Mathis v. United States – Oral Argument – April 02, 1968

Media for Mathis v. United States

Audio Transcription for Oral Argument – April 03, 1968 in Mathis v. United States

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Earl Warren:

Number 726, Robert T. Mathis, Sr., petitioner versus United States.

Mr. Capuano?

Nicholas J. Capuano:

Yes, sir.

Mr. Chief Justice, if the Court please.

Mathis was convicted of filing false income tax returns for 1960 and 1961.

A sentence was imposed of 30 months to run concurrently.

The time on issue, I believe to be resolved here, is whether the constitutional principles as enunciated by this Court in Miranda versus Arizona are applicable to the facts in the Mathis case.

At the very outset, I wish to emphasize that the petitioner’s assault on his conviction does not rise or fall solely on the applicability of Miranda but also on the applicability of constitutional principles involved in cases of this nature.

In United States versus Harrison, 265 Federal Supplement at page 666, the District Court for the Southern District of New York suppressed certain oral statements that were given to an agent of the Internal Revenue Service while the defendant was incarcerated in the Dannemora State Prison.

Now, the facts in the Harrison case are strikingly similar to the facts in the Mathis case.

In April of 1965, an indictment was returned against Harrison.

In that one, charged the defendant with understating his income for the calendar years 1958 and 1959.

In March of 1961, while the defendant was incarcerated at Dannemora, he was interviewed by an agent of the Internal Revenue Service.

He was asked and he answered certain questions about his income, his assets and the filing of his returns.

He was not advised of his constitutional rights prior to the questioning.

District Judge Tyler in granting the Motion to Suppress stated although perhaps this was not a usual and typical cause to arrest situation, the interview in his opinion could not sensibly be viewed as anything but another instance of custodial interrogation, as no warnings were given by the agent to Harrison, no evidence obtained from the questioning could be used against him citing Miranda versus Arizona.

The Miranda case and the Harrison case and the Escobedo case illustrate the concern of the court regarding interrogations which are conducted in a compelling atmosphere for the setting in which they take place.

I do not believe that the constitutional safeguards should be abridged to accommodate tax investigators whose activities often conceal transformation of a civil to a criminal tax investigation.

Agent Lawless of the lnternal Revenue Service candidly admitted that when he interviewed Mathis at Raiford State Prison on October 30th of 1964 and again on March 2nd of 1965, he did not advised Mathis of his constitutional rights prior to his questions.

Although there was a possibility of a criminal violation, the wording in Escobedo certainly applies to the Mathis case.

Abe Fortas:

I suppose, the problem may be reflected in Judge Thornburg’s statement on page 7 of the record, the opinion on the Fifth Circuit, where he says the evidence clearly reflects until March 10 when appellant’s case — and that was after these interviews you referred to — the inquiry involving appellant’s tax returns representing no more than a routine civil tax investigation.

Nicholas J. Capuano:

Well, that was one way of simply dismissing it but what the Fifth Circuit Court of Appeals failed to consider was the testimony of Agent Derry who was a criminal tax investigator.

As early as February 6th of 1963, they became suspicious of Mathis.

At that time, the record will show that Sheriff Buckles of Osceola County telephoned Agent Derry and asked him to come to Kissimmee where he turned over a letter, and the two returns for one year which should have made that veteran investigator very suspicious and obviously made Sheriff Buckle suspicious, but Agent Derry explained that all he did in 1963 was put these two returns that was supposed to be filed for the same year together with this letter that allegedly was written by Mathis to his wife.

He put him in his personal locked file, which to me is just unbelievable.

A veteran investigator who knows at that time that there’s something wrong just puts this kind of information in a personal locked file and forgets them.

But of course, the Fifth Circuit Court of Appeals did not mention that and they labeled it as a routine tax investigation.

Abe Fortas:

We don’t have any instructions here, do we?

Nicholas J. Capuano:

The jury instructions?

I do not believe so judge.

Nicholas J. Capuano:

I was appointed by this Court and the record was made up.

My function of course was to file the necessary briefs but I don’t believe that the jury instructions were included by the trial attorney.

Abe Fortas:

So the — if we should decide that the point of law here has to be determined with reference to the formation of an intent or purpose on the part of the agents, to pursue this is a criminal matter.

Nicholas J. Capuano:

Yes, sir.

