Petition — Pierce v. United States

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SUPREME COURT OF THE UNITED STATES — &}»”»”™”

October Term, 1977

no. @7-894

EDWIN PIERCE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD G. SHERMAN

Attorney at Law

6420 Wilshire Boulevard

Sixth Floor

Los Angeles, CA 90048

(213) 658-6800

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

EDWIN PIERCE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD G. SHERMAN

Attorney at Law

6420 Wilshire Boulevard

Sixth Floor

Los Angeles, CA 90048

(213) 658-6800

Attorney for Petitioner

TOPICAL INDEX

Table of Authorities

CITATIONS TO OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

Be

Il.

THE COURT SHOULD GRANT

CERTIORARI TO DETERMINE

WHETHER A CONDITION OF

PROBATION WHICH REQUIRES

THE DISCLOSUR®™ OF FINAN-

CIAL ASSETS IS REASONABLY

RELATED TO THE PURPOSE OF

THE FEDERAL PROBATION ACT

THIS COURT SHOULD GRANT

CERTIORARI TO DETERMINE

WHETHER PROBATION CAN BE

REVOKED BECAUSE A PETI-

TIONER VALIDLY INVOKES

HIS FIFTH AMENDMENT PRI-

VILEGE AGAINST SELF

INCRIMINATION

fe wa & wa we

24

24

36

Page

III. THE COURT SHOULD GRANT

CERTIORARI TO DETERMINE

WHETHER THE PETITIONER'S

REFUSAL TO DISCLOSE HIS

FINANCIAL ASSETS AS A

CONDITION OF PROBATION

ON THE GROUND THAT SUCH

DISCLOSURE MIGHT SUBJECT

HIM TO CRIMINAL PROSECU-

TION ON OTHER CHARGES

WAS A BLANKET REFUSAL TO

TESTIFY AND THEREFORE A

WAIVER OF THE FIFTH

AMENDMENT PRIVILEGE. 41

CONCLUSION 51

APPENDIX A Opinion Court of Appeals

; United States v. Pierce

APPENDIX B_ Order, U.S. Court of

Appeals, Ninth Circuit

FILED OCT 17 1977

ii.

on ae

« AO ants 60 te

TABLE OF AUTHORITIES

Cases

Garrity v. New Jersey,

385 U.S. 493 (1967)

Griffin v. State of California,

380 U.S. 609, 85 S.Ct. 1229,

14 L.Ed.2d 106

Hoffman v. United States,.

341 U.S. 479, (1951)

Lefkowitz v. Turley,

414 U.S. 76, (1937)

Porth v. Templar,

453 F.2d 330 (10th Cir. 1971)

Spevack v. Klein,

385 U.S. 514 (1967)

United States v. Bautista,

509 F.2d 675 (9th Cir. 1975)

United States v. Consuelo-Gonzales

521 F.2d 259 (9th Cir. 1975)

United States v. Gomez-Rojas,

507 F.2d 1213 (5th Cir. 1975)

United States v. Malnick,

489 F.2d 682 (5th Cir. 1975)

United States v. Pierce,

561 F.2d 742 23,

United States v. Theep,

502 F.2d 797 (9th Cir. 1974)

iii.

32,

Page

40

37

34-37

44,

36,

45,

26,

45,

45,

34,

46-

50

38

25

37

47

29

48

46

41

49

Statutes

18 U.S.C. § 1623

18 U.S.C. § 1001

18 U.S.C. § 3651

Constitution

United States Constitution

Fifth Amendment, printed

1 U.S.C. XLVI

iv.

Page

28

passim

eo. ene

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

EDWIN PIERCE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays that a Writ of

Certiorari issue to review a judgment

of the Ninth Circuit Court of Appeals

entered in the above entitled case on

August 22, 1977.

CITATIONS TO OPINIONS BELOW

The Judgement of the Court of

Appeals is reported at 561 F.2d 735

(1977). Said Opinion is printed and

1.

attached hereto and made a part hereof

as Appendix A.

JURISDICTION

The Ninth Circuit Court of Appeals

affirmed the conviction of petitioner

on August 22, 1971.

All questions raised in this instant

petition were raised in the Court below

and on appeal to the Ninth Circuit Court

of Appeals.

QUESTIONS PRESENTED

1. Whether a condition of probation

requiring the disclosure of financial

assets is reasonably related to the

purpose of the Federal Probation Act.

2. Whether probation can be revoked

because a petitioner validly invokes

his Fifth Amendment privilege against

self incrimination.

3. Whether the petitioner's refusal

to disclose his financial assets as a

condition of probation on the ground

that such disclosure might subject him

to criminal prosecution on other charges

2.

i Atte ne

was a blanket refusal to testify, and

whether the Fifth Amendment privilege

was therefore improperly raised.

-

CONSTITUTIONAL PROVISIONS

The Constitutional provision involved

in the instant case is the Fifth Amend-

ment to the United States Constitution,

printed in 1 U.S.C. XLVI.

STATEMENT OF THE CASE

On October ll, 1972, the petitioner,

Edwin Pierce, was indicted by Grand Jury

in case number 11294 (C.T.1-28) 2/ The

indictment charged thirteen counts of con-

cealing property subject to tax assessment,

eight counts of mail fraud, and one count

of conspiracy to commit the above offenses.

The petitioner plead not guilty to the

charges and moved to quash the assessments

underlying the thirteen concealment counts

on the basis that the assessments were

made solely upon evidence obtained as the

result of an illegal search and seizure.

The District court held an evidentiary

1/ Reference to "C.T." is to the Clerk's

Transcript.

Be

hearing on the matter and granted the

petitioner's motion (C.T. 29-39).

On July 26, 1973, the government filed

a superseding indictment, as case number

12933 (C.T. 40-69), charging the peti-

tioner with eight counts of mail fraud,

fourteen counts of use of a manipulative

device, and one count of conspiracy to

commit those offenses.

Pursuant to a plea bargain, the peti-

tioner thereafter pled guilty to the

thirteen counts of concealing property

subject to tax assessment of the original

indictment, number 11294, and all other

charges were dismissed (R.T. 3-4, 57) .2/

The petitioner was sentenced to three

(3) years imprisonment and fined Five

Thousand Dollars ($5,000.00) on each

count. The Court then suspended the

term of incarceration and placed the

petitioner on probation. The terms and

conditions of probation included the

provision that the defendant "testify

under oath before a representative of

the United States Attorney's Office for

2/ Reference to "R.T." is to the

Reporter's Transcript.

4.

AI pele

the Central District on all questions as

to his financial condition relating to

amounts and locations of all assets and

said testimony to be completed by March

1, 1974." (C.T. 70; R.T. 54-55). The

petitioner and counsel both accepted the

terms of the judgment (R.T. 56-57).

Pursuant to the probationary report

of the District Court, the petitioner

appeared before a representative of the

United States Attorney on February 7,

1974, but did not comply with the proba-

tionary order on Fifth Amendment grounds

(Deposition of Edwin Pierce). The matter

was heard before the District Court and

the fine was reinstated (R.T. 63-65).

The government then filed a Petition

For Revocation of Probation based upon

the petitioner's refusal to comply with

the order. The petitioner explained

that his refusal to testify was not in

violation of the Court's probationary

order (Supp. R.T. 5-15) .2/

3/ Supp. R.T. throughout this brief has

reference to Supplemental Reporter's

Transcript.

Se

The Court of Appeals for the Ninth

Circuit affirmed the judgment of the

District Court on August 22, 1977 (561

F.2d 735).

On September 6, 1977, the petitioner

filed a Petition For Rehearing. On October

17, 1977, the Petition For Rehearing was

denied. A copy of the order denying the

Petition For Rehearing is attached hereto

as Appendix B.

STATEMENT OF FACTS

At the time of sentencing, the District

Court made clear that the only reason it

imposed the disclosure condition was to

thave an aid in its ultimate determination

of the amount of fine it would assess

against the petitioner (R.T.55).

On February 7, 1974, the petitioner

appeared, pursuant to the probationary

Order of the District Court, before a

representative of the United States

Attorney and was sworn to testify.

"MR. GREENBERG: This hearing is for

the purpose of obtaining under oath a

Statement of the financial assets and to

some extent history of the defendant in

this case, Mr. Edwin Pierce.

$.

—

"It is being conducted pursuant to a

condition of probation imposed by Judge

Warren J. Ferguson, and this statement is

subject to the provisions of 18 U.S. Code

§ 1001 and 18 U.S. Code § 1623.

"Mr. Pierce or Mr. Sherman, do you have

any questions about anything I have said

thus far?

"MR. SHERMAN: I have some comments,

Mr. Greenberg.

"MR. GREENBERG: No, just some ques-

tions about anything I have said so far.

"MR. SHERMAN: No, Sir.

"MR. GREENBERG: About the applicabi-

lity of the statutes?

"MR. SHERMAN: No, Sir.

