UNITED STATES DISTRICT COURT

____________DISTRICT OF _____________________UNITED STATES OF AMERICA et al )Petitioners,  ) Civil Action NO._______________ vs ) MOTION TO DISMISS PETITION ) TO ENFORCE IRS SUMMONS___________________ ) (FIFTH AMENDMENT)Respondent. )

Respondent, above named, moves the Court to dismiss the above entitled action on the ground that enforcement of the IRS Summons would compel Respondent to act as a witness against himself in a manner that might tend to incriminate him. See attached MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT’S

PROTECTION AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION

CERTIFICATE OF SERVICE: I do hereby certify that on this date I sent properly a copy of this pleading to opposing council.

_______________________________ Date:________________
Respondent pro se
Address________________
______________________
Phone _________________

________________________________________________________________________

UNITED STATES DISTRICT COURT

___________________ DISTRICT OF __________________UNITED STATES OF AMERICA ) Petitioners, ) Civil Action NO._______________ )vs ) MEMORANDUM IN SUPPORT OF) RESPONDENT’S PROTECTION AGAINST__________________________ ) SELF-INCRIMINATION UNDER THERespondent ) FIFTH AMENDMENT

QUESTION PRESENTED

WHETHER RESPONDENT CAN BE COMPELLED TO PRODUCE EVIDENCE AGAINST HIMSELF, IN EITHER A FEDERAL OR STATE, CIVIL OR CRIMINAL PROCEEDING, WHICH COULD BE USED AGAINST HIM IN A FEDERAL OR STATE PROSECUTION, AFTER HE HAS PROPERLY CLAIMED PROTECTION AGAINST SELF INCRIMINATION UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION?

ARGUMENT I

IN A FEDERAL OR STATE ACTION TO ENFORCE AN ADMINISTRATIVE SUMMONS FOR THE PRODUCTION OF PRIVATE BOOKS AND RECORDS, THE RESPONDENT CANNOT BE COMPELLED TO PRODUCE THE RECORDS OR TO ANSWER ANY QUESTIONS WHICH MAY TEND TO INCRIMINATE AFTER HE HAS PROPERLY ENVOKED HIS RIGHT AGAINST SELF-INCRIMINATION

The Right is Available in All civil proceedings

To James Madison must go the credit for the Fifth Amendment. He was its author and advocate, and due to his insistance and unyielding demands it was finally adopted by the Constitutional Convention. In the beginning, the courts applied the protection of the Fifth Amendment only to defendants in criminal cases. However, in 1892, the Supreme Court extended this protection to witnesses in criminal cases, in what was called the “Counselman rule.” From there it was but a short step to civil cases, and since then, there have been a series of decisions by the Supreme Court widening the application of this protection to an increasing number of persons, applying not only to civil cases but even to legislative hearings.In McCarthy vs. Arndstein, 266 U.S. 34, a unanimous Court stated the principles on which respondent relies, as follows:

The Government insists, broadly, that the Constitutional privilege against self—incrimination does not apply in any civil proceeding. The contrary must be accepted as settled, the privilege is not ordinarily dependent upon the proceeding in which the testimony is sought or is to be used, it applies alike to civil and criminal proceedings, whenever the answer might tend to subject to criminal responsibility him who give it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects, likewise, the owner of goods which may be forfeited in a penal proceeding. See Counselman vs. Hitchock, 142 U.s. 547, 563, 564; 35 L ed. 110, 114 3 Inters. Corn. Rep. 816; 12 Sup. Ct. Rep. 195. (Emphasis added)

The protection of the Fifth Amendment against self- incrimination, as succinctly explained by Mr. Justice Brandeis has not been restricted in later decisions. It is equally clear that this protection applies in the instant proceeding. Moreover, in Kastigar vs. United states, 406 U.S. 441 at 444-5, Mr. Justice Powell unequivocally defines the scope of protection under the Fifth Amendment privilege, saying:
It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.

