Time: Thu May 29 22:22:14 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id WAA12371; Thu, 29 May 1997 22:11:31 -0700 (MST) by usr02.primenet.com (8.8.5/8.8.5) with SMTP id WAA25513; Thu, 29 May 1997 22:11:16 -0700 (MST) Date: Thu, 29 May 1997 22:16:22 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: U.S. v. Argomaniz (1 of 2) (fwd) >Date: Fri, 30 May 1997 00:33:53 -0400 >From: "Dr. Braces" <drbraces@smart1.net> >Organization: SouthFlorida Orthodontics >To: pmitch@primenet.com >Subject: us v argomaniz part 1 > >-- (Cite as: 925 F.2d 1349) > > UNITED STATES of America and L. Simmons, Revenue Officer, of Internal >Revenue > Service, Plaintiffs-Appellees, > v. > Alberto E. ARGOMANIZ, Defendant-Appellant. > No. 89-5925. > United States Court of Appeals, > Eleventh Circuit. > March 11, 1991. > Government filed petition to enforce Internal Revenue Service (IRS) >summons in > face of taxpayer's claims of Fifth Amendment privilege. The United >States > District Court for the Southern District of Florida, No. >89-342-CIV-EPS, Eugene > P. Spellman, J., entered order directing taxpayer to comply with >summons, and > taxpayer appealed. The Court of Appeals, Birch, Circuit Judge, held >that: (1) > remand was necessary to allow district court to conduct in camera >proceeding, > on question-by-question basis, to determine actual extent to which >taxpayer > could rely on Fifth Amendment privilege to avoid compliance with >summons, and > (2) act of producing financial records and other documents that were >subject of > summons would be sufficiently testimonial and incriminating to activate > taxpayer's Fifth Amendment rights, without regard to whether contents >of > documents would themselves be protected by privilege. > Reversed and remanded. > > [1] WITNESSES k297(4.1) > 410k297(4.1) > Formerly 410k297(4) > Fifth Amendment privilege against self-incrimination may be asserted in >any > proceeding, civil or criminal, administrative or judicial, >investigatory or > adjudicatory, and may be invoked by taxpayer in response to request for > information in Internal Revenue Service (IRS) investigation. U.S.C.A. > Const.Amend. 5. > > [1] WITNESSES k297(7) > 410k297(7) > Fifth Amendment privilege against self-incrimination may be asserted in >any > proceeding, civil or criminal, administrative or judicial, >investigatory or > adjudicatory, and may be invoked by taxpayer in response to request for > information in Internal Revenue Service (IRS) investigation. U.S.C.A. > Const.Amend. 5. > > [2] WITNESSES k297(1) > 410k297(1) > To invoke Fifth Amendment privilege against self-incrimination in order >to > avoid compliance with Internal Revenue Service (IRS) summons, taxpayer >must > provide more than mere speculative, generalized allegations of possible >tax- > related prosecution; rather, taxpayer must be faced with substantial >and real > hazards of self-incrimination. U.S.C.A. Const.Amend. 5. > > [3] WITNESSES k297(13.1) > 410k297(13.1) > Formerly 410k297(13) > Taxpayer can have legitimate fear of possible tax-related prosecution, >so as to > be entitled to invoke Fifth Amendment privilege against >self-incrimination in > response to Internal Revenue Service (IRS) summons, even though IRS > investigation remains in civil stage. U.S.C.A. Const.Amend. 5. > > [4] WITNESSES k308 > 410k308 > It is role of district court, not taxpayer, to evaluate taxpayer's >claims of > self-incrimination, and to determine whether taxpayer has legitimate >fear of > criminal prosecution sufficient to support invocation of Fifth >Amendment > privilege to avoid compliance with Internal Revenue Service (IRS) >summons. > U.S.C.A. Const.Amend. 5. > > [5] WITNESSES k308 > 410k308 > In evaluating validity of taxpayer's invocation of Fifth Amendment >privilege > against self-incrimination, district court must make particularized >inquiry, > deciding, in connection with each specific area that questioning party >wishes > to explore, whether or not privilege is well-founded. U.S.C.A. >Const.Amend. 5. > > [6] INTERNAL REVENUE k4517 > 220k4517 > Remand was necessary to allow district court to conduct in camera >proceeding, > on question-by-question basis, to determine actual extent to which >taxpayer > could rely on Fifth Amendment privilege against self-incrimination to >avoid > compliance with Internal Revenue Service (IRS) summons. U.S.C.A. >Const.Amend. > 5. > > [7] WITNESSES k298 > 410k298 > Contents of voluntarily prepared business records are not protected by >Fifth > Amendment privilege against self-incrimination. U.S.C.A. Const.Amend. >5. > > [8] WITNESSES k298 > 410k298 > Act of producing financial records and other documents that were >subject of > Internal Revenue Service (IRS) summons would be sufficiently >testimonial and > incriminating in nature to activate taxpayer's Fifth Amendment >privilege; act > of production would establish existence and authenticity of documents >listed in > IRS summons, as well as verify that documents were in taxpayer's >possession. > U.S.C.A. Const.Amend. 