Petition — NEFF v. UNITED STATES (No. 79-1822)
Supreme Court brief1979
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Bupreme Court, U. i
{ FILED
%
MAY 16 1980
}
5 oe
in the Supreme Court atte
United States
OctoBER TERM, 1979
ROBERT D. NEFF,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE NINTH CIRCUIT
Gary James Joslin
Attorney for Petitioner
7742 Mountain Estates Drive
Salt Lake City, Utah 84121
(801) 943-2440
May 138, 1980
i
TABLE OF CONTENTS
I I i a sscenecnceseegnepirancnses
oa eeastipenenvenerenennsosens
QUESTIONS PRESENTED ...............................-
ie yy 2 8 9 ft gi | oy yore
1. FIFTH AMENDMENT ISSUE ..........
2. HEARSAY AND CONFRONT-
SC Sapo icc ess Ilccinassietlinonseonens
CONSTITUTIONAL AND STATUTORY
sash soc eanhsdknndanevcentsiennnevonsions
STATEMENT OF THE CASE ............................
1. CITIZENS HAVE A RIGHT TO CLAIM
THE FIFTH AMENDMENT. THAT
RIGHT WAS INTENDED TO PRO-
TECT THE INNOCENT AS WELL AS
THE GUILTY. THE FIFTH AMEND-
MENT RIGHT SHOULD BE ZEAL -
OUSLY GUARDED BY THE COURTS ..
2. WHEN ACITIZEN MAKES A FIFTH
AMENDMENT CLAIM, ANDITIS
CHALLENGED, THERE MUST BEA
JUST AND FAIR PROCEDURE TO
DETERMINE THE VALIDITY OF
HIS CLAIM. OTHERWISE, THE
CONSTITUTIONAL RIGHT IS
RT NII ores esiccietcte ce scercnsiasecomscsecessin
Or
Page
THE FACTS ARE INCONTROVERT-
IBLE. MR. NEFF WAS DENIED ANY
OPPORTUNITY WHATSOEVER TO
PRESENT EVIDENCE TO THE
JUDGE (OUTSIDE THE PRESENCE
OF THE JURY) IN ORDER TO PROVE
THE VALIDITY OF HIS FIFTH
AMENDMENT CLAIM .......00 eee 14
THE DETERMINATION OF THE
VALIDITY OF A FIFTH AMEND-
MENT CLAIM IS A COMPLEX CON-
STITUTIONAL LEGAL DETERMIN-
ATION THAT CANNOT BE MADE
ee TE cnc acsearle peer pclenhe pies evennsicn 27
DELEGATING THE DETERMINA-
TION OF THE VALIDITY OF THE
FIFTH AMENDMENT CLAIM TO A
JURY UNFAIRLY FORCES THE
ACCUSED TO DEFEND HIS CONSTI-
TUTIONAL RIGHTS IN FRONT OF
THE JURY. A JURY IS NOT COM-
PETENT TO DETERMINE SUCH
PR EI icine disses cppsesnstaakenieAinayebtvonesontnin 31
JUSTNESS AND FAIRNESS RE-
QUIRE THAT THE ACCUSED BE
HEARD ON AN ISSUE WHERE THE
BURDEN OF PROOF IS PLACED
UPON HIM. OTHERWISE, IT IS
IMPOSSIBLE FOR THE ACCUSED
TO SUSTAIN HIS BURDEN OF
PN soricicdein hanes tadnecpunaisbiniandeeascicinateninnnespioness 34
10.
11.
iti
Page
DEPOSITION OF ROBERT D. NEFF
BEFORE THE CIRCUIT COURT IN
THE PETITION FOR REHEARING ........ 35
THE ACCUSED WAS CHARGED
WITH A CRIME REGARDING A
REGULATION OF SPEECH. THE
FIFTH AMENDMENT CLAIM MADE
BY THE ACCUSED SHOULD BE
VIEWED WITHIN THE SENSITIVE
CONTEXT OF THE FIRST AMEND-
MENT OF THE CONSTITUTION .............. 40
CONSTITUTIONAL ANALYSIS
RINGS sic Gocrnsecdscacacac ibenpbbtevaninaaeaviseorsenaiies 43, 44, 45
EXHIBIT 1-10 WAS COMPLETELY
INADMISSIBLE UNDER NUMEROUS
TESTS. IT WAS PREJUDICIAL .............. 46
THERE IS NO ADEQUATE
FOUNDATION TO SUPPORT THE
ADMISSIBILITY OF EXHIBIT 1-10
USING RULE 803(10) OF THE
FEDERAL RULES OF EVIDENCE ........ 47
EXHIBIT 1-10 WAS NOT MADE AT
OR NEAR THE TIME OF THE
BE I i icsasiidanteapionlensistitagibititas supticsinnivelaoninnes 51
NO PROPER FOUNDATION WAS
LAID FOR THE ADMISSION OF
COMPUTER-DERIVED INFORMA-
TION AS CONTAINED IN
NT SU cicinheaecaplacaeraetatenteeetoriinssececionens 55
12.
13.
14,
15.
16.
iv
Page
THE PURPOSE OF RULE 803 (10)
WAS TO RECOGNIZE THE ABSENCE
OR NON-EXISTENCE OF SOUGHT-
FOR DOCUMENTS, NOT TO ALLOW
SELF-SERVING CHARACTERIZA-
ATIONS ABOUT EXISTENT
OCU ae nicinsetntecn oe sade calalcannobecats 56
THERE WAS NO FOUNDATION TO
SHOW THAT A DILIGENT SEARCH
WAS MADE WHICH FAILED TO
DISCLOSE THE SOUGHT-AFTER
TAA BETURBND Qian eeecnes 59
EXHIBITS PURPORTING TO BE
FACTUAL REPORTS THAT ARE
PREPARED FROM INVESTIGATIONS
LEADING TO CRIMINAL TRIALS
CANNOT BE ADMISSIBLE AGAINST
AN ACCUSED ..........csttuees 60
THE CIRCUIT COURT ERRS IN
SUGGESTING THAT “INDICIA OF
RELIABILITY’ CAN DO AWAY
WITH THE OTHER SPECIFIC TESTS
OF RULE 803(10) AND THE SIXTH
AMEN DMEIND onnscccccssom pte neds 63
ADMITTING INTO EVIDENCE
EXHIBIT 1-10 VIOLATED THE
DEFENDANT'S SIXTH AMEND-
MENT RIGHT TO CONFRONTATION ....64
17. THE ADMISSION OF EXHIBIT 1-10
WAS CLEARLY PREJUDICIAL
og, ge St: SEER RESES Si SSRN ee cee 72
REASONS FOR GRANTING THE WRIT ......74
UE oi 75
I Side sek peancsinn ance Appendix
CERTIFICATE OF MAILING .............. Appendix
CASES CITED
Alford v. United States, 282 U.S. 687 ...............0..000--- 66
Barber v. Page, 390 U.S. 719 (1968) ......59, 66, 67, 68
Barsky v. United States, 167 F.2d 241 02... 40
Boyd v. United States, 116 U.S. 616.000.0222... 41
Bridges v. California, 314 U.S. 252 ..0.0......eeeseeeee- 41
Beoomhart ©. Danis, B46 U.S. ..nccccccccccccocccoceccciecseecs.es.- 68
Brown v. United States, 276 U.S. 134 (1928) ............ 28
Bruton v. United States, 391 U.S. 123 (1968) ....66, 67
California v. Green,
399 U.S. 149 (1970) ........ 65, 66, 67, 68, 69, 70, 71
Dimick v. Schiedt, 298 U.S. 474 .......eecececececececeoeee 27
Douglas v. Alabama, 380 U.S. 415 (1965) ....59, 65, 66
Dowdell v. United States, 221 U.S. 825 00.00... 66
Dutton v. Evans, 400 U.S. 74 (1970) 0.0... 68, 69
Emspak v. United States, 349 U.S. 190 (1955) ..28, 29
vi
Page
Franklin v. Skelly Oil Co.,
141 F.2d 568 (10th Che. BOGOR) oo ncs onsen ccnweins 62
Garner v. United States,
424 U.S. 648 (1976) ..........-..--------+-- 9, 12, 28, 29, 30
Gideon v. Wainwright, 372 U.S. 885 -.......---------------- 65
Green v. McElroy, 360 U.S. 474 ......-.-------------e 66
Halperin, 441 F.2d 612 (5th Cir. 1971) -..........--...54, 70
Hartzog v. United States,
217 F.2d 706 (4th Cir. 1954) -........-.--------------+ 62
