Tuesday, December 22, 2009

Fifth Amendment Limits

CAVEAT:  This blog and the excellent comments from readers below should be read in conjunction with a follow-up blog here.

In a Q&A session such as a summons interview or grand jury session, witnesses may assert a Fifth Amendnment privilege only as to questions the answers to which might have a tendency to incriminate them. That is to say that there are questions that do not implicate the privilege and must be answered. Practitioners advising witnesses must be careful to properly assert the privilege and not to inadevertently allow answers that should be within the privilege. That is a bit dicey in grand jury proceedings where the attorney is outside the grand jury room, and the witness must stop the grand jury questioning in order to consult with his or her attorney. But the key issue for this blog is what answers would tend to incriminate the witness.

A recent case develops the issue quite nicely. In United States v. Elmes (S.D. FL 2009 - No. 0:09-mc-61726), the IRS issued a summons for the taxpayer's testimony and documents. The summons was issued in aid of collection of 2000 and 2001 income taxes that were already assessed; the IRS needed to develop facts relevant to the taxpayer's current financial condition and ability to pay. At the ensuing Q&A session, the witness declined to answer the majority of the questions, asserting First, Fourth and Fifth Amendment privileges.

The IRS brought a summons enforcement case. The court held two hearings, and at the second hearing evaluated the witness's claim of privilege on a question by question basis. The court held that, except as to 2 questions, the witness's assertion of privilege was improper and ordered her to answer.

Focusing on the Fifth Amendment (the only real potentially viable claim of privilege), the Court made the following holdings:

1. The Fifth Amendment privilege does not apply to questions relevant to current financial condition because there is no real and substantial hazard of criminal prosecution. (JAT Note, if the issue were whether prior recent statements as to her financial condition constituted criminal conduct, then her present financial condition might invoke the Fifth Amendment privilege, but that was not the casel in Elmes.)

2. The Court rejected a claim of privilege with respect to the production of documents. The taxpayer's generalized claim of privilege failed to state how the documents or the act of producing the documents could tend to incriminate. (JAT note: presumably the documents requested in the summons cleared the Hubble particularity hurdle.)

3. Section 7210, providing a criminal penalty for failure to comply with a summons, is not a basis for a Fifth Amendment claim; all the taxpayer has to do is comply with the summons by producing documents and answering the questions (subject to proper assertions of privilege) to avoid that criminal possibility.

4. The potential for committing perjury in the summons enforcement proceeding is not a valid Fifth Amendment claim.

The court concluded:

Due to the nuances of the applicable law, it is important for the Court to specify exactly what issues are being decided. The Court finds that Respondent cannot rely on a generalized fear of the IRS to invoke her Fifth Amendment privilege to avoid providing information regarding her current financial ability to pay outstanding tax liabilities from 2000 and 2001. That Respondent may face future criminal prosecution if she decides not to comply with the Summons or because she will not pay civil penalties is insufficient to withhold current financial information, which is not incriminating. The Court acknowledges that a different analysis will apply if the United States uses any information provided by Ms. Elmes in response to the Summons for a criminal prosecution unrelated to her 2000 and 2001 liabilities.

This is not a fishing expedition. The IRS is seeking basic financial information that millions of American taxpayers voluntarily provide to the government each year. Most of those with no more prompting than an April 15th deadline. Whether Ms. Elmes pays her taxes is ultimately an issue to be resolved between her and the IRS. While the Court respects Respondent's right to present a good-faith and vigorous defense on her own behalf, the Court also expects that the Respondent will comply with this Court's Orders once a decision has been made. Failure to do so will subject Ms. Elmes to possible sanctions such as the imposition of costs and incarceration separate and apart from her issues with the IRS.


  1. Based on a careful review of the record of this case, Ms. Elmes' Fifth Amendment objections were "generalized." She did not "specify" just how answering the questions asked or providing the documents demanded would incriminate her. Stated another way: she did not "describe" how answering the questions or providing the demanded documents could potentially enable a hypothetical investigator to construct a link in a chain of evidence to help convict her of one or more federal or state offenses.

    Moreover, I take serious issue with the Court's dismissal of Ms. Elmes claim that the IRS was not engaging in a "fishing expedition". This is disengenous because the broad demand for documents fall well within the heartland of "fishing" or "interrogatories" described by the US Supreme Court in Hubbell.

    I am very critical of the district judge's ruling in this case. What we have here is a pro se litigant inartfully advocating her own 5th Amendment right. The Court is duty-bound to hold her conduct, including legal arguments, to a less stringent standard than that applicable to those learned in the law. See Haines v. Kerner, 404 U. S. 519 (1972).

    The Court only promotes disrespect for the law when those whom, like Mr. Webster Hubbell, a former Chief Justice of the Arkansas Supreme Court and Associate Attorney General of the US, have the financial resources to successfully defend their 5th Amendment rights while a relatively destitute woman's rights are so cavalierly thrown under the bus. Our time-honored requirement of equal justice under the law warrants much greater respect for this woman's 5th Amendment rights.

