U.S. v. Jones, Nos. 81-2129

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, Chief Judge, and DOYLE and LOGAN; LOGAN
Citation703 F.2d 473
Parties83-1 USTC P 9265, 12 Fed. R. Evid. Serv. 1736 UNITED STATES of America, Plaintiff-Appellee, v. Robert C. JONES and Dona Jones, Defendants-Appellants.
Decision Date29 March 1983
Docket NumberNos. 81-2129,82-1389

Page 473

703 F.2d 473
83-1 USTC P 9265, 12 Fed. R. Evid. Serv. 1736
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert C. JONES and Dona Jones, Defendants-Appellants.
Nos. 81-2129, 82-1389.
United States Court of Appeals,
Tenth Circuit.
March 29, 1983.

Page 474

Robert W. Brown (Thomas M. Bradshaw, also of Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, Missouri; and Edward M. Boddington, Jr. of Boddington & Brown, Kansas City, Kansas, with him on briefs) for defendants-appellants.

Murray S. Horwitz (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and William A. Whitledge, and Jim J. Marquez, U.S. Atty., with him on briefs) Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before SETH, Chief Judge, and DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Robert C. Jones and Dona Jones, husband and wife, appeal district court orders holding each of them in contempt of court for refusing to answer questions concerning their assets and financial affairs at separate judgment debtor examinations. The Joneses had asserted their Fifth Amendment privilege against compulsory self-incrimination in refusing to answer the questions. The district court's contempt rulings were based on its conclusion that the Joneses did "not have reasonable cause to apprehend danger from a direct answer to the questions asked." The only issue on appeal is whether the district court's conclusion was proper.

In June 1977 the United States obtained judgment against the Joneses for income tax deficiencies for the years 1963 through 1969. By 1981 the government had collected only a small part of the money. It therefore asked Robert Jones to appear at a hearing in aid of execution before a magistrate pursuant to the rules of the Kansas district court and Fed.R.Civ.P. 69. At the hearing, Jones answered certain questions, but refused to answer almost all questions concerning the sources and amounts of his income and the nature and location of his assets 1 on the ground that the answers

Page 475

might incriminate him. On the recommendation of the magistrate, the district court held Jones in contempt for his refusal to answer. Later that year a similar hearing was conducted to interrogate Dona Jones. She refused to answer similar questions on the ground that the answers might incriminate her. On the recommendation of the magistrate, the district court held Dona Jones in contempt. Both Robert and Dona Jones appeal the contempt citations. Because the appeals are interrelated and present substantially similar questions we have consolidated them.
I

Robert Jones claims that revealing the nature and location of his assets could provide incriminating evidence of two separate crimes. The first is making a false statement to a federal agent, a violation of 18 U.S.C. Sec. 1001. Approximately two weeks before the judgment debtor examination, Jones was interviewed by the Internal Revenue Service (IRS) about his ability to pay the underlying judgment. While he was not explicit at trial or on appeal, he evidently contends that truthful answers to the questions at issue could conflict with statements he made in that interview and thus expose him to prosecution under Sec. 1001. We do not agree. The IRS agent who conducted the interview, Robert B. Bates, filed an affidavit stating that Jones had "refused to provide any information to me about the nature or locations of his assets and has to this date never provided me with any such information." Jones did not dispute the accuracy of this affidavit at the hearing and does not do so here. The only arguments presented by his attorney were that no record of the interview had been made and that Jones' attorney had at one time represented another person who was contradicted in court by prior statements made to IRS officials.

These arguments are not relevant. The lack of a record of the interview is unimportant when neither side disputes that nothing was said. Since Jones gave no answers during the interview, answers given during the judgment debtor hearing could not contradict interview answers and hence could not form a basis for establishing a violation of 18 U.S.C. Sec. 1001. The court correctly decided that Jones had no reasonable basis to fear that answering the questions would tend to provide evidence of a violation of Sec. 1001. 2

II

Robert Jones next contends that answering the questions could tend to incriminate him for the crime of attempted tax evasion under I.R.C. Sec. 7201. We believe a reasonable basis for Jones' fear of criminal prosecution exists. Hence, the magistrate erred in recommending that Jones be held in contempt and the district court abused its discretion in issuing the contempt order.

The privilege against self-incrimination protects the person claiming it from being compelled to give "answers that would in themselves support a conviction" or that "would furnish a link in the chain of evidence needed to prosecute the claimant" for a crime. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). The privilege extends to questions propounded in a civil action, whether the claimant is a party or a witness. Maness v. Myers, 419 U.S. 449, 464, 95 S.Ct. 584, 594, 42 L.Ed.2d 574 (1975); Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). The individual asserting the privilege is not "required to prove the hazard [of incrimination] in the sense in which a claim is usually required to be established in court," Hoffman,

Page 476

41 U.S. at 486, 71 S.Ct. at 818; rather the privilege may validly be asserted whenever "the witness has reasonable cause to apprehend danger from a direct answer." Id. That a witness actually fears incrimination from answering questions is not enough. The fear must be reasonable in light of the witness' specific circumstances, the content of the questions, and the setting in which the questions are asked. Id.; accord Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 480, 92 S.Ct. 1670, 1676, 32 L.Ed.2d 234 (1972); Malloy v. Hogan, 378 U.S. 1, 11-14, 84 S.Ct. 1489, 1495-97, 12 L.Ed.2d 653 (1964). The trial court is to evaluate the incriminatory potential of questions asked. Hoffman, 341 U.S. at 487, 71 S.Ct. at 818. The claim of privilege cannot be sustained if the fear of self-incrimination rests on "remote and speculative possibilities"; the privilege protects only against "real dangers." Zicarelli, 406 U.S. at 478, 92 S.Ct. at 1675.