Hashagen v. United Sta’s,
a RiReemryiepney anerne ot umceseec eer: 11, 12, 15
Hoffman v. Palmer,
129 F.2d 976 (2d Cir. 1942) .......-.--.------1--------! 51, 63
Hoffman v. United States, 341 U.S. 479 -.............-- 8, 11
Hopt v. Utah, 110 U.S. 574 «2... 66
Sa vo Oliver, 208 US. BT ann... 65, 66
Inre U.S. Hoffman Can Corp.,
373 F.2d 622 (8rd Cir. 1967) ............---.-------++--++++- 12
Jacobellis v. Ohio, 378 U.S. 184 (1963) .............--.---- 30
Johnson v. United States, 318 U.S. 189 ..............-- 18, 33
Kirby v. United States, 174 2 Tk Seana 65, 66, 67
Lomax Transportation Co. v. United States,
188 F.2d 831 (9th Cir. 1950) .........-.----..-----sce+0+- 62
McNight v. United States, 115 F.2d 972 .............--.--- 32
Maness v. Meyers, 419 U.S. 449 (1975) -....--.------------ 30
9 OT
Vil
Page
Manes 0; Heese, 878 U8. 3 - 42
Mason v. United States, 244 U.S. 362 ..........00...... wen
Mattox v. United States,
156 U.S. 237 (1895) ....-.oe-cceccescoeeee 59, 65, 66, 67, 75
Miranda v. Arizona, 384 U.S. 436 ..............eeeeeeeeeeeee 8
Monarch Fed 1. S. & L. v. Genser,
I NE A ee oe aaa 55
Motes v. United States, 178 U.S. 458 ...............--- 66, 67
Norris v. Alabama, 294 U.S. 587 .................---e00cc-e00- 30
Oklahoma Press v. Walling, 327 U.S. 186 .................. 41
Palmer v. Hoffman, 318 U.S. 109 .00.0..........cecceeeneeee 62
Parker v. Gladden, 385 U.S. 863 (1966) ........0.......... 65
Pointer v. Texas,
B80 U.S. 400 (1965) oo... aceceeceecceenee- 65, 66, 67, 68
Quinn v. United States, 349 U.S. 155 (1955) ........ 7, 28
Reynolds v. United States, 98 U.S. 145 (1879) ........ 67
Roth v. United States, 354 U.S. 476 (1956) ............ 30
Slochower v. Board, 350 U.S. 551 ...........cccccccccesceeceeeee 8
Spevack vo. Kisin, 885 U.S. 812 ........................... 8
Standard Oil v. Moore,
Shi Pie ae (Oe Ce. WF) 2. 50
Turner v. Louisiana, 379 U.S. 466 ................ccccccccccceeeee 67
Ullman v. United States, 350 U.S. 422 ......0. 8
Viil
Page
United States v. Anderson,
447 F.2d 888 (Sth Cir. 1971) ...........-.-.-.--.-sececseeeee 52
United States v. Daly, 481 F.2d 30 .............-------------- 12
United States v. Oates,
560 F.2¢ 45 (2d Cir. 1977) ............ 55, 61, 62, 72, 75
United States v. Pierce,
oe ¥.54 708 (om Cr. 1077) 11
United States v. Ruffin,
575 FS S08 (Oe Chr. 1976). nie 55
United States v. Scholle,
558 F.2d 1109 (8th Cir. 1977) .........-....-.....:.-0-00- 52
United States v. Weisman,
123 F.2d 9600 (90 Cir. 1060) .................... 12, 13
Warren 0. State, 164 So. 284 ...................c0c0cccccccceccesenes 35
Watts v. Indiana, 388 U.S. 49 (1949) ..........--...--- 9, 30
W est Virginia State Board of Education v.
pn Bik | aeemeyesns aie enone etree 40
W ood v. Georgia, 870 U.S. B75 .........iccsesseeceeceesscseees 41
Yung Jin Teung v. Dulles,
220 F.2d B44 (2d Cir. 1956) ......-ccnccnnnee-nocisesssenees 62
CONSTITUTIONAL PROVISIONS
First Amendment, U.S. Constitution .................... 40-45
Fourth Amendment, U.S. Constitution ................ 43-45
Fifth Amendment, U.S. Constitution ....................-. 7-39
Sixth Amendment, U.S. Constitution .................... 64, 70
Page
STATUTES AND RULES OF EVIDENCE
ob te OE a a 10, 25, 40
Rule 8, Uniform Rules of Evidence ....................-------- 28
Rule 514, Model Evidence Code ....................---------+-- 52
Rule 803 (6), Federal Rules of
Evidence ....46, 49, 50, 51, 52, 54, 56, 61, 63, 69, 70
Rule 803(7), Federal Rules of Evidence ............ 49, 63
Rule 803(8), Federal Rules of Evidence ...................- 63
Rule 803 (10), Federal Rules of
BviGOROe 2.05.50 46, 47, 48, 56, 57, 59, 60, 63
Rule 902, Federal Rules of Evidence ........................ 48
SECONDARY SOURCES
Am. Jur. 2d, Criminal Law .............................. 8, 18, 33
Fe EG eee RES Renee eeeeeceene Ee 27, 29
Am. Jur. 2d, Witnesses ............................ 7, 8, 27, 29, 42
Re 8 So RRC Dae EF TRE POR OD
OWE Be bk RRR Sen at NO ee ET EEE 62
pS Rat IA es ae Ee Te 27
ee ee ef See nC nEe ner. 56
C2 a en GN 35, 40
NE Oe ae Ie 8, 34
cat) Shp” HE BNR SRD SSO e eee SAAR A oe NOR URE ERE KEL 27
x
Page
Davis, Rex, Federal Searches and Seizures, 1964 ......41
Sean: Ruldpase: We Bee a ene 28
MaCorntick, SG 5. 54, 69
Moores, Federal Practice .....................--.c--s-sceeceeeseeseees 62
Note, “Appropriate Foundation Requirements for
Admitting Computer Printouts Into Evidence,”
1007 eee © ee. Oe oc... Hare 55
Note, “Confrontation and The Hearsay Rule,”
75 Vole LJ. 1000 (1008) ss 68, 71
Salzburg and Redden, Federal Rules of
Evidence Manual, 2d Ed., 1977 .............- 51, 53, 56
W einsteins Evidence — United States
pS NOE OM. Lee ee OT 28, 54, 60, 70, 72
Wigmore, Evidence in Trials at
CN I a ccntiniel 28, 51, 65, 69, 72
FOE 6 OMEN REO Ur we
PRR Rr mre miemer ms onmmegtimes meen
1
in the Supreme Court of the
United States
OctToBER TERM, 1979
BG
ROBERT D. NEFF,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE NINTH CIRCUIT
OPINION BELOW
The opinion of the Circuit Court appears in the
appendix. The trial judge did not write one.
The opinion displays the following errors:
REGARDING THE FIFTH AMENDMENT
CLAIM:
The trial judge clearly refused to allow the accused
to present evidence, outside the presence of the jury,
to show that his claim was valid. The Circuit Court
2
expresses the law flawlessly. It is blind to the facts. It
was impossible for Mr. Neff to carry the burden of
proof on this issue, because the judge would not listen.