Abe Fortas:

We have to go to the record of the testimony itself and pierce through the statement of the Fifth Circuit.

Would you agree with that?

Nicholas J. Capuano:

Yes, sir, absolutely correct.

But, to go on, as I said, the wording in Escobedo certainly would apply to Mathis where the Court said that the guiding hand of counsel was essential to advice the petitioner of his right in a delicate situation.

And this was the stage when legal aid and advice were most critical to the petitioner.

And what happened at the interrogation could certainly affect the whole trial since rights may be irretrievably lost if not then and there asserted which is exactly what happened in the Mathis case.

As stated in Miranda, it said, “The warning is needed in order to make him aware not only of the privilege but also of the consequences of foregoing it.

Moreover, this warning may serve to make the individual more acutely aware that he is not in the presence of persons acting solely in his interest.

I take that to mean that he is in the presence of persons acting solely against his interest.

Yet, eight days later on March 10 of 1965, Agent Lawless referred this case to the Internal Revenue, Intelligence Division as involving definite indications of fraud.

Now I believe that for the full achievement of Miranda values, a person needs more than a sympathetic explanation before his interrogation.

What he needs most is a sympathetic advocate during that interrogation.

No one will deny that the custody which Mathis was being held in Raiford State Prison was a type during which unwitnessed or coercive methods could have been used and I do not mean to infer by any means that they were used.

But no one can also deny that Mathis was completely under the control and domination of his jailers.

Byron R. White:

You wouldn’t be making this argument if say that he had been jailed, that he has been at home and then he called out when he’s home to ask him about his tax return?

Nicholas J. Capuano:

Absolutely correct.

Byron R. White:

So it’s the incarceration —

Nicholas J. Capuano:

Yes, sir.

As a practical matter, judge, let us assume that Mathis said, “I wanted a lawyer”.

There was no telephone available to him.

There’s no lawyers in Raiford.

Could he have complained to anyone that he was denied access to a lawyer or denied access to a telephone?

This is not the situation where you and I are sitting in our homes or in our place of business and an agent walks in —

Byron R. White:

But is there any event did occur in the jail that — that it didn’t occur at home would have made the home confrontation invalid?

Nicholas J. Capuano:

No except that I believe that the fact that he was incarcerated, certainly had that (Voice overlap).

Byron R. White:

— that he was in jail but (Voice Overlap) physical events that occurred at his house, there would be no problem.

Nicholas J. Capuano:

Well, I wouldn’t dismiss in the same would be no problem, but there be less problems.

Let me put it that way.

I don’t think that the psychological pressures of a person sitting in his home are the same as those sitting in Raiford State Prison.

This Court is well aware of the Bennie Brooks case which of course I won’t go into but you’re all familiar with.

The government contended that Mathis received in cash the refund check for 1960 and filed a false claim for 1961 but it’s interesting to note only the 1960 check was offered in evidence, not the 1961 check.

Now, the government in their reply brief simply stated that the reason that the 1961 check was not offered in evidence at that time was because no check was issued, the return indicating a balance due.

Walter Herron, the Special Assistant Treasurer of the United States whom the government brought down from Washington, testified that two government checks were issued and that two were cashed.

To me, it’s quite obvious why the 1961 refund check was not offered in evidence.

The names may have been similar but I’m of the opinion that the signatures were not.

Now, I suggest that the real purpose of Lawless’ visit to Raiford was not to obtain the consent as he testified to extend the statute limitation but merely to obtain a sample of the defendant’s handwriting under the guise of a civil routine tax investigation, when in truth and in fact, the material was being used with a view of ascertaining evidence of criminal wrongdoing that to me poses an issue which strikes at the very core of constitutional immunity.

Of course, the recurring argument made on that type of case is that society’s need for interrogation outweighed the privilege.

What they are really saying is that the taxpayer’s own records and statement represent the easiest shortcut to a criminal investigation.

Now, this Court in Gilbert versus California ruled that handwriting samples not to be evidence of testimonial or communicative in nature, included within the Fifth Amendment although Mr. Chief Justice Warren dissented, Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Fortas.

Now, Mathis may have had a different aspect, had Lawless merely obtained Mathis’ signature, but Agent Lawless went beyond that.

What he did was he showed Mathis a return and said, “Is this your signature?”

and Mathis answered that it was and he said, “Is this your return?”

and Mathis answered that it was.

