Appeal from the United States District Court for the Eastern District of Wisconsin - No. 73 CR 54 Myron L. Gordon, Judge.
Hastings, Senior Circuit Judge, and Cummings and Stevens, Circuit Judges.
Appellant contends that his conviction of tax evasion rests on two separate violations of his Fifth Amendment right not to "be compelled, in any criminal case, to be a witness against himself." He argues (1) that he made a compelled disclosure of incriminating information without first receiving warnings required by Miranda*fn1 and Dickerson ;*fn2 and (2) that under the rationale of Marchetti*fn3 he could not be compelled to disclose his illegal income on his tax return. Our evaluation of both arguments involves a consideration of the significance of the point at which the adversary character of the criminal prosecution commenced. We find merit in his first contention, but not in his second.
The indictment charged that defendant understated his adjusted gross income for 1970 and 1971. After a trial to the court, he was found not guilty on Count I, but guilty on the second count relating to 1971. His return for that year reported adjusted gross income of $6,030, including his wife's earnings and a loss of approximately $2,000 on a truck rental operation. His return made no reference to any other income and contained no entry or disclosure which might have been interpreted to relate to any illegal earnings.
Predicated on an analysis of defendant's net worth and expenditures during 1971, the government contended that his adjusted gross income was approximately $30,000 or, alternatively, crediting certain disputed testimony, could have been no less than $17,000.*fn4 Among the witnesses for the prosecution were one Samuel Coca, whose testimony suggested that trafficking in narcotics provided the defendant with a probable source of income not reported on his return, and Kermit Duehring, a special agent with the Intelligence Division of the Internal Revenue Service.
Duehring testified that in March or April, 1972, he had been directed to investigate a possible criminal violation of the internal revenue laws by the defendant. After that investigation had been under way for several months, he and another special agent interviewed the defendant in the offices of the Intelligence Division in the Federal Building in Milwaukee. Having learned that defendant was in the building in the vicinity of the grand jury room, the two agents located him and asked him to come to their offices. He acceded to their request. Prior to any questioning, the agents informed defendant of their offices and read him the written statement set out in the margin.*fn5
During the course of the interview, which lasted about 45 minutes, a person who purported to have a message for defendant from his attorney was not permitted to communicate with defendant because, as Duehring testified, she did not possess written authorization from the attorney.
The government's case was predicated, in part, on the assumption that defendant's cash-on-hand on December 31, 1970, amounted to only $200. According to Duehring's testimony, the source of this information was a statement made by Oliver during his interview in the agents' office. Defendant's objections to Duehring's testimony were overruled on the ground that "the custody or rather the non-custody advice was adequate to meet the Constitutional requirement." Tr. 301.
The government does not attempt to defend the warnings given by Duehring as adequate if Miranda and Dickerson apply.*fn6 It is suggested that Miranda is inapplicable because defendant was not actually in custody, and that Dickerson should be re-examined in the light of our more recent decision in Sicilia ;*fn7 in any event, it is claimed that the admission of Duehring's testimony was harmless error.
We recognize that the warnings specified in the Court's opinion in Miranda are not mandated by the Constitution itself,*fn8 and that our opinion in Dickerson has not been followed in other circuits.*fn9 Nevertheless, we are satisfied that as long as Miranda remains viable -- as it certainly is today -- its teachings must be applied to a situation such as that presented in Dickerson and in this case.
The application of Miranda does not turn on such a simple axis as whether or not the suspect is in custody when he is being questioned. As the Court repeatedly indicated, the prescribed warnings are required if the defendant is in custody "or otherwise deprived of his freedom of action in any significant way."*fn10 The fact of custody is emphasized in the opinion as having the practical consequence of compelling the accused to make disclosures.*fn11 But the test also differentiates between the questioning of a mere witness and the interrogation of an accused for the purpose of securing his conviction; the test serves the purpose "of determining when the adversary process has begun, i.e., when the investigative machinery of the government is directed toward the ultimate conviction of a particular individual and when, therefore, a suspect should be advised of his rights."*fn12
Since the constitutional protection is expressly applicable to testimony in the criminal case itself, for the purpose of determining when warnings are required, the Miranda analysis treats the adversary proceeding as though it commences when a prospective defendant is taken into custody or otherwise significantly restrained. After that point is reached, it is not unreasonable to treat any compelled disclosure as protected by the Fifth Amendment unless, of course, the constitutional ...