"MR. GREENBERG:

"Q. Mr. Pierce, do you understand

what I have just said? Do you under-

stand what it means?

"A. I don't understand the code

sections.

"0. All right. Very briefly let me

State them"

Mr. Greenberg at that time explained

the perjury statutes. The petitioner's

assertion of his Fifth Amendment right

was then set forth for the record by

counsel, as follows:

76

"MR. GREENBERG: Now, Mr. Sherman, did

you wish to make a statement?

"MR. SHERMAN: Yes, sir, I did.

"Mr.Greenberg, on January the 25th

of 1974 I caused to be transmitted to you

a letter, a copy of which was sent to the

Clerk of the Honorable Warren J. Ferguson,

and I would like to read that letter into

the record,

"It says: 'Dear Stan:

""With regard to your letter dated

January 15, 1974, myself and Mr.

Pierce will be at your office at the

time and place designated therein.

I do, however, have some serious

misgivings about my position regard-

ing the proposed deposition of Mr.

Pierce for the following reasons:

""l. His answers could incriminate

him. For example, it could theore-

tically furnish concrete evidence

of such things as Internal Revenue

violations. (Emphasis supplied)

"'2. His answers could subject

any life savings of Mr. Pierce to

seizure pursuant still existing

jeopardy assessment, and

8.

viet ™ The taking of his deposition

is to me inconsistent with the terms

of our plea bargain for reasons I

will amplify should you so desire.

"'There are some decisions to be

reached by all concerned relative

to Mr. Pierce's deposition proceed-

ing which we are going to have to

resolve in the near future.

""Very truly yours,

""Richard G. Sherman'

"In that connection, Mr. Greenberg,

what I meant when I said the taking of

this deposition is inconsistent with the

terms of our plea bargain, I am referring

to the following things: Mr. Pierce pled

guilty to certain income tax violations,

namely the concealment of assets. His

plea of not guilty remained as to all of

the security and mail fraud violations,

and in my mind he is not guilty of those

charges.

"I respectfully submit that based upon

the charges of which he was convicted, the

taking of his deposition is just a bit

unfair, and I don't want to represent to

you that we ever bargained specifically

9.

as to just what wouldn't happen. We never

bargained specifically as to just what

probationary order, if any, the Judge

would make, and I don't think that was

ever specifically stated, either between

ourselves or to the Court. However, in

all candor I will say that I told Mr.

Pierce that based upon the crime that he

was pleading guilty to or the series of

Crimes that he was pleading guilty to,

the ambit of the appropriate punishment

would in my judgment be so restricted.

(Emphasis supplied)

"I submit to you that the taking of

this deposition both for reasons 1 and

2 in the letter is entirely inappro-

priate, and I think it is also a bit out

of line with the essence of our plea

bargain. I do not believe at this point

Mr. Pierce should go forward with the

answer of any questions until we have a

Clarification of the Court's ruling by

the Court. I would hope that these

remarks could be transcribed and fur-

nished to the Judge, and we can have a

hearing on the matter.

10.

ee ae

"On behalf of Mr. Pierce and myself, if

we have inconvenienced you with this, both

of us, I think, are truly sorry, but we do

consider these problems to be of a serious

nature.

"MR. GREENBERG: Are you telling me that

Mr.Pierce will not answer any questions?

"MR. SHERMAN: Yes, Sir.

"MR. GREENBERG: All right. The only

thing I want to address myself to, just so

it is clear on the record so that this

financial disclosure aspect was not a sur-

prise, I just want to remind you that ap-

proximately, I don't recall the exact date

now, approximately one month before the

date that Mr. Pierce entered his plea, in

a meeting in chambers with Judge Ferguson

I discussed openly before you and Mr.

Scott Spolin, Counsel for Mrs. Pierce,

Mr.Pierce, and the Judge, and I think the

Clerk, it was my intention to move in this

general direction of financial disclosure.

What I had in mind was restitution.

"As far as your views, I think that

should be taken up with the Judge. The

appropriate way for you to do it is by

noticing a hearing of some kind. It is

ll.

my intention to have this transcribed,

submitted to the Judge for such action

as he deems appropriate.

"MR.SHERMAN: Well, Mr. Greenberg, let

me state this to you, and I hope that both

you and the Court will accept my represen-

tations.

"I was a bit taken aback when the sen-

tence was imposed. I didn't anticipate it,

and I am not trying to say that you didn't

Say what you said in chambers, although I

think we were talking about some different

type of offenses at that time. I had

thought though, sir, that when Mr.Pierce

entered a plea to these particular charges

that he pled guilty to, that the ramifica-

tions would be far different than had he

pled guilty to the security violations or

been convicted.

"I understand and respect your position.

I would like to point out to yourself and

to the Court that the issues posed in num-

bers 1 and 2 of my letter also create

rather substantial problems for me, and

again I want to say that both Mr.Pierce

and myself truly apologize for any incon-

venience and/or misunderstanding. We

12.

don't intend this to be an impertinent or

contemptuous act on our part. We are not

attempting to delay proceedings, but I am

deeply troubled, Mr.Greenberg, and I feel

I do need some guidance from the Court.

"MR. GREENBERG: Well, it strikes me

as precisely an attempt at delay. You

knew before you came here, you knew you

weren't going to answer any questions,

and you wanted guidance from the Court,

why didn't you notice some sort of

motion before the Court

"MR. SHERMAN: Well, I probably just

wented to come here, make these remarks

so that we could get our positions set

down fully, and I did advise you in the

letter as to what my basic problem was.

I still am very troubled, aside from

everything else, with numbers 1 and 2 of

my letter. There is the outstanding

jeopardy assessment that would subject

any assets of Mr.Pierce to seizure, and

there is the possible question of self-

incrimination. I never considered that

at the time Judge Ferguson imposed the

provisional sentence upon Mr. Pierce."

(Deposition 5-9)

13.

The matter was then set for hearing in

the District Court, at which time counsel

for petitioner stated for the benefit of

the Court the rationale behind the refusal

to answer. That rationale, as reflected

in the colloguy in the record, was as

follows:

"MR.SHERMAN: Your Honor, in this mat-

ter there are two basic problems that

presented themselves to defense counsel.

The first problem was the fact that Mr.

Pierce's answer to the questions on his

financial situation might be the basis

of an_ income tax prosecution.

(Emphasis supplied)

"The second problem is that there is

Still an outstanding jeopardy assessment

against Mr. Pierce. For Mr. Pierce to

reveal if there are any substantial

assets would subject those assets to a

jeopardy assessment.

"Now, I might point out to your

Honor -- and I think it's in some of the

documentation that we were dealing with

on the Motion for Suppression of Evidence

~~ one was called a Certificate of -- 1]

think it was a Certificate of Assessment

14,

and Payments; that is, they show what the

assessment was and then they show what the

payments were. I'm sure your Honor has

that schedule. I think you will find that

the Service has already taken, oh, pro-

bably somewhere between fifteen and thirty

or $40,000 that they found in Mr.Pierce's

assets. Now, I could be wrong on those

figures but that's what my memory calls to

mind." (R.T. 61-62).

"MR. SHERMAN: Your Honor, I don't want

Mr. Pierce to be found in violation of

probation for an activity and for reasons

that I think basically arise as a result

of counsel's judgment. If I did something

like that, I don't know whether I could

live with myself for the next months and

although I think there should be proceed-

ings in court, what I'm doing here, really,

is requesting your Honor's guidance. In

other words, we are in this position, your

Honor; You could say -- there's not much

question about it in my mind -- you could

say 'Look, I told you to go ahead and

give a statement and that's what I meant

and you either give the statement or take

the consequences. '

15.

SS

"Theoretically I suppose there could

be some Fifth Amendment problem that

I could raise and perhaps appeal, but

your Honor made no agreement with

counsel as to what sentence you would

impose, you made no agreement with

counsel as to what you would or wouldn't

do. I just had my own speculations on

it. I think I set that forth very

Clearly in here. I think Mr. Greenberg

and I may have had a misunderstanding

Or two. I think that our position

here, your Honor, the position that I

would like to present to you, is one

just based upon fairness.

"Mr. -- for example, Mr. Greenberg--

this will just take a minute. I don't

want to take too much of your time --

for example, Mr. Greenberg talks about

Mr. Pierce's gambling activities and

Stock manipulations but those aren't be-

fore the Court right now, really, and

the only thing that is really before the

Court is the violations to which Mr.

Pierce had pled guilty and I thought

that what was done probably was done as

a result of Mr. Greenberg's eloquent

16.

Bilin =» -

Statement at the time of Mr. Pierce's

sentencing but I don't think it was appro-

priate under the circumstances.

"THE COURT: Well, let's look at it

realistically, too. I assessed a fine

of $65,000. At the time I assessed the

fine I said I would consider a Motion for

Reduction of Sentence based upon the sworn

testimony that he gives as to the value of

his assets. As it stands now, I have to --

the fine is in full force and effect and

he has to go to jail until he pays the

fine or the fine is discharged. He has to

under oath indicate the fact that he

doesn't have a single asset. If he does

have any assets and he signs that kind of

paper, then, you know, he is in all kinds

of difficulty. The difficulty is just

going to pyramid and become enormous.