To me it cannot logically be argued that such answers to such questions are not evidence of testimonial or of a communicative nature included within the Fifth Amendment privilege.

Now, we’re getting back to Agent Derry.

As early as February 6, 1963, Special Agent Derry of the Intelligence Division received certain documents.

They were later introduced in evidence as government’s exhibit 10.

What these documents consisted of was a letter which was allegedly written by Mathis to his wife, showing that he intended to file two tax refunds for one year, the year 1962.

Now, this fact was mentioned by the government in their statement, their opening statement to the jury.

The government was permitted to use that information against Mathis to show knowledge and intent.

And I suggest that the Internal Revenue Service, Intelligence Division, became suspicious of Mathis in February of 1963, some 20 or 21 months before Agent Lawless made his visit to Raiford.

That was on October 30th of 1964.

Now, I’d like to point out at this time how this letter was obtained.

This letter was intercepted by Sheriff Buckles of Osceola County and I assume that Mathis at that time was in the county jail.

Buckles telephoned Agent Derry and at Buckles’ request, Agent Derry made a trip to Kissimmee to Sheriff Buckles’ Office.

The letter and the two returns were given to Agent Derry.

Nicholas J. Capuano:

And as Agent Derry testified, he kept two returns, the two returns and the letter in his locked personal file until June 4th of 1965 when he turned them over to Special Agent Shelley.

And as I said before, it’s beyond belief that a trained and veteran criminal investigator would just put away these documents and simply forget them.

Yet the government would have us believe that they found definite indications of fraud on March 10th of 1965, which is when they referred the case to the Intelligence Division.

Now, the government claims that Agent Lawless was stationed in the Jacksonville Office which is approximately 100 miles north of Orlando.

Agent Derry was stationed in the Orlando Office.

But I drove up and I was able to check the distance, it is 145 miles from Orlando to Jacksonville.

It is 50 miles from Jacksonville to Raiford.

It is 16 miles from Orlando to Kissimmee.

So then it was only natural that Agent Lawless would visit Mathis at Raiford since Jacksonville is much closer to Raiford than Orlando.

Now, our second assignment of error is based upon the Court depriving the petitioner of a fair and impartial trial guaranteed to him under the Sixth Amendment of the Constitution in refusing throughout the trial to hear a motion to suppress the evidence as provided by the rule.

And we feel that this was a clear abuse of discretion by Judge Choate.

Now, in challenging the legality of this evidence and how it was obtained, trial counsel repeatedly moved to suppress it and the trial judge, in rejecting that offer stated, “It’s too late now.

I will hear it during the course of the trial.

You can do it later on to suppress it.

The evidence will probably come in.”

And still refusing to hear the motion to suppress, the trial judge further stated, “I will overrule that.

You don’t have to advice everybody of his rights every time you ask him questions.

I think we are coming to that pretty quickly if the Supreme Court keeps on.”

Mr. Lorie, the trial lawyer, responded, “We have come to that in the case of Miranda versus Arizona,” and the judge replied, “

Oh no!

Miranda says if you arrest a man you have a collar on him.

You can ask him any questions”.

That’s all it says.

Now, I know of no greater or stronger collar than one made of rock and steel surrounded by armed guards.

In any event, I take the position that had the judge heard the motion to suppress the evidence outside of the presence of the jury, that his ruling would have been the same, it would have been denied.

He was not too happy with the Miranda decision obviously.

Now, in denying the petitioner the right to a hearing on his motion to suppress outside the presence of the jury was highly prejudicial.

The jury was able to hear throughout the testimony of certain government witnesses that the petitioner was incarcerated in the Florida State Penitentiary for an unrelated offense and that to deny him a motion to suppress outside their presence and hearing, certainly denied the petitioner a right to a fair and impartial trial.

Now, in referring to the incarceration in the presence of the jury, was just as highly prejudicial as informing the jury of the defendant’s prior convictions.

In Pinto versus Pierce, 389 U.S. at page 31 which is cited by the government, this was an application by a state prisoner for habeas corpus.

Nicholas J. Capuano:

The facts are of their brief.

Pierce was convicted of robbery in a New Jersey Court.

He applied for writ of habeas corpus to the District Court for the District of New Jersey.

The United States District Court granted the writ and allowed the petitioner a new trial on the merits.

What Pierce was seeking was a new trial because the testimony in regard to the voluntariness of his incriminating statement was heard and determined by the judge in the presence of the jury.