Valid Fear of Incrimination Protects Refusal to Produce Records and Testimony to Internal Revenue Service

A witness, summoned by the Commissioner of Internal Revenue was held justified in refusing to answer questions put to him by a revenue agent because of the danger of self-incrimination In re Friedman, 104 F. Supp. 419, 41 AFTR 1266 (D.C. N.Y. 1952). In the Friedman case the Court stated its position as follows:
The applicable law was recently restated in Hoffman vs. United States, 341 U.S. 479, 71 Sup. Ct. 814, 818 95 L. Ed. 1118:
The privilege afforded not only extends to answers that would in themselves support conviction under a federal criminal statute but likewise embraces those which would furnish a link to the chain of evidence needed to prosecute the claimant for a federal crime.

But one is not entitled to protection unless he has “reasonable cause to apprehend danger from a direct answer.” Hoffman vs. United States, supra 341 U.S. at page 486, 71 S. Ct. at page 818. 
The mere assertion of privilege does not immunize him; the court must determine whether his refusal is justified and may “require that he is mistaken” in his refusal. Hoffman vs. United States, Supra 341U.S. at page 486, 71 S. Ct. at page 818. The claimant is not required to prove the precise danger since by doing so he would be forced to disclose those very facts which the privilege protects.” United States vs. Weisman, 2 Cir., 111 F.2d 260, 262. Finally to sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Hoffman vs. United States, supra, 341 U.S. at pages 486—487, 71 S. Ct. at page 818.
Concededly, the claim was not stated by the witness with the meticulous clarity demanded of a legal craftsmen, but fundamental rights do not hang by the tenuous thread of a layman’s knowledge of the niceties of law. It is sufficient it appears that he is attempting to assert his constitutional privilege. The plea, rather than the form in which it is asserted, determines whether the privilege against self-incrimination is to be upheld. Although inartistically expressed it is clear that the witness intended to claim his privilege against possible federal, as well as state prosecution. See United States vs. St. Pierre, supra, 128 F.2d at page 980.
In an opinion by Chief Judge Kirkpatrick of the United States District Court for the Eastern District of Pennsylvania, United States vs. Vadner, 119 F. Supp. 330, 45 AFTR 717 (1954) the court upheld the refusal of a taxpayer to disclose assets and produce records where his plea of self-incrimination was based upon the Fifth Amendment. The Chief Judge stated the grounds for the Court holding as follows:

I am of the opinion that the defendant’s refusal, based on the Fifth Amendment privilege against self-incrimination, to make disclosure of his assets, was justified by the recent decisions of the Supreme Court in the Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814 95 F. Ed. 1118; Greenburg vs. United States, 343 U.S. 918, 72 S. Ct. 674, 96 L. Ed. 1332; and Singleton v. United States, 343 U.S. 944, 72 S. Ct. 1041, 96 L. Ed. 1349 cases.

In Hill vs. Philpott, 445 F.2d 144, the Seventh Circuit Court said: 

In numerous cases where the Internal Revenue Service has sought court enforcement of its summons pursuant to statute (26 U.S.C. Sec. 7402), courts have held that a taxpayer may refuse production of personal books and records by assertion of his privilege against self-incrimination. See, e.g., Stuart v. United States, 416 F.2d 459 (5th Cir. 1969); United States v. Cohen, 388 F.2d 464 (9th Cir. 1967); United States v. Kleckner, 273 F. Supp. 251 (S.D. Oh. 1967) App. Dism. 382 F.2d 1022 (6 Cir. 1967).

In the Hill case, supra, the Internal Revenue agents had obtained Dr. Hill’s records via search warrant issued by the District Court. Dr. Hill moved the District Court to suppress the evidence and order the records returned, which was denied. An appeal was taken to the Seventh Circuit Court, which reversed and remanded, and in footnote No. 6 said:

On oral argument government’s counsel suggested that it would have proceeded by summons in this case, but the defendant would have destroyed the records. Of course his destruction of the records would have been a pointless gesture, because as the government has been willing to admit, had it proceeded by summons, he could have relied on the Fifth Amendment privilege and refused production. . .

