Com. v. Burgess

• Decision Date: 08 December 1997
• Citation: 688 N.E.2d 439,426 Mass. 206
• Parties: COMMONWEALTH v. Russell BURGESS. COMMONWEALTH v. Donald RICCIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 439

688 N.E.2d 439

426 Mass. 206

COMMONWEALTH v. Russell BURGESS.

COMMONWEALTH v. Donald RICCIO.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 4, 1997.

Decided Dec. 8, 1997.

Frank Mondano, Boston, for Russell Burgess.

Jocelyn J. Campbell, Reading, for Donald Riccio.

Brian P. Burke, Assistant Attorney General, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

The defendants in these cases were suspected of using falsified Federal income tax returns to misrepresent lost earnings and as part of schemes to defraud insurance companies. A provision of the Internal Revenue Code precludes the Commonwealth from obtaining the defendants' tax returns directly from the Internal Revenue Service (IRS). Therefore, the Commonwealth moved the Superior Court to order each defendant to execute an IRS form authorizing the release of his tax returns for the relevant tax periods. The defendants opposed the Commonwealth's motions by invoking the privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. They also argued that the same Internal Revenue Code provision that precludes the Commonwealth direct access to their tax returns preempts the State court's ability to enter the requested orders. The Superior Court granted the Commonwealth's motions, but also granted the defendants' motion for a report to the Appeals Court of questions regarding the constitutionality of the orders. We transferred the case to this court on our own motion.

I

From the late 1980s to the early 1990s, Russell Burgess filed over sixty insurance claims involving automobile accidents. Burgess presented various forms of documentation to his insurance companies to support his claims for lost earnings. On more than one occasion, he submitted copies of income tax returns that he claimed to have filed with the IRS for the years between 1987 and 1990.

Burgess was indicted on multiple counts of insurance fraud, motor vehicle insurance fraud, and larceny by false pretenses. Evidence presented before the grand jury suggested that Burgess had staged automobile accidents, that he had filed no tax return with the IRS for the years between 1987 and 1990, and that for the same period the proceeds of insurance claims constituted almost all of Burgess's income.

The case against Donald Riccio is similar. From the late 1980s to the early 1990s, Riccio filed over sixty insurance claims involving automobile accidents. Riccio presented various forms of documentation to his insurance companies to support his claims for lost earnings. On at least one occasion, he submitted a copy of the 1989 income tax return that he claimed to have filed with the IRS.

Riccio was indicted on multiple counts of insurance fraud, motor vehicle insurance fraud, larceny by false pretenses, and perjury. Evidence presented before the grand jury suggested that Riccio had staged automobile accidents, that he had not filed a tax return with the IRS for 1989, and that the proceeds of insurance claims constituted almost all of Riccio's income for 1989. There is some evidence suggesting that Riccio and Burgess collaborated on some of Riccio's claims.

The Commonwealth requested that the IRS release Burgess's tax returns for the years 1988 and 1990, and Riccio's 1989 tax return. The IRS refused, citing 26 U.S.C. § 6103, an Internal Revenue Code provision governing dissemination of Federal tax returns and return information. Section 6103 generally limits release of a taxpayer's tax returns and return information to the taxpayer himself, congressional committees, the President, certain State officials, Federal law enforcement officials, and other Federal agencies. By § 6103(c), a "designee" of the taxpayer may receive the taxpayer's returns or return information if the taxpayer submits a written request for or consent to such disclosure.

Having failed to obtain the defendants' tax returns from the IRS directly, the Commonwealth moved the Superior Court to compel Burgess's and Riccio's execution of IRS Form 8821. Under § 6103(c), Burgess's and Riccio's submission of signed Form 8821 to the IRS would have authorized the IRS to release their tax returns to an assistant attorney general of the Commonwealth who was designated on the form as the intended recipient of the returns.

