Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

MOYER v. BROWNELL

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


January 5, 1956

John MOYER
v.
Herbert BROWNELL, W. Wilson White and Robert Lees

The opinion of the court was delivered by: DUSEN

The amended complaint in this case seeks equitable relief from alleged contemplated institution by the defendants of criminal proceedings against plaintiff for violation of 18 U.S.C. § 1001 *fn1" in the form of a perpetual injunction restraining the defendants, and all persons acting by, through, from or under them, from presenting to any Grand Jury a financial statement filed by plaintiff with officials of the Internal Revenue Service in November 1951 or any other evidence (most of which was oral) obtained from plaintiff by representatives of the Internal Revenue Service between November 1953 and June 1954 *fn2" in the course of the investigation of certain of his federal income tax returns. *fn3"

The answer filed by the defendants raises at least four separate defenses. Although the hearing judge holds that the defendants are entitled to have the complaint dismissed under Rule 41 of Federal Rules of Civil Procedure, 28 U.S.C., for the reasons stated in their First, Second, Third and Fifth Defenses, such holdings can be reached most adequately after consideration of the testimony, as well as the facts admitted in the pleadings. *fn4" For this reason, Findings of Fact will be made so that the appellate court can enter such judgment or order as it deems appropriate in the event that it should find errors of law in the action taken by the hearing judge. *fn5"

  Specific Findings of Fact

 1. The plaintiff, John Milton Moyer, resides at 2139 Freemansburg Avenue, Easton, Northampton County, Pa., and has resided there since 1911. He is 66 years of age. He is a certified public accountant.

 2. The plaintiff was employed as an internal revenue agent by the Internal Revenue Service (formerly Bureau of Internal Revenue) from September 13, 1920, until his retirement on January 15, 1954. The Internal Revenue Service is part of the Treasury Department of the United States of America. Plaintiff had his office in the Easton, Pennsylvania, office of the Internal Revenue Service from 1951 until his retirement. This Easton, Pennsylvania, office was part of the Scranton District in 1953 and 1954.

 3. Plaintiff had worked a good many fraud cases, about 100, during his period of service as an Internal Revenue Agent. A fraud case is one where there is either a penalty imposed or criminal prosecution recommended. Plaintiff was fully aware of the duty of every agent to report any evidence of fraud he might find. He was also aware of the duty of a revenue agent to report the commission of a crime if he knew of it.

 4. He is now receiving a federal retirement pension of $ 261 per month, which would terminate if he was convicted of a felony (paragraph 5 of Complaint as admitted by the Answer).

 5. On or about October 19, 1951, the Commissioner of Internal Revenue, John Dunlap, issued a mimeograph order (P1) to all Internal Revenue Service personnel requiring each of them to file a financial statement (Treasury Department Form 1361 -- P2). Said mimeograph stated, inter alia, 'The questionnaires will be held strictly confidential.' *fn6"

 6. 'COM:DI,' as used in paragraph 4 of P1, refers to Commissioner, Director of Inspection Service.

 7. Form 1361(P2) was filed by all Enforcement Revenue employees in November 1951, either with their Group Chiefs or with the Commissioner, Director of Inspection Service.

  8. Plaintiff's Form 1361 was dated November 26, 1951, signed by him, filed with his Group Chief, Mr. Gilbert, forwarded by Mr. Gilbert to the Internal Revenue Agent in Charge, Philadelphia, and from there sent to Washington, D.C., where it was received by the Director, Inspection Service, on November 30, 1951.

 9. Form 1361 filed by plaintiff showed 10 stocks having a total value of $ 8,900.

 10. There is no evidence in the record indicating either that the plaintiff had committed any crime prior to November 30, 1951, when his Form 1361 was received in Washington or that the information on Form 1361 tended in any way to incriminate him as guilty of action previously taken constituting a criminal offense. Plaintiff had no reasonable ground to apprehend danger of criminal prosecution from filing the Form 1361 if the information contained on it was accurate.