The United States Court of Appeals Third Circuit affirmed, saying that the United States District Judge was plainly right.

I asked this Court to wield and broaden Miranda brush to effect the cure concerning the constitutional principles which are or certainly should be applied to tax cases and to the case at bar.

I respectfully urge this Court that the conviction of Mathis should be reversed.

Earl Warren:

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

The privilege against self-incrimination of course prohibits only involuntary incriminating statements.

It speaks of, “No person shall be compelled to give testimony.”

Voluntary admissions, even if made to a government investigating agent, even if in the course of a criminal investigation, which is I’ll come to briefly this was not, are not inadmissible as obtained under the Fifth Amendment, if an admission is made voluntarily.

Now, this Court in its Miranda decision concluded that because of the experience in this country with police interrogation, the circumstances under which experience have shown the police interrogate prisoners that it was necessary to apply special protections to insure that in the case of interrogation by the police in the stationhouse, that would appear to be a voluntary admission was in fact voluntary.

That is additional protections were made necessary because of the experience showing that has conducted in this country.

Interrogation of a man who had been taken into the police station in an inherently compelling effect of itself, that is the mere circumstances as shown in the police manuals, the psychological pressures, the tricks, the situations that were arranged by the police in questioning a man.

This itself raised serious doubt as to whether when a man did speak to the police when he did make incriminating admissions, whether this really was the result of free choice on his part.

And therefore, this Court said that because of these situations, in order to effectuate the privilege, in order to be sure that when a man speaks after he had been interrogated at the police station, after he had been taken away from his home, certain additional protections were necessary.

How to be specifically won, precisely what his constitutional rights are.

Potter Stewart:

That wasn’t confined to a police station though, was it, Mr. Friedman.

It was any interrogation by the custodians or custody by the interrogators —

Daniel M. Friedman:

But I think, Mr. Justice that a rather broad language has to be read in the light of the considerations that led this Court to reach that.

Potter Stewart:

Well, it’s interrogations by the custodian, isn’t that right?

Daniel M. Friedman:

It’s interrogation by the custodians.

Potter Stewart:

— or custodian by the — custody by the interrogators.

Daniel M. Friedman:

Interrogators, that’s right.

Potter Stewart:

If we put it the other way.

Daniel M. Friedman:

Now.

Potter Stewart:

It’s not confined to a police station, is it?

Daniel M. Friedman:

No, no.

Daniel M. Friedman:

I said, “Or any other place where” — I would — let me say, Mr. Justice, what you have in a case is that a man is in prison and the warden calls the man and they start interrogating, I think would be a very different kind of situation.

But that it seems to us is not this situation and our point is that there’s no comparable experience to show that the mere fact questions put to a man while he is in jail by someone else that that fact is sufficient to require these protections in every case.

In other words —

Abe Fortas:

What happens, Mr. Friedman, to a person who is interrogated by a revenue agent and he refuse to abide his income tax return and he just refuses to talk.

Now, is that likely to be followed by jeopardy assessment tying up his bank account?

Daniel M. Friedman:

I would think ordinarily not, Mr. Justice.

I would think —

Abe Fortas:

There’s no pressure at all on the person to come clean to the revenue agent —

Daniel M. Friedman:

That should not be.

I would not think so.

It may be —

Abe Fortas:

I’m not asking you what should be.

I’m asking you what is.

Daniel M. Friedman:

Well, we have —

Abe Fortas:

How about penalties?

Daniel M. Friedman:

But — what?

Abe Fortas:

How about penalties?

Does one’s cooperation or lack of cooperation with the revenue agent have anything to do whatever with respect to penalties?

Daniel M. Friedman:

Not to may knowledge.

No.

Abe Fortas:

Yet, to your knowledge — well I’m going to you ask you to your knowledge, ask me what the facts are with respect to the law and the practice with your client and I want to know specifically whether a taxpayer’s cooperation or non-cooperation with the revenue agent investigating tax return, has anything whatever could do with the likelihood that a jeopardy assessment will be placed on his property whether it has anything to do or nothing to do with the possibility of likelihood of penalties.

Daniel M. Friedman:

Well, all I can answer, Mr. Justice, I cannot obviously speak and say that there may not be a case when a particular revenue agent, as a result of something that happens in his interview with the taxpayer recommends a jeopardy and I can say that the general practice is that the refusal of a taxpayer to talk to an agent does not affect the penalties of jeopardy assessment.