That is the problem that Mr. Pierce faces.

"MR. SHERMAN: I understand that, your

Honor, and I would like to address myself

to it in this way: Your Honor knows I

mean no impertinence by this statement.

I certainly would not ever be impertinent.

Your Honor, I just don't think the sen-

tence your Honor gave was appropriate for

the crime. I've tried to set forth those

reasons.

17.

"It would appear to me, your Honor that

Mr.Greenberg started talking about Mr.

é; , ; ,

Pierce's security violations and manipula-

tions. He didn't plead guilty to that.

He pled guilty to the nonpayment -- to the

concealment of an asset that was under

levy when the levy itself was illegal and

unlawful. They've already taken substan-

tial sums of money from him.

"Now, in considering that, if your

Honor feels, you know, that the sentence

waS an appropriate sentence and a fair

sentence, I would just like some sort of

guidance. I mean this sincerely. I'm

not trying to bait your Honor or ask your

Honor silly questions. I really and

truly don't know what to do, sir, be-

cause as Mr. Pierce answers a question --

and I can represent this to the Court --

I really don't know. Mr. Pierce has not

told me what assets he hus and where they

are so I'm really as much in the dark as

Mr. Greenberg, probably more so, because

he might have some information that I

don't have. But you see, your Honor, if

Mr. Pierce does have substantial assets,

he's wide open to an income tax prosecu-

tion and he's wide open to having those

18.

ei

assets seized, your Honor, and that's

my problem and I just would really like

some help from the Court if you could

give me some." (R.T. 63-65) (Emphasis

supplied)

Following that proceeding, the govern-

ment then filed a Petition for Revocation

of Probation based upon the refusal of

the petitioner to testify under oath as

set forth in the probationary order. The

petitioner admitted that he would not

disclose his financial assets pursuant to

the probationary order (Supp. R.T.12).

The rationale underlying that refusal to

testify under oath was given by counsel

as follows:

"MR. SHERMAN: Your Honor, if I may, sir,

rather than reiterate everything I said,

I would just like to rely on what I

stated in that written document and re-

incorporate it again at this time as

though it were set forth in full but just

to highlight it.

"At the last hearing we talked about

the fairness of the sentence that was

imposed and your Honor seemed to indi-

cate that you believed it was a fair

sentence so I would just like to address

19.

——

myself, if I may, to the Fifth Amendment

problem. As I stated, I believe that

Mr. Pierce would subject himself to a

serious tax problem by giving the Govern-

ment a starting point or perhaps even a

finishing point to make a net-worth case.

I also believe, your Honor, if Mr.Pierce

were to reveal the location of any as-

sets the Government would immediately

levy upon and take those assets from Mr.

Pierce because there is still outstanding

a jeopardy assessment which your Honor

determined to be invalid in connection

with the criminal proceedings. (Empha-

Sis supplied) That matter is currently

pending before Judge Hill and his deter-

mination is awaiting a decision by the

Ninth Circuit Court of Appeals in a re-

lated case, Janis v. the United States,

in which briefs have been filed and oral

argument has not as yet been held. In

other words, it is submitted, your Honor,

that Mr. Pierce is not in violation of

the probationary order for the reasons

set forth in the document."(Supp. R.T.

5-6) ". . . . Mr. Pierce's position is

that he is not admitting that he viola-

ted the terms of his probation. His

20.

position is that what he did was perfectly

proper and lawful." (Supp. R.T. 8)

"MR. SHERMAN: Your Honor, I wonder if

I made myself clear. It's Mr. Pierce's

contention, of course, that he didn't

violate the probationary order by his

failure to make statements before Mr.

Greenberg as previously directed by the

Court. It is a fact, as stated in the

petition, that he did refuse to answer

questions and when taken in conjunction

with the transcript, which your Honor

has received into evidence, so to speak,

it's our position that that does not con-

stitute a violation of the Court's proba-

tionary order because it infringes upon

the Constitutional rights of Mr. Pierce."

(Supp. R.T. 12-13, Emphasis supplied).

The Court found the petitioner in vio-

lation of probation by reason of his refu-

sal to testify. Probation was revoked and

petitioner was sentenced to three years

imprisonment (Supp. R.T. 15, C.T. 70)

On appeal, the petitioner contended

that the condition of probation was invalid

on its face and as applied in that it con-

flicts with the petitioner's Fifth Amend-

ment privilege against self incrimination.

21.

It its opinion affirming the judgment

of the District Court, the Court of

Appeals for the Ninth Circuit determined

the following:

1. That the condition of probation,

requiring the petitioner to reveal his

financial assets, carries out the purpose

of the Federal Probation Act: rehabili-

tation and protection of the public;

2. That the petitioner's objection on

Fifth Amendment grounds was improperly

raised because not made in response to

specific questions by the Government; and

3. That the petitioner made a blanket

refusal to answer any questions, which is

an insufficient assertion of the privilege

against self incrimination.

The Court concluded:

"Because Pierce, in his role as a wit-

ness, made a blanket refusal to answer any

guestions, we are unable to evaluate his

Fifth Amendment claim. Therefore, we need

proceed no further in determining the ex-

tent of Pierce's Fifth Amendment rights in

the circumstances of this case.

"Pierce has failed to show that the

condition infringed upon his constitu-

tional rights. Nor has he provided any

22.

—

other justification for his refusal to

comply with the condition of probation.

Thus we hold that the district Judge com-

mitted no error in revoking probation."

United States v. Pierce, 561 F.2d at 742.

On September 6, 1977, petitioner filed

a Petition for Rehearing before the Ninth

Circuit Court of Appeals. The petitioner

requested a rehearing on the grounds that

he did not make a blanket refusal to

testify, that the probation condition was

not related to the purpose of probation,

that he was entitled to assert the Fifth

Amendment privilege, and that it was an

improper ground for revoking probation.

The Petition for Rehearing was denied

without opinion.

23.

ee

REASONS FOR GRANTING THE WRIT

I.

THE COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER A CONDITION

OF PROBATION WHICH REQUIRES THE

DISCLOSURE OF FINANCIAL ASSETS IS

REASONABLY RELATED TO THE PUR-

POSE OF THE FEDERAL PROBATION ACT

The terms and conditions of probation

in the case at bench included the provi-

Sion here under question that the peti-

tioner "testify under oath before a repre-

sentative 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 and said testimony to be completed

by March 1, 1974." A hearing for modifi-

cation of fine was therefore set for

March 29, 1974,

The Court explained that it "cannot

see any need for probation supervision

except approval of your residence and

approval of your occupation. But [a]

fine is warranted, a fine to be deter-

mined, however, by whatever your assets

disclose." (R.T. 55)

24.

The petitioner herein refused to dis-

close his assets pursuant to the proba-

tionary order, asserting his Fifth Amend-

ment privilege to remain silent, on the

ground that disclosure of his financial

assets might be the basis of other

prosecutions.

In Porth v. Templar, 453 F.2d 330, 333

(10th Cir. 1971), the Court stated:

"The statute which authorizes the

granting of probation (18 U.S.C.

§ 3651) provides inter alia that

the judge having jurisdiction may

suspend the imposition or execu-

tion of sentence when satisfied

that the ends of justice and the

best interests of the public as

well as the defendant are served

thereby, and may place the defend-

ent on probation for such period

on such terms and conditions that

the court deems best. This sec-

tion names specifically some of

the conditions which may be im-

posed, including the payment of a

fine, the making of restitution and

support of persons for whom the ac~-

cused is legally responsible. The

25.

sentencing judge has a broad

power to impose conditions de-

Signed to serve the accused and

the community. The only limita-

tion is that the conditions have

a reasonable relationship to the

treatment of the accused and the

protection of the public. The

object, of course, is to produce

a law abiding citizen and at the

Same time to protect the public

against continued criminal or

antisocial behavior. This Court

has said that the purpose of pro-

bation is to ‘give the convicted

person an opportunity to mend

his ways and to so have his free-

dom under conditions, or at least

to have such freedom after a

short period of imprisonment.'

Thomas v. United States, 327 F.2d

795, 797 (10th Cir. 1964)."

In United States v. Consuelo-Gonzales

521 F.2d 259, 264 (9th Cir.1975), the

Court of Appeals for the Ninth Circuit

determined that:

26.

"The guiding principle which

has emerged in construing the

Probation Act is that the only

permissible conditions are those

that, when considered in context,

can reasonably be said to contri-

bute significantly both to the

rehabilitation of the convicted

person and to the protection of

the public. Conditions that un-

questionably restrict otherwise

inviolable constitutional rights

may properly be subject to spe-

cial scrutiny to determine whe-

ther the limitation does in fact

serve the dual objectives of re-

habilitation and public safety.