 11. Plaintiff testified that, although he felt the filing of Form 1361 (P2) was an invasion of his privacy and personal liberty, he filed the form because he thought he would lose his job if he did not file it. *fn7" He understood why these forms were required by the Secretary of the Treasury. He had no fears in filing the statement. He also did not think the filing of the form was important enough to justify his consulting counsel or writing the Department to determine his rights. Plaintiff certified on the form (P2) that the questionnaire was answered correctly to the best of his knowledge and belief. On cross-examination, plaintiff testified that the information on the Form 1361 filed by him was accurate in every detail but one item, which he got from his wife, and that item was not quite correct. He does not believe he committed a crime in filing the form, apparently, because of his belief that any errors were minor.

 12. It was the policy of the Internal Revenue Service to audit all Internal Revenue Agents' returns for the years 1948 to 1951, inclusive. It was not the policy to audit 1952 federal income tax returns of all such agents.

 13. On November 10, 1953, correspondence was sent from the Chief of Collection Division at Scranton to the Chief Audit Division, Scranton District, concerning plaintiff's federal income tax returns.

 14. In November 1953, plaintiff received a letter from his current group chief, Mr. Davis, stating that he wanted to see him on an appointed day that month to go over plaintiff's 1951 and 1952 federal income tax returns. On the appointed day, Mr. Davis told plaintiff his dividend income was incorrectly reported on these returns and plaintiff agreed to pay any additional tax resulting from a corrected computation of his dividend income. At or about the time Mr. Davis called on plaintiff to point out the mistakes in his income tax returns, plaintiff submitted an application for retirement on pension.

 15. Plaintiff testified that he assumes that approximately $ 800 in dividends and interest was omitted from his 1951 joint federal income tax return and plaintiff admitted that approximately $ 1,100 in dividends was omitted from his 1952 joint federal income tax return. *fn8"

 16. The Inspection Service of the Internal Revenue Service investigates complaints concerning conduct of employees of the Internal Revenue Service and investigates any violations of Federal statutes by members of that Service. The Inspection Service commenced a conduct case investigating plaintiff on December 8, 1953, as the result of correspondence from the District Director of Internal Revenue dated 11/24/54. This case concerned incorrect 1952 income tax returns filed by plaintiff. The Inspection Service requested plaintiff's Form 1361 (P2) from Washington on December 10, 1953. No representative of the Inspection Service was present at any of the conferences attended by plaintiff which were subjects of testimony in this case. The investigation of the Inspection Service was entirely independent of that made by the Audit Division and that made by the Intelligence Service. Mr. Kratenmaker of the Inspection Service did talk to Mr. Brownell, Mr. Davis and Mr. Lawlor (Director of Internal Revenue) on December 14, 1953. In many cases investigated by the Inspection Service, no criminal prosecution results and a letter of reprimand may be recommended. Plaintiff's Form 1361 was received from Washington in the Office of the Regional Inspector on or about January 17, 1955.

 17. On or about December 16, 1953 (see P4), plaintiff received a letter from R. P. Brownell, Chief of Audit of the Scranton District of the Internal Revenue Service, asking him to come to Scranton on December 17, 1953, to discuss him income tax returns and to bring a copy of the financial statement on Form 1361 (P1). Mr. Davis and Mr. Brownell were both present at this conference in Scranton. Plaintiff was asked to prepare a list of his securities and the dividends declared on them since 1946. He was asked to bring this data to Scranton so that the investigation could be completed prior to plaintiff's contemplated retirement date of 12/31/53. This list was subsequently either sent or taken to Mr. Brownell at Scranton. Plaintiff testified that Mr. Brownell informed him at that meeting, after looking at his Form 1361, for a few minutes, 'that it (P1) looks pretty good to me.'

 18. Shortly before Christmas 1953, Mr. Davis and Mr. Feldman (a revenue agent) came to plaintiff's office in Easton. Mr. Feldman spent the whole day (and possibly part of another day) going over plaintiff's federal income tax returns for the calendar years 1948-1952, inclusive. At this time, plaintiff gave Mr. Feldman his bank book. Also, Mr. Feldman submitted to plaintiff a net worth statement which he said indicated plaintiff owed additional income tax. Plaintiff stated that he would prepare some figures to show he owed nothing on a net worth basis. Plaintiff emphasized that he volunteered to prepare these net worth figures which were to be submitted as soon as they were prepared. Plaintiff testified that Mr. Davis returned late in the day and said 'Don't worry, John. Everything will be all right.'

