732 F.2d 814 (11th Cir. 1984), 84-3101, United States v. Ghidoni

Docket Nº:84-3101.
Citation:732 F.2d 814
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lawrence L. GHIDONI, Defendant-Appellant.
Case Date:May 02, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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732 F.2d 814 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lawrence L. GHIDONI, Defendant-Appellant.

No. 84-3101.

United States Court of Appeals, Eleventh Circuit

May 2, 1984

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W. Dexter Douglass, Tallahassee, Fla., Edward M. Booth, Lamar Winegeart, III, Jacksonville, Fla., for defendant-appellant.

Glenn L. Archer, Jr., Michael L. Paup, Asst. Attys. Gen., Robert E. Lindsay, Alan Hechtkopf, Laurens Tullock, U.S. Dept. of Justice, Tax Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before HENDERSON, ANDERSON and CLARK, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

In this appeal, we consider whether the defendant, Lawrence Ghidoni, can invoke the Fifth Amendment to justify his refusal to sign a consent directive that would enable the government to obtain records from a Cayman Islands bank. The district court ordered Ghidoni to execute the directive. 1

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Ghidoni refused, arguing that compelled execution of the directive would violate his right against self-incrimination. The district court rejected the claim and found Ghidoni in contempt. We affirm.

FACTS

On October 5, 1983, the grand jury for the Northern District of Florida returned an indictment charging Ghidoni with four counts of willful tax evasion, in violation of 26 U.S.C. Sec. 7206(1). The indictment alleged that Ghidoni, as an individual and through his wholly-owned Florida corporation, had in 1976 and 1977 engaged in a scheme whereby income from building material sales to foreign purchasers was diverted to accounts with the Bank of Nova Scotia in the Cayman Islands. The allegedly diverted income was not reported on the corporation's tax returns for those years. Nor did Ghidoni report on his individual return alleged distributions from the corporation to him. Ghidoni maintains that neither he nor his corporation control any Cayman Island bank accounts and that distributions to him from accounts there were loans from foreign clients.

In furtherance of its investigation, the government issued a subpoena to the Miami, Florida, branch of the Bank of Nova Scotia, commanding production of bank records relating to Ghidoni's accounts. In negotiations with the government, bank officials expressed concern that production of these records would subject bank employees to criminal liability under the Confidential Relationships (Preservation) Law of the Cayman Islands. 2 The bank suggested that problems with the Cayman Island law could be avoided if Ghidoni would execute a directive consenting to disclosure. Accordingly, the government obtained the district court order compelling Ghidoni to sign the directive, and Ghidoni's refusal to do so led to the finding of contempt now on appeal.

DISCUSSION

The Fifth Amendment provides individuals with a privilege against self-incrimination. A violation of that privilege occurs when "the accused is compelled to make a testimonial communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976). See United States v. Authement, 607 F.2d 1129, 1131 (5th Cir.1979) 3 (articulating the three factor test of (1) compulsion, (2) testimonial communication, and (3) incrimination). The district court order in the instant case obviously compels the defendant to sign the consent directive; the only issue we consider is whether signing the form is testimonial communication. Because we hold that Ghidoni makes no testimonial communication in signing the

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form, we need not address the incrimination element. 4

At the outset, we emphasize that Ghidoni has not asserted, nor could he argue, that the contents of the bank records are eligible for protection under the Fifth Amendment. It is well-established the bank records are not protected from disclosure by any constitutional privilege. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); California Bankers Ass'n v. Shultz, 416 U.S. 21, 55, 94 S.Ct. 1494, 1514, 39 L.Ed.2d 812 (1974) ("a party incriminated by evidence produced by a third party sustains no violation of his own Fifth Amendment rights"). 5 Rather, Ghidoni's assertion of privilege centers on the alleged testimonial and incriminating aspects of his compelled signing of the directive.

In this vein, the Supreme Court has recognized that a Fifth Amendment privilege can, under the proper facts, attach to the mere act of producing certain documents.