Abe Fortas:

Well, I am asking you about general policy and practice and I hope — and I’m sure that if you discover from the service that what you’ve just said requires modification that you will sort —

Daniel M. Friedman:

I will check — Mr. Justice, when I get back, I would check it with the service and if anything I’ve said is inaccurate, we will of course correct it in a letter to the clerk.

Abe Fortas:

Sure.

Thank you so much.

Daniel M. Friedman:

But, I want to mention of course that if a man refuses to talk to a revenue agent then there are procedures.

They can serve a summons upon him and call him to testify.

Now, we think that in situation where interrogation takes place, when someone is in the penitentiary that this Court should not extend the Miranda principle to say that in every such instance, automatically, the warning should be given because we don’t think there’s any basis in our experience to conclude that the same evils that were present in the police station interrogation or the custodial interrogation of the type involved in Miranda exists here.

And we therefore suggest that the appropriate standard in dealing with this type of interrogation is the same standard this Court has traditionally applied in considering the voluntariness of confessions.

Daniel M. Friedman:

That is to look at the totality of the circumstance.

We look at the totality of the circumstances and we attempt to decide whether in fact there is anything here to suggest that the admissions made by the particular individual does not represents a free and voluntary act.

Earl Warren:

In arriving to that conclusion, Mr. Friedman, are you assuming that this is a civil instead of a criminal investigation that the agent is on or does that make any difference to you?

Daniel M. Friedman:

Well, I wouldn’t think that in terms of my argument would make any difference but we —

Earl Warren:

It would not make any difference?

Daniel M. Friedman:

It would not make any difference but I don’t have to take that argument on.

I don’t think because we say that this record does not indicate this was a criminal investigation at all.

We think that this was clearly a civil investigation.

I’d like to give a little more now on the way of background facts.

Earl Warren:

But if it was a criminal investigation, it wouldn’t make any difference you say in your argument?

Daniel M. Friedman:

In our argument, that’s right.

Because if I may explain, Mr. Chief Justice, the way the service, the organization of the service how the service conducts these investigations.

Ordinarily, an investigation such as was made by Internal Revenue Agent Lawless is considered to call an audit and the only function of a man making an audit is to determine whether the tax return accurately reflects the tax reported.

The Internal Revenue Service has another branch known as the Intelligence Division.

And it’s the Intelligence Division has charge of investigating possibilities of criminal tax fraud.

Mr. Lawless testified that his sole job in this case was to investigate the civil tax returns.

He explained.

He said, all he was attempting to do is to determine the correct tax on these returns.

He himself unequivocally testified that he was not making any criminal investigations.

He also testified that — at page 37 of the record — that if he discovered that there were definite indications of fraud, his duty was to turn the matter over to the Intelligence Division.

Now, Mr. Lawless made two visits to the petitioner in the Florida penitentiary.

His first visit was made at the end of October 1964.

Prior to that time, and the record does not show the circumstances under which it taken place, the petitioner had already granted one extension of time for the running of the statute of limitations on the assessment of any additional tax against him or corresponding we would also extend his time for refund.

That extension was due to expire at the end of December and Agent Lawless testified that when he went to the penitentiary, to see the petitioner at the end of October, he said his visit had two purposes.

He said, first of all, he wanted to determine whether the returns that were assigned to him for audit were the returns of the petitioner and secondly, to get an extension of time on the statute of limitations.

Now, what Agent Lawless did, he came in and said to the man he held up his return which he had for 1960 and said, “Is ths your return?”

The man said, “Yes” and he said, “Is this your signature?”

And he said “Yes”.

This seems to us a normal question to be asked when an agent is investigating someone’s civil tax return.

The first thing he wants to know if he’s sure he’s got the right man.

Daniel M. Friedman:

Then the second thing he did was in effect ask him, we asked him, again to extend the statute of limitation, something that petitioner had done previously.

He testified that he explained to the petitioner that he had no obligation to sign this, that was up him to explain the consequences of it and the petitioner signed it.

Hugo L. Black:

What do you mean by the consequence of it?

Daniel M. Friedman:

The consequence of signing a return would be, on the one hand the government’s time for assessing an additional tax, statute of limitation would be extended and at the same time, it would extend the taxpayer’s time within which he could make a claim for refund.

