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Date: Thu, 29 May 1997 22:17:14 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: U.S. v. Argomaniz (2 of 2) (fwd)
>Date: Fri, 30 May 1997 00:35:31 -0400
>From: "Dr. Braces" <drbraces@smart1.net>
>Organization: SouthFlorida Orthodontics
>To: pmitch@primenet.com
>Subject: us v argo part 2
>
>--
> [4] *1355 We stress, however, that it is the role of the district
> court, not the taxpayer, to evaluate the taxpayer's claim of
>incrimination and
> determine whether it is reasonable. "The witness is not exonerated
>from
> answering merely because he declares that in so doing he would
>incriminate
> himself--his say-so does not of itself establish the hazard of
>incrimination.
> It is for the court to say whether his silence is justified...."
>Hoffman v.
> United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118
>(1951). See
> also Sharp, 920 F.2d at 1170 ("Whether there is sufficient hazard of
> incrimination is of course a question for the courts asked to enforce
>the
> privilege.").
> [5] In this case, the district court did opine that Argomaniz would
>have a
> legitimate fear of criminal indictment if he complied with the IRS
>summons. In
> its order granting Argomaniz's motion for a stay of enforcement of the
>summons
> pending this appeal, the district court stated that Argomaniz had
>"shown more
> than a generalized fear of criminal prosecution" and had "good reason
>to
> believe that his answers may tend to incriminate him...." [FN12]
>Although this
> finding does suggest that Argomaniz was entitled to raise his fifth
>amendment
> privilege, it does not sufficiently determine the applicability of
>Argomaniz's
> privilege against self-incrimination to the summons at issue in this
>case. "A
> court must make a particularized inquiry, deciding, in connection with
>each
> specific area that the questioning party wishes to explore, whether or
>not the
> privilege is well-founded." United States v. Melchor Moreno, 536 F.2d
>1042,
> 1049 (5th Cir.1976). See United States v. Rue, 819 F.2d 1488 (8th
> Cir.1987).
>
> FN12. See supra note 6.
>
> [6] The district court must review Argomaniz' assertions of the
>privilege on
> a question-by-question basis. This will best be accomplished in an in
>camera
> proceeding wherein Argomaniz is given the opportunity to substantiate
>his
> claims of the privilege and the district court is able to consider the
> questions asked and the documents requested by the summons. See United
> States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969) ("The district
>court may
> then determine by reviewing ... [the taxpayer's] records and by
>considering
> each question whether, in each instance, the claim of
>self-incrimination is
> well-founded."). [FN13] The district court already has determined that
> Argomaniz does face a real and substantial hazard of incrimination.
>However,
> we must remand this case to the district court, to enable that court to
>conduct
> an in camera proceeding, on a question-by-question basis, to determine
>the
> actual extent to which Argomaniz may rely on his fifth amendment
>privilege to
> avoid compliance with the IRS summons. Stated differently, the
>district court
> must ascertain: first, whether the taxpayer has the records sought
>and,
> second, whether under the existing circumstances they are
>incriminatory.
>
> FN13. As the Second Circuit observed in Estate of Fisher v.
> Commissioner of Internal Revenue, 905 F.2d 645, 650 (2d Cir.1990),
>similar
> in camera proceedings have been repeatedly looked upon with favor
>by the
> Supreme Court. See also In re Grand Jury Subpoena, 831 F.2d 225,
>226
> (11th Cir.1987) (directing the district court to conduct either a
>hearing
> or an in camera inspection on a document-by-document basis to
>ascertain the
> applicability of the attorney-client privilege).
>
> B. The Fifth Amendment Privilege May Exist
> Even though compliance could be incriminating, the government argues
> that Argomaniz must comply with the IRS summons because Argomaniz did
>not
> properly invoke his fifth amendment privilege. First, the government
>claims
> that the fifth amendment is not applicable to this situation because
>the
> contents of business records are not privileged. Second, the
>government
> asserts that Argomaniz made an impermissible blanket claim of self-
> incrimination. Both of these arguments are without merit.