Mr. Jerome Daly of Savage, Minnesota appeared pursuant to an Internal Revenue Summons but refused to produce his private financial records or answer questions. He was later held in contempt of court. An appeal was taken to the Eighth Circuit Court, which remanded the case to the district court for a plenary hearing on appellant’s objections, as such had never been accorded to the appellant. On July 17, 1968, Daly appeared before the U.S. District Court, District of Minnesota, Third Division, No. 3-66-349, for the hearing. After considering Daly’s objections the Court held:

“As to each question asked, it is evident from the implications of the question in the setting in which asked, that a responsive answer to the question may tend to incriminate Jerome Daly.” The Court ordered that “IT IS HEREBY ORDERED that the order of this Court dated May 3, 1967, adjudging Jerome Daly in contempt of the court’s order of December 28, 1966 is hereby vacated.”

In United States vs. Vivian Kellems, Civil Action No. 1313-665,in the U.S. District Court for the District of Connecticut John M.Walters, Assistant Attorney General, withdrew the Government’s request for the enforcement of Internal Revenue Summons after Vivian Kellems properly plead the Fifth Amendment protection against self-incrimination. Mr. Walter’s letter to the Court said:

“Dear Judge Zampano

“Mr. Jeffrey Snow of this office, handling the above styled case, has informed me that he had a short conversation with you on March 31 , 1970. As you know it is the wish of this office, having studied the transcript of the hearing to withdraw our request for enforcement of the three summonses at issue. We are of the opinion that Miss Kellems has properly pleaded the Fifth Amendment privilege against self-incrimination as to her payment records [emphasis added].

“We have prepared the enclosed order for your signature.

“Sincerely yours,

“JOHNNIE M. WALTERS
‘‘Assistant Attorney General
“Tax Division”

The Court’s order read:

On motion of the petitioners to withdraw their request for enforcement of the three Internal Revenue Summonses at issue, it is ORDERED that said summonses are withdrawn and that the petition is dismissed.

On May 19, 1967, Commissioner of Internal Revenue, Sheldon S. Cohen, submitted a memorandum to Senator Edward V. Long, Chairman of the Subcommittee on Administrative Practice and Procedure, on remedies, civil and criminal, possessed by the Internal Revenue Service “in cases of Taxpayers who are recalcitrant as to (1) record keeping, (2) record production, and/or (3) answering questions.” Senator Long’s Subcommittee was making an investigation in depth of the Internal Revenue Service. He presented Commissioner Cohen’s report to the Senate on August 2, 1967. See “Rights of Taxpayers,” Congressional Record—Senate, August 2, 1967, page 20961, wherein Lester R. Vertz, chief counsel of the Internal Revenue Service, said:

Good faith challenges in the form of Constitutional and other federally recognized privileges are of course recognized by the Service. For example, the privilege against self-incrimination under the Fifth Amendment may be a proper basis by an individual taxpayer for refusing to answer specific questions or to furnish his records.

On March 8th and 9th, 1971, W. Vaughn Ellsworth of Mesa, Arizona appeared before the U.S. District Court for the District of Arizona at Phoenix, Case No. Civ. 70—587, in response to a petition to enforce Internal Revenue Summons. On page 10 of the transcript, line 7, the Court said:

If they were trying to get your personal tax records and not your corporate tax records, then I would be on your side, and all the law is on your side. Because all the different amendments you have cited are available to an individual. If your personal records were involved, you are not required to produce those, if you should choose not to, and stand on your right against self-incrimination, if they are personal records. [Page 79,line 3]

In the “Handbook for Special Agents” of the Internal Revenue Service, agents are instructed that “an individual taxpayer may refuse to exhibit his books and records for examination on the ground that compelling him to do so might violate his right against self-incrimination” (Sec. 242.12); and that “the privilege against self-incrimination must be specifically claimed, or it will be considered to have been waived” (Sec. 242.15).

In the case of United States vs. Petersen, Civ. No. 74-42-PHX-WPC, U.S. District Court for the District of Arizona, Asst. U.S. Attorney James P. Loss, in his response to the motion to dismiss, page 3, line 9, said: In the case of a taxpayer whose personal books and records and testimony are demanded, the existence of a Fifth Amendment privilege would seem unarguable .... Admittedly, a taxpayer can be compelled to appear in response to an Internal Revenue Summons, and a willful and contumacious refusal to do so would subject the taxpayer to criminal penalties under Section 7210 of the Code (U.S.C. Title 26) or contempt charges under Section 7604. However, the Supreme Court, in Reisman vs. Caplin, 375 U.S. 440, said: This statute [Section 7210] on its face does not apply where the witness appears and interposes good faith challenges to the summons. . . . It is sufficient to say that non-compliance is not subject to prosecution there under when the summons is attacked in good faith.’