 19. Between Christmas and January 14, plaintiff took the net worth statement prepared by him, showing his net worth as of the end of each year from 1948 to 1952, inclusive, to a conference at Scranton at which Messrs. Feldman, Davis and Brownell were present. This net worth statement showed that at the beginning of the period (December 31, 1948) plaintiff had $ 10,000. At this conference, Mr. Brownell said to him, 'This man is in a tax jam -- let him take the consequences.'

 20. About January 14, 1954, plaintiff attended a meeting with Mr. Brownell and Mr. Davis at which time there was given plaintiff a letter proposing his suspension as a revenue agent for filing a grossly incorrect tax return. An application for leave to start January 14, 1954, filed by plaintiff at Mr. Brownell's suggestion, was disapproved.

 21. The function of the Intelligence Service of the Internal Revenue Service is to investigate income tax fraud cases. On January 18, 1954, the Chief of the Audit Division at Scranton, Pennsylvania, referred plaintiff's income tax returns to the Intelligence Division, Scranton. Plaintiff's Form 1361 (P2) did not reach the files of the Intelligence Service until March 1954. Plaintiff was never questioned by the representative (Mr. Hickey) of the Intelligence Service assigned to this case about his Form 1361 (P2) and this form was not used as a basis for Mr. Hickey's report, to which there was attached a copy of the form as an exhibit.

 22. In the latter part of June 1954, as a result of a visit to plaintiff's home by Chief Intelligence Agent Tomlinson and Special Agent Hickey, plaintiff went to the Easton office of the Internal Revenue Service the following Monday for a conference with Messrs. Feldman, Hickey and Tomlinson concerning his income taxes. Plaintiff was placed under oath by Special Agent Hickey before giving testimony at this time and he was warned that any information he gave would be used against him. At that time, plaintiff answered a great many questions voluntarily but he states that he still did not feel criminal prosecution was involved because less than $ 10,000 of additional tax was in issue.

 23. Plaintiff gave all the information furnished to the Internal Revenue Service from November 1953 through June 1954 voluntarily because he felt he had done nothing wrong and that any additional tax would be nominal. He felt the revenue agents could not find any substantial tax due if they hunted for two years. *fn9"

 24. Plaintiff testified that he had received instructions from the fraud section in Philadelphia that there should be no criminal prosecution for any additional federal income tax found to be due unless such additional tax exceeded $ 10,000.

 25. During the period from November 1953 until January 1954, there was no mention of possible criminal prosecution in any of the conferences concerning plaintiff's 1951 and 1952 federal income taxes.

 26. There is no evidence whatever that government representatives used any coercion, force, stealth, deceit or misrepresentation in securing information or papers from plaintiff concerning his federal income taxes or financial situation in the period from November 1953 to June 1954.

 27. Defendant Herbert Brownell is Attorney General of the United States of America. Defendant W. Wilson White is United States Attorney for the Eastern District of Pennsylvania. Defendant Robert Lees is an Assistant United States Attorney for the Eastern District of Pennsylvania (Par. 4 of Complaint as admitted by the Answer).

 Discussion of the Facts

 It is impossible to reconcile all of the plaintiff's testimony, which was inconsistent in several particulars. *fn10" The hearing judge believes these inconsistencies primarily resulted from poor memory which is not uncommon in a person of plaintiff's age (66). On one occasion the plaintiff only reluctantly admitted a relevant fact when the court took over the questioning because of plaintiff's unwillingness to answer a question asked of him by counsel for the defendants (N.T. 253). *fn11" After the court had asked the question three times, the plaintiff finally gave this answer:

 'Well, I have to tell the truth, yes, some one shouted at me. Mr. Brownell shouted at me, sure.'