But this is not to say that there

is any presumption, however weak,

that such limitations are imper-

missible. Rather, it is necessary

to recognize that when fundamental

rights are curbed it must be done

sensitively and with a keen ap-

preciation that the infringement

must serve the broad purpose of

the Probation Act. This burden

cannot be avoided by asserting

27.

;

either that the probationer has

voluntarily waived his rights by

not objecting in a proper manner

to the conditions imposed upon him

Or that he must accept any condi-

tion the court ‘deems best' as a

consequence of being ‘in custody.'"

18 U.S.C. § 3651 provides, in pertinent

part, that the Court may place a defendant

On probation "for such period and upon

such terms and conditions as the court

deems best." Yet, these cases qualify the

Federal Probation Act by holding that a

Court may not, in exercise of its discre-

tion, impose conditions that have no rea-

sonable relationship to the act, particu-

larly when such conditions, as applied,

are in denegration of a fundamental right

of the probationer.

As the Fifth Amendment privilege

against self incrimination is involved

in this particular case, “special scru-

tiny” must be used to determine whether

the condition requiring the petitioner to

disclose his financial assets is directed

toward a probationary goal.

28.

In this particular case, the only

enunciated reason for the probation con-

dition was to enable the Court to deter-

mine what fine to assess (R.T. 55). Thus,

it must be determined whether the enun-

ciated reason serves a purpose of rehabi-

litation, whether it serves a purpose of

protecting the public; and whether it

unduly infringes upon the petitioner's

constitutional rights. United States v.

Consuelo-Gonzalez, supra.

The written probation condition was

that the petitioner "testify under oath

before a representative of the United

States Attorney's Office .. . on all

guestions as to his financial condition

relating to amounts and locations of all

assets.”

Basing its Opinion on these words

alone, and not on the transcribed words

of the District Court, the Ninth Circuit

Court of Appeals rationalized the proba-

tion condition in its own way:

"By acquiring information on

Pierce's present assets, the

court, acting through the proba-

tion department, developes a means

of detecting illicit investment

29.

activities that result in future to ascertain with certainty the

increases in net worth. Carrying intent behind unrehearsed words.

It is obvious that misstatements

this manner is important both in | can be made. It is even possible

terms of rehabilitation and pro-

tection of the public. The possi-

bility of swift detection encour-

Out a program of supervision in

that the sentencing judge may

change his mind with regard to

the reasons for a condition. For

ages the defendant to mend his these reasons ve appropriately

waysS. Hopefully this will lead

to full rehabilitation."

place our primary reliance upon

the written text of the condi-

tion. Nevertheless the comments

In a footnote, the Ninth Circuit admit- of the sentencing judge in this

ted that this interpretation was its own, case may properly be interpreted

and that it "assumed" this to be the pur- as indicating that the required

pose of the condition:

"It could be argued that the

Oral statements of the district

judge at sentencing demonstrate

that the court imposed the dis-

closure condition 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 re-

duced to writing may be helpful

in illuminating the purpose of the

condition, it is often difficult

30.

disclosure had a purpose other

than or in addition to the asses-

sment 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 ap-

proval 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.)

31,

Presuming, aS we may, that a judge

follows the law, such an interpre-

tation is appropriate."

United States v. Pierce, 561 F.2d

at 740, n. 3)

Thus, the Ninth Circuit apparently

believes that a means to detect future

illegal activities of the petitioner pro-

tects the public and is rehabilitative.

The petitioner respectfully disagrees.

The Ninth Circuit's assumptions about the

probationary purpose of the imposed con-

dition are contradicted by the record.

The sequence of events was as follows:

l. The District Court ordered that the

maximum fine ($65,000) be imposed, and

committed the petitioner to custody until

the fine was paid. The commitment was

Stayed until March 29, 1974, when the

petationer was ordered to return to Court.

2. The District Court explained that

it saw no need for probation supervision

of the petitioner, except for approval of

his residence and job; but that "[a] fine

is warranted, a fine to be determined, how-

ever, by whatever your assets disclose."

3. The District Court explained that

the petitioner had 120 days to move to

modify the fine. An oral motion to modify

the fine was made and accepted.

32.

>

4. The petitioner appeared before the

United States Attorney but refused to give

a “statement of [his] financial assets" on

the ground that his answers might incrimi-

nate him in violation of his Fifth Amend-

ment privilege.

5. Probation was formally revoked and

petitioner was committed to the custody

of the Attorney General for three years.

Execution of the sentence has been stayed

pending these appeals.

Thus it is clear that the condition

on its face is not directed toward any

probationary goal. "The purpose of impos-

ing the condition was not to rehabilitate

Pierce, to help the probation department

in supervising him, to shield him from

future temptation or future wrongdoing,

or to aid in an order of restitution.

The condition was not imposed to aid law

enforcement officers (police) in detect-

ing or deterring future illegal conduct.

The District Court explicitely and forth-

rightly explained that the aim was to

provide the court with enough financial

information to permit it to re-evaluate

the appropriateness of the maximum fine

provisionally imposed when Pierce moved

33.

to modify the sentence, i.e., to reduce

the fine." United States v. Pierce,

Supra, at 743, Hufstedler, Circuit Judge,

dissenting.

Nor is the condition as applied related

to any probationary goal.

At the time of the hearing to determine

the petitioner's financial assets, the

petitioner, through counsel, explained

that the financial assets would not be

disclosed because disclosure could subject

him to other criminal prosecution.

The petitioner had been convicted of

concealing property subject to tax assess-

ment. The nature of the offenses charged

make it clear that the petitioner hypothe-

tically could very well be charged with

other crimes of tax evasion by disclosure

of his assets. "To sustain the privilege,

it need only be evident from the implica-

tions 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." Hoffman v.United States,

341 U.S. 479, 486-487 (1951).

(Emphasis supplied)

34.

The Court of Appeals for the Ninth

Circuit refused to evaluate the Fifth

Amendment objection on the ground that it

was improperly raised.

The petitioner suggests that the nature

of the proceedings, the nature of the past

conviction and the nature of the requested

disclosure reveal that a statement of

financial assets might have a tendancy to

incriminate the petitioner. Hoffman v.

United States, supra, at 488. It surely

might help the United States Attorney

develop another prosecution against the

petitioner. Beyond that, no goal -- let

alone a probationary goal -- would be

served other than to help the court assess

a fine.

It is therefore respectfully requested

that this court determine whether the pro-

bation condition of disclosure of finan-

cial assets serves a goal of the Federal

Probation Act, on its face or as applied.

35.

II.

THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER PROBATION CAN

BE REVOKED BECAUSE A PETITIONER

VALIDLY INVOKES HIS FIFTH AMENDMENT

PRIVILEGE AGAINST SELF INCRIMINATION

It has been stated that the words "No

person . . . Shall be compelled in any

criminal case to be a witness against him-

himself" implies noexception. Spevack v.

Klein, 385 U.S. 514, 516 (1967). It has

also been stated that "(t]he immediate and

potential evils of compulsory self-disclo-

Sure transcend any difficulties that the

exercise of the privilege may impose on

society in the detection and prosecution

of crime." Hoffman v. United States, 341

U.S. 479, 490 (1951).

In this particular case, the District

Court revoked probation because the peti-

tioner asserted his Fifth Amendment right

to remain silent. In Spevak v. Klein,

Supra, an attorney was disbarred because

he asserted his Fifth Amendment privilege.

In Hoffman v. United States, supra, a

Grand Jury witness was convicted of crimi-

nal contempt for failure to answer ques-

tions based upon the Fifth Amendment

36.

privilege. In none of these cases was the

witness offered immunity from prosecution

in return for the testimony. In all of

these cases, the witnesses made an appro-

priate assertion of the privilege. In

Spevak v. Klein, supra, and in Hoffman v.

United States, supra, the Supreme Court

held that it was improper for a Court to

try to coerce the waiver of a constitu-

tional guarantee by imposing a penalty for

refusal to answer. "In this context

‘penalty’ is not restricted to fine or

imprisonment. It means, as we said in

Griffin v. State of California, 380 U.S.

609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the

imposition of any sanction which makes

assertion of the Fifth Amendment privilege

"costly.' Id., 380 U.S. at 614, 85 S.Ct.

at 1233." Spevak v. Klein, supra, at 628.

The question before this Honorable

Court is whether the same rule that has

been held to apply in those cases applies

to a person threatened with probation

revocation, in the event of his refusal

to answer questions that are a condition

of probation.

37.

