Forbes | Filing Your Taxes Is Not Self-Incrimination, Rules Court Forbes So he took the Fifth. The court had an easy time with his argument, and rejected the claim. The Fifth Amendment does grant a privilege against self-incrimination. However, that doesn't mean you can just refuse to file taxes. The mere act of filing an ... |
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Filing Your Taxes Is Not Self-Incrimination, Rules Court - Forbes
Immigration Law
Posted Mar 09, 2017 04:50 pm CST
By Lorelei Laird
An ABA amicus brief filed March 8 argues that immigration courts should be required to consider ability to pay and flight risk before deciding on bond.
The brief (PDF) was filed to the 9th U.S. Circuit Court of Appeals in Hernandez v. Sessions, a class action that argues that the federal government violates the Fifth and Eighth amendments as well as the Immigration and Nationality Act when immigration judges set bond without consideration of the noncitizens ability to pay, flight risk or dangerousness.
When bonds are imposed without consideration of less restrictive conditions or the noncitizens financial resources, they may inadvertently cause a noncitizen to be detained solely because of his or her inability to pay, the brief says. That outcome violates bedrock constitutional protections.
The underlying lawsuit was filed by the American Civil Liberties Union of Southern California. According to the complaint (PDF), bond for lead plaintiff Xochitl (so-chee) Hernandez was set at $60,000 in March 2016, even though her sole crime during more than 25 years in the United States was shoplifting. Hernandez came to the United States without authorization as a teenager and is eligible for processes that could legalize her status. But she cannot afford the bond and remains jailed at an Immigration and Customs Enforcement detention facility.
Another lead plaintiff, Cesar Matias, is a Honduran national seeking asylum in the United States because he was persecuted at home for his sexual orientation. He has been detained for more than four years in a city jail in Orange County, the complaint says, because he cannot afford the $3,000 bond set by an immigration court.
The ACLU noted that immigration judges and ICE agentsboth of whom may set bondrequire the full amount of cash bond before release and often set five- or six-figure bond amounts without considering the noncitizens ability to pay. This is not authorized by the INA, the complaint says, and violates the Eighth Amendments excessive bail clause and the rights to due process and equal protection under the Fifth Amendment. A Central California district court issued a preliminary injunction that required consideration of ability to pay and less restrictive conditions of release before imposing bond.
The ABA asked the San Francisco-based 9th Circuit to affirm that ruling. The U.S. Supreme Court has held that pretrial detention violates noncitizens of their fundamental right to liberty, the brief says, and this is permissible only when theres a legitimate law enforcement purpose for the detention. When decision-makers dont take ability to pay into account, the brief says, they violate constitutional principles. They also hurt detained peoples abilities to defend their cases, deprive citizen children of their parents, and overburden the immigration detention and court systems, at a substantial cost to the public.
The ABA has expressly opposed routine detention of noncitizens in the 2006 Report 107E, the brief notes, and has recommended bond or bail only as a last resort in its Criminal Justice Standards and Civil Immigration Detention Standards.
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ABA endorses requirement to consider poverty, flight risk when immigration courts set bond - ABA Journal
History >> US Government The Fifth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It covers a number of topics and issues including the grand jury, double jeopardy, self-incrimination ("taking the fifth"), due process, and eminent domain. We'll explain each of these in more detail below.
From the Constitution
Here is the text of the Fifth Amendment from the Constitution:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The Grand Jury
The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.
Double Jeopardy
The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.
Taking the Fifth
Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.
Miranda Warning
You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.
Due Process
The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.
Eminent Domain
The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.
Interesting Facts about the Fifth Amendment
To learn more about the United States government:
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US Government for Kids: Fifth Amendment
As criminal law has expanded into almost every sector of the American economy, one byproduct is the rise of "parallel proceedings"lawsuits that proceed concurrently in criminal and civil court based on largely the same facts. Often times, the government is a party to both proceedings. This is most common in False Claims Act cases or in securities enforcement proceedings. But that is not always the case. Civil litigation, especially cases involving claims of fraud and deceit, may also attract the government's attention (sometimes in response to a request by one of the parties). In those cases, at least one of the parties will be confronted with the difficult task of navigating the two proceedings without doing violence to the client's interest in either.
The discovery process typically presents the most treacherous waters for the lawyers tasked with handling parallel proceedings. Criminal and civil practitioners who rarely venture over to the "other side" may forget or be unaware of the dramatic differences in a defendant's ability to request and obtain evidence when the defendant is the subject of an indictment instead of a civil complaint. This article explores some of those differences in the discovery contextthough litigants who find themselves involved in parallel proceedings will quickly find that differences in discovery are only one of the many factors that must be carefully considered as part of an overall litigation strategy.
