United States Court of Appeals Third Circuit

385 F.
2d 129
67-2 USTC P 9682
UNITED STATES of America and Victor A. Franchi, Special

Agent, Internal Revenue Service, Appellees,
v.
DAUPHIN DEPOSIT TRUST COMPANY, and Clement
Filippelli, as
Treasurer of DauphinDeposit Trust Company, Appellants.
No. 16241.
United States Court of Appeals Third Circuit.

Argued April 21, 1967.
Decided Oct. 12, 1967, Certiorari Denied Jan. 29, 1968, See
88 S.Ct. 854.
Thomas A. Beckley, Rhoads, Sinon & Reader, Harrisburg, Pa. (Walter K.

Swartzkopf, Jr., Paul H. Rhoads, Harrisburg, Pa., Rhoads, Sinon &
Reader, Harrisburg, Pa., of counsel, on the brief), for appellants.
Burton Berkley, Dept. of Justice, Tax Division, Washington, D.C.
(Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Joseph M. Howard,
Attys., Dept. of Justice, Washington, D.C., Bernard J. Brown, U.S. Atty.,
of counsel, on the brief), for appelles.
Before SMITH and FREEDMAN, Circuit Judges, and WORTENDYKE,
District judge.
OPINION OF THE COURT
WILLIAM F. SMITH, Circuit Judge.
This appeal is from an order of the district court enforcing three summonses
issued by the Internal Revenue Service pursuant to section 7602 of the Internal
Revenue Code of 1954, 26 U.S.C.A., as limited and restricted by the affidavit
and exhibits attached to the Government's Petition to Enforce.1 The summonses
required the respondent bank to produce numerous records regarding the
transactions of four purported customers over a period of four years. The bank
has refused to comply at all times. It has not even confirmed whether the
persons named in the summonses actually are bank customers.
2
Appellant has advanced many arguments, both legal and otherwise, as to why
these summonses, as limited, should not be enforced. The first group of
arguments charges that the summonses do not meet the requirements stated in
United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112
(1964) in that the material sought was already in the Government's possession
and was not relevant to an investigation 'conducted pursuant to a legitimate
purpose.' We find these contentions to be without merit.
Appellant's primary argument is that the summonses are so expansive that the
financial burden of locating, retrieving, and reproducing the requested material
amounts to an unreasonable search and seizure in violation of the Fourth
Amendment and a deprivation of property without due process of law in
violation of the Fifth Amendment. The substance of appellant's Fifth
Amendment claim appears to be that the financial burden constitutes a taking of
private property without just compensation.
We have already concluded that the material sought by the Internal Revenue
Service is relevant to a lawful investigation. Under this circumstance there can
be no doubt that the recipient of a summons has a duty of cooperation and that
at least up to some point must shoulder the financial burden of cooperation. Our
study of the record convinces us that the district court was correct in concluding
that the appellant was not requested to submit to an unreasonable burden. If the
Fourth and Fifth Amendments accord any protection it could only be from the
imposition of an unreasonable and excessive financial burden.
The Petition to Enforce substantially reduced the quantum of material requested

in the original summonses. It is our judgment that compliance with this reduced
demand would not be unduly burdensome. Furthermore, in view of appellant's
adamant refusals to cooperate with the Government in the slightest degree its
arguments as to the extent of the burden become plainly speculative. Appellant
has not even verified whether the taxpayers in question are in fact customers.
Yet it persists in arguing that in locating the required materials it might be
necessary to conduct extensive searches in eighteen offices. A simple check of
signature cards would have removed this contention from the realm of the
merely possible.
Our determination that the summonses would not be unduly burdensome is
buttressed by the fact that the bank is not required to transport any records and
may fulfill its obligation either by producing the required records at any of its
offices or by giving Internal Revenue Agents access to the relevant files.2 It is
our further understanding, based on statements made by Government counsel at
oral argument, that the Internal Revenue Service has portable duplicating
equipment, the use of which will limit the bank's burden of making copies of its
records.
7
One other matter should be considered. The Government is not entitled to go on

a fishing expedition through appellant's records. It must identify with some
precision the documents it wishes to inspect. First National Bank of Mobile v.
United States, 160 F.2d 532, 534 (5th Cir. 1947); United States v. First
National Bank of Fort Smith, Ark., 173 F.Supp. 716, 720 (W.D.Arkansas
1959). The requirement that the summons not be indefinite is rooted in the
Fourth Amendment protection against unreasonable searches and seizures. See
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208-209, 66 S.Ct. 494, 90
L.Ed. 614 (1946); United States v. Morton Salt Co., 338 U.S. 632, 652-653, 70
S.Ct. 357, 94 L.Ed. 401 (1950).
Ti is our judgment that the summonses, as limited by the Petition to Enforce,

are, with one exception, not unduly indefinite. The exception pertains to the
demand made as to each alleged bank customer that the appellant produce, 'All
records relative to other accounts during the years 1961 through 1964, such as
records of other securities bought or sold for said * * * (customer(s)) or other
transactions of any nature handled by the bank on behalf of said * * *
(customer(s)).'3 The request for 'records of other securities bought or sold' is
sufficiently precise. The balance of the request is too indefinite and will be
quashed.
We also take this opportunity to note that in regard to the other demands made
on the bank its only obligation is to make a diligent search based on the
information supplied by the Internal Revenue Service. If that information is
inaccurate or otherwise insufficient to enable it to locate the desired records, the
bank of course may not be found at fault.
10
The order of the district court will be affirmed as modified by this opinion.
The original summonses were admitted evidence in the court below as Exhibits
'B', 'C', and 'D'. The material now required to be produced is itemized in
Exhibits 'A-1', 'A-2', and 'A-3' to Exhibit 'A' below. These Exhibits were
attached to the Government's Petition to Enforce and substantially limited the

quantity of material sought
2
Because of the extent of the Internal Revenue Service's requests we do not feel
that appellant would be breaching a duty to its other customers by selecting the
latter alternative. By the same token a high duty would be placed on the Service
to respect the integrity of appellant's files
This statement is found in the following paragraphs of Exhibit 'A-1' to Exhibit

'A': I, 9; II, 3; III, 6

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385 F.

UNITED STATES of America and Victor A. Franchi, Special

United States Court of Appeals Third Circuit.

Thomas A. Beckley, Rhoads, Sinon & Reader, Harrisburg, Pa. (Walter K.

The Petition to Enforce substantially reduced the quantum of material requested

Our determination that the summonses would not be unduly burdensome is

One other matter should be considered. The Government is not entitled to go on

Ti is our judgment that the summonses, as limited by the Petition to Enforce,

attached to the Government's Petition to Enforce and substantially limited the

This statement is found in the following paragraphs of Exhibit 'A-1' to Exhibit

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