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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
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========================================================================


      


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