United States v. Rand and Federal Discovery
A helpful case study of the different tools available to litigants in the civil and criminal context is the Fourth Circuit's recent decision in United States v. Rand. The government began investigating Michael T. Rand in 2007 in relation to alleged mortgage fraud that occurred while he was acting as chief accounting officer at Beazer Homes USA, Inc. ("Beazer"). In 2009, the SEC brought charges against Rand in a civil, regulatory proceeding on allegations that he had conducted a multi-year fraudulent accounting scheme. Then, in 2010, the government charged Rand criminally with accounting fraud and with obstructing the investigation into Beazer's mortgage practices. Before his trials, Rand sought leave of court to issue subpoenas pursuant to Federal Rule of Criminal Procedure 17(c) to obtain information regarding, among other things, Beazer's accounting systems. Rand's subpoena for documents to Beazer asked for "accounting entries, budgets, budget entries, and financial reports for seven categories of reserve accounts over an eight-year period (the timeframe of the alleged conspiracy)." Rand sought this information to bolster his defense of his accounting practices. The district court denied Rand's requests.
On appeal, the Fourth Circuit examined Rule 17(c) and held that the rule is "not intended to provide a means of pretrial discovery." Instead, the purpose of the rule is to expedite the trial by providing time and place before trial for the inspection of subpoenaed materials. Although requests like those contained in Rand's proposed subpoena would be considered commonplace in civil litigation, the Fourth Circuit found this request to be too broad under the Federal Rules of Criminal Procedure, comparing it to a "fishing expedition."
Criminal vs. Civil Discovery
The court's assessment highlights the differences in discovery in criminal and civil proceedings. Rand's options for discovery were more limited than they would have been in a civil case, as illustrated by the following chart listing the discovery tools available to criminal and civil litigants:
The Civil Side Methods for Obtaining Discovery under the Federal Rules of Civil Procedure
The Criminal Side Methods for Obtaining Discovery under the Federal Rules of Criminal Procedure
Rule 26(b)(1) permits discovery of "any non-privileged matter relevant to any party's claim or defense."
Rule 16 permits discovery, upon the defendant's request, of the defendant's statements, criminal record, and certain documents and tangible evidence the government intends to use in its case-in-chief at trial. Once the government has complied, Rule 16 triggers reciprocal obligations on the defendant's part.
Rule 27 Depositions to perpetuate testimony before an action is filed
Rule 15 Depositions are not allowed by right. Upon a party's motion, the court may allow oral depositions "to preserve testimony for trial" if there are "exceptional circumstances" and it is "in the interest of justice."
Rule 30 Depositions by oral examination
Rule 31 Depositions by written questions
The Criminal Rules do not provide a mechanism to require the opposing party to prepare written responses to questions. Accordingly, this method is not available to force the opposing party to take positions or forecast strategy.
Rule 33 Interrogatories to parties
Rule 36 Requests for admission
Rule 34 Requests for production of documents
Rule 16 The defendant has to make a request to trigger this Rule, which then creates reciprocal obligations to produce pre-existing documents that fit into broad categories articulated in the rule.
Brady v. Maryland, 373 U.S. 83 (1963), established that the government must turn over evidence that is exculpatory, or might exonerate the defendant. This includes evidence that might prove the defendant's innocence or reduce his or her sentence, as well as evidence that impeaches or discredits the government's case.
Giglio v. United States, 405 U.S. 150 (1972), provides that the government must disclose information relating to any deals that witnesses have received in exchange for their cooperation.
The Jencks Act, 18 U.S.C. 3500, requires the government to produce written statements and reports of its witnesses. This law only requires the production of Jencks material after the witness has testified, although the government frequently delivers the materials pre-trial in the interest of efficiency.
Rule 45 Subpoenas to third parties, which may command attendance at a deposition or command a party to produce or permit inspection of documents, electronically stored information, or tangible things.
Rule 17 Does not provide the defendant with a broad-reaching subpoena power. The court authorizes the issuance of a subpoena only if the terms meet the high standard articulated in United States v. Nixon: (1) that the documents are evidentiary and relevant; (2) that [the documents] are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that [the subpoenaing] party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.
By contrast, the government's ability to subpoena third parties through the power of the grand jury is almost unlimited.
As the chart makes clear, a civil litigant has far more ability to obtain information from the opposing side and third parties through a wide variety of tools. While the 2015 amendments to the Federal Rules of Civil Procedure impose a "proportionality" requirement, the civil rules remain designed to help the parties fully flesh out their theories and collect the evidence necessary to support them. It is also critical to remember that civil litigation can, and routinely is, resolved short of trial by jury based on the evidence collected through the discovery process and presented to the court in support of summary judgment. There is no analogous vehicle for challenging a criminal indictment.
