constitutional questions or to permit the issues litigated and decided by Judge Miller to be submitted to the jury for decision.
Defendant vigorously argues that the constitutional issues should have been submitted to the jury. He points to Judge Miller's without prejudice order and cites United States v. Frank, 3 Cir., 1957, 245 F.2d 284, where the issues of trickery, fraud, and deceit were submitted to the jury. In that case, however, after the denial of a motion to suppress under Rule 41(e), additional evidence was developed at the trial before the same judge who had previously denied the motion.
We think it is well established that questions decided under Rule 41(e), particularly those relating to the competency of evidence obtained by alleged illegal search and seizure in violation of the Fourth Amendment, are legal questions for the court and are not for the jury. Universally the competency of evidence is a question of law for the court and not for a jury.
In Steele v. United States, 1925, 267 U.S. 505, 511, 45 S. Ct. 417, 69 L. Ed. 761, it was held that the question of competency of the evidence, by reason of the legality or otherwise of its seizure, was a question of fact and law for the court and not for the jury.
In Burris v. United States, 5 Cir., 1951, 192 F.2d 253, 254-522, it was held that issues to suppress under the Fourth Amendment are for the trial judge. The court stated:
'It was therefore entirely proper that the Court prohibit cross-examination of the witnesses upon this question when before the jury, and likewise refuse to permit argument to the jury by counsel upon this question.'
The government argued to the contrary in United States v. Guerrina, D.C.E.D.Pa.1955, 126 F.Supp. 609, 611, but the district judge concluded:
'That the question of suppression of evidence because of illegality of search and seizure is one for determination by the Court and not by a jury.'
What has already been said might very well apply to the question whether or not the evidence was obtained in violation of the Fifth Amendment since defendant sought and received a decision on his rights in that respect under Rule 41(e). Compare Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746. As previously stated the defendant made this the primary issue for decision in his motion to suppress; it was decided against him by Judge Miller whose interlocutory order became the law of the case.
At the trial, defendant was permitted to cross-examine the government agents concerning everything they did and said to him when they requested permission to examine his records; and defendant was permitted to testify as to what those agents did and said. This testimony shows a complete absence of coercion, pressure or compulsion on the part of the agents. Indeed, the defendant testified that he voluntarily produced all his records upon request and fully cooperated with the agents.
Likewise, there was no evidence of any false statements, or of any affirmative deceitful or fraudulent misrepresentations; there was no promise of immunity. Therefore, since no factual disputes were developed on the issues of voluntariness, trickery, fraud or deceit, there was nothing for the jury to decide with reference to the Fifth Amendment. Williams v. United States, 1951, 89 U.S.App.D.C. 32, 189 F.2d 693; Smith v. United States, 1 Cir., 1954, 210 F.2d 496, 498, affirmed 1954, 348 U.S. 147, 75 S. Ct. 194, 99 L. Ed. 192.
Defendant relies on Smith v. United States, supra, 348 U.S. at page 150-151, 75 S. Ct. at page 196, for the proposition that under the Fifth Amendment the question whether or not defendant was induced to incriminate himself by fraud, trickery or deceit is one of fact for the jury. But in that case on those issues conflicting testimony was given at the trial. There the defendant and his accountant testified that they had submitted a net worth statement to the agent in consequence of an affirmative misrepresentation and promise of immunity. The agent denied the misrepresentation and the promise. Thus there arose an issue of fact for the jury whether or not the net worth statement had been obtained by trickery, fraud or deceit practiced on defendant and his accountant. There was no disputed issue of fact in the case at bar such as existed in the Smith case.
At the trial it was elicited from Revenue Agent Kreiger that he was a part of a special team of the Inspection Service whose primary duty was to investigate alleged misconduct of certain Internal Revenue employees; that Kreiger's particular duty was to audit certain tax returns, including those of the defendant, and to be alert for certain names in defendant's records. It was also shown or proffered that the suspected misfeasance of Revenue employees motivated the investigation of defendant's records; and that Kreiger failed to apprise or warn defendant that this investigation, in addition to auditing his tax returns, was also to ascertain whether his records would reveal the names of the suspected employees.
Defendant contends that this failure to disclose these facts to him prior to his voluntary production of his 1950 records was evidence on which the jury could find that he was induced to incriminate himself by trickery, fraud and deceit in violation of his rights under the Fifth Amendment.
It was on substantially the same evidence, albeit amplified, that Judge Miller decided as a matter of law that defendant's rights under the Fifth Amendment, as well as the Fourth Amendment, had not been violated and refused to suppress the government's evidence. If the pretrial ruling was wrong as a matter of law, the evidence should be suppressed and a new trial granted. But since it was unequivocally established that Kreiger did not reveal to defendant the primary purpose of the inspectoral team or its suspicions that defendant may have been involved with employee misfeasance, there was nothing on that score for the jury to decide.
Finally, defendant seems to contend in his brief, citing Biggs v. United States, supra, and Jennings v. United States, 1957, 101 U.S.App.D.C. 198, 247 F.2d 784, that questions relating to the Fifth Amendment -- specifically to the suppression of evidence procured from confessions or admissions -- should not be decided in motions to suppress under Rule 41(e), but should be dealt with 'at the trial by the tribunal before which they were sought to be introduced'. He contends that this is what Judge Miller intended. It seems to us that this argument completely overlooks the fact that it was defendant who, pursuant to Rule 41(e), requested and received a preliminary decision on the competency of the evidence procured from his records and thus must abide by that ruling in the absence of new evidence.
However, assuming the defendant's final contention is correct, we think there was no issue of fact for the jury to decide, and the trial judge was bound by the pretrial ruling of Judge Miller that the government's evidence was competent. United States v. Wheeler, supra.
It is established that failure to warn a person suspected of crime of his constitutional rights does not of itself make his confession or admissions involuntary, Wilson v. United States, 1896, 162 U.S. 613, 623, 16 S. Ct. 895, 40 L. Ed. 1090; Powers v. United States, 1912, 223 U.S. 303, 313, 32 S. Ct. 281, 56 L. Ed. 448. And it seems to be pretty well settled that if a taxpayer freely consents to a tax examination of his records at the request of an internal revenue agent,
as was done in this case, it is not to be concluded that his consent was enticed, induced, or rendered involuntary by the failure of the agent to divulge the purpose and instructions of his superiors or to warn the taxpayer that he is under suspicion of criminality.
Turner v. United States, 4 Cir., 1955, 222 F.2d 926, a case involving both the Fourth and Fifth Amendments. See, also, United States v. Achilli, 7 Cir., 1956, 234 F.2d 797, affirmed 1957, 353 U.S. 373, 77 S. Ct. 995, 1 L. Ed. 2d 918; Vloutis v. United States, 5 Cir., 1955, 219 F.2d 782; United States v. Burdick, 3 Cir., 1954, 214 F.2d 768; Montgomery v. United States, 5 Cir., 1953, 203 F.2d 887, where the agent made affirmative representations that the investigation was 'purely a civil matter'.
In none of these cases does it appear that issues of trickery, fraud or deceit were submitted to the jury.
Hence, we think defendant's rights under the Fifth Amendment were not violated, and it was not error at the trial to refuse to suppress the government's evidence or submit the constitutional issues under the Fifth Amendment to the jury. The motion for a new trial will be denied.