So that’s in effect a mutual arrangement.

Hugo L. Black:

Did he give him any kind of warning?

Daniel M. Friedman:

He gave him no warning in the constitutional sense because, Mr. Justice, he was not at that time making a criminal tax investigation.

He was just seeking an extension for statute of limitation.

Hugo L. Black:

He hadn’t arrived at the criminal stages yet.

Daniel M. Friedman:

No, Mr. Justice, you said he hadn’t arrived at the criminal stage it was far from the criminal stage.

This witness —

Hugo L. Black:

But the criminal stage did come on to him.

Daniel M. Friedman:

The criminal stage came on about seven or eight months.

Well, seven or at six or seven or five months later, the matter was assigned to — was transferred by Agent Lawless to the Intelligence Division.

It was some three or four months after that the indictment was actually returned.

Hugo L. Black:

As a result of the investigation?

Daniel M. Friedman:

As a result, Mr. Justice of an investigation by the Intelligence Division.

I think it’s significant —

Hugo L. Black:

But they didn’t discard or throw away that which he had given him, did they?

Daniel M. Friedman:

I assume not, Mr. Justice, but at that point, Lawless testified that there was a possibility of a criminal investigation.

The judge at one point said then well that possibility exists whenever you have an income tax investigation, whenever anyone’s return is ordered, one never knows what may turn up.

Hugo L. Black:

But not that be enough to require that they want a man that might be used against him.

Daniel M. Friedman:

I would think that would not be enough, Mr. Justice because I think that is just — at that point there is no overreaching it seems to me.

Hugo L. Black:

They have not yet.

Daniel M. Friedman:

Pardon me, sir?

Hugo L. Black:

But it’s an inseparable part of a process that frequently leads to criminal prosecution and that’s intended to be used and rightfully so, is it not, if it’s required, that they do find he is guilty of fraud?

Daniel M. Friedman:

But I think Mr. Justice, at that early stage of the proceeding, the thing hadn’t really gotten close enough to a criminal prosecution.

There are many instances in which Internal Revenue agents look at a case, think there may be something suggesting fraud and end up not making a reference.

There are many more instances where a case is referred to the Intelligence Division and yet nothing eventuates from it.

We have some statistics —

Earl Warren:

But they’re looking for fraud though, aren’t they?

Daniel M. Friedman:

I don’t think in that sense, Mr. Chief Justice.

They are looking to see what the facts are and if anything develops which may lead to an indication of fraud, it’s their duty to turn it over to the Intelligence Division.

But they are not looking for fraud in the same sense for example that a detective who was going out seeking to solve a crime.

They are not attempting — the whole purpose of a civil tax investigation is not to gather evidence, not to discover fraud or crime.

The whole purpose of it is to ascertain whether the return is correct or whether there is additional tax own.

That’s the whole purpose of it.

This is not part of the plot or the scheme by the government to use a civil tax investigated to try to get evidence of fraud.

Now, the nature of our tax laws as such that there are situations where in the course of a civil tax investigation evidences developed which ultimately leads to a criminal prosecution but it seems to us the mere fact that that evidence begins to be developed at a point when the civil investigation is underway, that’s not enough to turn it into a criminal type of proceeding to which the constitutional protections must be made put —

But what happens in a normal situation that they’re making an audit assessing the man’s return, I will interview him in my office, they give him subpoena and bring him to the office.

Are they warning him on his rights, he doesn’t have to answer anything?

Daniel M. Friedman:

This is a solely a civil — no, I understand.

A routine audit.

Daniel M. Friedman:

I understand they do not, Mr. Justice.

The practice of the service is, the warnings are given only when a special agent is called into the case.

That is when the matter —

That labels it at the criminal stage.

Daniel M. Friedman:

At the criminal stage and then they do give them a warning but as long as it take civil investigation, they do not give him warning.

So you make this same term of use if they don’t know the administrative process of bureau.

Daniel M. Friedman:

Well, I make it — under two elements of this if I may, Mr. Justice.

One is the fact that at this stage has not yet reached yet the criminal stage.

It was a possibility only in the sense that a criminal prosecution is possible in any such investigation.

The other thing of course, it seems to me, which I think it’s equally significant, is that in this case there were present — none of the overreaching, none of the kind of pressures that are characteristically associated with coercive interrogation, it was only one man.