The record is crystal clear.
REGARDING THE AFFIDAVIT
The Circuit Court refused to apply the statutory
tests set forth in Rule 803(10), Federal Rules of Evi-
dence. This case, if left untouched, will destroy all of
Rule 803(10) and bring back the condemned practice
of “trial by affidavit.” The assault on the Sixth Amend-
ment right of confrontation is obvious.
JURISDICTION
The order of the Circuit Court denying a timely
Petition for Rehearing was entered on April 16, 1980.
This Petition for Certiorari was filed within 30 days
thereafter. The jurisdiction of this Court is invoked
under 28 U.S.C. Sec. 1254(1).
QUESTIONS PRESENTED
QUESTION No. 1
WHEN A CITIZEN ASSERTS HIS FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-
INCRIMINATION, FOR WHICH HE IS
CRIMINALLY PROSECUTED, AND HE FOR-
MALLY REQUESTS AN OPPORTUNITY TO
PROVE THAT HIS FIFTH AMENDMENT
CLAIM WAS VALID, CAN A TRIAL JUDGE
REFUSE TO HEAR SUCH EVIDENCE OUT-
SIDE THE PRESENCE OF THE JURY?
io
(@
(O
3
QUESTION No. 2
CAN THE CIRCUIT COURT DISREGARD
THE STATUTORY TESTS OF RULE 803(10),
FEDERAL RULES OF EVIDENCE, IN AL-
LOWING AN AFFIDAVIT INTO EVIDENCE
IN A CRIMINAL CASE?
QUESTION No. 3
WAS THE ADMISSION OF A COMPUTER-
DERIVED AFFIDAVIT A VIOLATION OF
THE ACCUSED’S SIXTH AMENDMENT
RIGHT TO CONFRONTATION?
STATEMENT OR FACTS
1, FIFTH AMENDMENT ISSUE
Mr. Neff asserted his Fifth Amendment right
against self-incrimination on twenty-six lines of his tax
returns for 1974 and 1975.
He was criminally prosecuted for that under 26
U.S.C. Sec. 7208.
Mr. Neff filed a Pre-Trial Motion asking the judge
to hear evidence about the validity of the claim. The
judge refused.
Mr. Neff made a motion at the trial, before the
taking of evidence, asking the judge to hear his evi-
dence on that issue. The judge refused.
The judge allowed the prosecutor to comment on
the Fifth Amendment right in front of the jury in her
4
opening remarks. Mr. Neff moved for a mistrial, that
was denied.
The judge refused to listen to any evidence from
Mr. Neff concerning the validity of his Fifth Amend-
ment claim.
The judge forced the accused to take the stand to
defend his use of the right to silence. The only evidence
the judge would listen to was evidence presented in
the presence of the jury.
Mr. Neff moved for a judgment of acquittal because
he was forced to stand trial on a Fifth Amendment
claim without the benefit of a determination of the
validity of the claim by the judge.
The jury was allowed to deal with the Fifth
Amendment issue. They sent out a note during their
deliberations asking only about the Fifth Amendment.
No judge, nowhere, at no time has allowed Mr.
Neff to present evidence to prove the validity of his
claim. It was impossible for Mr. Neff to sustain his
burden of proving the validity of his claim.
2. HEARSAY AND CONFRONTATION ISSUE
The I.R.S. prepared an affidavit especially for this
criminal trial. It was prepared just in time for trial
(four days before).
The affidavit gave testimony from a computer two
thousand miles away.
5
The computer seemed to evaluate the tax returns of
Mr. Neff for 1974 and 1975. First, it decided that the
Fifth Amendment claim on the returns was not valid.
Second, it decided that the tax returns were not in ex-
istence. Then, the computer apparently lost the tax re-
turns and couldn’t find them. On the affidavit, the
computer testified “No Record of Returns Filed.” The
I.R.S. said it had the tax returns all the time and offered
them into evidence at the trial.
The foundation witness was a custodian of the
computer, even though he lived and worked two thous-
and miles away from it. Almost every I.R.S. agent in
the country is a custodian of that computer.
The affidavit gave the strongest available testi-
monial evidence to prove that Mr. Neff filed no tax
returns. The affidavit’s opinion on this subject was a
complex constitutional legal opinion. That opinion nec-
essarily involved an evaluation of the Fifth Amendment
right.
No foundation was laid to show that the affidavit
was regularly made by a public agency (other than for
trial).
No foundation was laid to show that a diligent
search had been made for the sought-after tax returns.
In fact, there was no foundation to show that any search
at all had been made for them. There was no evidence
that a search failed to disclose the sought-after tax re-
turns.
6
No foundation was laid to show that the affidavit
was made at or near the time when the tax return was
supposed to be filed.
No foundation was laid to show that the testimony
of the computer was based on personal knowledge.
No foundation was laid for the acceptance of com-
puter-derived information.
The testimony in the affidavit could not be cross-
examined.
CONSTITUTIONAL AND STATUTORY PRO-
VISIONS
1. FIFTH AMENDMENT (privilege against self-
incrimination )
“No person shall be . . . compelled in any crim-
inal case to be a witness against himself . . .”
2, SIXTH AMENDMENT (right to confrontation)
“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the
witnesses against him...”
3. FIRST AMENDMENT (freedom of speech and
silence)
“Congress shall make no law . . . abridging the
freedom of speech...”
4. RULE 803(10) FEDERAL RULES OF EVI-
DENCE
(|
('
i
7
“The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness:
* * *
“Absence of public record or entry.— To prove
the absence of a record, report, statement, or
data compilation, in any form, or the nonoccur-
rence or nonexistence of a matter of which a
record, report, statement, or data compilation,
in any form, was regularly made and preserved
by a public office or agency, evidence in the
form of a certification in accordance with rule
902, or testimony, that diligent search failed to
disclose the record, report, statement, or data
compilation, or entry.”
STATEMENT OF THE CASE
POINT ONE
CITIZENS HAVE A RIGHT TO CLAIM THE
FIFTH AMENDMENT. THAT RIGHT WAS
INTENDED TO PROTECT THE INNOCENT
AS WELL AS THE GUILTY. THE FIFTH
AMENDMENT RIGHT SHOULD BE ZEAL-
OUSLY GUARDED BY THE COURTS.
“The privilege against self-incrimination is a right
that was hard-earned by our forefathers. The
reasons for its inclusion in the Constitution—and
the necessities for its preservation — are to be
found in the lessons of history.”
(Chief Justice Earl Warren in Quinn v.
United States, 349 U.S. 155, 161 (1955) ).
It is the essential mainstay of the American ad-
versary system. (81 Am.Jur.2d, Witnesses, Sec. 31, p.
8
58; Miranda v. Arizona, 384 U.S. 436; 10 ALR 3d
974).
It is founded upon the maxim of the common law
“Nemo tenetur seipsum accusare, (no one shall be com-
pelled to accuse himself), which principle was brought
by our ancestors as a part of their birthright. (22A
C.J.8., Criminal Law, Sec. 649, p. 540).
It serves to protect the innocent who otherwise
might be ensnared by ambiguous circumstances. (81
Am.Jur.2d, Witnesses, Sec. 39, p. 68; Slochower v.
Board, 350 U.S. 551).
The privilege must be given a broad construction
in favor of the right. (Ullman v. United States, 350
U.S. 422). It has always been liberally construed in
order to give the fullest effect to immunity. (21 Am.
Jur.2d, Criminal Law, Sec. 352, p. 380; Hoffman v.
United States, 341 U.S. 479).
The privilege is and should be zealously guarded
by the court. (81 Am.Jur.2d, Witnesses, Sec. 37, p.
64).