    1. Wouldn't offering those specifics put her in further danger of incrimination? This is a logical battle. I suspect an appeal and better logicians would garner better results.

      As to your final comments, the justice system slows down the battles among free people. Free men are not equal and equal men are not free. The justice system runs on money and so people with more money will always exert some control -- logic dictates this. We need courts that operate free of money; how would we do that?

  2. I have some additional observations:

    1. In order to uphold, protect and preserve Ms. Elmes' 5th Amendment rights, the applicable jurisprudence requires that she refuse to comply with the Court's order, allow herself to be held in contempt, file a notice of appeal from the Court's contempt order, seek a stay of any fines or incarceration pending direct appellate review, and seek expedition of the appeal pursuant to the recalcitrant witness statute (18 USC Sec. 1826(b)). Anything less could very wel be construed as a waiver of her 5th Amendment right. See Maness v. Meyers, 419 U.S. 419, 461-464 (1975).

    2. I would advance the position that the US Supreme Court's decision in Maness v. Meyers, 419 U.S. at 466, positively stands for the fundamental proposition that a witness who may be compelled to testify over her 5th Amendment right must be afforded the assistance of competent counsel. Id. ("The assertion of a testimonial privilege, as of many other rights, often depends upon legal advice from someone who is trained and skilled in the subject matter, and who may offer a more objective opinion. A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege. [Footnote 15] It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion.").

    3. Further, if Ms. Elmes does not have the resources to retain competent counsel, the Court is duty-bound to afford her counsel to assist her with the protecting her 5th Amendment rights throughout all trial court as well as direct appellate proceedings. Anything less would be inconsistent with her fundamental rights to due process of law and equal protection of her legal rights.

    4. Finally, if Ms. Elmes is unable to establish her entitlement to court-appointed counsel without potentially waiving her 5th Amendment right, she must receive statutory of use and derivative use immunity. See US v. Gravatt, 868 F. 2d 585 (3rd. Cir. 1988); 18 USC Secs. 6001-6005. This is because only statutory use and derivative use immunity and not any kind of would suffice to supplant her 5th. Amendment right. See Kastigar v. US, 406 U.S. 441 (1972). So called "Simmons Use Immunity" misses the constitutional mark. Compare Simmons v. US, 390 U.S. 377 (1968); Salvucci v. US, 448 U.S. 83, 93-94 (1980) (Stating, in relevant part: "But the issue presented here is quite different from the one of whether "use immunity" extends only through the Government's case-in-chief, or beyond that to the direct and cross-examination of a defendant in the event he chooses to take the stand. That issue need not be and is not resolved here, for it is an issue which more aptly relates to the proper breadth of the Simmons privilege"); and, Justice Marshall's dissenting opinion in Salvucci, 448 U.S. 83, 95-97 (1980).

  3. Jack- I am embarrassed that a judge of my district would conduct a summons enforcement proceeding and rule as this judge did. The Fifth Amendment was clearly implicated by almost all of the questions judge ordered her to answer. No in camera anything necessary. Hoffman dictates otherwise and other judges from earlier times here would have done it differently. Also, the waiver issue as decided is questionable.

  4. P.S. The court also interpreted Sullivan incorrectly. It says only you are not privileged from revealing your income on your tax return even though compelled by law to file it, subject to prosecution for failure to file, it does not say that IRS can get the amount of income stated from the taxpayer's mouth.

    This is but an example of how a pro se party makes very bad law. (I assume the government attorney did not feel obligated to present a more correct analysis of the Fifth Amendment in tax proceedings).

  5. Anonymous and Steven,

    These are all great comments. Thanks for posting them. I will try to respond but need some time to consider your comments to make sure that my comments further the discussion.

    I do note at the outset, however, the key issue the Judge faced in the case and witnesses and practitioners face in this type of circumstance -- which questions do demand answers that are subject to a legitimate Fifth Amendment privilege. This is so heavily fact dependent that general rules cannot be easily devised, but the basic general rule is that the practitioner and the witness must err on the side of caution to protect the Fifth Amendment right, so that a minimal connection between the answer and possible incrimination should suffice for a valid assertion of the Fifth Amendment privilege.

    The Judge procedurally did the right thing. The Court describes the process:

    The Court held two separate hearings regarding the Petition. At the second hearing on December 4, 2009, the Court evaluated Respondent's claims of privilege on a question-by-question basis. With the exception of two questions, the Court found that Respondent did not have a valid claim of privilege under the First, Fourth or Fifth Amendment.


    The process of evaluating the question and then permitting the witness to explain some connection between a responsive answer and a legitimate fear of incrimination -- in camera if necessary -- is the right process. Since we don't have the questions or the defendat's allegation of minimal connection to fear of incrimination, it is hard to evaluate whether the Judge got it right. But it is evident that the process was the right process.