5. > > [9] WITNESSES k307 > 410k307 > Blanket refusal to produce records or to testify will not support Fifth > Amendment claim. U.S.C.A. Const.Amend. 5. > *1350 David M. Garvin, Philip T. Weinstein, Weinstein & Garvin, Miami, > Fla., for defendant-appellant. > Dexter W. Lehtinen, U.S. Atty., Lisa A. Hirsch, Asst. U.S. Atty., >Miami, Fla., > Kevin M. Brown, Gary R. Allen, Chief, Charles E. Brookhart, U.S. Dept. >of > Justice, Tax Div., Washington, D.C., for plaintiffs-appellees. > Appeal from the United States District Court for the Southern District >of > Florida. > > Before CLARK and BIRCH, Circuit Judges, and HENDERSON, Senior Circuit >Judge. > > BIRCH, Circuit Judge: > Appellant Alberto Argomaniz (Argomaniz) appeals from an order of the > United States District Court for the Southern District of Florida, >directing > him to comply with a summons issued by the Internal Revenue Service >(IRS). > Compliance with this IRS summons could violate Argomaniz's fifth >amendment > privilege against self-incrimination. Accordingly, we REVERSE the >district > court's order and REMAND for further proceedings consistent with this >opinion. > I. BACKGROUND > IRS records indicate that Argomaniz did not file income tax returns >for the > years 1984 through 1987. Therefore, the IRS initiated an investigation >into > Argomaniz's tax liability for those years. As part of this >investigation, the > IRS issued an administrative summons, pursuant to 26 U.S.C. s 7602 >[FN1], > directing Argomaniz to appear before IRS Officer Simmons to give >testimony and > produce relevant records and documents. [FN2] On June 20, 1988, the >summons > *1351 was served on Argomaniz. On July 12, 1988 and again on October >13, > 1988, Argomaniz appeared before Simmons, in compliance with the >summons, but > refused to produce any of the summonsed documents. He claimed that >production > of the documents would violate his fifth amendment privilege against >self- > incrimination. Simmons then referred the matter to the United States >Attorney > for enforcement action. On February 21, 1989, the United States filed >a > petition in the United States District Court for the Southern District >of > Florida, pursuant to 26 U.S.C. ss 7402(b) [FN3] and 7604 [FN4], to > enforce the summons. Attached to the petition was Simmons' >declaration, > stating that proper IRS summons procedure had been followed and that >the > documents and information sought by the summons were necessary to the >IRS > investigation and not otherwise available. The district court referred >the > case to a magistrate, who ordered Argomaniz to show cause why he should >not be > compelled to comply with the summons. On April 18, 1989, the show >cause > hearing was held. Argomaniz again raised his fifth amendment >privilege. After > instructing Argomaniz that he could raise his fifth amendment privilege >on a > question-by-question basis, the magistrate entered an order directing >Argomaniz > to comply with the summons. On April 28, 1989, Argomaniz appeared >before > Simmons and again refused to answer any questions or produce any >documents > relating to his tax liability for the years 1984 through 1987. [FN5] >The > United *1352 States then filed a motion requesting that the magistrate >enter > a report and recommendation. The magistrate complied and recommended >that the > district court direct Argomaniz to respond to the summons. In an order >entered > on August 7, 1989, the district court adopted the magistrate's report >and > recommendation. Argomaniz was ordered to comply with the summons >within > fifteen days. If he failed to do so, he would have twenty days to show >cause > why he should not be held in contempt. On August 22, 1989, Argomaniz >appealed > to this court from the district court's order, and filed a motion in >the > district court for a stay of enforcement of the order. By order dated >October > 10, 1989, the district court granted Argomaniz's motion and stayed >enforcement > of the summons pending his appeal, indicating that Argomaniz had shown >a > reasonable fear of criminal prosecution and that enforcement of the >summons > could force Argomaniz to waive his fifth amendment privilege against >self- > incrimination. [FN6] > > FN1. Section 7602 of the Internal Revenue Code provides: > (a) Authority to summon, etc.