# Petition — Pierce v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0242%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 923 ## Text {Supreme Court, U.S “\ riLED _ 91 +Q? cr aw - 3 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). BEST COPY AVAILABLE oo 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0242%3A1. Public record. Not legal advice.