The exchange of information in criminal cases, by contrast, is designed to expedite the decision to seek a trial of the case, or negotiate a plea. The government's obligation to produce information obtained during the course of the investigation is fairly broad, though the timing of the disclosures can often be a source of dispute since there are few firm deadlines established by the criminal rules. However, nothing obligates the government to investigate potential defenses to a charge. As such, the decision to accept a plea offer is made based not on a thorough review of all the available evidence, but on an evaluation of the evidence the government intends to present at trial. To the extent an affirmative defense rests on facts not collected during the government's investigation, the burden falls to the defendant to use the limited criminal discovery tools in his arsenal to collect potentially exonerating evidence.
This is precisely where Mr. Rand found himself. Rand's subpoena requests to Beazer would have been routine in a civil case. But because Rand was a defendant in a criminal matter, his ability to obtain such information from Beazer was significantly, if not entirely, diminished. Rand may have utilized civil discovery tools in the SEC's case against him, but that civil suit settled prior to the resolution of the criminal matter. While Rand would have had the opportunity to serve discovery and subpoena third parties in the civil matter, whether or not he would have elected to do so raises a number of critical strategic and legal questions that all litigants in parallel proceedings must consider.
Discovery Issues in Parallel Proceedings
Access to Discovery
For a defendant in a criminal case, the expansive discovery power in a civil action might seem to be an attractive way to get additional information. However, there are downsides to attempting to use a parallel civil case to obtain discovery that would also be useful for a criminal defense. First, courts are wary of criminal defendants skirting the criminal rules by using civil discovery tools. Despite the broad latitude civil litigants generally enjoy in conducting discovery, the court may be more willing to quash or limit requests geared towards the criminal defense, particularly if the government objects.
Additionally, the litigant must also consider that the same discovery tools used to obtain information may be used against him or her. While the discovery rules (especially the civil rules) often allow for broad investigation of the opposing side's case, they simultaneously create broad exposure to respond to civil discovery requests, which can multiply costs and create self-incrimination issues. These considerations become particularly complicated when the opposing civil litigant is a government entity. Federal agencies involved in civil enforcement actions work closely with the Department of Justice, and information obtained in these civil actions can be used in a later criminal proceeding.
Along the same lines, civil litigants also must exercise caution regarding the discoverability of materials provided to the government if the parties are in a cooperative posture. Regulatory agencies provide strong incentives for companies and individuals to cooperate in civil and administrative regulations. However, statements and documents provided in these civil proceedings are likely to be shared among agencies and may form the basis for a subsequent criminal prosecution.
Fifth Amendment Implications
The Fifth Amendments protection against self-incrimination applies to individuals in both civil and criminal proceedings. However, the application of this right differs in each arena. A criminal defendants decision to invoke his or her Fifth Amendment rights may not be used against him or her. Because the government cannot force a defendant to make pre-trial statements or testify at trial, a fact-finder is unlikely to even hear a defendant invoke his or her right against self-incrimination.
By contrast, in a civil setting, a party has no ability to assert a blanket invocation of his or her Fifth Amendment rights. Instead, these rights must be asserted on a question-by-question basis in response to written discovery requests, deposition questions, or even examination at trial. Further, unlike in the criminal setting, the invocation can be used against the individual who makes it. If an individual invokes his or her Fifth Amendment privilege against self-incrimination in a civil proceeding, the opposing party is entitled to an instruction to the fact-finder that it may draw an adverse inference from the invocation of Fifth Amendment rightsin other words, the fact-finder may infer that the invoking party is guilty of some wrongdoing.
Moreover, business entities have no testimonial protection under the Fifth Amendment, and cannot assert the privilege on behalf of individual employees. The Fifth Amendment does protect a witness from having to produce documents if doing so would be testimonial in nature by revealing the witness's mental processes. However, the privilege does not apply to corporate records or documents kept pursuant to law.
Stays of Litigation
Due to these complications, parties frequently seek stays of civil litigation pending the resolution of the related criminal matter. Criminal defendants might seek a stay to avoid making damaging admissions in the civil proceeding, or to avoid the application of the adverse inference. The government might wish to stay the civil litigation to prevent the defendant from using civil discovery to prepare his or her defenses, particularly since the defendants Fifth Amendment rights prevent the government from using civil discovery similarly. While requests for stays technically are not granted as a matter of course, courts generally will stay the civil litigation if one or more parties can demonstrate true risk of injury arising from the concurrent proceedings.
Conclusion
Successfully litigating through parallel proceedings is an endeavor fraught with peril. Litigants involved in concurring civil and criminal matters, like the defendant in Rand, should seek the advice of counsel skilled in navigating parallel proceedings to avoid potential discovery pitfalls.
Originally posted here:
A Parallel Universe: Navigating Discovery in Concurrent Civil and Criminal Proceedings - JD Supra (press release)
The following cases were heard in Edgartown district court.