--For the purpose of ascertaining the > correctness of any return, making a return where none has been >made, > determining the liability of any person for any internal revenue >tax or the > liability at law or in equity of any transferee or fiduciary of any >person > in respect to any internal revenue tax, or collecting any such >liability, > the Secretary is authorized-- > (1) To examine any books, papers, records, or other data which may >be > relevant or material to such inquiry; > (2) To summon the person liable for tax or required to perform the >act, or > any officer or employee of such person, or any person having >possession, > custody, or care of books of account containing entries relating to >the > business of the person liable for tax or required to perform the >act, or > any other person the Secretary may deem proper, to appear before >the > Secretary at a time and place named in the summons and to produce >such > books, papers, records, or other data, and to give such testimony, >under > oath, as may be relevant or material to such inquiry; and > (3) To take such testimony of the person concerned, under oath, as >may be > relevant or material to such inquiry. > > FN2. The summons required Argomaniz to produce: > All documents and records you [Argomaniz] possess or control that >reflect > income you received for the year(s) 1984, 1985, 1986, [and] 1987. >These > documents and records include, but are not limited to: Forms W-2, >Wage and > Tax Statement, Forms 1099 for interest or dividend income, employee > earnings statements, and records of deposits with banks or other >financial > institutions. Also include any and all books, records, documents >and > receipts for income from, but not limited to, the following >sources: > wages, salaries, tips, fees, commissions, interest, rents, >royalties, > alimony, state or local tax refunds, annuities, life insurance >policies, > endowment contracts, pensions, estates, trusts, discharge of >indebtedness, > distributive shares of partnership income, business income, gains >from > dealings in property, and any other compensation for services >(including > receipt of property other than money). This includes any and all >documents > and records pertaining to any income you have assigned to any other >person > or entity. > > FN3. Section 7402(b) of the Internal Revenue Code provides: > (b) To enforce summons.--If any person is summoned under the >internal > revenue laws to appear, to testify, or to produce books, papers, or >other > data, the district court of the United States for the district in >which > such person resides or may be found shall have jurisdiction by >appropriate > process to compel such attendance, testimony, or production of >books, > papers, or other data. > > FN4. Section 7604 of the Internal Revenue Code provides: > (a) Jurisdiction of district court.--If any person is summoned >under the > internal revenue laws to appear, to testify, or to produce books, >papers, > records or other data, the United States district court for the >district in > which such person resides or is found shall have jurisdiction by > appropriate process to compel such attendance, testimony, or >production of > books, papers, records, or other data. > (b) Enforcement.--Whenever any person summoned under section ... >7602 > neglects or refuses to obey such summons, or to produce books, >papers, > records or other data, or to give testimony as required, the >Secretary may > apply to the judge of the district court or to a United States >commissioner > for the district within which the person so summoned resides or is >found > for an attachment against him as for a contempt. It shall be the >duty of > the judge or the commissioner to hear the application, and, if >satisfactory > proof is made, to issue an attachment, directed to some proper >officer, for > the arrest of such person, and upon his being brought before him to >proceed > to a hearing of the case; and upon such hearing the judge or the >United > States commissioner shall have power to make such order as he shall >deem > proper, not inconsistent with the law for the punishment of >contempt, to > enforce obedience to the requirements of the summons and to punish >such > person for his default or disobedience. > > FN5. The transcript of this hearing reads, in pertinent part, as >follows: > Q [Simmons]: State your name. > A [Argomaniz]: Al Argomaniz. > > * * * * * * > Q: Your social security number? > A: 267-11-1925. > Q: Your home address, your present home address? > A: 