United States v. Edwin Pierce

561 F.2d 735, 1977 U.S. App. LEXIS 11911

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 1977
• Docket: 74-1532
• Status: Published

Opinions

WALLACE, Circuit Judge:

Pierce failed to comply with a condition of probation requiring him to reveal certain financial information. Probation was revoked and Pierce appeals, contending that the condition was violative of the Fifth Amendment and thus invalid. We affirm.

I

In 1965 the Internal Revenue Service assessed a $248,429.80 wagering excise tax against Pierce. In response, Pierce entered into a scheme to avoid payment. He opened numerous stock brokerage accounts and then bought and sold stock, channeling the payments and receipts through a number of different bank accounts. The result was that Pierce was indicted in 1972 on thirteen counts of concealing property subject to a tax assessment in violation of 26 U.S.C. § 7206(4), eight counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of conspiring to do the above acts in violation of 18 U.S.C. § 371. After Pierce pleaded not guilty, the district court granted his motion to quash the 1965 tax assessment, which provided the basis for the thirteen concealment counts, on the ground that it was derived exclusively from illegally seized evidence.

The government then obtained a second indictment in 1973. In place of the concealment counts, Pierce was charged with fourteen counts of using a manipulative and deceptive device in connection with the purchase and sale of securities in violation of 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5. He then pleaded guilty to the thirteen concealment counts of the 1972 indictment. Pursuant to a plea bargain, the remaining counts were dismissed.

Pierce was sentenced to three years’ imprisonment on each count, to run concurrently, and fined $5,000 on each count, to run consecutively, for a total of $65,000. The court suspended execution of the sentence of imprisonment and placed Pierce on five years’ probation, subject to certain conditions. One of the conditions, imposed at the suggestion of the government, was that Pierce

testify under oath before a representative of the United States Attorney’s Office . on all questions as to his financial condition relating to amounts and locations of all assets.

The district judge also stated that he would consider reducing the fine if Pierce gave testimony concerning his financial condition within two months. Through his attorney, Pierce stated that he had no objection to disclosing his financial situation immediately and that he would notice a motion to modify the fine. Pierce, in response to a direct question from the court, agreed to the terms of the judgment.

However, at the time appointed to carry out the condition of probation, Pierce reversed himself and refused to testify before the United States Attorney as to his financial condition. At the ensuing probation revocation proceeding, Pierce admitted that he had failed to comply with the challenged condition. The district judge revoked probation, implicitly rejecting Pierce’s contention that the condition infringed upon his Fifth Amendment privilege against self-incrimination.

II

The government contends that Pierce waived his Fifth Amendment privilege with regard to all conditions of probation either by pleading guilty or by accepting the conditions at the sentencing proceeding. Accordingly, it argues, he cannot now attack this condition on Fifth Amendment grounds. We disagree.

A voluntary guilty plea does not waive the right against self-incrimination for all prior activities of the defendant; it waives the privilege only with respect to the crime which is admitted. The defendant retains his privilege as to crimes for which he may still be liable. United States v. Roberts, 503 F.2d 598, 600 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Johnson, 488 F.2d 1206, 1209-10 (1st Cir. 1973); see United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957); Burbey v. Burke, 295 F.Supp. 1045, 1049 (E.D.Wis.1969).¹ Accordingly, Pierce did not waive his Fifth Amendment rights with respect to crimes other than those described in the concealment counts.

The government next contends that Pierce’s acceptance of probation waived any objection to self-incrimination features of the conditions. However, in United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc), we rejected the theory that a probationer voluntarily waives his rights by failing, at the sentencing proceeding, to object properly to the conditions imposed. Id. at 265 & n. 15 (plurality); id at 274 (Wright, J., dissenting). As a practical matter, a defendant’s consent to a probation condition is likely to be nominal where consent is given only to avoid imprisonment. Id. at 274 (Wright, J., dissenting). Of course, a truly voluntary waiver would still be effective. See Lefkowitz v. Turley, 414 U.S. 70, 80, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); Garrity v. New Jersey, 385 U.S. 493, 499, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). However, there is no evidence in the record before us to indicate that Pierce understood that he was waiving Fifth Amendment rights by accepting the challenged condition. Thus we do not find merit in either of the government’s waiver theories.

