help them.
Escobedo and Miranda announce safeguards to be afforded a criminal suspect who is questioned while in custody or otherwise deprived of his freedom. Leaving aside other points of difference, the cases are clearly about custodial or similar interrogation, not only on their facts but in the words repeatedly used by the Court to define the new doctrine. See Escobedo, 378 U.S. at 479, 482, 488 and 490-491; Miranda, 384 U.S. at 439, 440, 444, 445, 446, 457, 461, 465, 477, and 478; see also, Davis v. North Carolina, 384 U.S. 737, 740, ...