Under the self-incrimination clause of the Fifth
Amendment, a person has the right to remain silent
without suffering any penalty for such silence; “penalty”
in this context means the imposition of any sanction
which makes the assertion of the Fifth Amendment
privilege “costly.” (81 Am.Jur.2d, Witnesses, Sec. 41,
p. 70; Spevack v. Klein, 385 U.S. 511 ).
9
“The information revealed in the preparation and
filing of an income tax return is, for purposes of
Fifth Amendment analysis, the testimony of a
‘witness’. . .” Garner v. United States, supra, p.
656.
“A section 7203 conviction cannot be based on a
valid exercise of the privilege” (Garner v. United
States, 424 U.S. 648 (1976), at. 662).
“A valid claim of privilege cannot be the basis
for a Section 7203 conviction... (Garner v.
United States, ibid., p. 663).
“The Fifth Amendment itself guarantees the tax-
payer's insulation against liability imposed on the
basis of a valid and timely claim of privilege . .
(Garner v. United States, ibid., p. 663).
“Ours is the accusatorial as opposed to the in-
quisitorial system. Such has been characteristic
of Anglo-American criminal justice since it freed
itself from practices baal by the Star Cham-
ber from the Continent . . . Under our system
society carries the burden of proving its charges
against the accused not out of his own mouth.”
Justice Felix Frankfurter in Watts v. Indiana,
338 U.S. 49, 54 (1949)
In this case, Mr. Neff was treated as if the Fifth
Amendment did not even exist. He was forced to the
stand in front of the jury to defend his use of the
right. He received no Fifth Amendment protection
whatever. The privilege was not given a broad con-
struction is his favor. The privilege was not given the
fullest effect to provide him with any immunity. The
privilege was not guarded at all by the lower court or
the Circuit Court, let alone “zealously.” Mr. Neff was
designedly penalized for his assertion of the right to be
10
silent. Not only was his use of the privilege “costly”,
his use of the privilege was the very reason for his in-
carceration. He was criminally convicted for asserting
a Fifth Amendment right. Worse than proving guilt
“out of his own mouth”, Mr. Neff was proven guilty
out of his own silence. Although the Supreme Court
has expressly held that there can be no conviction under
26 U.S.C. 7203 because of a valid exercise of the Fifth
Amendment privilege, Mr. Neff was convicted without
the judge making any fair effort at determining the
validity of the claim. Mr. Neff was not given any in-
sulation whatever on the basis of his valid and timely
claim of the privilege.
POINT TWO
WHEN A CITIZEN MAKES A_ FIFTH
AMENDMENT CLAIM, AND IT IS CHAL-
LENGED, THERE MUST BE A JUST AND
FAIR PROCEDURE TO DETERMINE THE
VALIDITY OF HIS CLAIM. OTHERWISE,
THE CONSTITUTIONAL RIGHT IS MEAN-
INGLESS.
How can any court Fold that Mr. Neff’s claim of
the Fifth Amendment privilege is invalid, if no correct
process of determination has been utilized to arrive at
that conclusion ‘
There must be a procedure whereby the judge looks
at the issue, hears the evidence concerning it, and then
makes a finding regarding it. It is axiomatic that, for
a determination to be made, there must be reasonable
steps leading up to that determination.
ll
The Circuit Court in our case correctly and care-
fully explains the process or procedure for arriving at
such a determination. The Circuit Court commendably
uses “traditional Fifth Amendment analysis” (Slip
Opinion, p. 5) to describe it:
STEP NO. 1: The court looks to see if the context of
the information gathering device inherently violates the
Fifth Amendment privilege. (Id.) Here, they say, it
does not.
STEP NO. 2: The court looks for reporting schemes
directed at a highly selective group inherently suspect
of criminal activities. (Id.) Here, they say, there is
none.
STEP NO. 3: The court looks for something peculiar-
ly incriminating about the circumstances of the accused
that would justify his reliance on the Fifth Amendment.
(Id.) To do this, it examines the implications of the
questions in the setting in which they are asked. It
looks at the questions themselves, their setting, and the
peculiarities of the case. (Slip Opinion, p. 6 citing
Hoffman v. United States, 341 U.S. at 486; United
States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977) ;
Hashagen v. United States, 283 F.2d at 350)
STEP NO 4: Applying those “peculiarities of the
case’ and his “personal perception” of those peculiarities,
the judge then determines if the following apply:
A. Is there a substantial hazard of self-incrimin-
12
ation that is real and appreciable, and not merely imag-
inary and unsubstantial? (Slip Opinion, p. 5)
B. Is there reasonable cause for the accused to
apprehend danger from a direct answer to the question
posed to him? A possible link or clue in the chain of
evidence is all that is necessary.
STEP NO. 5: The judge then “decides”, from his ex-
amination, whether a threat of self-incrimination exists.
If he determines that there is no reasonable threat, we
go to the next step.
STEP NO. 6: “... it then becomes incumbent ‘upon
the defendant to show that answers to the questions
might criminate him.” (Slip Opinion, p. 6, citing
United States v. Weisman, 111F.2d 260, 261 (2d Cir.
1940) and Garner v. United States, 424 U.S. at 658;
United States v. Daly, 481 F.2d at 30; In re U.S. Hoff-
man Can Corp., 373 F.2d 622, 628 (8rd Cir. 1967) ;
Hashagen v. United States, 283 F.2d at 350). At this
point, it falls upon the accused to come forward with
some evidence. It becomes a duty on his part (not a
very heavy one) to bear a burden of proving, in some
small degree, why he believes the question could be a
link or clue in a chain of incriminating disclosure. His
burden of proof does not “require him ‘to prove guilt to
avoid admitting it.” (Slip Opinion, p. 7). He only
has to “set the door ajar”, as this quote by Judge Learn-
ed Hand in the Circuit Court opinion properly illus-
trates:
Beate res se
13
Obviously a witness may not be compelled to do
more than show that the answer is likely to be
dangerous to him, else he will be forced to dis-
close those very facts which the privilege protects.
Logically, indeed, he is boxed in a paradox, for
he must prove the criminatory character of what
it is his privilege to suppress just because it is
criminatory. The only practicable solution is to
be content with the door’s being set a little ajar
and while at times this no doubt partially de-
stroys the privilege, and at times it permits the
suppression of competent evidence, nothing bet-
ter is available.
(My emphasis, Slip Opinion, p. 7, quoting from United
States v. Weisman, 111 F.2d at 262.
The accused must be allowed to “show” something. He
must be allowed to “prove” something. Step No. 6
identifies the error that was perpetrated in this case
against Mr. Neff.
CIRCUIT COURT IGNORED STEP NO. 6:
In our case, Mr. Neff filed a Pre-Trial Motion ex-
pressly requesting the opportunity to show that answers
to the questions might incriminate him. The trial judge
refused to hear the matter. At the trial, before any
evidence was taken, Defense Counsel orally moved the
court to hear evidence from the accused regarding the
validity of the Fifth Amendment right. The trial judge
refused to hear the matter. Before, during, and after
the trial, Defense Counsel did everything he reasonably
could to get the trial judge to follow STEP NO. 6 of
the above procedure. The trial judge refused, time after
14
time, to listen to the matter. Instead, the judge's im-
plicit attitude was: “say it to the jury.” Mr. Neff wanted
to come forward to the judge with evidence on the
issue. Mr. Neff wanted to “set the door ajar” with testi-
mony. The trial judge blatantly refused to hear it.
The Circuit Court correctly states the law regard-
ing Step No. 6 above, but it completely and blindly
misapplies that law to the facts of this case. No judge,
either in the trial court or at the Circuit Court, allowed
Mr. Neff to make any showing or to bring forward any
testimony, outside the presence of the jury, concerning
the validity of the Fifth Amendment claim.
There has never been a reported judicial opinion in
the history of American law where a citizen, who ex-
pressly requested a chance to show evidence of the
validity of his Fifth Amendment right, was denied that
opportunity.