They didn’t have a team come in.

They didn’t play the “Mutt and Jeff” team, there’s one man.

But there’s no lengthy questioning.

There are two questions that were asked.

There was no trickery.

There was no psychological pressure.

There was no setting up a situation under which the man would be feeling impelled to talk.

Daniel M. Friedman:

This man, unlike the people in Miranda hadn’t been dragged or swept from familiar surroundings in the police custody.

By the time he was interviewed in this jail, he’d been there for more than 18 months.

There’s no reason for this man to think that because he cooperated with the federal officers that this in any way would affect him in his state situation, either he would get him out of the state jail, that it would make shorten his sentence or anything like that.

He’ll be glad to have a visitor.

Daniel M. Friedman:

Perhaps.

Hugo L. Black:

I guess your main difference here — your real point is, Miranda held where a man was in jail or in custody, in connection with something and they went in and asked him questions, that custody was enough to make it coercive.

Your question is whether that would define when he was in jail on another charge.

Daniel M. Friedman:

That’s right.

Hugo L. Black:

That’s the only real difference between this and Miranda, isn’t it?

Daniel M. Friedman:

Well, plus the fact that in Miranda, they were interviewing the man in an attempt to get him to make admissions about a crime that was being asked to examine whereas in this case, the man was not being interviewed.

Byron R. White:

And for which he had been arrested.

Daniel M. Friedman:

For which he had been arrested, yes.

Abe Fortas:

Mr. Freidman, they were in investigating conventional sort of income tax return violation here, were they?

What they were doing was investigating the making of a false claim for refund?

Daniel M. Friedman:

Well, there are two aspects.

Two aspects — the false claim for a refund, turned of course on whether he should turn on – well there are two possibilities.

One, the question whether he had overstated his tax, the amount of his —

Abe Fortas:

Well, let me put it this way.

The false claim for refund did not give rise to any tax liability, did it?

In other words, would they — they wouldn’t be conducting a civil investigation in connection with a suspicion that a man had filed a false claim of this nature for refund, would they?

Daniel M. Friedman:

No, but Mr. Justice, if he had correctly reported his income and if in fact the six or seven dependents that he listed on each of these returns, I pointed out that each of these years, he listed six or seven or eight dependents and with one exception, they all had different names.

If he had actually received this money and if these dependents were fictitious, then of course there was an additional tax owing.

In other words, it was not just would had been — the tax may have been more than what was reported in one instance.

In one instance in fact, which is government’s Exhibit 2-a shown at 106 of the record, his own calculations were in error and the record shows that when someone look at this in the Internal Revenue Service, they crossed off the amount he had shown as the tax to have $931.00 recalculated on the basis of what he showed his income and the number of exemptions and concluded that instead of being entitled to a $900.00 refund, he had another $142.00 of tax.

Now, I would like to turn on my remaining time to the contention that the trial judge erred in this case in failing to hold a separate hearing on the motion to suppress.

Earl Warren:

But before we have that, Mr. Friedman, I’m not quite clear on your distinction between interrogating a man when he is in prison and when he is in a police station.

Now, what is the basis of that?

Would you say because of the conduct of policemen throughout the country that has caused us to make a rule like Miranda for police stations but not for other places?

Daniel M. Friedman:

No.

What I suggest, Mr. Chief Justice, is that we don’t have any similar experience in connection with questioning people who are in the jail where they’re held, as in this case, by another authority to suggest that it is necessary in order to effectuate the purposes of the Fifth Amendment to insist on a rule that whenever there is such questioning, whenever a man is questioned and he is in jail, that automatically the warnings need be given.

Daniel M. Friedman:

I suggest it should depend —

Earl Warren:

I suggest to you that the — what we read and what we know shows that there is just as much cruelty and other things in the state prisons as there is in police stations.

Daniel M. Friedman:

That may be, Mr. Chief Justice, but I don’t think we have any empirical basis for concluding that when someone comes from the outside to ask a prisoner two questions that the mere fact —

Earl Warren:

To ask what?

Daniel M. Friedman:

Two questions, two questions.

But this is not a case of prolonged interrogation.

If this was a case of real custodian interrogation of overreaching, I would not suggest that the rule should be any different.

I would think that would be an appropriate case for this Court to conclude that it was not a voluntary admission.

