Winter,*fn* Aldisert and Gibbons, Circuit Judges.
This is an appeal from a sentence following a jury verdict of guilty on one count of a four count indictment charging appellant with attemping to evade a portion of his income tax for the years 1960 through 1963. Appellant was found guilty with respect to the year 1960 and not guilty with respect to each of the other years. He contends that his conviction should be set aside for two reasons:
(1) After his tax returns were assigned to a Special Agent of the Intelligence Division, the Internal Revenue Service was obliged to give him a full Miranda warning before obtaining any information from him. The warning actually given was incomplete in that it failed to advise him of his right to have counsel present at any interrogation.
(2) The evidence used against him was unconstitutionally obtained by misrepresentation, fraud and deceit as to the criminal nature of the tax investigation even before the assignment of the case to the Intelligence Division.
Appellant, apparently because he was known as a professional gambling operator, was from February 18, 1961 to March 12, 1963, subjected to a Post Office Department Mail Cover. In 1962 he and others similarly situated were subject to a tax examination. The first step in that examination was a reference, in December, 1962, of his returns for the years 1957, 1958 and 1959 to Revenue Agent Daniels of the Audit Division. The assignment was accompanied by no special instructions and was made routinely through the usual audit channels. Because Daniels had returns of other taxpayers assigned to him, he did not begin his audit of appellant's returns until March of 1963. On March 26, 1963, Daniels first met with appellant at his place of business. Appellant answered some questions, declined to answer others, and directed Daniels to Allen Speiser, his accountant, for certain information. On April 16, 1963, Daniels again called on appellant, who again answered some questions, declined to answer others, and referred the Revenue Agent to his accountant. In July of 1963, the 1960 tax return was also assigned to Daniels.
On April 14, 1964, the Revenue Agent, having observed unexplained bulges of net worth, referred appellant's returns to the Intelligence Division for investigation. Under standard Internal Revenue Service procedures when in the course of a civil examination a Revenue Agent assigned to the Audit Division suspects a potential criminal violation, that Division is required to refer the file or case to the Intelligence Division, the criminal investigating arm of the Service.
The Intelligence Division assigned appellant's file to Special Agent Maser, who reviewed the facts and determined that they warranted further investigation. Maser's first step in that investigation after April 14, 1964, was to call on Allen Speiser, appellant's accountant, who had prepared and signed a number of the tax returns. Maser identified himself to Speiser as a Special Agent and advised that he was there to determine whether there was a fraudulent understatement of income.
Speiser arranged for a meeting between Maser and Daniels, and the appellant, at appellant's office on June 11, 1964. Maser and Daniels attended. Maser advised appellant that under the Constitution he was not required to make any statements or furnish any information which might incriminate him under any federal law. Appellant responded that he understood these rights and that he had nothing to hide. He was asked to give a statement under oath and declined.
Prior to June 11, 1964, Revenue Agent Daniels had not given appellant any Fifth Amendment warning. Daniels had not, however, questioned appellant between April 14, 1964, when he referred the case to the Intelligence Division, and June 11, 1964.
Neither on June 11, 1964, nor at any time thereafter, did either agent advise appellant of his right to have counsel present. Appellant was, however, on June 11, 1964, and at all times pertinent to the investigation, represented by retained attorneys. At a subsequent meeting on January 8, 1965, he referred the agents to those attorneys for certain information. At another meeting on March 1, 1965, when the agents requested the execution of consent forms for an extension of the statute of limitations (Form 872), appellant telephoned his attorneys and arranged to meet with them to discuss execution of these forms. On March 12, 1965, he again referred the agents to his attorneys for certain information. The agents never spoke to the attorneys to whom they had been referred because those attorneys never filed with the Internal Revenue Service the required powers of attorney.
All meetings between appellant and the Revenue and Special Agents took place during normal working hours, at the appellant's own telephone-equipped office, with other friendly persons, including appellant's son-in-law, on the premises on each occasion. Neither agent carried firearms or handcuffs during the interview, and according to the testimony of Maser, questions were put to appellant in a gentlemanly and conversational tone, more moderate than that of defense counsel in his cross-examination.
There is no contention that appellant's statements to either agent were in fact involuntary. Rather, it is contended that evidence obtained as a result of interrogation of appellant after the case was referred to the Intelligence Division was inadmissible, since the warning given by Agent Maser did not fully comply with the Miranda formula. 384 U.S. 436, 478-479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The argument is that Miranda applies once the defendant has become the focus of a ...