Fifth Amendment

United States v. Hubbell, 530 U.S. 27 (2000)

The subpoena served on the defendant required him to produce various documents that fit into several categories, such as “documents that reflect all income.” The defendant sought, and was given use immunity. Nevertheless, the government used these documents to obtain an indictment. The United States Supreme Court held that the indictment had to be dismissed. The act of producing the documents and corresponding authentication that these documents were responsive to the subpoena was “used” against the defendant. The Court observed that providing documentation in response to the broad categories requested was tantamount to answering a series of interrogatories about the sources and amount of income received by the defendant.

Mitchell v. United States, 119 S.Ct. 1307 (1999)

A defendant has a Fifth Amendment right to remain silent at sentencing and this may not be used against her. In this case, the defendant entered a guilty plea and the amount of drugs which would be attributed to her at sentencing was left open. At sentencing, the government introduced evidence relating to the drug quantity and the defendant did not respond. The trial court expressly considered the defendant's silence against her. The Supreme Court reversed: a defendant has a right to remain silent and this may not be used to her detriment.

Salinas v. Texas, 133 S. Ct. 2174 (2013)

The defendant was interviewed by the police and agreed to answer questions. During the questioning, the police asked him whether shotgun shells found at the scene would match his shotgun. The defendant did not respond. The state introduced this “failure to respond” at trial and argued that the defendant’s silence was evidence of his guilt. In a 5-4 decision, the United States Supreme Court held that a defendant’s non-custodial silence was admissible at trial and could be used to draw an inference of guilt, assuming the defendant does not affirmatively assert his Fifth Amendment right against self-incrimination.

United States v. Okatan, 728 F.3d 111 (2d Cir. 2013)

When confronted by the police – but not while in custody – the defendant answered a few questions, but then invoked his right to counsel. Repeatedly during trial, the government highlighted the fact that when questioned by the police, the defendant invoked his right to counsel. This occurred during the examination of the interrogating officer and during closing argument. This was reversible error. Unlike the situation in Salinas v. Texas, the defendant in this case did not simply remain silent in response to questions, here, the defendant affirmatively asserted his right to counsel. Using that express assertion of the privilege to remain silent (which, in this context was the same as the invocation of the right to counsel), as evidence of guilt, violates the Fifth Amendment rights of the defendant, even post-Salinas.

McKune v. Lile, 536 U.S. 24 (2002)

A Kansas prison regulation requires a sex offender to fully admit all of his sexual history in order to retain certain privileges and to stay in a less secure facility. The Supreme Court held that this provision does not violate the Self-Incrimination Clause in light of the consequences of the failure to “confess.”

Doe v. United States, 487 U.S. 201 (1988)

The Supreme Court holds that the government may require a suspect to sign forms requiring an off-shore bank to release information to the grand jury. Because the act of signing such forms is not “testimonial” it does not violate the defendant’s Fifth Amendment rights.

United States v. Balsys, 118 S.Ct. 2218 (1998)

A defendant may not rely on the Fifth Amendment privilege against self-incrimination if the only threat of prosecution exists in a foreign country.

United States v. Bahr, 730 F.3d 963 (9th Cir. 2013)

While on probation from a prior state sex offense, the defendant was required to take a polygraph (during which he confessed to certain sex offenses) and to fill out a “workbook” (in which he confessed to several sex offenses). Following his federal prosecution for a new offense, the probation officer provided this information to the sentencing judge. The Ninth Circuit held that the statements made by the defendant during the period of probation were “compelled self-incrimination” and should have been suppressed from the federal case on Fifth Amendment grounds. Even though he did not refuse to answer questions during his period of probation, the Fifth Amendment protection is “self-executing” and having been compelled to answer the questions (even without any objection on his part), the government was precluded from using this information in a subsequent proceeding. See Minnesota v. Murphy, 465 U.S. 420 (1984).

United States v. Bright, 596 F.3d 683 (9th Cir. 2010)

In the context of an IRS summons enforcement proceeding, the Ninth Circuit reviews the law concerning the Fifth Amendment in the context of a subpoena to produce documents. With respect to certain credit card records, the court concludes that the “foregone conclusion” exception to Hubbell applied, but with respect to other credit card records, the government did not establish that it was aware of the records, or the defendants’ possession of the records, prior to the issuance of the summons and therefore the taxpayers were entitled to assert the Fifth Amendment to resist production of these records.

United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006)

The grand jury was investigating an attorney in connection with his receipt of attorney’s fees from a particular client – specifically, his receipt of a car as a fee. A grand jury subpoena was issued, seeking any and all documents relating to the receipt of the car, documents relating to the fees paid by that client, documents relating to the attorney’s sister, documents relating to any other cars provided to the attorney by the client, and any documents relating to the client’s mother. The attorney sought and received “act of production” immunity. Nevertheless, he was indicted. The D.C. Circuit concluded that the trial court did not conduct a sufficiently rigorous Kastigar hearing. The trial court concluded that Fisher controlled, rather than Hubbell, because the government obtained only pre-existing documents in defined categories. The D.C. Circuit disagreed, holding that the document requests were sufficiently broad that they came within the Hubbell decision that bars the use of documents that are authenticated and categorized by the immunized target.