Ill

In United States v. Consuelo-Gonzalez, supra, 521 F.2d 259, we set out a general test for evaluating probation conditions imposed pursuant to the Federal Probation Act which may impinge upon constitutional freedoms: The conditions must be “reasonably related” to the purposes of the Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement. 521 F.2d at 262. A balancing approach was articulated so as to facilitate an accommodation between the practical needs of the probation system and the constitutional guarantees of the Bill of Rights. Id. at 264-65.

In this case, the challenged condition clearly carries out the purposes of the Federal Probation Act — rehabilitation and protection of the public. Id. at 263-64. By acquiring information on Pierce’s present assets, the court, acting through the probation department, develops a means of detecting illicit investment activities that result in future increases in net worth. Carrying out a program of supervision in this manner is important both in terms of rehabilitation and protection of the public. The possibility of swift detection encourages the defendant to mend his ways. Hopefully this will lead to full rehabilitation. At the same time, strict supervision leads to greater protection of the public by deterring the probationer from further criminal activity.² Id. at 267; id. at 272 (Wright, J., dissenting). Thus the condition serves the purposes of probation. A similar line of reasoning leads us to conclude that the third element of analysis under Consue-Io-Gonzalez — the condition embraces legitimate needs of law enforcement — has been satisfied.

That brings us to the second Consuelo-Gonzalez inquiry. Directing a defendant to release information concerning his financial status may violate his Fifth Amendment right against self-incrimination. Thus, we must evaluate whether the condition imposed involves a proper accommodation between the need for information and those Fifth Amendment rights which Pierce retains. See id. at 264-66. That analysis requires consideration of the condition of probation on its face and then as the condition is applied.

As regards the condition on its face, we discussed earlier that a defendant who has pleaded guilty to a crime may no longer assert a Fifth Amendment right with respect to that crime. Still, he may raise a Fifth Amendment right with respect to the transaction constituting the crime if he is subject to further liability for that transaction. However, the burden is on the defendant to raise any Fifth Amendment claim he may have with regard to a risk of further prosecution in order to avoid imposition of a disclosure condition. Although the sentencing judge must formulate the condition to avoid the risk of compelled self-incrimination, he cannot take account of Fifth Amendment claims which are not asserted. Thus, where a defendant has pleaded guilty to a crime, a sentencing judge may impose a condition requiring the release of information concerning that crime unless the defendant raises a Fifth Amendment claim that the disclosure could lead to further prosecution.³

Nevertheless, a failure to raise the claim at the sentencing proceeding does not effect a waiver of the defendant’s Fifth Amendment rights. See United States v. Consuelo-Gonzalez, supra, 521 F.2d at 265 & n. 15. Thus, even if the condition as imposed is valid on its face, based on the information presented to the sentencing judge, the defendant may still raise his Fifth Amendment claim in response to questions asked pursuant to the condition. Accordingly, we must also evaluate the condition as applied to determine if there is an infringement upon protected Fifth Amendment rights.⁴

Applying this two-prong analysis to the case before us, we note that the condition imposed by the court required Pierce to “testify under oath before a representative of the United States Attorney’s Office for the Central District on all questions as to his financial condition relating to amounts and locations of all assets.” The required information was clearly and directly related to the crime to which Pierce had pleaded guilty — concealing property subject to a tax assessment — and Pierce raised no objection at sentencing that release of this information would subject him to further liability. Indeed, he seemed eager to do so immediately. Thus, we find that the district judge could properly assume that the condition on its face did not require self-incrimination and the condition was valid as imposed.

We turn now to the condition as applied. At the proceeding held pursuant to the condition, Pierce was told that the hearing was being held for the purpose of obtaining under oath a statement of his financial assets and to some extent a statement of his personal history. In response, Pierce, through his attorney, objected to the proposed deposition on Fifth Amendment and other grounds. Upon further questioning as to his intentions, Pierce stated that he would not answer any questions.⁵ Whether we can properly evaluate Pierce’s Fifth Amendment objection to questioning pursuant to the condition turns on whether the objection was properly raised.

In Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), the Supreme Court enunciated the standard for measuring when a witness may properly claim his right against self-incrimination, and thus refuse to respond to questions:

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.”

Id. at 486-87, 71 S.Ct. at 918.