Moreover, under the Reisman doctrine, failure to appear in response to the IRS summons is not punishable by fine, imprisonment, or contempt, unless the summoned party “wholly made default or contumaciously refused to comply.” Absent the required contumacious refusal to appear in response to the summons, it would seem clear that the law authorizes only compelled appearance. A case in point is United States vs. Johnson, No. CIV-8’ 78-687-PHX-WEC, U.S. District Court for the District of Arizona. In this case Internal Revenue Service petitioned the Court to enforce the summons served on the taxpayer. Whereupon the taxpayer claimed the Fifth Amendment privilege. Consequently, the court ordered: IT IS ORDERED that the above—named respondent shall in all respects comply with the Internal Revenue Service Summons which is the subject of this action, subject to respondent’s right under the 5th Amendment of the U.S. Constitution, to refuse to answer any question or produce any document which the respondent believes may tend to incriminate him, within 30 days of the date of this Order. IT IS FURTHER ORDERED that each of the parties may record the interview by tape recorder or other method at their own expense if they wish to do so. DATED this 3d day of October, 1978. [Emphasis added]

In the case of United States vs. Nichols, CIV-79-8-PHX-CAM, U.S. District Court for the District of Arizona, Internal Revenue Service petitioned the Court for an order enforcing Internal Revenue Service Summons. The respondent moved to dismiss the action on grounds of self-incrimination. After receiving a copy of respondents motion to dismiss, together with a memorandum of law in support, the U.S. Attorney himself moved the court to dismiss the case, as follows: Petitioners move the court to enter its order vacating its Order To Show Cause in this Internal Revenue Service summons enforcement matter and dismissing the action pursuant to Rule 41(a), Federal Rules of Civil Procedure, without prejudice or costs. And the Court ordered: Upon the motion of the petitioners, it is ordered that the Order To Show Cause issued in this matter is vacated and the action is dismissed without prejudice or costs.

A case virtually identical to Nichols, supra, is United States vs. Grigsby, CIV—8l—415—PHX-WPC, U.S. District Court for the District of Arizona. Grigsby failed to appear in response to an Internal Revenue Service Summons for production of records. The Service petitioned the Court for an enforcement order. Grigsby moved to dismiss on grounds of self-incrimination, with a supporting memorandum of law. The U.S. Attorney did not even ask the Court to compel Grigsby’s appearance, he just filed the following motion: Petitioners move the Court to vacate its Order to Show Cause and to dismiss this action without prejudice or costs, in light of Respondent’s assertion of the Fifth Amendment self-incrimination clause in response to the Internal Revenue Service Summons which is the subject of this summons enforcement proceeding. And the Court ordered: Upon the motion of the Petitioners and good cause appearing, IT IS ORDERED that the Order to Show Cause herein set for May 15, 1981 at 12:15 p.m. is vacated and the action is dismissed without prejudice or costs.

In the case United States vs. Walker, CIV-74-B-l, U.S. District Court for the Southern District of Texas, Brownsville Division, the civil action docket reveals that “Walker-Court compels deft to appear as summoned but has the right to keep silent on any questions that might incriminate him.” (Emphasis added). In United States vs. Cole, CIV-79-678-PHX-CAM, U.S. District Court for the District of Arizona, the respondent failed to appear in response to an Internal Revenue Service Summons. Internal Revenue Service Petitioned the Court for an enforcement order. Respondent was ordered by the Court to appear and show why he shouldn’t be compelled to testify and produce the documents demanded in the Internal Revenue Service Summons. Respondent appeared at the specified time and submitted a motion to dismiss on grounds of self-incrimination, together with a memorandum of law in support. Whereupon the Court ‘Ordered and Adjudged that the Petitioner take nothing, and that the petition and action are dismissed.’
Finally, in United States vs. Dickerson, 413 F.2d 1111, the Seventh Circuit Court said, “only a rare taxpayer would be likely to know that he could refuse to produce his records to IRS agents.”

