Summary
In United States v. Rose, Crim. Action No. 05-101, 2005 WL 1279128 (E.D. Pa. May 25, 2005), the defendants, who were husband and wife, were charged with five counts of willful failure to file federal income tax returns under 26 U.S.C. § 7203.
Summary of this case from United States v. BrooksOpinion
Criminal Action No. 05-101.
May 25, 2005
MEMORANDUM
These Defendants, husband and wife, appearing pro se, are charged with five counts of willful failure to file federal income tax returns under 26 U.S.C. § 7203. They have filed a Motion to Suppress Evidence and also a Motion for Disclosure of Grand Jury Transcript.
A hearing on both motions was held on May 19, 2005. The government presented testimony by Special Agent Pearlman of the Internal Revenue Service, who identified the search warrant, the affidavit in support of a search warrant, Exhibit 1(A) which was the inventory of items seized after the search, and Exhibit 1(B) which was the list of items sought under the warrant.
The Defendants attack the probable cause stated in the affidavit as insufficient to allow the search that was conducted of their home but the Court will deny the motion. The Court finds that the affidavit sets forth in considerable detail probable cause for the search of the defendants home. The Defendants' motion and memorandum in support attacks the search warrant and the resulting search and seizure of evidence under several different grounds. First, the Defendants assert that the warrant is not valid and does not meet constitutional requirements. The Court rejects this argument and finds that the warrant, based on the affidavit of probable cause by Special Agent Pearlman, contains ample probable cause for the search of the Defendants' home. The warrant, and the affidavit in support, meet the requirements of the Fourth Amendment pursuant to Illinois v. Gates, 462 U.S. 213 (1983) and many other cases. The Defendants do not point to any specific case which would support this Court finding the search warrant invalid.
The thrust of the Defendants' cross examination of Agent Pearlman, and their argument at the hearing, was that the government already knew a lot about the Defendants, in that the Defendants purportedly had admitted their disagreement with the tax laws, that they were not paying their taxes and therefore argue that there was no need for the government to seize additional evidence from their home.
The Court rejects this argument and finds that the government was entitled to, in this case as in any criminal investigation, to secure a search warrant based on probable cause to collect evidence which may be relevant at the trial. The government does not necessarily know all defenses or positions the defense will offer at trial and the government is entitled to secure evidence in the defendants possession, through the means of a search warrant with probable cause to gather evidence. Agent Pearlman testified that the search recovered a number of items of which the government did not previously have possession. The Court rejects Defendants' suggestion that the search was for an illegal purpose as unfounded.
The Defendants' brief in support of their motion cites numerous provisions of the Internal Revenue Code and case citations with an argument that Agent Pearlman's affidavit relied on the Defendants' exercise of their free speech rights, their claim that their disputes about tax laws are unconstitutional or otherwise invalid, and similar arguments. The Court rejects all of these arguments as irrelevant to the issue of probable cause. The Motion to Suppress is not the opportunity for the Defendants to attack the Internal Revenue Code, or its application to them, or whether they are guilty or innocent of the charges.
Defendants also assert that the motion should be granted because the evidence sought was not related to criminal activity. The Court rejects this argument. The Defendants have admittedly not filed tax returns and have even sought refund of taxes paid in prior years. The search warrant relates facts that the Defendants have had income and thus the Court finds that the search warrant was based on probable cause that the Defendants were involved in criminal activity, i.e., the non-filing of tax returns.
The Court also rejects Defendants' argument that the evidence sought was not specific and limited. The Court finds that in a case of this nature where the Defendants assert that their conduct was not "willful" and that the tax laws are not applicable to their income, the government must have wide leeway in securing evidence to show that the Defendants had knowledge of their conduct, that the Defendants' conduct was "willful" and the Court finds that the evidence sought and seized was properly within the scope of a lawful investigation.
The Court similarly rejects all of Defendants' arguments about First Amendment issues and their argument that the Internal Revenue Service seized multiple copies of certain documents. Furthermore, the government represents that after the return of the indictment, the government returned all but a few copies of the multiple copies of videotapes that were seized. The Court rejects the Defendants' assertions that the government activities were in retaliation of the Defendants' First Amendment activities as frivolous.
The Defendants' argument that because they were not concealing evidence, this fact precludes the government from conducting a search of their home for evidence of the criminal activity alleged in the indictment, is unfounded in law. For all these reasons, the Motion to Suppress will be denied.
As to the Motion for Disclosure of Grand Jury Transcript, the Court notes the agreement that the Defendants have now received their own grand jury testimony, and they withdraw the request for the testimony of IRS witnesses. The defense nevertheless requests that they receive transcripts which show any instructions by government counsel to the grand jury on points of law, and any other statements by the prosecutors before the grand jury. For the reasons stated at the hearing, the Court has directed the government to produce the grand jury transcript for in camera inspection.
The Court has reviewed the materials produced in camera, which consist of two transcripts of proceedings on February 22, 2005. The first transcript, which commenced at 9:42 a.m., consists of thirteen pages of comments/instructions by Assistant U.S. Attorney Floyd Miller setting forth certain legal aspects and answering certain questions by the grand jury. The Court finds that there is no evidence of prosecutorial misconduct in Mr. Miller's statements, as alleged by Defendants. Nonetheless, the Court will require the government to produce this transcript as it arguably contains legal instructions.
The second transcript of February 22, 2005 commenced at 9:56 a.m. and consists of testimony of Agent Pearlman. The Court will not require the government to produce this transcript.
An appropriate Order follows.