The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with this subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena.... The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both "testimonial" and "incriminating" for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and the circumstances of particular cases or classes thereof.

Fisher v. United States, 425 U.S. at 411, 96 S.Ct. at 1581 (citations omitted). See United States v. Miller, 660 F.2d 563, 566 (5th Cir.1981) (Unit B) 6 (discussing Fisher and noting that the testimonial aspects of production have three facets--testimony with respect to existence, possession or control, and authentication), vacated as moot, 685 F.2d 123 (5th Cir.1982) (Unit B).

In Fisher, the Court recognized that in some situations the act of producing business records prepared by an accountant could have the above-mentioned testimonial implications, but held that the Fifth Amendment was not violated by a production of those records in a case in which the existence of the records and the defendant's possession or control were a "foregone conclusion." Id. at 411, 96 S.Ct. at 1581. The government was not relying on the "truthtelling" of the taxpayer, or any "testimony" involved in the act of production, to prove the existence of the records or the taxpayer's access to them. Id. Furthermore, the Court held that the Fifth Amendment was not involved because authentication of the records produced was to be made by the accountant and not the defendant. Id. at 413, 96 S.Ct. at 1582.

The facts in United States v. Doe, --- U.S. ----, 104 S.Ct. 1237, 79 L.Ed.2d 552

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(1984) led to a contrary holding on the testimonial aspects of production. In Doe, the Court deferred to a district court finding that a sole proprietor's compelled production of business records under subpoena would attest to the existence, possession or control, and authenticity thereof. The Court in Doe thus held that even though the contents of the records were not privileged, the act of production could not be compelled under the Fifth Amendment.

In the instant case, Ghidoni argues that signing the directive would have testimonial aspects, i.e., would be an implicit assertion that the Cayman Island bank accounts existed, were authentic, and that he controlled them. He further argues that these three elements are currently in dispute, and therefore that his compelled signing would be testimony attesting to these elements and would form an incriminating link assisting the government in meeting its burden of proof. 7

The district court, in holding Ghidoni in contempt, found the consent directive in the instant case devoid of any testimonial aspects. We agree.

Although the existence of the bank accounts may be in dispute, nothing in the directive implies that such accounts exist. Rather, the directive states that if the accounts exist, the bank is permitted to disclose records of those accounts to the government. See supra note 1. As in Fisher, the government here is in no way relying upon the "truthtelling" of the taxpayer's directive to show the existence of the accounts. 425 U.S. at 411, 96 S.Ct. at 1581. We conclude that the directive contains no implicit testimony that the records do in fact exist.

The second element, possession or control, also is in dispute. Again, the directive makes no explicit statement regarding Ghidoni's control of the accounts. Rather, the directive merely permits the bank to disclose information relating to any accounts with respect to which the bank records indicate Ghidoni's authority to draw (i.e., any accounts with respect to which the bank thinks Ghidoni has authority). Ghidoni has denied control over any accounts with the bank and the directive does not contradict this testimonial assertion. 8 We conclude that the directive contains no implicit testimony with respect to control.

Because the directive contains no statement by Ghidoni on either control or existence of the accounts, the directive could not be used by the government as an admission thereof. 9

Finally, Ghidoni argues that the directive would tend to authenticate any documents obtained from the bank. In this regard, this case is indistinguishable from Fisher, where the government was seeking records prepared by an accountant for the defendant. Because the taxpayer could not authenticate the accountant's work papers or

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reports by oral testimony, the Court held that the taxpayer's production of those accounts would not assist in authentication. 425 U.S. at 413, 96 S.Ct. at 1582. Similarly, only the bank could authenticate the records at issue here. Compare United States v. Doe, --- U.S. at ----, & n. 15, 104 S.Ct. at 1244 & n. 15 (mere production by sole proprietor, who prepared records himself, would authenticate records).

In affirming the district court's finding that the instant directive is not testimonial or incriminating, we are further persuaded...

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