"“'The privilege is not ordinarily

dependent upon the nature of the

proceeding in which the testimony

is sought or is to be used. It

applies alike to civil and crimi-

nal proceedings, wherever the

answer might tend to subject to

criminal responsibility him who

gives it. The privilege protects

a mere witness as fully as it

does one who is also a party de-

fendant.'" Lefkowitz v. Turley,

414 U.S. 76, 77 (1973)

= Eo McCarthy v. Arndstein,

supra, the United States insisted

that because of the strong public

interest in marshaling and dis-

tributing assets of bankrupts, the

Fifth Amendment should not protect

a bankrupt during the official ex-

aminations mandated by the Bank-

ruptcy Act. That position did not

prevail. The bankrupt's testimony

could be had, but only if he were

afforded sufficient immunity to

supplant the privilege. And long

38.

before McCarthy v. Arndstein, the

Court recognized that without the

compelled testimony of knowledge-

able and perhaps implicated wit-

nesses, the enforcement of the

transportation laws ‘would become

impossible,' but nevertheless

proceeded on a basis that witnes-

ses must be granted adequate im-

munity if their evidence was to

be compelled. Brown v. Walker,

161 U.S., at 610, 16 S.Ct., at

651. Similarly, the enforcement

of the antitrust laws against pri-

vate corporations was at stake in

Hale v. Henkel, supra, but immuni-

ty was essential to command the

testimony of individual witnesses.

Also, it would be difficult to

overestimate the importance of the

interest of the States in the en-

forcement of their ordinary cri-

minal laws; but the price for in-

Criminating answers from third-

party witnesses is sufficient immu-

nity to satisfy the imperatives of

the Fifth Amendment privilege

against compelled self-incrimina-

tion. Finally, in almost the very

39.

context here involved, this Court

has only recently held that emplo-

yees of the State do not forfeit

their constitutional privilege

and that they may be compelled to

respond to questions about the

performance of their duties but

not if their answers can be used

against them in subsequent crimi-

nal prosecutions. Garity v. New

Jersey, 385 U.S. 493, 87 S.Ct. 616

17 L.Ed.2d 1082 (1968); Uniformed

Sanitation Men Assn., Inc., et al.

v. Sanitation Comm'r., 392 U.S.

280, 88 S.Ct. 1917, 20 L.Ed.2d

1089 (1968)." Id. at 79.

The petitioner respectfully submits

that the case before this Honorable Court

is no different than the employment cases

(e.g. Garrity v. New Jersey, 385 U.S. 493

(1967); Gardner v. Broderick, Supra) or

any other situation in which a citizen has

been forced to choose between a constitu-

tional privilege and his livelihood, or

his freedom. The petitioner was given the

choice between the assertion of a consti-

tutional right and imprisonment for his

40.

present conviction. Such was even recog-

nized by the Court of Appeals, which

Stated: "As a practical matter a defen-

dant's consent to a probation condition

is likely to be nominal where consent is

given only to avoid imprisonment."

United States v. Pierce, 561 F.2d at 739.

It is respectfully requested that this

Court grant Certiorari to determine whe-

ther probation can be revoked in response

to the assertion of the Fifth Amendment

privilege.

III.

THE COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER THE PETI-

TIONER'S REFUSAL TO DISCLOSE HIS

FINANCIAL ASSETS AS A CONDITION

OF PROBATION ON THE GROUND THAT

SUCH DISCLOSURE MIGHT SUBJECT HIM

TO CRIMINAL PROSECUTION ON OTHER

CHARGES WAS A BLANKET REFUSAL TO

TESTIFY AND THEREFORE A WAIVER

OF THE FIFTH AMENDMENT PRIVILEGE.

In its Opinion, the Court of Appeals

for the Ninth Circuit stated that the

petitioner made a blanket refusal to tes-

tify, "failing to show that the condition

of probation infringed upon his constitu-

tional rights." United States v. Pierce,

41.

561 F.2d at 741-742. The Court seemed

to imply that had the probation condition

referred to acts unrelated to the present

crime, it could not be imposed as a

condition of probation (561 F.2d at 740,

n.4). The Court, however, concluded that

the petitioner failed to show that dis-

closure of financial assets might subject

him to other criminal prosecutions.

The petitioner respectfully submits

that this conclusion is not supported by

the record. The petitioner appeared at

the hearing. The government explained

that the purpose of the hearing was to

obtain the amounts and locations of all

the petitioner's assets. Although not

stated in the form of a question, this

Statement of purpose was clearly explained

by the government. The petitioner as-

serted his Fifth Amendment privlege in

response to that statement. Counsel

Stated on petitioner's behalf: "His

answers could incriminate him. For ex-

ample, it could theoretically furnish

evidence of such things as Internal

Revenue violations." (Deposition of

Edwin Pierce).

At the subsequent Probation Revocation

42.

Hearing petitioner's counsel asserted as

follows:

l. "The first problem was the fact

that Mr. Pierce's answer to the questions

on his financial situation might be the

basis of an income tax prosecution."

(R.T. 61-62).

2. “But you see, your Honor, if Mr.

Pierce does have substantial assets, he's

wide open to an income tax prosecution

and he's wide open to having those assets

seized, your Honor, and that's my problem

and I would really like some help from the

Court if you could give me some." (Supp.

R.T. 5-6)

3. "As I stated, I believe that Mr.

Pierce would subject himself to a serious

tax problem by giving the Government a

Starting point or perhaps even a finish-

ing point to make a net-worth case."

(Supp. R.T. 5-6)

From the nature of the conviction, the

information sought and the assertions of

the privilege, it should have been clear

that disclosure of the appellant's finan-

cial assets might have led to an Internal

Revenue prosecution. Any further explana-

tion by counsel for the petitioner: might

43.

from.

"[I])£f the witness, upon interpo-

sing his claim, were required to

be established in court, he would

be compelled to surrender the very

protection which the privilege is

designed to guaratee. 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 respon-

sive answer to the question or an

explanation of why it cannot be

answered might be dangerous be-

cause injurious disclosure could

result. The trial judge in ap-

praising the claim ‘must be gov-

erned as much by his personal

perceptions of the peculiarities

of the case as by the facts act-

ually in evidence.'" Hoffman v.

United States, 341 U.S. 479, 486-

487 (1951).

In Hoffman v. United States, supra,

tempt for refusing to answer questions

44.

have subjected the petitioner to the very

liability that he was seeking protection

the

appellant was convicted of criminal con-

asked during a grand jury investigation.

The Supreme Court held that Hoffman could

refuse to answer because his answer might

provide a link in a chain of facts imper-

iling him with conviction of a federal

offense. In so finding, it set forth the

test court's use today in determining whe-

ther the privilege is properly claimed:

"In this setting it was not 'perfectly clear,

from a careful consideration of all the

circumstances in the case, that the wit-

ness is mistaken, and that the answer[s]

cannot-possibly have such tendancy’ to

incriminate." (Emphasis in original).

In the circumstances of this case it

was not "perfectly clear" that the peti-

tioner's answers could not possibly have

had a "tendancy to incriminate".

It was openly stated that disclosure

might expose the petitioner to other

Crimes, such as tax evasion.

In its Opinion, the Ninth Circuit

Court of Appeals cites United States v.

Malnick, 489 F.2d 682 (5th Cir. 1974);

United States v. Bautista, 509 F.2d 675

(9th Cir. 1975); United States v. Gomez-

Rojas, 507 F.2d 1213 (5th Cir. 1975); and

United States v. Theep, 502 F.2d 797

45.

(9th Cir. 1974) for the proposition that

by refusing to disclose his financial

statements without answering the questions

that the government intended to ask, the

petitioner made a blanket refusal to

testify. On the contrary, the petitioner

Stated the nature of his privilege and

his reason for invoking the privilege

only after the United States Attorney

specifically told him exactly what his

testimony would consist of: a statement

of his financial assets. The appellant

did not refuse to testify to anything at

all, as did the witnesses in the above

cited cases, or to testify about unspeci-

fied subjects, as did the witnesses in

the above cited cases...

In United States v. Malnick, supra,

a summons was issued by the Internal

Revenue Service requiring him to give

testimony for the investigation of his

tax liability in past years. Manick's

attorney conferred with the Assistant

Regional Counsel for the Internal Revenue

Service and it was mutually agreed that

taxpayer Malnick would not appear at all,

but would submit a written statement to

the effect that Malnick "would have

46.

asserted his appropriate constitutional

privilege to all relevant and material

questions propounded to him and to the

production of such of the records therein

enumerated in his possession.” Id at 684.

The Court held that such a refusal to

answer any questions, without knowing the

specific nature of the questions to be

posed was a "blanket refusal to testify"

and therefore unacceptable Id at 685.

In United States v. Bautista, 509 F.2d

675 (1975), an informant was subpoenaed to

testify on behalf of the defendant. The

witness told the defendant that he would

refuse to testify on Fifth Amendment

grounds. The United States Attorney was

informed of this fact early in the trial.

The Court refused to grant the witness im-

munity from prosecution. As a result, the

defendant did not call the informant to the

witness stand, although he was physically

available to attend. Thus, the Court was

unable to pass on the Fifth Amendment

claim. In the instant case, however, the

petitioner did appear at the deposition,

and his Fifth Amendment claim was asserted

in response to the specific information

he was there called upon to relate.

47.