601 Vila Bella.... > Q: What city? > A: Coral Gables. > Q: Zip code? > A: 33143. > > * * * * * * > Q: Do you have your W-2 forms for the years 1984, '85, '86 and '87? > A: This box together with the boxes which I have brought but can't >carry > upstairs at one time contain such as [sic] the requested documents > [that]were under my custody or control at the time of service of >the > summons or at this time. > However, I respectfully decline to produce, identify or >authenticate such > documents based upon my Constitutional privilege [sic] against self > incrimination. > In making this claim I rely upon the advice of counsel .... > > * * * * * * > Q: Do you have your deposit information or bank records and other >financial > information with you for the periods '84, '85, '86 and '87? > > * * * * * * > A: Based upon my Constitutional rights, I refuse to answer that >question. > Q: ... Can you name the employees that you have had, can you give >me the > names of the employees you have had over the last four years, '84, >'85, '86 > an[d] '87? > A: Based upon my Constitutional rights, I refuse to answer. > Q: Have you received any interest income? > A: Based upon my Constitutional rights, I refuse to answer the >question. > Q: Do you have any other income sources other than salaries, wages? > A: Based upon my Constitutional rights, I refuse to answer the >question. > Q: Have you made any payments to these taxes for '84, '85, '86 or >'87? > A: Based upon my Constitutional rights, I refuse to answer the >question. > > * * * * * * > Q: You have the records and they apparently are sealed. Now I am >going to > ask you to turn them over to me--I will give you a document >receipt--turn > the sealed boxes over to me. > > * * * * * * > A: This box together with the boxes that I brought, cannot carry >upstairs > at one time, contain such as [sic] the requested documents that >were under > my custody or control at the time of service of the summons or at >this > time. > However, I respectfully decline to produce, identify or >authenticate such > documents based upon my Constitutional privilege against self > incrimination. In making this claim I rely upon the advice of >counsel.... > Q: All right. Well, I see no other recourse than to adjourn the >meeting > and proceed with the enforcement under the summons and the court >order. > > * * * * * * > Q: This concludes the interview. > > FN6. In its October 10, 1989 order granting Argomaniz's motion to >stay > enforcement of the summons, the district court stated: > Under the U.S. Supreme Court's holding in United States v. Doe, 465 >U.S. > 605 [,104 S.Ct. 1237, 79 L.Ed.2d 552] (1983) Petitioner [Argomaniz] >can > demonstrate at least some likelihood of prevailing on his Fifth >Amendment > claim on appeal. Furthermore, petitioner has shown more than a >generalized > fear of criminal prosecution. He was notified that he was to be >questioned > regarding his failure to file income tax returns for a three year >period. > Certainly petitioner [Argomaniz] has good reason to believe that >his > answers may tend to incriminate him, whether or not criminal >proceedings > have been instituted against petitioner [Argomaniz]. By not >staying > enforcement of the summons pending appeal, this Court would, in >effect, > deprive petitioner [Argomaniz] of his appeal on his Fifth Amendment >claim > and would force him to waive his constitutional right against self- > incrimination. > (emphasis added). > > II. DISCUSSION > [1] The fifth amendment privilege against self-incrimination [FN7] > "protects a person ... against being incriminated by his own compelled > testimonial communications." Fisher v. United States, 425 U.S. 391, >409, 96 > S.Ct. 1569, 1580, 48 L.Ed.2d 39 (1976). It "can be asserted in any > proceeding, *1353 civil or criminal, administrative or judicial, > investigatory or adjudicatory." Kastigar v. United States, 406 U.S. >441, > 445, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). Accordingly, a >taxpayer may > invoke this privilege in response to requests for information in an IRS > investigation. > > FN7. The fifth amendment provides that "[n]o person ... shall be >compelled > in any criminal case to be a witness against himself...." U.S. > Const.Amend. V. > > [2] The taxpayer seeking the protection of this privilege to avoid > compliance with an IRS summons "must provide more than mere >speculative, > generalized allegations of possible tax-related prosecution.... [T]he >taxpayer > must be faced with substantial and real hazards of self-incrimination." > United States v. Reis, 765 F.2d 1094, 1096 (11th Cir.1985) (per >curiam). > Thus, the question before us is whether Argomaniz has shown such a >"substantial > and real hazard of self-incrimination" that the fifth amendment will >excuse his > noncompliance with the IRS summons. The answer to this question will >depend on > whether compliance with the summons would provide information >incriminating to > Argomaniz, and, if so, whether the privilege properly was invoked. See > Grosso v. United States, 390 U.S. 62, 65, 88 S.Ct. 709, 712, 19 L.Ed.2d >906 > (1968). > A. Compliance With The IRS Summons Could Be Incriminating > [3] "The central standard for the ... application [of the fifth >amendment > privilege against self-incrimination is] whether the claimant is >confronted by > substantial and 'real', and not merely trifling or imaginary, hazards >of > incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. >697, > 705, 19 L.Ed.2d 889 (1968). The privilege applies only in "instances >where the > witness has reasonable cause to apprehend danger" of criminal >liability. > Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 >L.Ed. > 1118 (1951). The government claims that because the IRS investigation >was of a > civil nature (its alleged purpose was to determine Argomaniz's civil >tax > liability for the years 1984 through 1987), Argomaniz's fear of self- > incrimination is remote and speculative, and, therefore, not sufficient >to > invoke the fifth amendment privilege. However, the structure of the >IRS, the > nature of the summons procedure, and the facts of this case compel the > conclusion that the government's position is incorrect. There can >exist a > legitimate fear of criminal prosecution while an IRS investigation >remains in > the civil stage, before formal transfer to the criminal division. [FN8] > See > United States v. Sharp, 920 F.2d 1167, 1170 (4th Cir.1990) (The >privilege > against self-incrimination "may apply in the context of an IRS >investigation > into civil tax liability, given the recognized potential that such > investigations have for leading to criminal prosecutions."). > > FN8. The government relies on the following language from our >decision in > United States v. Reis, 765 F.2d 1094 (11th Cir.1985) (per curiam), >to > support its position that there can never be a reasonable fear of >criminal > prosecution while an IRS investigation is still in the civil >stages: > When the I.R.S. properly issues a summons in support of a civil > investigation to determine a taxpayer's legal liability, the mere >fact that > evidence might be used in a later criminal prosecution will not >support a > blanket claim of self-incrimination. > Id. at 1096 (emphasis in original). However, this passage does not > state that the privilege may never be invoked in a civil IRS > investigation. See United States v. Cuthel, 903 F.2d 1381, 1384 >(11th > Cir.1990) ("A witness may properly invoke the privilege when he >'reasonably > apprehends a risk of self-incrimination, ... though no criminal >charges are > pending against him ... and even if the risk of prosecution is >remote.' " > (quoting In re Corrugated Container Anti-Trust Litigation, 620 F.2d > 1086, 1091 (5th Cir.1980), cert. denied sub nom. Adams Extract Co. >v. > Franey, 449 U.S. 1102, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981))). >Instead, it > stands for the proposition that a blanket claim of >self-incrimination will > not be successful in a civil IRS investigation. See United States >v. > Allee, 888 F.2d 208, 212 (1st Cir.1989) (citing Reis for the >proposition > that a blanket fifth amendment objection to an IRS summons is not a >viable > defense). To the extent that Reis could be read otherwise, it is >obiter > dictum. Below we discuss the government's argument that >Argomaniz's fifth > amendment claim was a blanket claim. > > In United States v. LaSalle Nat'l Bank, 437 U.S. 298, 98 S.Ct. 2357, > 57 L.Ed.2d 221 (1978), the Supreme Court examined the nature of the IRS > investigatory system, and, relying in part on the legislative history >of the > Internal Revenue Code, concluded that the system's "criminal and civil >elements > are inherently intertwined." Id. at *1354 309, 98 S.Ct. at 2363. The > IRS summons procedure reflects the interrelationship of these >components. The > IRS summons served on Argomaniz required that he produce all documents >and > records related to income he received during the years 1984 through >1987. > [FN9] If Argomaniz did produce these documents, assuming that he did >possess > them, then both the civil and criminal aspects of the IRS system would >be > implicated. The IRS would be able to determine Argomaniz's civil tax >liability > for the years in question. However, although "[i]t is true that a >'routine tax > investigation' may be initiated for the purpose of a civil action >rather than > criminal prosecution[,] ... tax investigations frequently lead to >criminal > prosecutions." Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, >1505, > 20 L.Ed.2d 381 (1968) (holding that even in routine tax investigations >a person > in custody, regardless of the reason for his detention, must be given >the > warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, >16 > L.Ed.2d 694 (1966)). Thus, production of these documents and records, >if > incriminatory (as will be determined by the in camera inspection >directed > below), also likely would cause Argomaniz to incur criminal liability >for > violation of the Internal Revenue Code. > > FN9. See supra note 2. > > Section 7203 of the Internal Revenue Code [FN10] makes willful failure >to file > an income tax return a crime. Accordingly, production of these >documents would > establish two of the essential elements of this crime--it would prove >that > Argomaniz did have taxable income for the years in question, yet failed >to file > income tax returns. Under these circumstances, this civil tax >"investigation > has become 'an inquiry with dominant criminal overtones' ... [such that > Argomaniz was] entitled to raise his fifth amendment objections." >United > States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969). The criminal >penalties > with which Argomaniz was faced "were scarcely 'remote possibilities out >of the > ordinary course of the law' " and his "hazards of incrimination can >only be > characterized as 'real and appreciable.' " Grosso v. United States, >390 > U.S. 62, 66, 67, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968). See also >United > States v. Moss, No. 88-2676 (D.Md. July 24, 1990) (WESTLAW, 1990 WL >169256); > United States v. Cates, 686 F.Supp. 1185 (D.Md.1988). Therefore, > Argomaniz's apprehension of criminal prosecution clearly was >reasonable, > assuming that the records in his possession would be incriminatory >under the > circumstances existing at the time of production. [FN11] > > FN10. 26 U.S.C. s 7203 reads as follows: > s 7203. Willful failure to file return, supply information, or pay >tax > Any person required under this title to pay any estimated tax or >tax, or > required by this title or by regulations made under authority >thereof to > make a return, keep any records, or supply any information, who >willfully > fails to pay such estimated tax or tax, make such return, keep such > records, or supply such information, at the time or times required >by law > or regulations, shall, in addition to other penalties provided by >law, be > guilty of a misdemeanor and, upon conviction thereof, shall be >fined not > more than $25,000 ($100,000 in the case of a corporation), or >imprisoned > not more than 1 year, or both, together with the costs of >prosecution. > 26 U.S.C. s 6012 reads as follows: > s 6012. Persons required to make returns of income > (a) General rule. Returns with respect to income taxes under >subtitle A > shall be made by the following: > (1)(A) Every individual having for the taxable year gross income >which > equals or exceeds the exemption amount ... > > FN11. In the "Petition to Enforce Internal Revenue Summons" >Simmons filed > on February 21, 1989, she stated: "The books, records, papers, and >other > data sought by the summons are not already in the possession of the > Internal Revenue Service." In the Declaration attached to this >petition, > Simmons declared, under penalty of perjury, that "[t]he books, >papers, > records or other data sought by the summons are not already in the > possession of the Internal Revenue Service, or are not readily >accessible > to us." It should be noted that it would be improper for the IRS >to seek > enforcement of a summons, the objects of which already were in its > possession. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. >248, > 255, 13 L.Ed.2d 112 (1964). Therefore, because the IRS, by its own > declaration, has no other ready access to the summonsed documents, > Argomaniz's production of these documents, assuming the district >court > finds them to be in Argomaniz's possession, very well could be > incriminatory. > > [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 t > > >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! > > ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.2 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
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