 Since plaintiff is asking for extraordinary equitable relief and has the burden of producing clear evidence to support his case, in view of the denials of plaintiff's allegations by the answer (see Greenfield v. Blumenthal, 3 Cir., 1934, 69 F.2d 294, 298), the quality of his testimony and his failure to produce corroborating testimony has some significance. *fn12" Plaintiff produced no one to support his contention that his Group Chief at the time, Mr. Gilbert, had advised him and the other revenue agents in positions similar to his that they should file Form 1361 (P2) or else (N.T. 188-190, cf. N.T. 241). He also asked none of the employees of the Internal Revenue Service who had been present at the various conferences in 1953 and 1954 at which he gave information which his complaint seeks to suppress, about these conferences, although several of them (Mr. Davis, Mr. Feldman and Mr. Hickey) were present in the courtroom at the hearing on October 28 (N.T. 272-273). Plaintiff produced no testimony to corroborate his contention that he had received instructions from the fraud section in Philadelphia that there should be no criminal prosecution for any tax involving less than $ 10,000 (N.T. 215-216, 276 and 281), even though Mr. Hickey, of the Fraud Section (Intelligence Service), was on the stand both at the hearing of October 11 (N.T. 82-84) and at the hearing of October 28 (N.T. 155-160).

 1. Plaintiff's request for a protective injunction limiting the use of the Form 1361 signed by him in November 1951 in criminal proceedings and for its return to him.

 The decisions of the United States Supreme Court make clear that the Executive Department of the Government has broad powers over Government employees by virtue of Article II, Section 3, of the United States Constitution, which provides that the President, in whom is vested the 'Executive Power' by Article II, Section 1, 'shall take Care that the Laws be faithfully executed.' For example, it has been consistently held that the President has virtually unlimited power of removal of employees, such as plaintiff, under this Constitutional provision. See Shurtleff v. United States, 1903, 189 U.S. 311, 23 S. Ct. 535, 47 L. Ed. 828; *fn13" Myers v. United States, 1926, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160. In the Myers case, 272 U.S. at page 135, 47 S. Ct. at page 31, the court said:

 'The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control.'

 Similarly, in United Public Workers of America v. Mitchell, 1947, 330 U.S. 75, at page 99, 67 S. Ct. 556, at page 569, 91 L. Ed. 754, *fn14" the court said:

  'Congress and the President are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.'

 The above decisions and the cases cited in them make clear that the Executive Department has broad authority to take such action as is necessary, within such reasonable limitations as may be prescribed by Congress, in order to take care that the laws are 'faithfully executed.'

 Section 161 of the Revised Statutes, 5 U.S.C.A. § 22, has for many years contained this provision: *fn15"

 'The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.'

 In view of this statute, and the above-mentioned decisions, the hearing judge can see no legal objection to the action of the Secretary of the Treasury and his subordinate, the Commissioner of Internal Revenue, in requiring the employees of the Internal Revenue Service, such as plaintiff, to file Form 1361 by the terms of the letter of October 19, 1951 (P1), in order to proclaim 'the integrity of the Service', which integrity had become subject to question as the result of the widely publicized actions of a few faithless employees who did not discharge their responsibilities in enforcing the income tax laws. *fn16" It would seem legal to provide that persons who do not file statements of this type under the circumstances existing in October 1951 shall not continue as Government employees in the same way that it is legal to provide that persons who engage in certain forms of political activity may not continue as Government employees. This language of the New Jersey Federal District Court concerning an employee discharged for violation of the Hatch Political Activity Act, 5 U.S.C.A. § 118i ff., would seem pertinent:

 'The constitutional privilege against self-incrimination cannot be invoked unless the witness in called upon to give evidence which will expose him to either criminal prosecution or imposition of a penalty under a federal law. Boyd v. United States, 116 U.S. 616, 633 et seq., 6 S. Ct. 524, 29 L. Ed. 746; United States v. Murdock, 284 U.S. 141, 148 et seq., 52 S. Ct. 63, 76 L. Ed. 210. The testimony which the petitioner gave at the hearing, and without objection, was not of such a nature as to expose him to either of these consequences. The political activity in which the petitioner admittedly engaged, and concerning which he gave testimony, warranted nothing more than the imposition of a remedial sanction, to wit, removal from his position.

