ALAN FRANK, PETITIONER V. UNITED STATES OF AMERICA No. 89-6252 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-3) is unreported, but the judgment is noted at 888 F.2d 1383 (Table). JURISDICTION The judgment of the court of appeals was entered on October 12, 1989. The petition for a writ of certiorari was filed on December 11, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether evidence discovered during an inventory search of a rental car should have been suppressed. 2. Whether the admission of petitioner's 1985 tax return into evidence violated 26 U.S.C. 6103 or his Fifth Amendment privilege against self-incrimination. STATEMENT Following a jury trial in the United States District Court for the Western District of Pennsylvania, petitioner was convicted of conspiring to defraud the United States by impeding, impairing, obstructing, and defeating the lawful functions of the Internal Revenue Service, in violation of 18 U.S.C. 371, and of willfully attempting to evade and defeat the payment of income taxes for the year 1984, in violation of 26 U.S.C. 7201. Petitioner was sentenced to five and one year terms of imprisonment, to be served consecutively, and fined $100,000. 1. The evidence presented at trial revealed petitioner's participation in a number of tax evasion schemes designed to hide profits generated by Acme Music Co., a lucrative vending machine company. In addition, petitioner failed to report his sale of poker machines on his 1984 tax returns as required. See Gov't Br. 5-15; C.A. App. 1441-1442, 1937. On November 5, 1987, petitioner was arrested while sitting in a rental car by FBI agents on charges of unlawful flight to avoid prosecution for violations of state law. Because the federal government had no impoundment lot, the FBI agents contacted Detective Fox of the Allegheny County Police Department, who had the car impounded at the Department's impoundment lot. Pet. 12; C.A. App. 87; United States v. Frank, 864 F.2d 992, 1000 (3d Cir. 1988) (Frank I), cert. denied, 109 S. Ct. 2442 (1989). /1/ Detective Fox left instructions with the officer at the lot to leave the inventory of the car to him and his partner, noting that they would do it at the earliest practical date. C.A. App. 87; Frank I, 864 F.2d at 1000. The policy of the Allegheny County Police Department is that the arresting or investigating officer conducts an inventory search of any car placed in the impoundment lot for the purpose of protecting the property within the vehicle. Pet. 14; C.A. App. 59-62; Frank I, 864 F.2d at 1000-1001. On November 8, 1987, petitioner requested that the personal property in the car be turned over to his family. Detective Fox had been unable to conduct an inventory search prior to that time because he and his partner had to appear at petitioner's bail hearing on Friday, November 6, and Fox did not work the following Saturday, Sunday, or Monday. Pet. 12; C.A. App. 88-89; Frank I, 864 F.2d at 1000. On Tuesday, November 10, 1987, in the presence of a representative of the rental car company, Detective Fox and his partner searched the car, removing from the locked trunk and opening a zippered garment bag. The bag contained, among other things, a file of papers in a manila envelope. When the representative of the car rental agency disclaimed ownership of the contents of the garment bag, it was taken to police headquarters, where an inventory list was prepared. Papers deemed to be of investigative significance were retained and the rest of the property was turned over to petitioner's daughter. Pet. 12-13; Frank I, 864 F.2d at 1000. 2. As he had at his trial on charges of unlawful flight to avoid prosecution, petitioner moved to suppress items seized during the inventory search of the rental vehicle. Relying upon the findings it had made at the previous trial, where it concluded that "the police had complied with all written and oral procedures and regulations incidental to such searches," the district court again denied the motion to suppress. C.A. App. 203-204, 207-208, 219. 3. At trial, the government submitted proof that petitioner did not declare income received from a sale of poker machines on his 1984 tax return. See, e.g., C.A. App. 1441-1442, 1937. During cross-examination of Robert Quinlan, the CPA who prepared petitioner's 1984 return, petitioner asked about reporting the income in a lump sum on the 1985 return. C.A. App. 1469-1470; see also id. at 1482-1483. On redirect, the government asked Quinlan whether reporting in a lump sum might be used to conceal details from the Internal Revenue Service. C.A. App. 1482-1485. Petitioner objected to the characterizations in some of the questions but was overruled. Ibid. Prior to trial, petitioner had objected to the admission of all "return information" (C.A. App. 369), and the district court overruled the objection (ibid.). 