Jones and two law partners previously had been investigated for tax fraud for the years 1958 through 1969. That investigation culminated in the conviction of one of the partners for conspiracy to commit tax fraud. Jones and the other partner were given use immunity in exchange for their testimony in the case and were not prosecuted. However, the IRS obtained the civil judgment against the Joneses that underlies this action as a result of that investigation. On August 3, 1981, the government filed another civil complaint against the Joneses, seeking a judgment for tax deficiencies and assessments for the tax years 1973 through 1979. The Joneses' counsel characterizes these proceedings--the criminal investigation, the prior civil action, the judgment debtor hearing, and the August 1981 civil action--as "ten years of investigation." The judgment debtor hearing at issue in this case was to aid collection of the judgment concerning tax years 1963 through 1969. Nevertheless, because the IRS was pursuing a civil action against Jones for tax deficiencies and assessments for 1973 through 1979, Jones had ample reason to believe that the IRS was particularly interested in his financial transactions. The IRS' institutional focus was turned to his tax affairs for 1973 through 1979 at least. Cf. Hoffman, 341 U.S. at 489, 71 S.Ct. at 819 (various officials and government bodies had focused attention on Hoffman's underworld activities, officially and in the press). The initiation of tax deficiency litigation against Jones indicates that the IRS believes that he did not properly report his income. If the income was improperly reported, questions concerning the nature and location of Jones' assets are potentially incriminating. See Mackey v. United States, 401 U.S. 667, 669, 91 S.Ct. 1160, 1161-62, 28 L.Ed.2d 404 (1971); United States v. Pierce, 561 F.2d 735, 743-44 (9th Cir.1977) (Hufstedler, J., dissenting), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978).

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40 practice notes
  • Lile v. McKune, No. 95-3266-DES.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 16, 1998
    ...must have some foundation, the assertion of the privilege does not depend on the likelihood of future prosecution. U.S. v. Jones, 703 F.2d 473, 477-78 (10th By requiring the complete and written disclosure of a prisoner's sexual history, including all uncharged sexual offenses, SATP clearly......
  • State v. Belanger, No. 30,654.
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 12, 2009
    ...right against self-incrimination does not vanish merely because the prosecution claims it will not prosecute. See United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983) ("Once the court determines that the answers requested would tend to incriminate the witness, it should not attempt to ......
  • CARTER v. U.S., No. 88-CF-532
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 24, 1996
    ...even if likelihood of prosecution "remote"), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Jones, 703 F.2d 473, 477-78 (10th Cir. 1983) (holding that a court "should not attempt to speculate whether the witness will in fact be prosecuted" despite an af......
  • Choi v. State, No. 184
    • United States
    • Court of Appeals of Maryland
    • September 1, 1987
    ...Page 541 19], 95 L.Ed. 1118 (1951); Isaacs v. United States, 256 F.2d 654, 658 (8th Cir.1958)." See also, e.g., United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983) ("Once the court determines that the answers requested would tend to incriminate the witness, it should not attempt to sp......
  • Request a trial to view additional results
40 cases
  • Lile v. McKune, No. 95-3266-DES.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 16, 1998
    ...must have some foundation, the assertion of the privilege does not depend on the likelihood of future prosecution. U.S. v. Jones, 703 F.2d 473, 477-78 (10th By requiring the complete and written disclosure of a prisoner's sexual history, including all uncharged sexual offenses, SATP clearly......
  • State v. Belanger, No. 30,654.
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 12, 2009
    ...right against self-incrimination does not vanish merely because the prosecution claims it will not prosecute. See United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983) ("Once the court determines that the answers requested would tend to incriminate the witness, it should not attempt to ......
  • CARTER v. U.S., No. 88-CF-532
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 24, 1996
    ...even if likelihood of prosecution "remote"), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Jones, 703 F.2d 473, 477-78 (10th Cir. 1983) (holding that a court "should not attempt to speculate whether the witness will in fact be prosecuted" despite an af......
  • Choi v. State, No. 184
    • United States
    • Court of Appeals of Maryland
    • September 1, 1987
    ...Page 541 19], 95 L.Ed. 1118 (1951); Isaacs v. United States, 256 F.2d 654, 658 (8th Cir.1958)." See also, e.g., United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983) ("Once the court determines that the answers requested would tend to incriminate the witness, it should not attempt to sp......
  • Request a trial to view additional results

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