Earl Warren:

But here you have a man in a federal prison and the federal officer comes to him and he’s alone in the cell and asked him about some conduct of his and the man is looking forward to a parole someday and isn’t — didn’t try to make any enemies at that moment and you think he is in the same position when the federal agent comes to him and talks to him, as though he was in his home, or his office, or on the street —

Daniel M. Friedman:

Mr. Chief Justice —

Earl Warren:

— so far as being a free agent, to do what he wants.

Daniel M. Friedman:

If I may explain one thing, Mr. Chief Justice.

This man was not in the federal prison.

This man is in the state prison.

Earl Warren:

Alright, state prison.

Daniel M. Friedman:

This man is in a state prison serving a state sentence for an unrelated offense to the federal offense.

And I think in terms of the pressures, the pressures upon this man to speak to the agent, to the federal agent who comes in to talk to him, I suggest the pressures are not necessarily any greater because the man happens to be in prison.

Earl Warren:

You wouldn’t suggest that the state authorities could arrest the man and put him in jail and then have a federal agent come and talk to him and not be obliged to give the constitutional warnings with you?

Daniel M. Friedman:

Do you mean, where they were attempting to get information through the federal agent?

Earl Warren:

No, the federal agent comes in to a state penal institution where a prisoner is incarcerated and starts interrogating him about some crime that he is investigating?

Daniel M. Friedman:

I would think it would depend on all the circumstances relating to the particular interrogation.

Earl Warren:

And you don’t think that having that these — having that distinction that he is the jail for one crime and they come in and talk to him about another one, do you think that case distinguishes it from Miranda to the extent that he does not necessarily have to have information as to his constitutional rights?

Daniel M. Friedman:

I would suggest, Mr. Chief Justice, it isn’t so much that he is in for one crime and I talked to him about another, it depends on what they are asking him about, I think.

Earl Warren:

You’re talking it would make any difference, a little while ago.

It would make any difference, whether this was mere routines, civil interrogation, or whether it was a criminal investigation.

Daniel M. Friedman:

I would say, Mr. Chief Justice, I would say that if it were criminal investigations and if there was prolonged questioning of this man, if they were badgering, if I may use the phrase, then I think very clearly the Miranda — the warning would have to be given.

It would not be — there would be enough doubt to a question whether the admission was voluntary.

But it —

Then we wouldn’t have to have a Miranda rule —

Daniel M. Friedman:

That is right.

If the totality showed that it was coercive.

Daniel M. Friedman:

That’s right.

I think, Mr. Chief Justice, it’s just the — the very fact that the way this man came in, that he just asked him these questions.

He didn’t probe all the —

Earl Warren:

That’s the old “Mutt and Jeff” way of doing things, you know that.

Daniel M. Friedman:

Well, Mr. Chief Justice, there was only Mutt here, there was no Jeff.

Earl Warren:

(Voice Overlap) friendly way and I just want a little information and so forth, that was inherent in Miranda but they didn’t have to beat them in order to bring into effect the Miranda rule.

Daniel M. Friedman:

There is nothing here to show that this man was engaged in this kind of thing.

This agent was not attempting to try to develop evidence in a criminal case.

Potter Stewart:

Isn’t there at least one basic difference, the Miranda rules, by hypothesis apply when a criminal offense has been committed by somebody and the police are investigating a crime.

By contrast in this case, there was — nobody knew that any criminal offense had been committed by anybody.

Daniel M. Friedman:

That’s right.

Potter Stewart:

Right?

So to that extent, what’s your answer to the Chief Justice’s earlier question really — really well considered when you said that your argument would make no distinction between a criminal investigation and a civil order to somebody’s tax return.

Daniel M. Friedman:

In the sense, that it was just an investigation.

Potter Stewart:

I wonder if you — consideration would give the same answer here because that’s a big distinction between the Miranda situation and this situation, isn’t it?

Daniel M. Friedman:

I think it is.

Earl Warren:

That’s the reason I asked if you if you made any distinction between a criminal investigation and a civil and you said, “No, you did not.”

Daniel M. Friedman:

If — with the assumption, Mr. Chief Justice, that no more was done, that no more was done, that was done in this case.

But it seems to me that that is just pushing the position but it’s not necessary for the Court, it seems to me to go that far in this case because this case, we think clearly, was not a criminal investigation.

It was a civil investigation and everything in this record shows it.

Earl Warren:

Very well.

We’ll recess now.