tag:blogger.com,1999:blog-1519969502186924526.post2765011268403702717..comments2023-10-24T08:00:53.865-05:00Comments on Federal Tax Crimes: Act of Production Doctrine and Particularity (3/12/09)Jack Townsendhttp://www.blogger.com/profile/14469823736335455874noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-1519969502186924526.post-6897757352578324842009-10-12T11:33:45.458-05:002009-10-12T11:33:45.458-05:00You are very welcome, Jack.
If you would, please ...You are very welcome, Jack.<br /><br />If you would, please let us know what you think of Scott's article.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-88789504691343715932009-10-12T11:27:34.962-05:002009-10-12T11:27:34.962-05:00Anonymous, thanks for the reference. Scott Michel...Anonymous, thanks for the reference. Scott Michel is an excellent lawyer. I look forward to reading the article.Jack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-61178189058380724842009-10-12T10:24:18.863-05:002009-10-12T10:24:18.863-05:00Jack,
I would like to invite you, your students a...Jack,<br /><br />I would like to invite you, your students and your readers to check out the article entitled "D.C. Circuit Extends Supreme Court's Interpretation of 'Derivative Use' Under 'Act of Production' Immunity authored by Scott D. Michel, President of Caplin & Drysdale, and published in the September 2006 Issue of the Andrews Litigation Reporter (20: 12). Here is a link to the Caplyn & Drysdale website containing a reprint of that article: http://www.capdale.com/files/Publication/637c06fc-a7da-4c4a-b394-01802ef1b795/Presentation/PublicationAttachment/c18fe760-4897-404c-89eb-016224f19b89/SDM%20-%20DC%20Circuit.pdf<br /><br />Thanks for the opportunity to exchange ideas on your blog.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-17571609917468693022009-10-12T09:21:55.249-05:002009-10-12T09:21:55.249-05:00Jack,
Thank you for clarifying Justice Thomas'...Jack,<br /><br />Thank you for clarifying Justice Thomas' point. In light of your clarification, I would be inclined to urge the US Supreme Court to hold that the Act of Production privilege extends to all records and tangible evidence (including handwriting exemplars) without a particularity predicate. <br /><br />I would certainly appreciate the opportunity for a future exchange regarding immunities.<br /><br />Thanks, again.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-42342180733849899872009-10-12T07:36:15.349-05:002009-10-12T07:36:15.349-05:00Anonymous
Again, you have given a thoughtful anal...Anonymous<br /><br />Again, you have given a thoughtful analysis of the issues I discuss in the blog. I make the following points:<br /><br />1. I think Justice Thomas' point was, not that the contents of documents are or should be privileged, but that the act of being required to produce documents should be privileged without any particularity predicate.<br /><br />2. I understand that you might give a Fifth Amendment privilege to contents, but think that such a rule sweeps too broadly.<br /><br />3. I am not sure that requiring the witness to consent or get a warrant is the right answer. If the Government could get a warrant, why subject the witness to the search? A subpoena for only the documents that the Government could have seized via search warrant seems like a reasonable way to go so long as we have the present rule. And, indeed, that may be a good reason that Justice Thomas' solution is not a practical one. <br /><br />4. I will have to put some thought into your arguments regarding immunities. Maybe, at an early point I will pick up a case involving immunities for discusion in the blog and I can weave in some of your thoughts (with appropriate attribution to anonymous, of course).Jack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-35498944147186061022009-10-11T22:18:58.609-05:002009-10-11T22:18:58.609-05:00Jack,
I agree with your discussion and especially...Jack,<br /><br />I agree with your discussion and especially, with your observation that the reasonable particularity test implicitly set forth in Hubbell and explicitly set forth in Ponds (as well as the 9th. Circuit's 2004 decision on this point of law) will guard against "unfocused fishing expeditions." <br /><br />I also think that we need to go back to the original intent of the Founders and interpret the Fifth Amendment so as to provide comprehensive protection against compelled testimonial communications. In this vein, we should adopt Justice Thomas's position in Hubbell and abandon the Act of Production Doctrine in favor of affoding protection to the actual contents of documents.<br /><br />Stated another way--I would favor Fifth Amendment protection for both the contents (including tangible items and handwriting exemplar) as well as for the act of production. <br /><br />If the proper federal, state, local or tribal authorities believe that that they can describe what they seek with reasonable particularity, they should have 2 options: (1) Get the possessor's/custodian's informed consent; or, <br />(2) Get a warrant.<br /><br />While we are on the subject of the Fifth Amendment, I would suggest that the US Supreme Court be urged to modify its holding in Kastigar and adopt the late Justice Marshall's dissenting opinion in that case, in part. Accordingly, I would urge that the US Supreme Court hold that the government can compel testimony over someone's assertion of his or her Fifth Amendment privilege by:<br /><br />1. Affording him/her absolute "transaction immunity" as to all matters and things he or she testifies in response to specific questions or requests for documents/things.<br /><br />2. Affording him or her "use/ derivative use immunity" as to everything else. For instance, if a witness is hauled into a Grand Jury and answers direct questions about a homicide, but in the course of his compelled appearance or testimony someone recognizes him or her as having participated in an armed robbery, "transactional immunity" should attach to the homicide charge and "use/derivative use immunity" should attach to any clues or leads linking him or her to the robbery.<br /><br />3. Additionally, "use/derivative use immunity" should be comprehensive and protect a witness who is subsequently prosecuted against the use of his or her compelled testimony "in any respect" (meaning both "evidentiary use" as well as "nonevidentiary use".).<br /><br />4. Also, all federal, state, local, and tribal prosecuting authorities should be required to establish the existence of both "legitimate independent sources" as to each item of disputed evidence and the lack of resort to "nonevidentiary use" (such as focusing of an investigation, order of calling witnesses, questions posed to witnesses, proposed jury instructions, motions in limine, and other legal strategy) by "clear and convincing evidence." <br /><br />5. Furthermore, the trial court should be required to conduct a "Kastigar hearing" pre-trial to determine whether the indictment should be dismissed and, if the case is not dismissed, to conduct appropriate proceedings to resolve suppression motions. My reasoning here is two-fold: (a) pre-trial Kastigar hearings are more conducive to evaluating the quashability of indictments based on immunity violations; and, (b) resolving motions to suppress based on the defendant's reasonably identifiable prohibited "evidentiary" and "nonevidentiary" uses is more appropriate in the context of a trial because the judge can evaluate the proffered evidence and Kastigar objections in a "factually concrete" setting.Anonymousnoreply@blogger.com