> [7][8] The government correctly states that the contents of
>voluntarily
> prepared business records are not protected by the fifth amendment
>privilege
> against self-incrimination. See United States v. Doe, 465 U.S. 605,
>610-12,
> 104 S.Ct. 1237, 1241-42, *1356 79 L.Ed.2d 552 (1984). However,
>Argomaniz is
> not invoking his privilege as to the contents of the documents
>described in the
> IRS summons, but as to the act of producing the documents. The Supreme
>Court
> "has emphasized that the mere act of producing documents whose contents
>were
> not privileged could be sufficiently testimonial and incriminating in
>nature to
> trigger the fifth amendment privilege." In re Grand Jury No. 86-3
>(Will
> Roberts Corp.), 816 F.2d 569, 571 (11th Cir.1987) (citing United States
>v.
> Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) and Fisher v.
> United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). To
>be
> testimonial, a "communication must itself, explicitly or implicitly,
>relate a
> factual assertion or disclose information," Doe v. United States, 487
>U.S.
> 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988); it must "add
>... to
> the sum total of the government's information...." Fisher v. United
>States,
> 425 U.S. 391, 411, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1975).
> By producing documents in compliance with the IRS summons, Argomaniz
>would be
> establishing the existence and authenticity of the documents listed in
>the
> summons, as well as verifying that these documents were in his
>possession.
> Doe v. United States, 487 U.S. 201, 209, 108 S.Ct. 2341, 2347, 101
>L.Ed.2d
> 184 (1987). He would actually be informing the government that he had
>income
> in the years in question yet failed to file income tax returns. This
>act of
> production would be sufficiently testimonial and incriminating to
>activate
> Argomaniz's fifth amendment privilege.
> [9] The government's final argument, that there was no fifth amendment
> justification for Argomaniz's blanket invocation of the privilege
>against self-
> incrimination, is also without merit. It is true that a blanket
>refusal to
> produce records or to testify will not support a fifth amendment claim.
> United States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969). However,
> Argomaniz did not refuse to comply with the summons in a blanket
>manner.
> Instead, Argomaniz followed the general rule that a taxpayer "must
>present
> himself with his records for questioning, and as to each question and
>each
> record elect to raise or not to raise the defense." Id. Argomaniz
>answered
> the non-incriminating questions posed by the IRS officer, and, in
>response to
> each incriminating question or document request refused to answer and
>cited his
> privilege against self-incrimination. When the IRS officer realized
>that
> Argomaniz would raise the privilege in response to each of her document
> requests and to each of her questions concerning Argomaniz's tax
>liability for
> the years in question, the IRS officer terminated the interview. [FN14]
> Argomaniz could not respond to questions that he was not asked. Thus,
>the
> effect of the interview was as if the IRS officer had asked all
>relevant
> questions and for each document listed in the summons, and Argomaniz
>had
> responded by repeatedly raising his fifth amendment privilege in
>response.
> Under the circumstances in this case, a blanket invocation of the
>privilege
> against self-incrimination did not occur.
>
> FN14. See supra footnote 5 for the pertinent transcript of
>Argomaniz's
> appearance before the IRS officer.
>
> III. CONCLUSION
> Because compliance with the IRS summons could violate Argomaniz's
>fifth
> amendment privilege against self-incrimination and because the district
>court
> failed to make a particularized inquiry necessary to determine whether
> Argomaniz properly refused to comply with the summons, we REVERSE the
>district
> court's order compelling Argomaniz to comply with the summons. We
>REMAND this
> matter to the district court with instructions to determine, through an
>in
> camera inspection, the existence of Argomaniz's fifth amendment
>privilege in
> this case.
> REVERSED and REMANDED.
>END OF DOCUMENT
>
>
>
>
>
>With Love, Liberty and Justice for All,
>Alex
>http://www.drbraces.com
>e-mail: drbraces@drbraces.com
>
>"When the people fear their government you have tyranny.
>When the government fears the People, you have liberty."
> Thomas Jefferson
>
>Liberty is NEVER an option... only a condition to be lost!
>
>
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Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
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