In United States v. Gomez-Rojas, 507

F.2d 1213 (5th Cir. 1975), the defendants,

alleging that they were entrapped, sought

to call a witness in their behalf. On

the day trial began, the witness told the

District Court, outside the presence of

the jury, that he would assert his Fifth

Amendment privilege. The District Court

dismissed the witness without further

inquiry. The Court stated that a simple

blanket declaration by the witness that he

could not testify for fear of self incri-

mination would not suffice to invoke the

privilege. In the instant case, however,

the petitioner was called to state spe-

cific facts: his financial assets. He

knew the nature of the questions - there

was no second guessing. Furthermore, he

told the Court exactly why he was assert-

ing the privilege: because disclosure of

his financial assets might subject him to

other criminal prosecutions for failure

to disclose information to the Internal

Revenue Service. It is clear that while

Gomez-Rojas may have constituted a "blan-

ket refusal", the petitioner's failure to

testify clearly did not.

In United States v. Theep, 502 F.2d

797 (9th Cir. 1974), the Internal Revenue

48.

i a

Service issued summonses in connection with

an investigation of tax payers' returns.

The taxpayers appeared at the appropriate

time but refused to testify, claiming

their right against self incrimination

under the Fifth Amendment. The Court on

appeal held that the taxpayers could not

avoid the summonses by a blanket claim of

privilege. In the case at bench, the

petitioner appeared at the deposition and

refused to testify, but the circumstances

of his refusal are clearly distinguishable

from that of the appellants in Theep.

Here, the petitioner was ordered to

disclose his assets as a condition of pro-

bation, so that the Court could determine

what fine to impose. The petitioner

asserted the privilege with regard to

disclosure of his assets because his

financial information possibly would have

disclosed that he was involved in pro-

scribed activity other than that for

which he was sentenced to probation.

In Theep, however, the appellant refus-

ed to testify, not knowing what he would

be asked, because of the possibility that

the information sought would lead to the

very conviction sought by the Government.

49,

Thus, it is clear that the petitioner

did not make a "blanket" refusal to tes-

tify, and that he did, in fact, disclose

his reasons as much as was possible to

show that the requested answers “might

have a tendancy to incriminate him."

"The privilege afforded not only ex-

tends to answers that would in themselves

Support a conviction under a federal cri-

minal statute but likewise embraces those

which would furnish a link in the chain

of evidence needed to prosecute the [peti-

tioner] for a federal crime." Hoffman v.

United States, supra, at 486. (Emphasis

supplied. )

It would be in the public interest for

the Court to set at rest the above uncer-

tainties in the law as to the manner in

which the privilege against self incri-

Mination must be raised.

50.

CONCLUSION

WHEREFORE, for all of the reasons and

upon all of the considerations set forth

above, the petitioner respectfully prays

that a Writ of Certiorari issue in the

within case to review the decision of the

Court of Appeals below.

Respectfuly submitted,

RICHARD G. SHERMAN

Attorney for Petitioner

Pierce

51.

APPENDIx A

UNITED STATES v. PIERCE 737

Cite as 561 F.2d 735 (1977)

9. Criminal Law 273.4(1)

Although a defendant who pleads

guilty may raise a Fifth Amendment right

with respect to transactions constituting

the crime if he is subject to further liability

for such transaction, burden is on defendant

to raise any Fifth Amendment claim he

may have with regard to a risk of further

prosecution. U.S.C.A.Const. Amend. 5.

10. Criminal Law @982.5(1)

Sentencing judge must formulate con-

ditions of probation to avoid the risk of

compelled _self-incrimination; however,

where defendant has pled guilty, the judge

may impose a condition requiring the re-

lease of information concerning that crime

unless defendant raises a Fifth Amendment

claim that disclosure could lead te further

prosecution. 18 U.S.C.A. § 3651; U.S.C.A.

Const. Amend. 5.

11. Criminal Law ¢=982.6(5)

Failure to object at sentencing that a

probationary condition requiring release of

information concerning the crime does not

effect a waiver of Fifth Amendment rights;

even if the condition as imposed is valid on

its face, based on information presented to

the sentencing judge, the defendant may

still raise his Fifth Amendment claim in

response to questions asked pursuant to the

condition. 18 U.S.C.A. § 3651; U.S.C.A.

Const. Amend. 5.

12. Criminal Law ¢>393(1)

“.. Although there is no waiver if, at sen-

tencing proceeding, defendant fails to as-

sert a Fifth Amendment claim to probation-

ary condition requiring him to release infor-

mation concerning the crime, a failure to

raise the claim in response to questions

asked pursuaat to-the condition will result

in a waiver. 18 U.S.C.A. § 3651; U.S.C.A.

Const. Amend. 5.

13 Criminal Law @=393(1), 9$82.9(1)

When asked to produce information

‘within scope of a probationary condition

iat defendant release information concern-

ing the crime, a defendant must either com-

ply or provide justification for failing to do

so; if he refuses to assert his Fifth Amend-

ment right and yet refuses to answer ques-

tions, the right is lost and where such oc-

curs, probation may properly be revoked,

notwithstanding subsequent statements

that defendant had a Fifth Amendment

right which he failed to assert. 18 U.S.C.A.

§ 3651; U.S.C.A.Const. Amend. 5.

14. Criminal Law @=393(1)

Fifth Amendment claim must be raised

in response to specific questions propounded

by the investigating body; such require-

ment permits a reviewing court to-deter-

mine whether a responsive answer might

lead to injurious disclosure; a blanket re-

fusal to answer any question is unaccepta-

ble. U.S.C.A.Const. Amend. 5.

15. Criminal Law ¢=982.9(1)

Where at proceeding held pursuant to

probationary condition that defendant, who

pled guilty to concealing property subject to

a tax assessment, reveal information as to

his financial condition the defendant stated

that he would not answer any questions,

there was no error in revoking probation.

18 U.S.C.A: § 3651; U.S.C.A.Const. Amend.

5; 26 U.S.C.A. (I.R.C.1954) § 7206(4).

Richard G. Sherman, Los Angeles, Cal.,

submitted on briefs for defendant-appel-

lant.

William D. Keller, U. S. Atty., Earl E.

Boyd, Asst. U. S. Atty., Los Angeles, Cal.,

for plaintiff-appellee.

Appeal from the United States District

Court for the Central District of California.

Before HUFSTEDLER and WALLACE,

Circuit Judges, and FREY,* District Judge.

WALLACE, Circuit Judge:

Pierce failed to comply with a condition

of probation requiring him to reveal certain

financial information. Probation was re-

. William C. Frey, United States District Judge, District of Arizona, sitting by desig-

$>. nation.

738 561 FEDERAL REPORTER, 2d SERIES

voked and Pierce appeals, contending that

the condition was violative of the Fifth

Amendment and thus invalid. We affirm.

I

Tn 1965 the Internal Revenue Service as-

sessed 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 num-

ber of different bank accounts. The result

was that Pierce was indicted in 1972 on

thirteen counts of concealing property sub-

ject 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 grant-

ed his motion to quash the 1965 tax assess-

ment, which provided the basis for the thir-

teen concealment counts, on the ground

that it was derived exclusively from illegal-

ly seized evidence.

The government then obtained a second

indictment in 1973. In place of the conceal-

ment counts, Pierce was charged with four-

teen counts of using a manipulative and

deceptive device in connection with the pur-

chase 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’ im-

prisonment on each count, to run concur-

rently, and fined $5,000 on each count, to

run consecutively, for a total of $65,000.

The court suspended execution of the sen-

tence of imprisonment and placed Pierce on

five years’ probation, subject to certain con-

ditions. One of the conditions, imposed at

the suggestion of ihe government, was that

Pierce

testify under oath before a representative

of the United States Attorney's Office

1. The cases cited by the government are not to

the contrary. Both Quijada Gaxiola v. United

on all questions as to his fleen.

cial 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 sinancial situation immediate.

ly 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 re

versed himself and refused to testify before

the United States Attorney as to his finan-

cial condition. At the ensuing probation

revocation proceeding, Pierce admitted that

he had failed to comply with the challenged

condition. The district judge revoked pro-

bation, implicitly rejecting Pierce’s conten-

tion that the condition infringed upon his

Fifth Amendment privilege against self-in-

crimination.

Il- Fh

{1-3] The government contends that

Pierce waived his Fifth Amendment privi-

lege with regard to all conditions of proba-

tion either by pleading guilty or by accept-

ing the conditions at the sentencing pro-

ceeding. Accordingly, it argues, he cannot

now attack this condition on Fifth Amend-

ment 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. de-

nied, 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 Unit-

ed States v. Romero, 249. F.2d 371, 375 (2d

Cir. 1957); Burbey v. Burke, 295 F.Supp.