4. The court of appeals affirmed. Pet. App. 1-3. The court rejected, inter alia, petitioner's claims that the return information and the documents obtained during the inventory search should have been suppressed. Pet. App. 2-3. ARGUMENT 1. Petitioner claims (Pet. 15-16) that the inventory search of his rental car was improper. He asserts (Pet. 15) that this case presents the "precise legal issue" presented in Florida v. Wells, No. 88-1835 (argued Dec. 4, 1989), and that his case is similarly appropriate for review at this time. The Supreme Court of Florida, in State v. Wells, 539 So.2d 464, 468-469, cert. granted, 109 S. Ct. 3183 (1989), concluded that it is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle. Because the record in that case was "devoid" of any trial court finding that the standard inventory procedures mandated the opening of closed containers and the listing of their contents, the court held that the police acted improperly in seizing and opening a suitcase found in the trunk of a car during an inventory search. Wells, 539 So.2d at 469. This case need not be held pending this Court's decision in Wells because it is not similarly marked by a lack of trial court findings concerning the extent of police search procedures. Here, Lieutenant Kowalski of the Allegheny County Police testified regarding the standard procedures for inventory searches. C.A. App. 59-62. He stated that under the Allegheny County Police Department's standard procedure, the arresting or investigating officer had responsibility for conducting an inventory search of an impounded car and listing the contents of the automobile in sufficient detail to safeguard all the property. C.A. App. 61-62. The district court explicitly confirmed the findings it had made at petitioner's previous trial, ruling that "the police complied with all written and oral procedures and regulations incidental to such searches." C.A. App. 177. The court of appeals, in Frank I, concluded that this finding was not clearly erroneous. 864 F.2d at 1002. In addition, the court of appeals in Frank I determined that if Colorado v. Bertine, 479 U.S. 367 (1987), required police compliance with a pre-existing standard concerning the scope of an inventory search, that standard was satisfied here. Lieutenant Kowalski testified that an inventory sufficient to safeguard the property is required by his police force in each case. That requirement necessarily implies a detailed account, catalog, or schedule, supporting the opening of closed containers. Frank I, 864 F.2d at 1003-1004. The facts of this case demonstrate the validity of the court of appeals' reasoning. Petitioner had requested that his property be turned over to his family: the police were therefore justified in recording each item before they turned it over in order to guard themselves against charges of theft or loss of petitioner's property. The district court in this case reiterated that the inventory search here had the purpose of protecting police from charges of theft. C.A. App. 177. In any event, as the court of appeals correctly recognized in Frank I, when petitioner made his request that the police turn over his property to his family, he waived any claim to an expectation of privacy (and thus to the applicability of an inventory search standard) in the contents of the garment bag. See Frank I, 864 F.2d at 1004-1005. Petitioner was aware, of course, that the car was a rental car and that the police would have to identify which property in it belonged to him, rather than to the rental car company or some other party, and would have to inventory the items in order to protect themselves from charges of theft. As the court of appeals concluded (ibid.), petitioner essentially invited the search. Petitioner cites no authority that is contrary to this alternative ground. 2. Petitioner also claims (Pet. 16-22) that the use of information from his 1985 income tax return was contrary to the provisions of 26 U.S.C. 6103 and violated his Fifth Amendment privilege against self-incrimination. Neither assertion has merit. a. Petitioner argues (Pet. 16) that the government violated 26 U.S.C. 6103 when it used his 1985 tax return against him at trial even though he was not accused of evasion for that year. Section 6103(h)(4)(A) permits the use of a tax return in a federal judicial proceeding pertaining to tax administration if the taxpayer is a party to the proceeding or the proceeding arose out of, or in connection with, determining the taxpayer's civil or criminal liability in respect of any tax imposed by Title 26. Nothing in that Section restricts the use of a tax return according to the years at issue in the proceeding, and petitioner never objected to the use of his 1985 return on that ground. /2/ The question whether a return for a year other than one at issue in the case is admissible thus turns upon its relevancy. Petitioner never asserted that the 1985 return was irrelevant. As the district court recognized (C.A. App. 1903), the indictment charged petitioner with conspiring with others