and others investigating him. His contention that his false answers were given in an informal conference with his fellow workers, which is very similar to one of plaintiff's contentions here, was rejected by the Court of Appeals at pages 141-142 of 168 F.2d.
Plaintiff also contends that the statute of limitation expired on November 26, 1954, as far as any proceeding against him under 18 U.S.C.A. § 1001 is concerned. See Act of June 25, 1948, c. 645, 62 Stat. 828, 18 U.S.C.A. § 3282. Defendants contend that prior to the expiration of the statutory period on November 26, 1954, Section 10 0f Public Law 769, passed on September 1, 1954, 68 Stat. 1145, c. 1214, extended the statutory period from three years to five years, so that it will not expire until November 26, 1956.
Subsection (a) of Section 10 of Public Law 769 substitutes the word 'five' for the word 'three' in the basic 1948 Act and Section 10(b) of this Act provides as follows:
"The amendment made (to this section) by subsection (a) (of such Act) shall be effective with respect to offenses (1) committed on or after the date of enactment of this Act (Sept. 1, 1954), or (2) committed prior to such date, if on such date prosecution therefor is not barred by provisions of law in effect prior to such date." 18 U.S.C.A. § 3282 note.
Such an extension of the statutory period before it has expired has been held valid by Federal courts. Falter v. United States, 2 Cir., 1928, 23 F.2d 420, certiorari denied 277 U.S. 590, 48 S. Ct. 528, 72 L. Ed. 1003; United States v. Ganaposki, D.C.M.D.Pa.1947, 72 F.Supp. 982.
II. Plaintiff's request for a protective injunction limiting the use in criminal proceedings of oral and written statements submitted by him to revenue agents from November 1953 to June 1954, inclusive.
The oral and written evidence given by the plaintiff during this period and the conditions under which it was given are summarized in Findings of Fact Nos. 13, 14, 16 to 26, inclusive.
A. Fourth Amendment
The Fourth Amendment provides:
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.'
The importance to political liberty and the welfare of our country of this Constitutional provision and the language of the Fifth Amendment cannot be over-emphasized. These amendments should receive a liberal construction to prevent any depreciation of the rights of our citizens by well-intentioned but mistakenly over-zealous executive officers. On the other hand, this court has no right to extend the meaning given to the language in these Constitutional provisions by the appellate courts of the United States.
Any seizure of papers or other tangible articles of a person by coercion, stealth, deceit or misrepresentation is an unreasonable search and seizure under the Fourth Amendment. See Gouled v. United States, 1921, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647.
Any requirement that a person produce papers indicating that he is guilty of a crime to an official of the Federal Government is an unreasonable search and seizure. See Boyd v. United States, 1886, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746. However, there has been no misrepresentation, deceit, stealth, coercion or requirement to produce evidence during this period.
The bank books, net worth statements, and any other papers submitted by plaintiff were produced voluntarily. See Findings of Fact Nos. 18, 23 and 26.
B. Fifth Amendment
The Fifth Amendment to the Constitution of the United States provides that no person 'shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law * * *.' The Federal courts have consistently held that neither the privilege against self-incrimination granted to the plaintiff by this language nor the due process clause preclude the admission into evidence of documents and oral evidence voluntarily given to a revenue agent in a civil tax investigation, even though the plaintiff was not warned of his Constitutional rights and did not anticipate criminal prosecution. Morris v. United States, 9 Cir., 1926, 12 F.2d 727, 729; Hanson v. United States, 8 Cir., 1950, 186 F.2d 61; Montgomery v. United States, 5 Cir., 1953, 203 F.2d 887, 892-893; Scanlon v. United States, 1 Cir., 1955, 223 F.2d 382, 384-385; United States v. Burdick, 3 Cir., 1954, 214 F.2d 768, 773-774, vacated and remanded on other grounds 1955, 348 U.S. 905, 75 S. Ct. 311.
The testimony in this case does not establish that the plaintiff was under any compulsion in giving evidence to the representatives of the Internal Revenue Service during the period from November 1, 1953, to January 15, 1954, and indicates that he acted freely and voluntarily (see Findings of Fact Nos. 18, 23 and 26).
There is no indication that the Internal Revenue Service contemplated criminal prosecution of plaintiff until after the last January conference.
In United States v. Wolrich, D.C.S.D.N.Y.1954, 119 F.Supp. 538, at page 540, the court said;
'A statement that the purpose of an investigation is a 'routine audit' is not the equivalent of a promise that only civil liability will be considered regardless of what the examination reveals. Nor would any accountant or businessman so understand it.'
This point of view is all the more applicable to this plaintiff who was a certified public accountant and fully familiar with the Internal Revenue laws. He admits that he was warned prior to giving the testimony under oath in June 1954, so that there was no violation of his privilege at that time.
See Himmelfarb v. United States, 9 Cir., 1949, 175 F.2d 924, 937-938; United States v. Block, 2 Cir., 1937, 88 F.2d 618, 620-621; United States v. Mitchell, 1944, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140.
In conclusion, it is clear that the fact that the Government is considering a proceeding under 18 U.S.C.A. 1001 on the unusual facts of this case should give the great number of Internal Revenue employees who filed form 1361 no cause for alarm.
This 5th day of January 1956, it is ordered that the action is dismissed and that judgment is entered for defendants.