POINT THREE
THE FACTS ARE INCONTROVERTIBLE.
MR. NEFF WAS DENIED ANY OPPORTUN-
ITY WHATSOEVER TO PRESENT EVI-
DENCE TO THE JUDGE (OUTSIDE THE
PRESENCE OF THE JURY) IN ORDER TO
PROVE THE VALIDITY OF HIS FIFTH
AMENDMENT CLAIM.
The Circuit Court completely ignores the plain fact
that Mr. Neff was not given any opportunity to pre-
sent evidence to the judge (outside the presence of the
jury) in order to prove the validity of his Fifth Amend-
ment claim.
?
&
15
At page eight of the Slip Opinion, the Circuit
Court glaringly misapplies the facts of this case to the
law it so carefully presented in pages five, six and seven
previously. The Circuit Court says:
“In short, the whole circumstance was ‘innocuous
and thus unprotected absent some positive dis-
closure by the witness of its hidden dagners .. . -
Hashagen v. United States, supra, 283 F.2d at
350. Neff made no such disclosure. At no point
during the trial, including when Neff testified,
was the district judge presented with any indicia
of potential incrimination . .. . Neff did not show
that his response to the tax form questions would
have been self-incriminating. He cannot, there-
fore, prevail on his Fifth Amendment claim.”
(Slip Opinion, p. 5) And also at note 5, the Circuit
Court says:
“That Neff never received a pre-trial evidentiary
hearing on his Fifth Amendment claim does not
mean that he was deprived of the opportunity to
establish its validity. It is clear from the record
that Neff’s attorney attempted to validate the as-
sertion of the alalieds by questioning Neff about
his reasons for asserting it and his sincerity in
doing so. When the district judge instructed
Neff’s attorney that Neff could disclose as much
or as little of the criminal conduct as he wished,
the attorney asked Neff no questions about the
underlying reason for his fear of incrimination.”
(Slip Opinion, note 5)
The Circuit Court ignored the fact that the only
reason Mr. Neff “made no such disclosure” and did not
present any “indicia of potential incrimination” and did
not show why his response to the questions would have
16
been incriminating, was because the lower court judge
refused to hear that evidence outside the presence of
the jury. The judge’s willingness to hear evidence on
this Fifth Amendment claim was solely under the con-
dition that Mr. Neff reveal it in front of the jury. Please
notice the incredible context of the trial judge's state-
ment, that is so blandly referred to by the Circuit Court
at note 5:
“JOSLIN (IN THE PRESENCE OF THE
JURY)
Q. Mr. Neff, are you prepared at this time
to confess the crime which was hidden by your
exercise of the Fifth Amendment right on your
tax return? Are you prepared to do that now!
A. It seems obvious to me, from my train-
ing, that a person doesn’t have to confess the
crime in order to be protected for his claiming
the Fifth Amendment.
Q. Then you do not want to reveal to us
what that crime was?
A. If it becomes necessary, to avoid being
prosecuted for claiming the Fifth Amendment on
the 1040, I suppose I will have to.
What about your fear of incrimination
under the crime that was hidden?
A. Ithink I would — It seems to me, from
my background, my training, that they would
have to — there would have to be some kind of
immunity.
JOSLIN At this time, your honor, we are pre-
pared to go forward with a —
comet et eh
17
SIMPSON (Prosecutor) I would object, your
honor, and suggest that this should be taken outside the
presence of the jury” (Transcript, pp. 89-90).
Please consider what happened. Defense Counsel
was discussing the Fifth Amendment right in the pres-
ence of the jury. That is, of course, extremely preju-
dicial to the Defendant. Why was the Defense Counsel
doing this? Because he was forced to do so by the trial
judge. How was Defense Counsel forced to do this?
Because of compulsion from the trial judge.
The Prosecutor was allowed by the judge to open
up the issue of the Fifth Amendment in the presence
of the jury. During the Prosecutor’s opening remarks
to the jury, she said:
“MS. SIMPSON (IN THE PRESENCE
OF THE JURY)
Mr. Neff did not use this information to
prepare a tax return. Instead, he filed with the
Internal Revenue Service a Form 1040 on which,
on many places on the Form, he wrote the
words . . . ‘object, self-incrimination.’
MR. JOSLIN: Your honor, I move for a mis-
trial on the grounds of comments by the prosecu-
tion as to the use of Fifth Amendment rights.
THE COURT: Overruled
(Transcript, p. 12, lines 12-20)
The accused was forced upon the stand to defend be-
fore the jury the right to be silent. Once allusion has
been made in front of the jury, the accused is virtu-
ally driven upon the stand, or remains off at the peril
18
of having inferences drawn against him from his sil-
ence (McNight v. United States, 115 I’. 972). The
improper mention, in the presence of the jury, by
the prosecution, of a Fifth Amendment claim by the
accused, is prejudicial error in itself (Johnson v. United
States, 318 U.S. 189; Am.Jur.2d, Criminal Law,
Section 356, p. 383) .|
The trial judge refused to hear evidence from the
accused outside the presence of the jury. The last op-
portunity for the accused to have anyone consider the
validity of his Fifth Amendment claim, was to try to
persuade the jury. The trial judge had made it crystal
clear that he would not hear this evidence out of the
presence of the jury. The accused had tried to get the
judge to hear it before the trial by filing a “Pre-Trial
Motion For Judicial Ruling on the Constitutional Right
to Silence” (Circuit Court Excerpt of Record, pp. 3-7).
The accused clearly pointed out to the judge at that
time that:
PRE-TRIAL MOTION: (OUTSIDE THE PRES-
ENCE OF THE JURY)
The burden of his proper use of that right [Fifth
Amendment Right] appears now to be shifted
onto his back. It appears that he [the Defend-
ant] must either (1) prove to the court that his
use of the right to silence was, bona fide and sin-
cere or (2) be forced to stand trial for his use
of that right and the consequent failure to supply
that information.
* * *
Defendant has not been given any judicial review
or determination as to the validity of his assertion
19
of his Fifth Amendment rights. Such a judicial
determination constitutes (1) a legal issue, (2)
a question of law and (3) a sensitive constitu-
tional evaluation of the proper scope of the use
by a layman of the right to silence against gov-
ernment compulsion. None of these questions or
owers can properly be determined or exercised
* a jury and this judicial determination must
properly be made before trial.
* * .
The only way the Defendant feels he can prove
that his use of his Fifth Amendment right was
bona fide or sincere, would be to confess the
crime which the reporting of the amount of in-
come or deductions on the tax returns concealed.
He does not want to confess that crime. He
would only do so because of his fear of being
forced to face a trial by a jury of his peers, whom
he believes would punish him out of sheer preju-
dice and ignorance of the law... .
* * +
... the Defendant will fully confess his crime and
prove to the Court that he had a sincere belief
that the giving of the information as to the
amount of his income or deductions might tend
to incriminate him.”
PRE-TRIAL MOTION FOR JUDICIAL
RULING ON THE CONSTITUTIONAL
RIGHT TO SILENCE, Excerpt of Record,
selected portions, pp. 3-6.
The trial judge denied this motion on the strange
grounds that it was untimely (Slip Opinion, p. 3).
At the time of trial, before any evidence was pre-
sented to the jury, Defense Counsel again moved for
the taking of evidence on this issue (Transcript, p. 9,
lines 7-18).
20
TRIAL MOTION
JOSLIN (OUT OF THE PRESENCE OF
THE JURY)
Your Honor, at this time, we would like to
bring forward evidence before the court to prove
that there is no question whatever that the claim
of the Fifth Amendment rights by the Defendant
on the tax return were all valid exercises of that
privilege and to show the court that it is entirely
improper to go forward with the trial at this time
without making a judicial ruling as to the valid-
ity e those claims. May we be allowed to make
sucha...