A proper application of this standard requires that the Fifth Amendment claim be raised in response to specific questions propounded by the investigating body. This permits the reviewing court to determine whether a responsive answer might lead to injurious disclosures. United States v. Malnik, 489 F.2d 682, 685 (5th Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974). Thus a blanket refusal to answer any question is unacceptable. United States v. Bautista, 509 F.2d 675, 678 (9th Cir.), cert. denied, Monsivais v. United States, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); United States v. Gomez-Rojas, 507 F.2d 1213, 1219-20 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Theep, 502 F.2d 797, 798 (9th Cir. 1974); United States v. Malnik, supra, 489 F.2d at 685. In this regard, we approve the analysis of the Fifth Circuit in United States v. Malnik:

It is simply impossible to anticipate every question that might be asked and conclude that each would present a distinct possibility of self-incrimination if answered by the witness. This is not to say that if [the witness] testifies and produces documents, he may not object to every question. It is just that we cannot speculate and say that any response to all possible questions would or would not tend to incriminate the witness.

489 F.2d at 686. Because Pierce, in his role as a witness, made a blanket refusal to answer any questions, we are unable to evaluate his Fifth Amendment claim. Therefore, we need proceed no further in determining the extent of Pierce’s Fifth Amendment rights in the circumstances of this case.

Pierce has failed to show that the condition infringed upon his constitutional rights. Nor has he provided any other justification for his refusal to comply with the condition of probation. Thus we hold that the district judge committed no error in revoking probation.

AFFIRMED.

1 . The cases cited by the government are not to the contrary. Both Quijada Gaxiola v. United States, 435 F.2d 264 (9th Cir. 1970), and Lucero v. United States, 425 F.2d 172 (10th Cir. 1970), involved a loss of Fifth Amendment rights only with respect to the crime to which the defendant had pleaded guilty, not with respect to other possible crimes.

2 . The written condition of probation, upon which we must judge the alleged violation, clearly supports this interpretation. See text p. 738, infra.

It could be argued that the oral statements of the district judge at sentencing demonstrate that the court imposed the disclosure conditions strictly as an aid to its ultimate determination of the fine to be assessed against Pierce. Although the comments of the sentencing judge with regard to a condition subsequently reduced to writing may be helpful in illuminating the purpose of the condition, it is often difficult to ascertain with certainty the intent behind unrehearsed words. It is obvious that misstatements can be made. It is even possible that the sentencing judge may change his mind with regard to the reasons for a condition. For these reasons we appropriately place our primary reliance upon the written text of the condition. Nevertheless the comments of the sentencing judge in this case may properly be interpreted as indicating that the required disclosure had a purpose other than or in addition to the assessment of an appropriate fine. He stated:

I think the government is entitled to an examination under oath as to your assets. Beyond that, I cannot see any need for probation supervision except approval of your residence and approval of your occupation.

A fine is warranted, a fine to be determined, however, by whatever your assets disclose.

(Emphasis added.)

Presuming, as we may, that a judge follows the law, such an interpretation is appropriate.

3 . A condition which required the probationer to release information concerning past acts unrelated to the crime to which he pleaded guilty would present a different case. However, we need not reach this problem because no such condition was imposed on Pierce.

4 . There is one significant difference between evaluating the condition as applied and evaluating the condition on its face: Whereas there is no waiver if the defendant fails to raise his Fifth Amendment claim at the sentencing proceeding, a failure to raise the claim in response to questions asked pursuant to the condition will result in a waiver. When asked to produce information within the scope of the condition, a defendant must either comply or provide justification for failing to do so. If he refuses to assert his Fifth Amendment right and yet refuses to answer questions, the Fifth Amendment right is lost. See Garner v. United States, 424 U.S. 648, 654 n. 8, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). Where this occurs, probation may properly be revoked, notwithstanding subsequent statements that the defendant had a Fifth Amendment right which he failed to assert.

5 . Subsequent to the statements by Pierce’s attorney Sherman concerning Pierce’s objections to the deposition, Assistant United States Attorney Greenberg, who was conducting the proceeding, sought to clarify Pierce’s intentions:

MR. GREENBERG: Are you telling me that Mr. Pierce will not answer any questions?

MR. SHERMAN: Yes, sir.

After further discussion, Greenberg inquired once again as to Pierce’s willingness to comply with the condition:

MR. GREENBERG: Just so it is absolutely clear, 'as 1 understand it then, Mr. Pierce will not answer any questions today, is that correct?

MR. SHERMAN: He is doing so for the reasons that 1 have stated, yes, Mr. Green-berg.

MR. GREENBERG: And that is your position also, Mr. Pierce?

THE WITNESS: I do what my attorney tells me to do.

MR. GREENBERG: Fine. Well let’s terminate this proceeding then and go off the record right now.

As indicated by Greenberg’s closing remarks, once it became clear that Pierce would not answer any questions, the hearing was terminated.