(dissenting).
I regret that I cannot agree with the result reached by my brethem.
Disregarding the merits of the suppression question for the moment, it seems to me the majority fails to define clearly its interpretation of the Bureau’s voluntary disclosure policy. The legal issue involved on this phase of the case seems to me to require an explicit determination of just what that policy is, whereas the language of the majority, I think, leaves the resolution of that question in doubt.
As to the merits of the order denying suppression, in the first place, I believe that the majority has overlooked the nature of the issues raised by the motion to suppress. These include the legal question of interpretation of the Government’s voluntary disclosure pronouncements and, in addition, the question of fact as to whether defendants made a voluntary disclosure within the purview of the announced policy. And if these two issues should be resolved in defendants’ favor, a further question then arises, in the light of the reported cases, of whether evidence given to the Treasury officials in reliance on the disclosure policy will be suppressed. That question is by no means settled. Compare Centrac-chio v. Garrity, 1 Cir., 198 F.2d 382, 388, certiorari denied 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672, with In re Liebster, D. C., 91 F.Supp. 814.
Reverting to the legal question of interpretation of the policy statements, it seems to me the majority opinion turns on an assumption that any action by a taxpayer which advises a Treasury official that a tax return previously filed by him is incorrect or incomplete is a sufficient disclosure. Paraphrasing the language in part, the majority opinion seems to hold that any word which is sufficient to put the Treasury bloodhounds on the scent of a fraudulent return is a sufficient disclosure, irrespective of what facts are revealed to or concealed thereby from the government and irrespective of what roadblocks the taxpayer may thereafter erect in the way of a determination of the true facts surrounding the fraudulent return. Then, as I construe the majority’s expressions, any evidence that the taxpayer may *407thereafter surrender to treasury agents must be suppressed, if criminal prosecution is recommended when the fraudulent omission is discovered.
Such a broad statement of the doctrine, I think, is an unwarranted interpretation of the Treasury policy. The Wench el statement, upon which defendants place principal reliance, when considered in its entirety, carries with it the clear implication that the disclosure contemplated must be a full disclosure of all facts bearing on the false return. Secretary Snyder’s statement, issued about 10 days after the Wenchel statement, after referring to the long existent policy, concluded that the application of the policy to a particular taxpayer “presumes, of course, that the repentant taxpayer cooperates with agents of the Bureau in determining the true tax liability.”
Furthermore, I think the broad interpretation on which the majority opinion rests ignores persuasive judicial pronouncements bearing on this question. The Court of Appeals for the First Circuit in the Centracchio case, supra, said at 198 F.2d at page 389: “If it be assumed * * * that evidence disclosed to the Treasury officials on the faith of the announced voluntary disclosure policy, and in compliance with its conditions, should be excluded from evidence in a subsequent criminal trial, it would seem that the taxpayer would have to satisfy the court that he made a voluntary, good faith disclosure of all data necessary to a correct computation of his income tax deficiencies, and that he made such disclosures before an investigation was under way.” And in In re Monroe, D.C., 110 F.Supp. 507, affirmed 5 Cir., 215 F.2d 81, certiorari denied 348 U.S. 914, 75 S. Ct. 294, the court defined the disclosure policy as containing the specification that the disclosure must be “a complete, fair and honest disclosure, and not a portion.” While these authorities are not binding on us, the reasonable interpretation adopted by the jurists who penned those opinions is entitled to our respect and deserving of our serious consideration. See also Chieftain Pontiac Corp. v. Julian, 1 Cir., 209 F.2d 657.
The question, basically, is what would the average taxpayer understand, after reading the Treasury statements, as to what would constitute a sufficient disclosure thereunder. The trial court, consistently with the pronouncements made in Centracchio and Monroe, applied the rule of reason that a “disclosure” requires a good faith disclosure of all facts pertinent to the fraudulent return. This, I believe, is a correct analysis of the policy as announced and, insofar as the majority opinion is based on a less restrictive rule, I respectfully dissent.
The second point on which I believe the majority falls into error is in its treatment of the suppression question as one wholly of law. It seems to me that the majority attempts to try the factual issues de novo and fails to give the requisite weight to the trial court’s findings of fact which are essential elements of the question under review.
The weight to be accorded by a court of appeals to such findings has been variously defined. In Roberson v. United States, 6 Cir., 165 F.2d 752, at page 754, the court pointed out that “the finding of the trial judge on a preliminary question of fact should not be reversed on appeal if it be fairly supported by the evidence.” In Nichols v. United States, 8 Cir., 176 F.2d 431, at page 432, the court said: “The facts as determined by the trial court are supported by evidence * * * and are binding on this Court.” And in Cannon v. United States, 5 Cir., 166 F.2d 85, at pages 86-87, the court’s language was: “It cannot be said that the judge’s findings on this question were without substantial support. Therefore we will not disturb those findings.”
In each of these cases, the findings to which reference was had were made by the trial court in ruling on a motion to suppress evidence allegedly obtained by an illegal search and seizure. While these decisions, as well as the subsequently adopted rule which embodies the then *408existing case law,1 pertain only to the classic search and seizure question rather than to the Treasury’s voluntary disclosure doctrine, the proceeding to suppress the evidence is the same and the same procedural rules should be applied. If adequate evidence supports the findings upon which the trial, court’s ruling is based, we cannot. disturb those findings. See White, v. United States, 5 Cir., 194 F.2d 215, 217, certiorari denied 343 U.S. 930, 72 S.Ct. 760, 96 L.Ed. 1340.