United States v. Saechao, 418F.3d 1073 (9th Cir. 2005)

A condition of probation that required the probationer to answer all reasonable questions of the probation officer truthfully violated his Fifth Amendment rights. In contrast to Minnesota v. Murphy, 465 U.S. 420 (1984), in this situation, the defendant would be penalized if he failed to answer the probation officer’s questions, while in Murphy, the defendant was simply required to be honest whenever he did answer questions.

De LiSi v. Crosby, 402 F.3d 1294 (11th Cir. 2005)

A witness who waives his Fifth Amendment privilege with regard to a topic in a judicial proceeding, may not later invoke the privilege, even in a separate legal proceeding, on the same topic. In this case, a prosecution witness previously waived his Fifth Amendment rights regarding possible charges of tax evasion. When cross-examined by the defendant at the defendant’s trial, the trial court erred in permitting the witness to invoke his Fifth Amendment rights. Harmless error.

United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)

The incarceration of a probationer who refused to disclose information about sex crimes for which he had not been prosecuted violated his Fifth Amendment rights. The consequences of refusing to reveal this information distinguished this case from McKune v. Lile, supra.

Doe v. United States, 383 F.3d 905 (9th Cir. 2004)

The subpoena to the defendant was so broad that it violated his Fifth Amendment right against compelled self-incrimination. Relying on Fisher and Hubbell, the Court held that the defendant was being required to authenticate (by his act of production) the existence of various documents. Therefore, holding the defendant in contempt for failing to comply with the grand jury subpoena was improper. The court specifically rejected the “foregone conclusion” exception to “act of production” immunity.

United States v. Kennedy, 372 F.3d 686 (4th Cir. 2004)

The AUSA improperly advised the defendant that when he appeared at the grand jury, he had no right to plead the Fifth, because he had already been convicted of drug charges about which he was being questioned (his case was still on appeal). The defendant’s answers led to a perjury prosecution. While condemning the misconduct of the AUSA, the Fourth Circuit holds that the erroneous advice did not provide a defense to the perjury charges.

Ketchings v. Jackson, 365 F.3d 509 (6th Cir. 2004)

The trial court improperly took into account the defendant’s failure to admit his guilty at sentencing. In short, the trial judge stated that the defendant’s failure to admit his guilt suggested to the court that he could not be easily rehabilitated and increased his sentence accordingly. This violated the principle set forth in Mitchell v. United States and required that a writ be granted unless a new sentencing hearing was conducted by a different judge.

United States v. Burgos, 276 F.3d 1284 (11th Cir. 2001)

Though this decision is in the Sentencing Guidelines context, the court holds that a defendant may not be penalized for refusing to cooperate with the government in a criminal investigation unrelated to the offense for which the defendant is to be sentenced. In this case, the trial court sentenced the defendant to the high end of the guideline range because of her refusal to cooperate in an investigation of her husband. This violated her Fifth Amendment rights.

United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998)

A defense witness (the defendant’s wife) refused to testify in support of her husband’s alibi defense because she had been threatened by the prosecutor with a perjury prosecution if she did. She could not invoke a blanket Fifth Amendment refusal to testify on this basis. Fear of a perjury prosecution for the expected testimony is not a basis for refusing to testify, because truthful testimony may not be prosecuted as perjury. The principal reason for reversing the defendant’s conviction in this case, however, was the misconduct of the prosecutor for threatening the witness in the first place.

United States v. McLaughlin, 126 F.3d 130 (3rd Cir. 1997)

When a grand jury subpoena is served on a corporation for corporate records, neither the corporation, nor the custodian may assert the Fifth Amendment privilege. Braswell v. United States, 487 U.S. 99 (1988). The flip side of this, however, is that if the custodian produces certain records (or fails to produce certain records), this fact may not be used against the custodian personally in a trial against that individual. Here, the custodian (the defendant) failed to produce certain records and the government argued to the jury that the failure to produce these records was evidence of his guilty state of mind. This was reversible error.

United States v. Gravatt, 868 F.2d 585 (3rd Cir. 1989)

The defendant, charged with tax evasion, refused to fill out a financial affidavit in his efforts to obtain a court appointed counsel. The Third Circuit held that it was error to require the defendant to complete the form. Rather, the Court should have provided the defendant a right to fill out the form for an in-camera review, or the defendant should have been granted immunity for purposes of obtaining an attorney.

United States v. Sharp, 920 F.2d 1167 (4th Cir. 1990)

The IRS was investigating the defendant because of his failure to file tax returns for a number of years. The defendant refused to answer questions when he received an IRS summons. The trial court erred in directing the defendant to respond to the civil inquiries. The fact that it was the civil division does not alter the incriminating nature of the information sought. The trial court indicated that the questions should be answered and if he was prosecuted, the court could then protect his rights by dismissing the indictment, or suppressing the evidence. This was not a proper method of preserving Fifth Amendment rights.