THE COURT: No, counsel. Your time for
motions has expired, and any motions you wish
to make at this time are, indeed, late. This is the
time for the trial. |
(Transcript, p. 9)
That rulirg was final. The judge said “NO, COUN-
SEL.” And he meant exactly what he said. Every at-
torney knows what the word “NO” means in response
to a motion. It means “denied,” “overruled,” “I won't
do it,” “the matter is closed,” “If you don’t like it, take
it up on appeal.”
The Circuit Court says that the trial judge “repeat-
edly expressed his conviction that Neff had no valid
self-incrimination claim.” (Slip Opinion, p. 3) That is
false! That statement is garrishly false! That statement
is totally unsupportable! The Circuit Court could not
possibly, and did not, indicate the slightest facts in the
record to support that incredible notion. How possibly
could the Circuit Court make such a statement when
21
the trial judge indicated throughout the trial that he
was not going to even hear the matter (outside the pres-
ence of the jury). At the very moment when the De-
fense Counsel was considering having his client confess
to the hidden crime in front of the jury (a ridiculous
and damnable alternative), and at the very time when
the Prosecutor realized that the situation was legally
intolerable, the judge again refused to hear the matter
outside the hearing of the jury. Consider:
“JOSLIN (IN THE PRESENCE OF THE
JURY)
Q. Mr. Neff, are you prepared at this time
to confess the crime which was hidden by your
exercise of the Fifth Amendment right on your
tax return? Are you prepared to do that now?
A. It seems obvious to me, from my train-
ing, that a person doesn’t have to confess the
crime in order to be protected for his claiming
the Fifth Amendment.
Q. Then you do not want to reveal to us
what that crime was?
A. If it becomes necessary, to avoid being
prosecuted for claiming the Fifth Amendment
on the 1040, I suppose I will have to.
Oo
Q. What about your fear of incrimination
under the crime that was hidden?
A. I think I would — It seems to me, from
my background, my training, that they would
) have to — there would have to be some kind of
immunity.
JOSLIN At this time, your honor, we are pre-
pared to go forward with a —
22
SIMPSON (Prosecutor) I would object, your
honor, and suggest that this should be taken out-
side the presence of the jury.
THE COURT: Do you want to come forward
to the side-bar? All right.
MR. JOSLIN: . . . Could we go into Cham-
bers, your honor!
THE COURT: No. We will do it right here.
MR. JOSLIN: Mr. Neff sincerely took the
Fifth Amendment.
THE COURT: Oh, I understand all that. Now,
tell me what you were about to say.
MR. JOSLIN: He wanted a right to a judicial
determination of his sincerity before trial, and he
did not reagive it. He has now been forced to
stand trial before a jury, but he does not want to
he convicted. He feels under compulsion, by the
powers of this court, he feels compelled to con-
fess so that it will become obvious that his true
criminal activities were protected by the Fifth
Amendment, whereas, if he asserts that he is an
innocent man under our laws, he has no Fifth
Amendment right.
* * *
THE COURT: He can say anything he wants
to say so far as that is concerned; if he wants to
take the stand and give the length and bredth of
his testimony and divulge the matters that he
thinks criminal, he aa do it. He doesn’t have to.
He can say whatever he wants to testify to. I
will let him testify. It’s up to him. It’s a decision
he has to make, a decision that you have to make.
MR. JOSLIN: Is there some other test?
THE COURT: There is no other test, Counsel. :
(Transcript, pp. 89-90).
23
The judge would not go into chambers. If any
evidence were to be given, he demanded it be done on
the “stand”. The judge would not consider any “other
test.” The Prosecutor realized that the accused was
about to make a confession of guilt in front of the
jury and suggested to the trial judge that this “should
be taken outside the presence of the jury.” Defense
Counsel made it clear to the judge that the accused was
being “forced to stand trial before a jury” on this matter
and that the accused “feels compelled to confess” in
front of the jury. The situation was constitutionally in-
tolerable.
No reasonable attorney would force his client to
confess a crime, hidden by the use of the Fifth Amend-
ment, in front of a jury. Yet, the Circuit Court held
this as a fact against the accused. Consider the blind-
ness in the Circuit Court's reasoning:
It is clear from the record that Neff's attorney
attempted to validate the assertion of the priv-
ilege by questioning Neff about his reasons for
asserting it and his sincerity in doing so. When
the district judge instructed Neff’s attorney that
Neff could disclose as much or as little of the
criminal conduct as he wished [Transcript, pp.
89-90], the attorney asked Neff no questions
about the underlying reason for his fear of in-
crimination (Slip Opinion, note 5).
Is it not glaringly obvious why the Defense Counsel
did not ask any such further questions about the Fifth
Amendment? The answers would have come in the
presence of the jury! The jury would then be preju-
24
dicially justified in convicting the accused for a con-
fessed crime that was not even charged against him.
They might say to one another: “This Neff is a bad
fellow. He confessed to us another crime. He deserves
some punishment for that other crime. Let us convict
him in this case!” Yet, the Circuit Court implies that
this was Mr. Neff’s wonderful opportunity to bring
forward evidence to the judge in order to prove the
validity of the Fifth Amendment claim.
Compulsory testimony in front of a jury is no op-
portunity to present evidence to a judge. Mr. Neff was
clearly denied the opportunity to present the evidence
outside the presence of the jury.
The trial judge never made a decision on the valid-
ity of Mr. Neff's Fifth Amendment claim. The Circuit
Court's assertion to the contrary is obviously incorrect.
(Slip Opinion, p. 8).
Instead, the trial judge delegated that determina-
tion to the jury. The trial judge wanted the jury to
decide the issue. The trial judge instructed the jury as
to how to decide this issue. It was their duty to de-
cide, he said:
“You must consider, however, whether such
claims of the Fifth Amendment privilege were
justified by a fear of self-incrimination under
laws other than the tax laws.
* * *
If a person chooses to exercise his Fifth Amend-
ment privilege with respect to a particular in-
Ror a
25
quiry, he may raise the objection in the re-
tum...”
(Transcript, p. 225).
Actually, the Fifth Amendment issue was _pre-
sented to the jury as a mere portion of an instruction
dealing with the element of “wilfulness.” (Instruc. 22,
Transcript, p. 181, lines 21-22 and pp 223-225). The
jury instruction dealing with the Fifth Amendment was
only a small part of the general jury instruction dealing
with “wilfulness,” not with the Fifth Amendment priv-
ilege itself. None of the tests for determining the val-
idity of a Fifth Amendment claim were given to the
jury. The jury was not given any of the criteria which
were later represented by the Circuit Court as neces-
sary to a proper determination of that issue. Instead,
the jury was only given those instructions which indi-
cated that a good faith mistaken belief in the law was a
defense to the element of wilfulness. The “wilfulness”
requirement under 26 U.S.C. 7203 is totally and com-
pletely unrelated to the legal validity test of a Fifth
Amendment claim. The “wilfulness” issue is factual in
nature, and the mistaken belief of the accused is rele-
vant to that. The Fifth Amendment validity issue is a
complex constitutional issue, that can only be decided
by a judge, not a jury. In reality, therefore, the trial
judge didn’t even give the jury a fair opporttinity to
deal with the Fifth Amendment issue.
The trial judge never made a decision on the valid-
ity of Mr. Neffs Fifth Amendment claim. Defense
Counsel moved for a Judgment of Acquittal under Rule ‘
26
29 of the Federal Rules of Criminal Procedure on this
very ground. He said:
MR. JOSLIN (OUTSIDE OF THE PRES-
ENCE OF THE JURY)
. another grounds for the motion for Judg-
ment of Acquittal, is that the Defendant sould
not be forced to stand trial on a criminal charge
for having utilized the Fifth Amendment claim
when there has not been a judicial legal deter-
mination of that issue... , and in accordance
with Jury Instruction No. 7, it is only within the
province of the jury to determine questions of
fact, and we assert that the determination of the
use of the Fifth Amendment right at the thresh-
old is a question of law, a sensitive question of
constitutional law, and cannot be made by the
jury without a threshold determination by the
court, and so we ask for a Judgment of Acquit-
tal on that ground.”