 Federal Right Against Self—incrimination is Controlling in State Proceedings

The Supreme Court has made it abundantly clear, with respect to the federally guaranteed right against self-incrimination, that the states are bound by the very same law and standards which bind the Federal Government. Speaking for the Court, Mr. Justice Brennan, in Malloy vs. Hogan, 378 U.S. 1 at 11, said: It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified.

In Malloy at 8, the Court declared that: The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence.

and that: This conclusion is fortified by our recent decision in Mapp vs. Ohio, 367 U.S. 643 overruling Wolf vs. Colorado, 338 U.S. 25, which had held “that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure,’ 38 U.S., at 33. Mapp held that the Fifth Amendment privilege against self-incrimination implemented the Fourth Amendment in such cases, and that the two guarantees of personal security conjoined in the Fourteenth Amendment to make the exclusionary rule obligatory upon the States, 116 U.S. 616, decided in 1886, which, considering the Fourth and Fifth Amendments as running “almost into each other,” id., at 630, held that “Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man s own testimony or OT his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of [those Amendments] . . .

 In another case, Murphy vs. Waterfront Commission, 378 U.S. 52, decided the same day as Malloy, supra, the High Court held: That a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.

ARGUMENT II

THE RECORDS SOUGHT BY PETITIONER ARE PRIVATE AND NOT PUBLIC RECORDS

The records sought by petitioners are not corporate records, which must be produced at the suit of the state, as no privilege against self-incrimination exists as to such records. Wilson vs. United States, 221 U.S. 361, and Hale vs. Henkel , 201 U.S. 43. They are not records of “transactions which are appropriate subjects of governmental regulation and the enforcement of restrictions validly established,” such as where government has the right to control and regulate the sale of prescription drugs to protect the health and safety of society, as was the case in United States vs. Sherry, 294 F. 684; they are not records required to be kept which are “essential to the national security and defense, and for the successful prosecution of the war, to secure an adequate supply of foods, feeds, fuel, etc. ,“ which was the case in United States vs. Mulligan, 286 F. 893; and they are not records of “sales of intoxication liquors made by him, which should be subject to public inspection at reasonable times,” as was the case in State vs. Donovan, 10 N.D. 203, 86 N.W. 709.

Furthermore: The Governments anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the Constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the Constitutional privilege could be entirely abrogated by any Act of Congress. Marchetti vs.United States, 390 U.S. 39 at 57.

Finally: The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the State, since he receives nothing there-from, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and in accordance with the Constitution. Among his rights are and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he not trespass upon their rights. Hale vs. Henkel, supra,

ARGUMENT III

NO SANCTIONS WHATSOEVER CAN LAWFULLY BE IMPOSED UPON ONE WHO VALIDLY ASSERTS THE RIGHT AGAINST SELF-INCRIMINATION

For asserting the privilege against self-incrimination, the claimant is to “suffer no penalty” (Malloy, supra, at 8) and he is to suffer no economic sanctions or loss of his means of livelihood. Lefkowitz vs. Turley, 414 u.s. 70). See also Garrity vs. New Jersey, 385 U.S. 493; Gardner vs. Broderick, 392 U.S. 273; Lefkowitz vs. Cunningham, 431 U.S. 801; Raphal vs. Conrad, 371 F. Supp. 256; Spevick vs. Klein, 378 U.S. 511; and Blackburn vs. Alabama, 361 u.s. 199.

ARGUMENT IV

RESPONDENT’S FEAR OF INCRIMINATION IS SUBSTANTIAL AND REAL

In light of, but not limited to, U.S.C. Title 26, Sections 7201 to 7211 inclusive and Section 6103 (c) to (o) inclusive, it is readily apparent that the information demanded from respondent in the Internal Revenue Service Summons, which petitioners ask this Court to enforce, could substantially tend to incriminate respondent; and that in light of of the above cited statutes, it cannot reasonably be concluded that respondent’s fears of incrimination are frivolous or imaginary.

CONCLUSION

Respondent has validly claimed and is entitled to protection against self-incrimination provided by the Fifth Amendment to the United States Constitution.

CERTIFICATE OF SERVICE: I do hereby certify that on this date I sent properly a copy of this pleading to opposing council.

_____________________________ Date: _____________
Respondent pro se
Address_____________________
____________________________
Phone_________________