In its memorandum decision denying defendants’ motion, the district court found that defendants had not sustained the burden of proving that a sufficient voluntary disclosure within the purview of the announced policy had been made by them. It found that there had been “no disclosure of an • intentional violation or * * * of an intent to defraud the Government” in view of defendants’ position, which they maintained at all times, that, no tax liability could arise from. Shotwell’s failure to report black-market receipts, since such receipts and corresponding black-market disbursements by the company “washed-out” each other, and that the disclosure to Sauber was merely an admission ,of • omissions in Shotwell’s 1945 and 1946 returns which were based on defendants’ alleged good-faith belief that no added tax liability arose from the company’s black-market operations.
As bearing on defendants’ proof as to their good faith in the so-called disclosure, the court found that such records of the cash transactions in the black-market operations as the corporation had, had been destroyed on instructions of Cain prior to the initial conferences between Shotwell’s agents and Sauber; that no bona fide efforts were made by defendants to reconstruct such destroyed records so as to enable the government to determine the amount of tax due, qnd that figures contained in- work sheets turned over to Treasury agents as a part of the alleged disclosure were admittedly fictitious. The court found further that no promise of immunity had been held out to defendants by any representative of the government at any time, and that nothing was done by any agent of the Bureau to lead defendants to beiieve that the alleged disclosure was accepted. as adequate or that there would be no criminal prosecution on account thereof.
Unless we can say that these findings are so lacking in evidentiary support as to require that they be set aside, we have no choice but to affirm the order denying the motion to suppress evidence. A brief recital of the facts underlying this litigation and a brief summary of the evidence before the court at the proceeding on the suppression motion sufficiently demonstrate, in my opinion, that the findings of the court, were amply supported.
When Busby, and later Cain, first approached Sauber^ each reported that, during the taxable years 1945 and 1946, Shotwell had sold large quantities of candy to Lubben, or to Lubben’s companies, at a premium price above the established OPA ceiling for the commodity. These shipments were invoiced to the buyer at the established ceiling price, and payments therefor at those prices were recorded on Shotwell’s books and duly reported on its tax returns. The buyer was billed separately for the above-ceiling portions of the purchase prices. These payments were received by defendants in cash and were neither recorded on the company’s books nor reported for income tax purposes. At the same time, it was reported that, the cash thus received was paid out by Shotwell as above-ceiling premium prices for the raw materials which it needed, such as corn syrup and chocolate. On the basis of the representations thus made, Sauber, at that time, expressed his opinion that the facts disclosed strictly a civil matter. The indictments were returned after sev*409eral years of investigation, during which time Shotwell employed Busby, an accountant, to work with the federal agents.
But the above facts tell only a part of the story on which the trial court’s findings are based. The evidence adduced at the suppression hearing indicates that Shotwell’s black-market operations were more extensive than those first disclosed to Sauber. For'example, Sauber was not advised that Shotwell, during the taxable period, made other black-market sales of goods on which no part of the transaction was reflected on the company’s books. Allusion has previously been made to other evidentiary facts bearing on the sufficiency of the alleged disclosure, namely, the fact that all records which reflected black-market operations were destroyed by defendants before they approached the Treasury officials and the fact that work papers and supposed summaries of the unreported income turned over to the agents were admittedly fictitious. Furthermore, defendants have maintained at all times that alleged black-market disbursements totalling hundreds of thousands of dollars were paid out by them, without the benefit of any receipts, to faceless men who were unknown to defendants. At all times during the investigation they refused to advise Treasury agents as to who had received these disbursements. They took the position that to whom such payments were made was none of the Bureau’s business, while at the same time fictitious figures were inserted in accounting data given to the agents which purportedly reconstructed the financial history of Shotwell’s black-market dealings.
The point to be stressed is that on the record before us we cannot say that the evidence does not support the finding of the trial court that no sufficient disclosure was made. We cannot say that the court’s conclusion that “False statements and fraudulent representations made to Government agents under the pretense of a voluntary disclosure can never constitute the basis for immunity from criminal prosecution under any possible interpretation of the so-called voluntary disclosure doctrine” is an erroneous legal statement or that the hypothecated facts included in this statement are not descriptive of the proofs made in this case. Two factual questions were presented to the court below, namely, what was disclosed, and, was the disclosure prompted by the taxpayer’s reliance on the announced policy or by some other motive best known to him? The trial tribunal has found that, at most, only a partial disclosure was made; that good-faith cooperation with Treasury agents was lacking, and that such lack of good faith disclosed a purpose to mislead the agents. These findings are adequately supported by the evidence. It is not within our province to second-guess the trial court on factual questions.
In my opinion we cannot overturn the court’s further finding that no promise of immunity was held out to defendants, or that no other representations were made, which reasonably led them to believe that no criminal prosecution was contemplated. Sauber’s opinion, which he expressed during his initial meeting with Cain, that this was strictly a civil matter, was based on the latter’s original statement that black-market income not reported for the taxable years was “washed out” by black-market expenditures which was, as the court below found, a partial disclosure only of the true facts of the case. The oral testimony as to statements made at various times by Treasury agents that no prosecution was intended, — that defendants had nothing to worry about, — are disputed by the agents’ testimony. Thus this finding is based, in large measure, on the trial court’s ruling on the credibility of witnesses.
On the record as a whole, I cannot escape the conviction that the court’s interpretation of the voluntary disclosure statements as requiring such a complete disclosure and good-faith effort as to enable the internal revenue agents to assess *410the additional tax due is a correct interpretation of the offer held out to taxpayers in the Treasury policy statements. Believing that the court’s findings of fact are unassailable, I wpuld affirm the decision denying defendant’s motion to suppress the evidence and proceed to consider the merits of the appeal.
. Federal Rules of Criminal Procedure 41 (e), effective October 20, 1949, 18 U.S.C.A. See note to subdivision (e), Notes of Advisory Committee on Rules, 18 U.S.C.A.