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UNITED STATES v. VENATOR

May 24, 1983

UNITED STATES of America
v.
Douglas C. VENATOR, Defendant.



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

 Defendant Douglas C. Venator has been charged in a five count indictment dated April 5, 1983 with willfully and knowingly failing to file a federal income tax return for each of the years 1976, 1977, 1978, 1979, and 1980, in violation of Section 7203 of Title 26 of the United States Code. Presently before the Court is a motion by defendant to suppress certain statements made to the Criminal Investigation Division of the Internal Revenue Service [IRS] on March 17, 1982, and to dismiss the charges against him on constitutional and jurisdictional grounds. Also before the Court is the Government's cross-motion for reconsideration and vacation of the grant of appointed counsel to the defendant, or in the alternative, disclosure to the Government of all information regarding defendant's financial status. Upon careful consideration of the memoranda of law, affidavits, and oral arguments presented by both sides, the Court denies in full the motions made by the defendant and denies in part and grants in part the motion made by the Government.

 I. DEFENDANT'S MOTIONS

 Suppression

 Defendant argues for suppression of his March 17, 1982 statements on two grounds. First defendant argues that the March 17, 1982 meeting took place in a "custodial setting" which should have triggered full Miranda warnings, including an instruction that defendant would be provided with appointed counsel if he could not afford to retain counsel. Second defendants argue that the telephone calls by special agents to his home "had a coercive purpose aimed at making the defendant succumb to the questioning of the criminal investigation to obtain evidence to be used against the defendant," and that the defendant's appearance and resulting statements were not made voluntarily.

 The facts show that Special Agent Van Shufflin and Venator exchanged two letters and three telephone calls over a nine month period. Venator was sent a letter on June 19, 1981 in which he was asked to come into the IRS office and was informed that the appearance and any submission of documents would be voluntary. The IRS received no response to the June 19, 1981 letter. Special Agent Van Shufflin then called the defendant on October 27, 1981 and the two arranged a meeting to be held on November 2, 1981 at the IRS office. On November 2, 1981, a woman called and informed the IRS agents that Venator would not be able to keep the appointment. Another letter was sent to the defendant requesting his appearance, and informing him that any appearance or submission of documents could not be compelled by the Government.On March 17, 1982, Special Agent Van shufflin telephoned Venator, and they arranged a meeting to take place later that morning.

 The March 17, 1982 meeting was held at the IRS Criminal Investigation Division's office in Utica, New York.The meeting began at 10:50 a.m. and ended at 12:30 p.m. At the beginning of the meeting the IRS special agents introduced themselves to the defendant, and informed him that they had been assigned by the IRS to investigate his federal income tax liability for the years 1976 through 1980. Special Agent Van Shufflin then read to the defendant the following statement:

 As a special agent, one of my functions is to investigage the possibility of criminal ciolations of the Internal Revenue laws, and related offenses.

 In connection with my investigation of your 1976, 1977, 1978, 1979, and 1980 Federal tax liabilities, I would like to ask you some questions. However, first I advise you that under the 5th Amendment to the Constitution of the United States I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any documents which you submit may be used against you in any criminal proceedings which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding.

 On March 17, 1982, defendant was not in custody or otherwise deprived of his freedom in any significant way, and, thus, the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) are inapplicable. Defendant had not been arrested or detained in any way on that date, his appearance at the IRS office in Utica was by mutual arrangement, and there is no allegation nor any evidence that he was restrained or coerced into remaining at the office. Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) (suspect who voluntarily appeared at station in response to telephone request was not in "custody" or otherwise deprived of his freedom of action in any significant way and, thus, Miranda did not apply). The mere focusing of an investigation on a taxpayer does not require that he be given full Miranda warnings. Beckwith v. United States, 425 U.S. 341, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976). The warnings given in the present case were, therefore, sufficient, id., and defendant's fifth amendment claim is denied.

 "[A ]ny criminal trial use against a defendant of his involuntary statement is a denial of due process of law. . . ." Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 2416, 57 L. Ed. 2d 290 (1977). Looking at the totality of the circumstances surrounding the March 17, 1982 statements, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), it is alos clear that the statements were made "voluntarily," and with no coercion from the IRS agents present at the time, Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963). In determining voluntariness, the issue is whether the defendant's will was overborne at the time the statements were made. Id. Factors to be considered in this determination are the type and duration of the questioning, Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 91963), the defendant's age, Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1947), the defendant's mental competency, Blackburn v. Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1961), the police practices Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936) (torture), Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961) (trickery), and the defendant's mental state, Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) (drugs).

 In the instant case, defendant's assertion that the two letters and three telephone calls over a nine month period wore down his will and coerced him to appear and to make the incriminating statements is without merit. Defendant admits and it is clear from the record that each letter and telephone call included specific notice to the defendant that the IRS could not compel him to appear or to submit documents and that any decision on his part to do so would be strictly voluntary. Furthermore, it is clear that the hour and 40 minute meeting on march 17, 1982 was not coercive in any way. Defendant was well informed again at that time that his appearance and any statements he might make were purely on a voluntary basis.Defendant is an adult, and he does not allege, nor is there any evidence of, any mental or physical disability on his part. Defendant does not allege, nor is there any evidence, that defendant was in any way tortured or tricked or restrained from leaving the meeting at any time if he desired to do so. Indeed, the record is clear that defendant came into the office voluntarily at a time convenient to him and that he was in no way coerced into remaining or making any statements. The March 17, 1982 statements were a product of an "essentially free and unconstrained choice" by defendant, Schneckloth v. Bustamonte, 412 U.S. at 225, 93 S. Ct. at 2046, and are, therefore admissible.

 "[T]he fact that a person is the subject of an investigation is not enough to trigger his Sixth Amendment right to counsel." United States v. Vasquez, 675 F.2d 16, 17 (2d Cir.1982) (citing Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972)). "For a Sixth Amendment right to counsel to attach, adversarial proceedings must have commenced against an individual, "whether by way of formal charge, preliminary hearing, indictment, information or arraignment." United States v. Vasquez, 675 F.2d at 17 (quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424 91977)). Here, even though the IRS had focused its investigation on the defendant, no ...


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