In re Hitchings, 850 F.2d 180 (4th Cir. 1988)

A witness testified under a grant of immunity at a grand jury proceeding. At trial, she asserted her Fifth Amendment privilege, but answered that she had testified truthfully at the grand jury. This one answer did not constitute a waiver of her Fifth Amendment rights.

United States v. Grable, 98 F.3d 251 (6th Cir. 1996)

A taxpayer has the right to assert the “act of production” Fifth Amendment privilege in response to an IRS summons enforcement proceeding. The defendant’s failure to file tax returns for two years presented enough of a risk of possible incrimination to support the invocation of the privilege against self-incrimination.

United States v. Troescher, 99 F.3d 933 (9th Cir. 1996)

A defendant may refuse to answer questions, or produce documents, in reliance on the Fifth Amendment, even if the only threat of prosecution is for a tax offense.

United States v. Safirstein, 827 F.2d 1380 (9th Cir. 1987)

During sentencing, the trial court noted that the defendant failed to cooperate and this indicated a lack of remorse. The judge indicated that he would rely on this factor in sentencing the defendant. The Ninth Circuit reverses holding that this constitutes a violation of the defendant’s Fifth Amendment privilege against self-incrimination.

United States v. Paris, 827 F.2d 395 (9th Cir. 1987)

A co-defendant of the defendant on trial was promised leniency and promised that a conspiracy charge would be dropped if he would cooperate at the defendant’s trial. He was called as a witness at the defendant’s trial but pled the Fifth Amendment because he had not yet been sentenced. The Ninth Circuit held that the witness could rely on the Fifth Amendment until such time as the conspiracy charge was, in fact, dropped and his sentence imposed on the substantive count.

United States v. Hardwell, 80 F.3d 1471 (10th Cir. 1996)

A defendant’s financial affidavit that is completed in an effort to secure appointed counsel after being indicted may not be used by the government at trial to prove that the defendant has no legitimate income. Using this affidavit penalizes the defendant’s right to secure appointed counsel and, pursuant to Simmons v. United States, 390 U.S. 377 (1968), the defendant’s right to counsel cannot be conditioned on providing incriminating information to the government.

United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997)

A witness may assert the Fifth Amendment privilege after he has pled guilty to a criminal offense but before being sentenced.

United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997)

A person may not refuse to incriminate himself on the basis of a perceived threat of prosecution in a foreign country.

United States v. Argomaniz, 925 F.2d 1349 (11th Cir. 1991)

The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. A taxpayer may invoke this privilege in response to requests for information in an IRS investigation. 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.

In re Grand Jury Investigation (Heller), 921 F.2d 1184 (11th Cir. 1991)

The grand jury subpoenaed an attorney’s trust account records during an investigation of the attorney for tax offenses. The attorney attempted to thwart the appearance of his secretary on Fifth Amendment grounds. However, because the Fifth Amendment is personal, it could not be asserted vicariously through the secretary. In a footnote, the Court also considered the argument that “personal papers” can never be covered by the Fifth Amendment. This argument, advanced by the government, was premised on the holding in Andresen v. Maryland, 427 U.S. 463 (1976), and represents a repudiation of the privacy-based rationale of the Fifth Amendment represented by Boyd v. United States, 116 U.S. 616 (1886). The theory of Andresen is that once one’s thoughts are reduced to writing, their compelled production is not self-incrimination. The court, while reviewing this argument, does not render a final verdict on this point.

Matire v. Wainwright, 811 F.2d 1430 (11th Cir. 1987)

During closing argument, the prosecutor referred to the defendant’s silence after having been warned of his Miranda rights. The government argued that evidence of post-arrest silence was probative on the defendant’s insanity defense. The Eleventh Circuit reverses on the basis of this Fifth Amendment violation.

United States v. Dean, 989 F.2d 1205 (D.C.Cir. 1993)

Defendant was the assistant to HUD Secretary Pierce who was under investigation by an Independent Counsel. She was subpoenaed to produce all documents in her possession relating to her work at HUD. She resisted, but was ultimately ordered to do so by the district court. At trial, the government sought to introduce the records and the fact that she produced them pursuant to a subpoena. The “act of production” doctrine, however, applied in this situation. Though the defendant was the custodian of “government records,” just as the custodian of business records may insist on being immunized before being compelled to produce documents – with regard to evidence of the act of production (as opposed to the contents of the documents) – a government custodian has that same right. This case contains a good discussion of the act of production doctrine, as well as the “required records” exception which provides that records which must be maintained are not subject to the “act of production” doctrine. The required records exception does not apply in this case because the records being subpoenaed were not required to be maintained by the government.

United States v. Lugg, 892 F.2d 101 (D.C.Cir. 1989)

A witness retains the Fifth Amendment right not to testify, even after the witness enters a guilty plea, and even though the witness entered into a plea agreement which required truthful testimony. The witnesses had not yet been sentenced and other charges which were to be dropped in accordance with the plea agreement, had not yet been dismissed.