1045, 1049 (E.D.Wis.1969).' Accordingly,

—w

States, 435 F 2d 264 (Sth Cir. 1970), and Lucero

v. United States, 425 F 2d 172 (10th Cir. 1970),

UNITED STATES v. PIERCE 739

Clte as 561 F.2d 735 (1977)

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

tion condition is likely to be nominal where |

consent is given only to avoid imprison-

ment. 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 condi-

tion. Thus we do not find merit in either of

the government's waiver theories.

Ill

[4] In United States v. Consuelo-Gonza-

lez, supra, 521 F.2d 259, we set out a gener-

al test for evaluating probation conditions

august pursuant to the Federal Probation

"involved a loss of Fifth Amendment rights only

with respect to the crime to which the defend-

ant 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 condi-

tions strictly as an aid to its ultimate determi-

nation 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 illuminat-

ing the purpose of the condition, it is often

Act which may impinge upon constitutional

freedoms: The conditions must be “reason-

ably related” to the purposes of the Act.

Consideration of three factors is required to

determine whether a reasonable relation-

ship 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 pro-

bationers; and (3) the legitimate needs of

law enforcement. 521 F.2d at 262. A bal-

ancing approach was articulated so as to

facilitate an accommodation between the

practical needs of the probation system and

defendant's consent to a proba- | | the constitutional guarantees of the Bill of

| Rights. Id. at 264-65.

[5-7] In this case, the challenged condi-

tion clearly carries out the purposes of the

Federal Probation Act—rehabilitation and

protection of the public. Jd. at 263-64. By

acquiring information on Pierce’s present

assets, the court, acting through the proba-

tion department, develops a means of de-

tecting illicit investment activities that re-

sult in future increases in net worth.

Carrying out a program of supervision in

this manner is important both in terms of

rehavilitation and protection of the public.

The possibility of swift detection encour-

ages the defendant to mend his ways.

Hopefully this will lead to full rehabilita-

tion. At the same time, strict supervision

leads to greater protection of the public by

deterring the probationer from further

criminal activity? Id. at 267; id. at 272

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 pri-

mary reliance upon the written text of the con-

dition. Nevertheless the comments of the sen-

tencing judge in this case may properly be

interpreted as indicating that the required dis-

closure 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, | cannot see any need for proba-

tion supervision except approval of your resi-

dence and approval of your occupation.

740 561 FEDERAL REPORTER, 2d SERIES

(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-

lo-Gonzalez —the condition embraces legiti-

mate needs of law enforcement—has been

satisfied.

[8] That brings us to the second Consue-

lo-Gonzalez inquiry. Directing a defendant

to release information concerning his finan-

cial status may violate his Fifth Amend-

ment right against self-incrimination.

Thus, we must evaluate whether the condi-

tion imposed involves a proper accommoda-

tion 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 condi-

tion is applied.

[9-13] 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 impo-

sition of a disclosure coi dition. Although

the sentencing judge must formulate the

condition to avoid the risk of compelled

self-incrimination, he cannot take account

A fine is.warranted, a fine to be deter-

mined, however, by whatever your assets dis-

close.

- (Emphasis added.) .

Presumung, 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 un-

related 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

evajuating the condition as applied and evalu-

ating the condition on its face: Whereas there

_ is no waiver if the defendant fails to raise his

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.*

Nevertheless, a failure to raise the claim

at the sentencing proceeding does not effect

a waiver of the defendant's Fifth Amend-

ment rights. See United States v. Consuc-

lo-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 de-

fendant may still raise his Fifth Amend-

ment 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.‘

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 direétly 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 informa-

tion would subject him to further liability.

Fifth Amendment claim at the sentencing pro-

ceeding. 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 justi-

fication for failing to do so. If he refuses to

assert his Fifth Amendment right and yet refus-

es to answer questions, the Fifth Amendment

right is lost. See Garner v. United States, 424

quent statements that the defendant had 2

Fifth Amendment right which he failed to as-

sert.

UNITED STATES v. PIERCE 741

Cite as 561 F 24 735 (1977)

Indeed, he seemed eager to do so immedi-

ately. 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.

[14,15] 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 state-

ment of his personal history. In response,

Pierce, through his attorney, objected to the

proposed deposition on Fifth Amendment

and other grounds. Upon further question-

ing as to his intentions, Pierce stated that

he would not answer any questions.’

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 resporm] to questions:

To sustain the privilege, it need only be

evident from the implications of the ques-

tion, 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 in-

jurious disclosure could result. The trial

judge in appraising the claim “must be

governed as much by his personal percep-

$. Subsequent to the statements by Pierce's at-

torney Sherman concerning Pierce's objections

to the deposition, Assistant United States At-

torney Greenberg. who was conducting the

proceeding, sought to clanfy Pierce's inten-

tions:

MR. GREENBERG: Are you telling me that

Mr. Pierce will not answer amy 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 | understand it then. Mr. Pierce will

not answer any questions today, is that cor-

rect?

tion 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 re-

quires that the Fifth Amendment claim be

raised in response to specific questions pro-

pounded by the investigating body. This

permits the reviewing court to determine

whether a responsive answer might lead to

injurious disclosures. United States v. Mal-

nik, 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. Go-

* mez-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 analy-

sis of the Fifth Circuit in United States v.

Malnik :

It is simply impossible to anticipate every

question that might be asked and con-

clude that each would present a distinct

possibility of self-incrimination if answer-

ed 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 specu-

late 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

MR. SHERMAN: He is doing so for the

reasons that I have stated, yes, Mr. Green-

— berg

MR. GREENBERG: And that is your posi-

tion also, Mr. Pierce?

THE WITNESS: I do what my attorney

tells me to do.

MR. GREENBERG: Fine. Well let's termi-

nate this proceeding then and go off the rec-

ord right now

As indicated by Greenberg's closing remarks,

once it became clear that Pierce would not

answer any questions, the hearing was termui-

nated.

742 561 FEDERAL REPORTER, 2d SERIES

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 condi-

tion infringed upon his constitutional

rights. Nor has he provided any other jus-

tification for his refusal to comply with the

condition of probation. Thus we hold that

the district judge committed no error in

revoking probation.

AFFIRMED.

HUFSTEDLER, Circuit Judge, dissent-

ing:

I agree with the majority that Pierce did

not waive his Fifth Amendment privilege

either by pleading guilty or by accepting

probation. I cannot agree that Pierce lost

his privilege by the manner in which he

raised it, nor can | agree that the condition

of probation was valid under the Federal

Probation Act (18 U.S.C. § 3651). The ma-

jority’s contrary conclusions rest on a mis-

reading of the record and the teachings of

Hoffman v. United States (1951) 341 U.S.

479, 71 S.Ct. 814, 95 L.Ed. 1118 and United

States v. Consuelo-Gonzalez (9th Cir. en

bane 1975) 521 F.2d 259.

The record reveals that the district court

imposed the disclosure condition as an aid

to its ultimate dete: mination of the amount

of the fine that it would assess; the finan-

cial examination was not relevant to any

future probationary program. The majori-

ty opinion’s assumptions about the proba-

tionary functions of the ordered disclosure !

are contradicted by the record. The district

court first imposed the maximum fine ($65,-

000), committed Pierce to custody until the

fine was paid or otherwise discharged in

due course of law, stayed the commitment

until March 29, 1974, and ordered Pierce to

1. “By acquiring information on Pierce's present

assets, the court, acting through the probation

department, develops a means of detecting ilic-

it investment activities that result in future

increases in net worth Carrying out a pro-

gram of supervision in this manner is impor-

tant both in terms of rehabilitation and protec-

return to court on that day. The court

explained that it “cannot see any need for

probation supervision except approval of

your residence and approval of your occupa-

tion But [a] fine is warranted, a fine to be

determined, however, by whatever your as-

sets disclose.” The court reminded defense

counsel that after the maximum fine has

been imposed “at the present time ;

you have 120 days to bring a motion to

modify it.” Defense counsel promptly

made an ora! motion to modify the fine, the

prosecutor accepted the oral motion, and

the court set the hearing on the motion for

March 29, 1974.

Pierce appeared thereafter at the United

States Attorney’s office and was sworn.

Upon the advice of his counsel, Pierce re-

fused to give “a statement of [his] financial

assets” to the prosecutor on the ground,

inter alia, that his answers might incrimi-

nate him in violation of his Fifth Amend-

ment privilege. The district court formally

revoked probation for Pierce’s refusal to

comply with the challenged probation condi-

tion, and committed Pierce to the custody

of the Attorney General for three years.

Execution of the sentence was stayed pend-

ing appeal, first by the district court a

then by this court. ;

The question before us is whether the

challenged condition of probation was valid

and thus provided a basis for revoking pro-

t tion when Pierce refused to comply with

it, asserting his Fifth Amendment privilege.

Applying the reasoning of United States v.

Consuelo-Gonzalez, supra, 521 F.2d 259, 1

conclude that the condition was in violation

of the Federal Probation Act. In Consuelo

Gonzalez, we held that “the terms and con-

ditions of probation must be rea-

sonably related to the purposes of the Act.

