with Donaldson, they may turn up evidence which will cause
criminal charges to be filed against him.
It may be assumed that what Donaldson says is true under IRS
personnel assignment policy, i.e., that the presence of
Special Agents indicates suspicion of criminal violation of
the revenue laws. It is hardly surprising that its more
experienced and possibly specially trained men might be
reserved insofar as possible by IRS for investigations in
which criminal violations appear likely. It cannot be doubted,
however, that investigation is for the purpose of determining
the existence or nonexistence of evidence tending to prove
facts, and that until available and proper evidence is
obtained no determination can be made either on the proper
assessment of tax or the institution of criminal charges. The
assignment of the Treasury Department's best criminal
specialist to an investigation would not give the person
suspected a right to prevent proper investigation. It is not
the law that one suspected of crime must be free from
competent and careful investigation, nor is it the law that a
suspect of crime has a right to prevent the uncovering of
unprivileged evidence from others who are in possession of
incriminating facts. What IRS suspects and the personnel it
may assign to an investigation have nothing whatsoever to do
with the suspect's constitutional rights; and discovery of how
IRS assigns its investigative personnel, or what evidence it
has uncovered thus far in its investigation, can serve no
useful purpose in determining, under Title 26 U.S.C. § 7402(b)
or § 7604(a), whether Mr. Learner should appear with his
specified records in response to an IRS summons properly issued
under Title 26 U.S.C. § 7602.
The idea that examination of Learner's records concerning
transactions with Donaldson amounts to unlawful seizure of
Donaldson's personal papers because he has copies of some or
all of them, and thus that it would be equivalent to causing
him to give evidence tending to incriminate himself, is
perhaps ingenious, but it is completely specious as a matter
of law. The testimony and knowledge of David A. Learner belong
to him, not to Donaldson. The books and records of Learner's
Sales and Service belong to that company, not to Donaldson,
whether he has copies or not. The summons here seeks nothing
whatsoever from Donaldson, regardless of whether the purpose
of the investigation is to determine his civil liability for
taxes, criminal violations, or both.
It seems perfectly clear that the Fourth and Fifth
Amendments to the Constitution of the United States do not bar
third parties from testifying or producing their records
simply because such evidence may tend to incriminate someone
else, and that, absent a privileged relationship, which is not
even claimed here, a taxpayer has no interest in the records
or testimony of someone else which would permit him to prevent
production by that person in response to an IRS summons. See
Genecov v. Federal Petroleum Board, 146 F.2d 596 (C.A. 5th
1944), cert. den. 324 U.S. 865, 65 S.Ct. 913, 89 L.Ed. 1420
(1945); Schulze v. Rayunec, 350 F.2d 666, 668 (C.A. 7th 1965),
cert. den. sub. nom. Boughner v. Schulze, 382 U.S. 919, 86
S.Ct. 293, 15 L.Ed.2d 234 (1965); and Geurkink v. United
States, 354 F.2d 629, 631 (C.A. 7th 1965). On careful
reconsideration this court finds nothing to justify further
delay in enforcement of the summons here. Such enforcement
will not infringe Donaldson's rights and it will permit IRS to
perform its duties and minimize further harassment of Mr.
This decision is in no sense inconsistent with any of the
cases cited by Donaldson. The opinion of Circuit Judge
Fairchild in United States v. Benford, 406 F.2d 1192, relied
upon to obtain stay of this court's prior order, treats with
most of them specifically and the principles involved in all.
Benford concludes that Reisman v. Caplin, 375 U.S. 440, 84
11 L.Ed.2d 459, and United States v. Powell, 379 U.S. 48, 85
S.Ct. 248, 13 L.Ed.2d 112, show that a taxpayer has an
unqualified right to intervene in an IRS summons enforcement
proceeding involving him, but to which he is not a party, for
the purpose of asserting constitutional or other claims and to
have a meaningful day in court thereon, but not to obstruct or
delay the enforcement proceeding for no useful purpose.
Donaldson clearly has had his day in court here and his claims
have been found invalid as a matter of law. Kennedy v. Rubin,
D.C., 254 F. Supp. 190, and United States v. Moriarty, D.C.,
278 F. Supp. 187, likewise treated in Benford, both allowed
pre-trial discovery by the taxpayer in IRS summons enforcement
actions; but in both of those cases the distinguished District
Judges found that "important" and "cognizable" defenses to the
enforcement actions had been raised which justified exploration
by discovery process with resulting delay. Not so here. The
only supposed defenses raised here have been found completely
specious and delay is the only apparent purpose of the desired
discovery because it seeks proof of an immaterial fact, namely,
that IRS is seeking evidence of criminal violation.
Accordingly it is ordered, on reconsideration, that the
order of this court, dated February 11, 1969, denying the
motion to intervene of Kevin L. Donaldson, is hereby vacated
and said motion is hereby allowed nunc pro tunc as of February
It is further ordered that the Motion of Intervenor Kevin L.
Donaldson to Take Depositions and for Production of Documents
filed herein on March 7, 1969 is denied.
It is further ordered that said order of this court, dated
February 11, 1969, is in all other respects ratified and
confirmed, upon reconsideration, excepting further only the
date, place and time specified therein, at which David A.
Learner should appear before Special Agent Ralph A. Bergstrom
in obedience to the summons issued on August 14, 1968.
It is further ordered that such appearance of said David A.
Learner shall be at a place, date and time to be mutually
agreed upon by counsel for said Learner and counsel for the
government as soon as practicable, with application to the
court only on inability to agree.
It is further ordered that no stay of this order enforcing
said summons will be allowed by this court pending possible
appeal herefrom without tender of a supersedeas bond shown to
be adequate in amount to protect the government against any
revenue losses possibly due to further passage of time.
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