concurring.
I join the majority’s decision to reverse the district court’s suppression of the defendants’ post-June 17, 2004 statements, but I write separately to emphasize my belief that United States v. Caceres left the door open for courts to consider the IRS’s violation of its internal policies as one aspect of the two-prong voluntariness analysis. See 440 U.S. 741, 754-55, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). In short, though I agree that the IRS’s failure to comply with its internal policy does not amount to a per se violation of a defendant’s constitutional rights, a court is entitled to consider (and, in fact, should consider) such non-compliance in analyzing whether the IRS made affirmative misrepresentations to a taxpayer about the nature of its investigation. Thus, I conclude that the IRS’s failure to refer a case is a crucial consideration in evaluating whether the IRS made affirmative misrepresentations to a defendant about the nature of its investigation.
As the Seventh Circuit has accurately noted:
On the one side, courts face the Scylla of judicial micro-management of the inner functionings of an administrative agency, a peril recognized by many of the courts that have addressed this issue. Yet, on the other side, courts face the Charybdis of judicial abdication of their Article III duty to protect the constitutional rights of criminal defendants.... [Tjhis latter peril will be realized if the courts are forced to rely solely on the afterthe-fact assessments of revenue agents who may have an incentive to use the discretionary nature of the ‘firm indications’ rule to shield their actions from judicial scrutiny.... In navigating the narrow course necessitated by these two perils, courts must remember that the ‘firm indications of fraud’ rule is but a tool for courts to utilize in determining whether the revenue agents made an affirmative misrepresentation to a defendant or her representatives concerning the nature of their investigation.
United States v. Peters, 153 F.3d 445, 453 (7th Cir.1998). Further, there is certainly risk that the public’s trust in the IRS will be undermined should the IRS’s “internal operating procedures afford anything less than faithful adherence to constitutional guarantees.” See United States v. McKee, 192 F.3d 535, 544 (6th Cir.1999).
Therefore, although the IRS’s failure to timely refer its investigation of defendants to its criminal unit amounts to mere negligence in this case, I can certainly foresee a situation in which the IRS intentionally pursues a criminal investigation under the auspices of a civil investigation. See United States v. Tweel, 550 F.2d 297, 299 (5th Cir.1977) (suppressing evidence where IRS agent falsely stated that the audit was routine though he knew that a special investigator was involved); United States v. Kontny, 238 F.3d 815, 819 (7th Cir.2001) (an affirmative misrepresentation could occur where an agent “pretend[s] to be a U.S. Attorney and assure[s defendants] that they would not be prosecuted if they cooperated with him_”). Moreover, although I agree with the majority that the issuance of a summons on its own will not make a defendant’s statements in response to thereto involuntary (Maj.Op. 196), a scenario of intentional government misrepresentation becomes even more probable given that the IRS is statutorily entitled to issue a civil summons to a taxpayer for a purely criminal investigation. See, e.g., Scotty’s Contracting & Stone, Inc. v. United States, 326 F.3d 785, 788 (6th Cir.2003) (the IRS’s authority to issue a summons for the purpose of investigating any offense relating to the tax code, be it civil or *200criminal, is extinguished only when the investigation is referred to the Department of Justice) (citing 26 U.S.C. § 7602 (IRS civil summons power)).
In conclusion, given the substantial likelihood that the IRS may intentionally blend its civil and criminal arms in conducting an investigation, we must strongly encourage the agency to observe and protect the public’s constitutional rights when exercising its power. Allowing courts to consider the impact of the IRS’s violations of internal policies on a defendant’s constitutional rights helps to achieve this goal.