MATHIS v. UNITED STATES
Legal provision: Miranda Warnings
Argument of Daniel M. Friedman
Chief Justice Earl Warren: No. 726, Robert T. Mathis, Sr., petitioner versus United States.
Mr. Friedman, you may continue your argument.
Mr. Daniel M. Friedman: Mr. Chief Justice and may it please the Court.
I’d like this morning in the brief remaining time to discuss two other aspects of the case.
The first is the question whether the use by the government of the forms extending the time for the statute of limitations, the use by the government of those forms as handwriting exemplars violated any of the petitioner’s constitutional rights.
I want to stress at the outset that these forms were not used to prove anything that was stated on the form.
It was just used by the handwriting expert to compare the signature on the form where the signature on the false tax returns upon which the conviction of filing a false claim was based.
Now last year, this Court in Gilbert against California held that the giving of a handwriting exemplar did not violate the privilege against self-incrimination.
It pointed out that the handwriting exemplar as such is not a testimonial act.
It’s not -- does not involve any communicative thing.
It is just an objective fact.
The same as the sample of the blood that had been taken from someone and I stress again that in this case, there was no use made of the signatures other than as compared for purposes of comparison between what was shown on the tax return and what was shown on this piece of paper.
So that under the ruling in Gilbert, there was no need for the agent to give any warning with respect to signing these documents.
The only thing he did was to tell them that there was no requirement that they sign that is that they give the consent.
So we think whatever may be the conclusion with regard to the admissions that he made to the agent, certainly this does not carryover or tainted in anyway the government’s use of the handwriting exemplars.
Now the final point I would like to make is in response to the petitioner’s contention that the failure to hold a separate hearing outside of the presence of the jury on the motion to suppress itself denied petitioner’s constitutional rights.
The -- I’d like to just refer briefly to a question that Mr. Justice Fortas put yesterday to my adversary with respect to whether the instructions would be forced.
The instructions are set forth in the record, the Court’s instructions to the jury and the Court’s instructions did not leave any questions to the jury to determine whether or not there was anything voluntary or involuntary about that.
The judge ruled on that and while the judge did not hold a separate hearing on this issue, all the evidence came in, and motions were made to strike the testimony of the revenue agent insofar as it related to the conversations and also to strike the testimony of the handwriting expert who testified that the handwriting on the returns was the same as the handwriting on these three consent forms and also on the check for the refund which had been given to Mr. Mathis.
Justice Abe Fortas: Mr. Freidman, I have two short questions.
Did I understand you yesterday to say that when the special agent as distinguished from the revenue agent goes to a taxpayer, that the special agent who works out of the Intelligence branch, I gather, always gives a Miranda warning?
Mr. Daniel M. Friedman: Well, I have to qualify, not always gives a Miranda warning, always gives a warning, and the type of warning he gives there is on the circumstances.
He gives the full Miranda warning if he takes the man into the custody.
He gives a somewhat lesser warning if he is merely questioning him.
Justice Abe Fortas: Now my second question is whether when the revenue agent here, Mister -- what was his name, Lawless --
Mr. Daniel M. Friedman: Lawless.
Justice Abe Fortas: -- referred this matter to the Intelligence branch.
He did that with a recommendation that a criminal investigation be begun or that criminal prosecution be instituted.
Mr. Daniel M. Friedman: It would have to be the former, Mr. Justice.
He could not make a recommendation for a criminal prosecution.
He merely referred the case to the special intelligent division for investigation.
Justice Abe Fortas: Well, that means that by that time he made the reference over, he had some basis for thinking that there might have been a violation, a criminal violation here.
Mr. Daniel M. Friedman: That’s right.
When he referred it over, he presumably concluded there was enough here to call for some criminal investigation.
And, of course, in many instances, we have some statistics we have developed showing that only a small number of the cases that are actually referred by revenue agents to the Intelligence Division eventuate in criminal prosecution.
Justice William J. Brennan: May I ask, Mr. Freidman.
I’m looking at the instructions at page 97 that last full paragraph at the bottom of the page.
Mr. Daniel M. Friedman: Yes.
Justice William J. Brennan: Apparently, the trial judge did regard this defendant as having been in custody at the time of the interrogation, isn’t it?
Mr. Daniel M. Friedman: Well, in custody of course in the sense that he was in the penitentiary.
Justice William J. Brennan: Well, I know but sufficiently so that he charged the jury that he was not -- because he was in custody, required to make any reply to any accused or a statement or any question addressed to him relative to any circumstance of which may be embraced in the charge.
Mr. Daniel M. Friedman: I think, Mr. Justice, that refers to one other phase of the case which I’d like to just briefly refer to.
After the revenue agent had seen this petitioner in the jail the second time and made the reference to the Intelligence Division about three months later, this agent, this man together with a so-called special agent from the Intelligence Division again visited the petitioner to the penitentiary.
At that point, they did give them the warning and the petitioner replied he preferred not to talk about the matter and I think this statement to which you’ve referred at page 97 was just in reference to that, that the jury was not to draw any inference from the fact that when the intelligence man came to him and asked him some question, he said he preferred not to talk.
Justice William J. Brennan: But the Judge has made no distinction between the two interviews, has he?
Mr. Daniel M. Friedman: Well, there was no refusal, Mr. Justice.
There was no refusal by the petitioner.
Justice William J. Brennan: No, but isn’t this broad enough Mr. Freidman that’s true that he says in the last sentence and I believe in one case, in the one instance a witness stated that he did fail to answer a question or he did express a desire not to answer any question?
But before that, it’s a rather general instruction as to the consequence of his being in custody in relation to the jury’s consideration that -- that would apply as well to the first interview and the second interview.
Mr. Daniel M. Friedman: Well, I think so.
I think all of the suggestions is another way of saying since he was not required to is a voluntary statement that he is --
Justice William J. Brennan: Well, as to the first interview, would you say that this -- at least this is the first interview, this instruction was on this, sir?
Mr. Daniel M. Friedman: I would think so, Mr. Justice and the Court earlier had stated when he was at page 92, the Court said, “I will give the ordinary run of mill instructions”.
When he asked whether there are any instructions and petitioner’s --
Justice William J. Brennan: You don’t know whether this was a requested instruction?
Mr. Daniel M. Friedman: I don’t know but apparently – no, this is not a requested instruction because there were no requests.
There was one instruction that the United States attorney requested and that was an instruction that under this particular offense, it is not necessary to get anything.
The offense is complete when a false claim was filed but he said, the Judge indicated he was just giving what he considered the routine run of the mill instructions.
Justice William J. Brennan: In any event and, as far as it applies to the first interview, the government’s position would be that the defendant got more than he was entitled to?
Mr. Daniel M. Friedman: I think I got exactly what he --
Justice William J. Brennan: No, in a way of an instruction, he got more than he was entitled to?
Mr. Daniel M. Friedman: Oh!
Justice William J. Brennan: And as far as that has any relation to the first interview.
Mr. Daniel M. Friedman: The first two interviews.
So there were three interviews.
There were two interviews on the 30th of October and on the 2nd of March with just Internal Revenue agent laws and that was the third interview sometime in June where the Intelligence officer came in and that was the one of which the petitioner declined to speak.
Chief Justice Earl Warren: Mr. Capuano.
Argument of Nicholas J. Capuano
Mr. Nicholas J. Capuano: If the Court please, under these circumstances, I believe that after careful consideration, I’ll waive any rebuttal that I may have had and I’ll try to put them on the head.
Chief Justice Earl Warren: Well, thank you.