    Jack Townsend

  6. In view of the comments, I thought I would provide a link to the decision. I therefore have added that link in the text of the blog. Just click on the case name.

    Jack Townsend

  7. One thing I picked up when I downloaded the decision from LEXIS-NEXIS for posting was the there has been a lot of Timothy Elmes cases in the 11th Circuit involving IRS summons enforcement. I don't know whether Timothy is related to Ms. Elmes in this case, but the Elmes seem to be keeping the courts busy. Here are the other cases I picked up.

    United States v. Elmes, 532 F.3d 1138 (11th Cir. Fla. 2008)

    Elmes v. United States, 264 Fed. Appx. 776 (11th Cir. Fla. 2008)

    United States v. Elmes, 2007 U.S. Dist. LEXIS 24320 (S.D. Fla. 2007)

    United States v. Elmes, 2007 U.S. Dist. LEXIS 10082 (S.D. Fla. 2007)

    Elmes v. United States, 2007 U.S. Dist. LEXIS 24314 (S.D. Fla. Jan. 30, 2007)

    Elmes v. United States, 2007 U.S. Dist. LEXIS 16136 (S.D. Fla. 2007)

  8. May I suggest that if Steven (or anyone else reading this Blog for that matter) practices in the Miami/Fort Lauderdale area that he do what he can to assist Ms. Elmes in obtaining the services of a competent attorney to assist her in preserving her 5th Amendment rights in the trial court as well as on direct appeal.

    I would think that a motion to vacate pursuant to Fed.R.Civ.P. 60(b) could conceivably be used in tandem with a direct (expedited per 18:1826(b)) appeal from the Court's entry of its December 4 and 17, 2009 Orders.

    The Cause of Justice as well as our abiding respect for the US Constitution's mandate of due process of law and equal protection of our legal rights require that members of the legal profession come to Ms. Elmes' aid.

    I cannot emphasize too strongly that we must do what we can reach out to Ms. Elmes even if it appears, at least at first blush, that Ms. Elmes is a tax protester (or even a so-called "tax defier"). This is because the clear threat to Ms. Elmes' exercise of her 5th Amendment rights can, likewise, present a serious danger to anyone of us exercising the same.

    Need anyone of us be reminded of the significance of this time-honored expression: "There but for the grace of God go I"?

  9. I agree with Steven that the judge got Sullivan wrong. That decision does not stand for the proposition asserted by the judge.

    I will have more on this topic later.

  10. I think we may be jumping the gun on this case. The issue is whether responsive answers to the questions might tend to incriminate Ms. Elmes. We don't have the questions nor the context of potentially responsive answers. I can imagine many questions to Ms. Elmes that would not tend to incriminate her. For example, if the RO were to ask, "Ms. Elmes, do you reside in the house as 2301 Elm Street, Central, USA." That is a yes or no question and there is nothing on the face of the question to indicate that an answer to that question would or could be incriminating. Of course, there may be contextual circumstances that might make an answer incriminating, but it is the witness' responsibility to bring that to the court's attention, in camera if necessary.

    We might draw some reasonable conclusions if we had the questions the Judge is forcing her to answer (and more context). But we don't, except for the two questions as to which the Judge permitted Ms. Elmes to assert the Fifth Amendment privilege: "In addition, the Court did find that Ms. Elmes could rely of the Fifth Amendment to avoid answering the questions of why she did not file tax returns from 2002 to 2007 and whether she intended to file such returns." Judge Cohn clearly got that one right and that is the only one we can adequately assess based on the opinion.

    As I noted, there could be such circumstances which the witness must call to the Judge's attention. Although the taxes in question were 2000 and 2001 taxes, as to which the criminal statute of limitations would normally be closed, the defendant might have done something to refresh the statute so as to have a legitimate fear of incrimination. Alternatively, since the witness had failed to file returns for 2002-2007, with some of those years clearly within the criminal statute of limitations for failure to file or any of a number of possible charges, she would have a privilege as to questions bearing on her criminal liability for that failure (probably failure to file). Or, if she had done some shenanigans to avoid the IRS detecting or getting to her assets, then most of the questions might almost facially permit a valid Fifth Amendment claim. But, the drill still requires that the Judge make that decision in context which it is the claimant's duty to supply.

    As to the documents, I don't know whether the duces tecum part of the IRS summons was a fishing expedition or not. I suspect it may have been. Perhaps there are Hubble particularity issues there. But the decision is just not sufficient to make an assessment of that.

    I realize that the witness here was pro se, and requires special patience from the court. She obviously consumed more time than most witnesses in a summons enforcement proceeding. Still, that is not an excuse to get it wrong, but I am not convinced that the judge got it wrong on the basis of what I see. I may think I see some smoke, but that does not make it a fire.

    Finally, the witness may be in want of experienced counsel to preserve important constitutional rights, but again I don't think that is self-evident that she has been denied her constitutional rights from the opinion.


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