Burgess, whose case preceded Riccio's, opposed the Commonwealth's motion. He argued that the proposed mechanism would violate his privilege against self-incrimination under the Fifth Amendment and art. 12. He further argued that § 6103 preempts any State action relating to disclosure of Federal tax returns and return information, and that the Superior Court therefore lacks the jurisdiction to grant the Commonwealth's motion.

After a hearing, the Superior Court judge granted the Commonwealth's motion to compel Burgess to execute Form 8821. In her memorandum of decision and order, the judge ordered a number of alterations to Form 8821 in response to concerns raised by Burgess. Under the Fifth Amendment only compelled communication that is testimonial and potentially incriminating is precluded by the privilege against self-incrimination, see Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830-31, 16 L.Ed.2d 908 (1966), and under art. 12 compelled communication that furnishes evidence is precluded. See Opinion of the Justices, 412 Mass. 1201, 1208, 591 N.E.2d 1073 (1992). Burgess argued that his execution of Form 8821 would be sufficiently testimonial to violate his privilege against self-incrimination. The judge ordered the Commonwealth to add language to Form 8821 to make sure that inserting Burgess's name under the heading "taxpayer" in Form 8821 merely designates him as the person making the request, and does not implicitly concede any obligation on his part to have filed income tax returns. The judge also ordered the Commonwealth to add the phrase "if any" to the preprinted language in Form 8821 so that Burgess's act of signing does not implicitly assert that he had filed any tax returns with the IRS.

Burgess filed a motion offering a fresh argument against the Commonwealth's motion and requesting a report of questions to the Appeals Court. Mass. R.Crim. P. 34. Riccio joined Burgess's motion. The Superior Court judge, in response to Burgess's motion, filed a second memorandum of decision and order. Despite the fact that Form 8821, as the Commonwealth prepared it, already contained language to the effect that Burgess would be signing the form pursuant to a court order, Burgess argued that his act of signing would implicitly assert that he consents to the release of his tax returns. At Burgess's request, the judge ordered the Commonwealth to remove the Privacy Act and Paperwork Reduction Act Notice at the bottom end of Form 8821 which states that the use of the form is "voluntary." ¹ The judge also allowed Burgess's motion to report to the Appeals Court questions regarding the validity of her ruling.

The Superior Court judge filed a separate memorandum of decision and order ordering Riccio to execute a Form 8821 with the same set of alterations as granted Burgess. The judge also allowed Riccio's oral motion to report to the Appeals Court questions regarding the validity of her ruling.

II

A

The defendants assert that the Superior Court's orders compelling them to execute Form 8821 violate their privilege against self-incrimination as protected by the Fifth Amendment. We agree with the Commonwealth that the Supreme Court's decision in Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (Doe II ), disposes of this claim.

In Doe II, the defendant appeared before a grand jury, but invoked the Fifth Amendment privilege against self-incrimination when he was questioned about bank records in foreign banks. The foreign banks, citing their governments' banking secrecy laws, also refused to release the defendant's bank records directly to the government. The government then moved the Federal District Court to order the defendant to execute a consent directive authorizing the banks to disclose records of any and all accounts over which he had control. The defendant opposed the motion, again invoking the privilege against self-incrimination under the Fifth Amendment.

The Fifth Amendment states that no one "shall be compelled in any criminal case to be a witness against himself." The Supreme Court has been very explicit that this language "does not independently proscribe the compelled production of every sort of incriminating evidence but applies only 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) (Fisher ). See also Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966) ("We hold that the privilege [against self-incrimination] protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature ..."). The Fifth Amendment protection is unavailable when the evidence sought from a witness is "real" or "physical" rather than "testimonial." Id. at 764, 86 S.Ct. at 1832. Therefore, a suspect may be compelled to submit to field sobriety tests, Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), provide fingernail scrapings, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), provide a voice exemplar, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), stand in a lineup, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and furnish a blood sample, Schmerber v. California, supra. Generalizing from these and similar decisions, the Court in Doe II further clarified the nature of "te...