THE COURT: All right. Denied.
(Transcript, pp. 186-187).
It was obvious to the trial judge, to the prosecutor and
to the defense counsel, that the trial judge had never
decided whether Mr. Neff’s claim was valid. Only the
Circuit Court seemed blind to this fact. How can the
accused make it any more clear to the Supreme Court
Yet, even if an appeals court should stretch the
facts to conclude that the trial judge had made such a
decision, without giving the accused a chance to give
evidence on that issue, how could it be said that any
such decision was just or fair? The critical error in this
27
case is that the accused was not allowed to give evi-
dence to prove the validity of his claim outside the
presence of the jury. No such decision, existent or non-
existent, can be upheld as proper under due process of
law. No judge can fairly make a decision that a Fifth
Amendment claim is invalid without giving the accused
his chance to prove that the questions might evoke in-
criminating answers.
POINT FOUR
THE DETERMINATION OF THE VALIDITY
OF A FIFTH AMENDMENT CLAIM IS A
COMPLEX CONSTITUTIONAL LEGAL DE-
TERMINATION THAT CANNOT BE MADE
BY THE JURY.
Legal questions are decided by the court (88
C.J.S., Trial, Sec. 203, p. 403; Dimick v. Schiedt, 293
U.S. 474; 75 Am.Jur.2d, Trial, Section 320, p. 383).
Factual questions are decided by the jury (88
C.J.S., Trial, Sec. 203, Pp. 403-404; 75 Am.Jur.2d,
Trial, Section 320, p. 383, and Sec. 662, p. 618).
“It is the province of the court to determine in
the first instance under all the cricumstances of
the case whether any direct answer to a proposed
question has a tendency to criminate the witness.”
81 Am.Jur.2d, Witnesses, Section 52, p. 85; Mason
v. United States, 244 U.S. 362; Annota. 120 ALR
1108, 1116).
“When a question is propounded, it belongs to
the court to consider and to decide whether any
28
direct answer to it can implicate the witness.”
(Quinn v. United States, 349 U.S. 155, 168 fn. 37
1955) ).
With respect to who determines the validity of the
claim of self-incrimination, “It is now settled that the
issue is for the judge to decide” (his emphasis) (, John
Henry Wigmore, Evidence in Trials at Common Law,
Vol. 8, 1961, Sec. 2271, p. 420. Also see Uniform Rule
of Evidence 8; Brown v. United States, 276 U.S. 134
(1928) ; Emspak v. United States, 349 U.S. 190, 198
n. 18 (1955)'; Jones on Evidence, 6th Ed., 1972, Sec.
22:6, p. 20).
“The Fifth Amendment privilege against self-in-
crimination presents preliminary questions which
are somewhat like those encountered under the
secret of state and identity of informers privilege.
The court is required to examine the claim of the
witness...” (my underlining)
(Weinstein’s Evidence-United States Rules, Vol.
1, Par. 104(14) (6) ).
“The information revealed in the preparation and
filing of an income tax return is, for purposes of
Fifth Amendment analysis, the testimony of a
‘witness... (my Pc ve See (Garner v. U.S.,
supra, p. 656).
A judicial ruling or judicial assessment of the Fifth
Amendment claim is favored in the law. Justice Harlan
suggested in dicta in the case of Garner v. United States,
424 U.S. 648, at 664, that there ought to be a “judicial
assessment” or “judicial ruling” on a claim of the privi-
lege against self-incrimination. He said:
¢q
29
. such a procedure would serve the best in-
terests of the government as well as of the tax-
payer, cf. Emspak v. United States, 349 U.S.
190, 213-214 (1955)”
(Harlan, J., dissenting, Garner, p. 664, also see
fn 19).
Harlan’s advice is especially important in a case
such as ours where the Fifth Amendment claim was
asserted visibly well in advance of any legal proceeding.
In the Garner case itself, no Fifth Amendment right
was timely claimed.
“One feature of ideal administration of justice by
the jury o is that correct rulings of law shall
be made by the presiding judge.”
(“Questions for the Court,” in 75 Am.Jur.2d, Trial,
Sec. 320, p. 393).
“, . . the remoteness or reality of the danger of
incrimination is to be decided by the court in
determining the claim of privilege.”
(81 Am.Jur.2d, Witnesses, Sec. 39, pp. 68-69; also
see section 52, p. 85).
A determination of the validity of a Fifth Amend-
ment claim is a complex question involving constitu-
tional rights of the most fundamental nature, and, as
in the First Amendment area:
“. . . involves not really an issue of fact but a con-
stitutional judgment of the most sensitive and
delicate kind.”
30
(his emphasis) (Harlan, dissenting, Roth v. United
States, 354 U.S. 476, 497-498 (1956) ). The high court
has consistently recognized its duty to apply the applic-
able rules of law upon the basis of an independent re-
view of each case. (See Watts v. Indiana, 338 U.S.
49, 51; Norris v. Alabama, 294 U.S. 587, 590; Brennan
and Goldberg in Jacobellis v. Ohio, 378 U.S. 184, 189
(1963) ).
Although a “precompliance review” holds a favored
position in terms of determining the validity of a Fifth
Amendment claim (“This method of achieving pre-
compliance review is particularly appropriate where the
Fifth Amendment privilege is involved”) (Maness v.
Meyers, 419 U.S. 449, 462 (1975) ), we are concerned
with an error infinitely worse — no judicial review at
all.
The majority opinion of the Supreme Court in
Garner v. United States, 424 U.S. 648 at P. 664 had
something very interesting to say about how sure they
were that some kind of official review of the validity of
the claim would be made before trial. They said:
“The government advised us at oral argument
that a claim of privilege would stimulate ruling
= the Service. It is doubtful, therefore, that a
claimant would find himself prosecuted with no
prior indication that the Servcie considered his
claim invalid. The claimant, however, would not
have a judicial assessment of his claim.”
(Garner, supra, n. 19, p. 664).
31
Mr. Neff found himself prosecuted with no prior
indication of a Service ruling on the validity of his
claim. Worse than that, even when Mr. Neff requested
a judicial assessment, it was denied. The high court
clearly suggests that a judicial assessment of the claim
is important, even if a claimant has already had an ad-
ministrative assessment. But in our case, the Defendant
was denied both. This blatant deprivation of his right
to silence is all the worse when one realizes that Mr.
Neff is being sentenced to two years in prison for a
speech-related crime of omission, not commission. Com-
munists, advocating the overthrow of our government—
Abortionists, advertising their murderous art— and por-
nographers, demanding prior restraint protection and
pre-seizure adversary hearings for the display of forcible
rape, all seem to be treated with greater judicial consid-
eration.
POINT FIVE
DELEGATING THE DETERMINATION OF
THE VALIDITY OF THE FIFTH AMEND-
MENT CLAIM TO A JURY UNFAIRLY
FORCES THE ACCUSED TO DEFEND HIS
CONSTITUTIONAL RIGHTS IN FRONT OF
THE JURY. A JURY IS NOT COMPETENT
TO DETERMINE SUCH AN ISSUE.
Once an allusion has been made in front of the jury
concerning the accused's out-of-court use of the Fifth
Amendment, the accused is virtually driven upon the
stand to defend his constitutional claim, or remain off
at the peril of having inferences drawn against him from
32
his silence (McNight v. United States, 115 F. 972).
Mr. Neff was driven to the stand to defend his
use of the Fifth Amendment in this case. It has al-
ready been clearly shown how the trial judge refused
to hear any evidence from the accused on this issue.