until 1987 to defraud the United States by impeding, impairing, obstructing, and defeating the lawful functions of the Internal Revenue Service in the ascertainment, computation, assessment, and collection of the revenue, specifically including the personal income taxes of the petitioner. Petitioner's 1985 tax return was clearly relevant to that charge and its use was consistent with the provisions of 26 U.S.C. 6103. Indeed, petitioner is in a poor position to assert that the admission of this return was contrary to Section 6103, since he attempted to defend against the government's assertion that income was not reported on the 1984 return by suggesting that it was properly reported on the 1985 return. C.A. App. 1469-1470, 1482-1483. /3/ b. Petitioner's claim that his privilege against self-incrimination was violated is groundless. He asserts (Pet. 17-18) that, at the time he filed his 1985 return, he knew that he was under investigation and that identifying a substantial portion of the gross income reported on the return as derived from the sale of coin-operated poker machines would have tended to incriminate him of the Title 18 violations being investigated. He argues (Pet. 16-22) that his privilege against self-incrimination was violated under these circumstances by the admission of his 1985 tax return and the government's suggestions before the jury that the return, in which the sale proceeds were simply reported as part of the total gross income received by him, was used to hide information from the IRS. Petitioner did not object on the basis of his Fifth Amendment privilege to the admission of the information concerning the 1985 return or to the way the prosecutor characterized it. He has, thus, waived this claim. See Fed. R. Evid. 103(a)(1); United States v. Sandini, 803 F.2d 123, 126-127 (3d Cir. 1986), cert. denied, 479 U.S. 1093 (1987). In any event, there was no violation of petitioner's privilege. If petitioner felt that any question on the tax return called for an incriminating response, he could have claimed the privilege against self-incrimination in response to that question. United States v. Garner, 424 U.S. 648, 650 (1976); United States v. Sullivan, 274 U.S. 259, 263-264 (1927). But while he could decline to answer the question, he could not answer with a falsehood and rely on the Fifth Amendment to protect him from the consequences of that action. United States v. Knox, 396 U.S. 77, 80-84 (1969); United States v. Bryson, 396 U.S. 64, 72 (1969). Contrary to his claim (Pet. 19), the decision in Marchetti v. United States, 390 U.S. 39 (1968), does not support petitioner's argument that he would have incriminated himself if he had invoked the privilege against self-incrimination on his tax return. In Marchetti, making a claim of privilege when the wagering excise tax returns were due would have identified the claimant as a gambler. Garner, 424 U.S. at 659-660 n.11. Invoking the privilege as to the source of gross income on the individual income tax return here would not have identified petitioner as engaged in any particular occupation. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General SHIRLEY D. PETERSON Assistant Attorney General ROBERT E. LINDSAY KAREN M. QUESNEL Attorneys FEBRUARY 1990 /1/ Prior to the trial in this case, the petitioner was convicted of traveling in interstate commerce with the intent to avoid prosecution for forgery and theft, in violation of 18 U.S.C. 1073. The court of appeals affirmed the conviction, rejecting the argument, inter alia, that documents obtained during an inventory search of the rental car should have been suppressed. United States v. Frank, 864 F.2d 992, 1000-1005 (3d Cir. 1988). This Court then denied Frank's petition for a writ of certiorari raising the question whether the evidence obtained during the inventory search should have been suppressed. Frank v. United States, 109 S. Ct. 2442 (1989). In this case, the district court adopted the finding previously made in Frank I that the inventory search was proper. C.A. App. 203-204, 219. /2/ Petitioner says (Pet. 18) that "timely general objections were made when the returns were introduced at trial." None of those objections (C.A. App. 40-43, 287-318, 369), however, raised the claim that petitioner now raises. /3/ Citing government counsel's statement in closing argument that petitioner was part of the conspiracy "up until 1986" (C.A. App. 2815), petitioner asserts (Pet. 17-18) that "any actions thereafter performed by * * * him were unrelated to any IRS investigation." By this, he seemingly asserts that his 1985 tax return, which was not filed until October, 1986, was not relevant to the conspiracy charge. But whatever the nature of petitioner's activities in 1986, his 1985 return was obviously relevant because it would aid in determining whether his 1984 return was false and thus part of an attempt to conceal matters from the IRS or to evade his 1984 income tax liability.