 'The imposition of such a remedial sanction, although it may be of serious consequence to the person affected, may not be regarded as the forfeiture of a right; it is our opinion that it is nothing more than the withholding of a privilege. A person may have a right to qualify for and hold 'public office,' but he has no right to 'public employment;' the latter is nothing more than a privilege which is subject to termination at the will of the employer, subject only to the applicable civil service laws.'

 Pfitzinger v. United States Civil Service Commission, D.C.N.J.1951, 96 F.Supp. 1, 2-3, affirmed per curiam 3 Cir., 1951, 192 F.2d 934.

 The hearing judge has difficulty in understanding the argument of plaintiff's counsel that he is entitled to a return of his Form 1361(P2) under the terms of the Fourth and Fifth Amendments. *fn17" There is no evidence whatsoever in the record indicating that the contents of Form 1361(P2) indicate, or are proposed to be used to prove, that plaintiff is guilty of any crimes other than those involved in making false statements in it (see Finding of Fact No. 10). Under such circumstances, the federal courts have consistently held that the Fifth Amendment does not provide immunity for giving, voluntarily or under compulsion, false testimony, unless the compulsion requires the giving of statements which are false and this was not the situation in this case. *fn18" There is no evidence in the record of any compulsion on plaintiff to certify to false information in this statement. The authorities cited above supporting the right of the Government to require the filing of such a statement by such an employee as plaintiff make clear that no unlawful search or seizure is involved. Plaintiff puts strong reliance on Boyd v. United States, 1886, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746. This case held that the Fourth Amendment was violated by a statute requiring production of papers only because the statute stated that, upon failure of the defendant to produce, the Government's allegation of what was stated in the papers would be taken as confessed. *fn19" Neither the letter of October 1951 (P1) nor any other requirement of the Treasury Department stated that Government allegation of what should be contained on plaintiff's Form 1361 would be deemed to be true if he failed to file the form.

 Plaintiff also requests that the defendants be restrained from using the Form 1361(P2) in any criminal proceeding against him under the Act of June 25, 1948, c. ,645, 62 Stat. 749, 18 U.S.C.A. § 1001. *fn20" He contends that the filing of this form is not within the jurisdiction of the Treasury Department and that the Act only contemplates 'the filing of a claim which is fraudulent on its face in order to defraud the government of funds.' For the reasons stated above, the hearing judge holds that the filing of this form was within the jurisdiction of the Treasury Department. As to the second contention, the cases are contrary to plaintiff's position. United States v. Gilliland, 1941, 312 U.S. 86, 94, 61 S. Ct. 518, 85 L. Ed. 598; United States v. Bramblett, 1955, 348 U.S. 503, 507, 75 S. Ct. 504. *fn21" In the Gilliland case, the Supreme Court said, 312 U.S. at page 94, 61 S. Ct. at page 523, that the 1934 amendment to the basic Act, which is now contained in 18 U.S.C.A. § 1001, omitted 'the limiting words which had been deemed to make the former provision applicable only to cases where pecuniary or property loss to the government had been caused.' In United States v. Marzani, D.C.1947, 71 F.Supp. 615, affirmed D.C.Cir.1948, 168 F.2d 133, affirmed per curiam by divided court 1948, 335 U.S. 895, 69 S. Ct. 299, 93 L. Ed. 431, the defendant, a conditional government employee, was convicted under 18 U.S.C.A. 1001 of giving false statements to his superiors, representatives of the Federal Bureau of Investigation, 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. *fn22" 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. *fn23"

  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. *fn24" 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. *fn25" 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. *fn26" 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). *fn27"

 There is no indication that the Internal Revenue Service contemplated criminal prosecution of plaintiff until after the last January conference. *fn28" 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. *fn29" 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.

 Order

 This 5th day of January 1956, it is ordered that the action is dismissed and that judgment is entered for defendants.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.