In determining whether a reasonable rela-

tionship exists, we have found it necessary

to give consideration to the purposes sought

tion of the public. The possibility of swift

detection encourages the defendant to mend

his ways. Hopefully this will jead to full reha-

bilitation. At the same time, strict Supervision

leads to greater protection of the public by

deterring the probationer from further criminal

activity.”

UNITED STATES v. PIERCE 743

Cite as 561 F.2d 735 (1977)

to be served by probation, the extent to

which the full constitutional guarantees

available to those not under probation

should be accorded probationers, and the

legitimate needs of law enforcement.” (521

F.2d at 262.) This probation condition

meets none of these prerequisites.

The issue presented is narrow: Can the

court validly impose a condition of proba-

tion that compels a probationer to yield his

Fifth Amendment privilege against incrimi-

nation and to testify under oath before a

prosecutor about his past conduct and his

current financial affairs and then revoke

probation when the probationer declines to

waive his Fifth Amendment privilege and

to testify?? 1 think the answer is a firm

no.”

The condition was not on its face directed

to any probationary goal. The purpose of

imposing the condition was not to rehabili-

tate Pierce, to help the probation depart-

ment in supervising him, to shield him from

future temptation or future wrongdoing, or

to aid in an order of restitution’ The

condition was not imposed to aid law en-

forcement officers (police) in detecting or

deterring future illegal conduct. The dis-

trict court explicitly and forthrightly ex-

plained that the aim was to provide the

court with enough financial information to

permit it to reevaluate the appropriateness

of the maximum fine provisionally imposed

when Pierce moved to modify the sentence,

i. e., to reduce the fine.

2. Very different questions would be posed if,

absent the probation condition, the district

court denied Pierce's motion to modify the sen-

tence on the ground that Pierce had failed to

testify under oath about his financial condition,

or, the court, sua sponte, or on the prosecutor's

motion, had set aside its order staying execu-

tion of sentence because Pierce had failed to or

declined to provide the court with the same

sworn testimony.

3. Although the court might have validly condi-

tioned probation on restitution of tax liability,

United States v. Weber (7th Cir. 1971) 437 F.2d

1218; 18 USC. § 3651, it did not do so here,

perhaps because of the necessity of a civil tax

proceeding to first determine liability. (United

States v. White (2d Cir. 1969) 417 F.2d 89;

The majority opinion correctly observes

that Pierce’s guilty plea did not deprive him

of his Fifth Amendment privilege in respect

of past transactions that could subject him

to “further” criminal charges. The Fifth

Amendment question is not whether the

testimony would have been relevant to

prove the concealment counts—of course it

would—but whether the same testimony

could possibly tend to incriminate Pierce as

to other crimes—of course it could. (E. g.,

Hoffman v. United States (1951) 341 U.S.

479, 71 S.Ct. 814, 95 L.Ed. 1118) Pierce’s

specific concern was his exposure to charges

of criminal tax evasion, commonly proved

by the net worth method. The compelled

testimony would obviously be potentially

helpful in making a net worth case.

The majority opinion’s conclusion that

Pierce did not properly raise his privilege is

also unsupported by the record. Pierve ap-

peared before the prosecutor and was

sworn. The prosecutor informed him, in

accordance with the court's order, that the

subject matter of the interrogation was

“(the] amounts and locations of ll

[Pierce’s] assets.” Pierce then declined to

_ answer, on advice of counsel, based on his

Fifth Amendment privilege. There was no

“blanket refusal to answer any question”

because no “blanket” existed. The prosecu-

tor told Pierce that the purpose of the

- “hearing” [deposition] was to obtain under

oath ‘Pierce's statement “of ~ his~financtat ~

assets,” as~ordered by the district court.

“He did not put his statement in the form of

a question, but the substance of the state-

ment was identical.5 All we have to do is to

United States v. Taylor (4th Cir. 1962) 305 F.2d

183.)

4. “The defendant retains his privilege as to

crimes for which he may still be liable.” (Ma-

jority op'n, 561 F.2d 735 at 738.)

5. The majority's reference to United States v.

Malnik (5th Cir. 1974) 489 F 2d 682, and to the

other cases cited is inappropriate. All of them

involve some kind of blanket refusal to testify

at all or to testify about unspecified subjects.

To defeat a claim of privilege where there has

been no vague, blanket refusal, it is incumbent

upon the Government “to establish with per-

fect clarity that the response would not possi-

bly have a tendency to incriminate.” (McCor-

mick’s Handbook of the Law of Evidence § 139

a

744 561 FEDERAL REPORTER, 2d SERIES

ask whether Pierce’s revelation of his assets

might have incriminated him. The question

is answered simply: “Yes.” As Hoffman v.

United States (1951) 341 U.S. 479, 71 S.Ct.

814, 95 L.Ed. 1118, observed: The claim of

privilege must be sustained unless it is

“perfectly clear, from a careful considera-

tion of all the circumstances in the case,

that the answer{s]} cannot possibly

have such tendency’ to incriminate.” (341

U.S. at 488, 71 S.Ct. at 819 (quoting Temple

v. Commonwealth (1881) 75 Va. 892, 898

(emphasis in original).)) In Hoffman, the

lower court was reversed because it failed

to take into consideration information out-

side the record that the chief occupation of

some individuals involves evasion of federal

criminal laws. Pierce presents an even

stronger case because no facts outside the

record need be noted.

Because I would invalidate the probation

condition because it is irrelevant to the

purposes of the Federal probation Act, I do

not reach any constitutional issue® I would

vacate the order revoking probation, vacate

the challenged probation condition, and re-

mand the case to the district court for fur-

ther proceedings consistent with the views

herein expressed.

(E. Cleary ed. 1972). Cf. United States v.

Theep (Sth Cir. 1974) 502 F.2d 797, 799 (“It

does not appear that [the IRS agent) made the

specific inquiries required to afford the appel-

lants the opportunity to make [the] appropriate

objection . . ..).)

6. Assuming arguendo that the condition here

passes statutory muster, the constitutional

question is whether as a result of validly invok-

ing his nght to remain silent, the consequence

of probation revocation might be imposed.

(See Lefkowitz v. Turley (1973) 414 U.S. 70, 77,

94 S Ct. 316, 322, 38 LEd.2d 274 (“The Amend-

ment not only protects the individual against

being involuntarily called as a witness against

himself in a criminal prosecution but also privi-

leges him not to answer official questions put

to him in any other proceeding, civil or crimi-

Nancy HUNT, Plaintiff-Appellant,

v.

SUN VALLEY COMPANY, INC. and

Frank McMasters,

Defendants-Appellees.

No. 75-1433.

United States Court of Appeals,

Ninth Circuit.

Sept. 19, 1977.

A personal injury action arose out of a

ski lift accident, and a jury in the United

States District Court for the District of

Idaho, J. Blaine Anderson, J., found against

the plaintiff. She appealed. The Court of

Appeals held that: (1) under Idaho law

applicable, the ski lift was not a common

carrier; (2) circumstances were not such as

to make the rescue doctrine applicable, and

(3) no error was shown in the instructions

given. SS

Affirmed. Bi

1. Federal Courts 785

Court of Appeals accords substantial

deference to district court in its defining

and applying law of state in which court is

sitting in diversity cases.

2. Carriers =321(1)

In action for injuries sustained in a ski

lift accident, term “common carrier” would

not have meant anything to jury, and ab-

nal, formal or informal, where the answers

might incriminate him in future criminal pro-

ceedings.”’).)

The relevant precedent on this issue includes

cases such as Garrity v. New Jersey (1967) 385

U.S. 493, 87 S.Ct. 616, 17 L_Ed.2d 562 (revoca-

tion of public employment after assertion of

privilege); Spevack v. Klein (1967) 385 U.S.

511, 87 S.Ct. 625, 17 L.Ed.2d 574 (disbarment);

Gardner v. Broderick (1968) 392 U.S. 273, 88

S.Ct. 1913, 20 LEd.2d 1082 (revocation of pub-

lic employment); Sanitation Men v. Sanitation

Comm'r (1968) 392 U.S. 280, 88 S.Ct. 1917, 20

L.Ed.2d 1089 (revocation of public employ-

merit); and Lefkowitz v. Turley (1973) 414 U.S.

70, 94 S.Cr. 316, 38 L_Ed.2d 274 (revocation of

public contracting privileges).

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

OocT 17 1977

EMIL E. MELFI, JR.

Clerk, U.S. Court of Appeals

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ) No. 74-1532

vs.

EDWIN PIERCE,

Defendant-Appellant.

ORDER

ee ee ee

Before: HUFSTEDLER and WALLACE, Circuit

Judges, and FREY,* District

Judge

Appellant's Application for Permission

to File Petition for Rehearing in Excess

of Ten Pages is granted and the Petition

is ordered filed.

The Petition for Rehearing is denied;

Judge Hufstedler would grant the

petition.

*Honorable William C. Frey, United States

District Judge, District of Arizona,

sitting by designation.

B-1