March 2
Belmiro Baptista, 65, of Pawtucket, R.I., will have Oct. 7 charge in Gosnold of misc. statutory violation (possessing undersized tautaug) dismissed if $1,000 in costs paid in six months. Charge of misc. statutory violation (possessing sea bass in closed season) dismissed upon request of commonwealth. According to state environmental police report, patrol boat allegedly found four black sea bass during closed season and 19 undersized tautaug aboard vessel during patrol of Buzzards Bay and Vineyard Sound.
Eudes R. Deoliveira, 55, of Edgartown, had Feb. 21 charges in Edgartown of assault and battery with dangerous weapon and assault with dangerous weapon dismissed upon request of commonwealth, alleged victim having fifth amendment issue. In separate case, arraigned on Feb. 4 charges in Vineyard Haven of negligent operation of motor vehicle, operating motor vehicle with license suspended, and marked lanes violation.
Maria Dirino, 50, of Vineyard Haven, had June 2015 charge in Oak Bluffs of leaving the scene of property damage dismissed upon success of motion to dismiss.
Jonathan A. Larkin, 31, of Aquinnah, had Feb. 21 charge in Edgartown of assault with dangerous weapon dismissed upon request of commonwealth, alleged victim having fifth amendment issue.
Vinicio J. Medeiros, 29, of Vineyard Haven, will have November 2007 charge in Edgartown of negligent operation of a motor vehicle dismissed if $300 in court costs paid forthwith. Charge of unlicensed operation of motor vehicle dismissed upon request of commonwealth and found not responsible on failure to wear seat belt.
Zilmara Moraes, 38, of Vineyard Haven, arraigned on March 1 charge in Edgartown of assault and battery on family/household member. Pretrial hearing scheduled for May 4.
Breno E. Silva, 31, of Oak Bluffs, found not guilty in bench trial on charge of drunken driving, second offense. Found guilty on charge of negligent operation of motor vehicle, sentenced to 90 days in house of correction, suspended 18 months and placed on probation for 18 months. Ordered to pay $300 in fees and $50 monthly probation services fee and remain alcohol free with screens, if successful for first six months may be without screens. Found responsible on charges of marked lanes violation and failure to stop/yield, ordered to pay $200 in fines/assessments.
March 3
Mia Church, 48, of Ingram, Tex., admitted to sufficient facts on July 3 charge in Edgartown of drunken driving, continued without finding for one year and ordered to pay $600 in fees and $65 monthly probation services fee, complete 24-day driver alcohol education fee, and lose license for 45 days. Charge of negligent operation of motor vehicle dismissed upon request of commonwealth and found not responsible on marked lanes violation, possessing open container of alcohol in motor vehicle, and motor vehicle lights violation.
Nicholas Graham, 27, of Vineyard Haven, had Oct. 8 charge in Vineyard Haven of criminal harassment dismissed upon successful motion to dismiss.
Carrie Natusch, 42, of Vineyard Haven, arraigned on Jan. 21 charges in Edgartown of negligent operation of motor vehicle, leaving scene of property damage, failure to stop/yield, no inspection/sticker, and trespassing with motor vehicle. According to police report filed in court charges stem from alleged accident at intersection of Barnes Road and Edgartown-West Tisbury Road in which defendant allegedly went through stop sign and drove about 100 feet into the woods; vehicle allegedly found later at a private property. Pretrial hearing scheduled for April 7.
Denis E. Toomey, 32, of Walpole, pleaded guilty on Nov. 26 charges in Edgartown of larceny from a building and breaking and entering a building in nighttime for a felony, sentenced to two years in house of correction, suspended two years and placed on probation for two years. Ordered to submit DNA, pay $90 victim/witness assessment fee, and pay $1,700 in restitution out of court. According to police report allegedly broke into Suka in Edgartown and stole about $1,300 worth of items.
Nicole Wiggins, 46, of Hyde Park, admitted to sufficient facts on July 9 charge in Oak Bluffs of negligent operation of a motor vehicle, continued without finding for six months and ordered to pay $300 in fees and $50 monthly probation services fee. Charge of drunken driving, second offense dismissed upon request of commonwealth and found not responsible on marked lanes violation.
March 6
James W. Hart, 21, of Vineyard Haven, admitted sufficient facts on Dec. 26 charge in Vineyard Haven of assault and battery on a police officer, continued without finding for one year, ordered to pay $50 victim/witness assessment fee and $65 monthly probation services fee, remain drug and alcohol free with screens, and attend and complete New Paths and engage in counseling as recommended until professionally discharged.
David C. Hawkins, 55, of Vineyard Haven, arraigned on March 4 charges in Vineyard Haven of disorderly conduct, resisting arrest, and two counts of threat to commit a crime. Pretrial hearing scheduled for April 21.
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Public Record of Cases Heard in Edgartown District Court - The Vineyard Gazette - Martha's Vineyard News