The Prosecutor first exposed the Fifth Amendment
issue to the jury in her opening remarks to the jury,
because of which the Defense Counsel immediately
moved for a mistrial (Transcript, p. 12). From that
point on, Mr. Neff’s only opportunity to defend him-
self on this issue was, according to the trial judge, to
take the stand and say as much as he wanted (Tran-
script, pp. 89-90). The judge said this at the very time
that the prosecution had suggested that such testimony
be taken “outside the presence of the jury” (Transcript,
p. 89).
In this case, the Circuit Court itself said that the
district judge was the person to receive the evidence
and make the determination of the validity of the Fifth
Amendment claim, not the jury. They said, “a trial judge
must examine the implications,” “the trial judge decides
from this examination... ,” and “It is for the court to
decide whether his silence is justified” (Slip Opinion,
pp. 6-7). We have already documented how incredibly
inaccurate was the Circuit Court’s application of the
facts of this case to their own view of the law. The
trial judge in this case refused to hear any evidence
from the accused on the issue outside the presence of
the jury, and the trial judge did not take it upon him-
self to examine the implications or to arrive at a de-
a
33
cision. The trial judge delegated this decision to the
jury. That is clear error.
A jury is not qualified to make such a determina-
tion. None of them are law trained. There is a great
deal of prejudice against anyone asserting a Fifth
Amendment privilege, as it strikes jurors as an attempt
to hide something.
So fraught with danger is this exposure to the prej-
udice of a jury that even the improper mention of the
use of the Fifth Amendment claim in front of a jury
can be considered prejudicial error (Johnson v. United
States, 318 U.S. 189; 21 Am.Jur.2d, Criminal Law,
Section 356, p. 383).
To make matters worse, in our case the trial judge
did not even instruct the jury on the criteria to be ap-
plied in determining the validity of a Fifth Amendment
claim. The jury indicated their concern about the Fifth
Amendment claim by sending out a note during their
deliberations (Transcript, p. 232). Yet, the only in-
structions they received from the trial judge dealt with
“wilfulness’ standards, not criteria for determining the
validity of a Fifth Amendment claim (Instruction 22,
Transcript, p. 232, pp. 223-225, p. 181). Even worse
than that, the trial judge, over express objection of De-
fense Counsel, refused to allow the jury to have a copy
of the jury instructions to read during their delibera-
tions (Transcript, pp. 230-231). It had to have been
nearly impossible for the jurors to attempt to apply the
Fifth Amendment under those cricumstances.
34
The Prosecution said on appeal that the jury made
no determination of the validity of the Fifth Amend-
ment claim (Appellee’s Brief, 9th Circuit, pp. 5-7).
That is probably true, because it is legally impermissible
for the jury to make such a determination. And that
being the case, it is clear that the accused was deprived
of any opportunity to present evidence of the validity
of his Fifth Amendment claim.
POINT SIX
JUSTNESS AND FAIRNESS REQUIRE THAT
THE ACCUSED BE HEARD ON AN ISSUE
WHERE THE BURDEN OF PROOF IS PLAC-
ED UPON HIM. OTHERWISE, IT IS IM-
POSSIBLE FOR THE ACCUSED TO SUS-
TAIN HIS BURDEN OF PROOF.
The Circuit Court held in this case that it was “in-
cumbent upon the defendant to show that answers to
the questions might criminate him” (Slip Opinion, p. 6,
quoting U.S. v. Weisman and citing four other cases).
There was a burden of proof upon the accused to bring
evidence before the trial judge. How can an accused
sustain such a burden when the trial judge refuses to
hear it?
Mr. Neff could not possibly comply with his burden
of proving the validity of his claim. The judge wouldn't
hear him. Allowing evidence to be heard from the
accused “is the means whereby the truth of a matter
may be established” (22A C.J.S. Criminal Law, Sec-
tion 530(1)). Absent such an opportunity, it is not
possible to fairly establish the truth.
35
There has never been a time in the history of
American law that an accused who claimed a Fifth
Amendment right was not allowed to present evidence
to the judge to prove the validity of that claim.
It is the very essence of due process of law that
an accused have the full opportunity to receive a fair
hearing on that which he has the burden of proving
(16A C.J.S. Constitutional Law, Section 591, p. 659).
How can there be a fair hearing, if the trial judge re-
fuses to hear? A refusal to permit the accused to be
heard at the proper time is a violation of due process
(Warren v. State, 164 So. 234).
If the accused had been given the opportunity to
present evidence before a judge as to the reason he
asserted the Fifth Amendment, he might have testified
to the following. This is a deposition filed with the
Circuit Court in the Petition for Rehearing, after the
trial and after the Circuit Court handed down its opin-
ion. No consideration of this Deposition was made by
the Circuit Court as a result of the Petition for Rehear-
ing. The accused has not been given the opportunity
to bring any evidence of this before any judge anywhere:
DEPOSITION OF ROBERT D. NEFF
BEFORE THE CIRCUIT COURT IN
THE PETITION FOR HEARING
Being duly sworn, I, Robert D. Neff, depose and
say:
_ The reason I asserted the 5th Amendment on my
tax forms in 1974 and 1975 was because I was earning
36
money outside of police work. I feared that I might be
criminally prosecuted for “moonlighting” or for engaging
i: some other crime such as conflict of interest. Police
officers are strictly regulated, being a special form of
public official and civil servant under an oath of office,
and they are subject to more criminal responsibility than
other non-public officials. I believed that disclosing my
income could be evidence to prove that I was earning
money from sources that may have been forbidden by
law. In addition we were afraid of possible prosecution
stemming from: our children being born at home (due
to our religious beliefs) with myself in attendance; and
my wife, being a resident alien, having never obtained
a Social Security number . Significantly, in a taped in-
terview with Internal Revenue Service employees later,
threatening statements were made by them, concerning
our children being born at home, in an attempt to as-
certain the reason for my claiming my right not to be a
witness against myself.
I did not disclose this reason in the lower court
because, after the judge refused to hear me on the v:1-
idity of my 5th Amendment right, the only place that I
could make such a disclosure was in front of the jury.
I did not believe that I should be compelled to explain
to the jury the specific reasons why my fears of self-
incrimination were real. The jury could have been pre-
judiced against me and feit that I deserved to be pun-
ished for any wrong I may have been engaged in as a
policeman, instead of taking into consideration the crime
with which I was charged. To have admitted my reason
in front of the jury would have disclosed my wrongful
conduct, and therefore, have subjected me to prosecu-
tion for that wrongful conduct, which was the very
threat I was trying to protect against by asserting the
5th Amendment in the first place. As it was, the jury
foreman stated after the trial to witnesses that “. . . may-
be the punishment would be less for this, than for what
the defendant was hiding” and “. . . if the defendant
would have put down something, even ten dollars, along
37
with taking the 5th, he would have been found not
guilty”.
I was prosecuted criminally for not giving informa-
tion on a tax form. The information asked for was the
amount of my income. I believed that such information
was potentially incriminating. I asserted my 5th Amend-
ment right from the beginning, yet not one administra-
tive or judicial officer ever made a determination that
my claim was invalid. I even requested a determination
by the judge at the trial, but the judge said my request
was not timely, and\he did not, therefore, make a deter-
mination of its validity. He did not even ask me why I
asserted the 5th Amendment. How can it be untimely
to assert a constitutional right if I put it in writing four
years ago on the government forms, placed it in letter
to the Internal Revenue Service, and brought it before
the court in a formal motion before any evidence at all
was introduced. As a police officer, I have been trained
to be sensitive in providing full 5th Amendment rights
to any criminal suspect, even early in the investigation
stage. Even the worst form of criminals, I was taught,
have the right not to disclose any information when they
are brought into custodial interrogation. For example,
if I arrested a rapist in the very act of torturing a young
girl, and he asserted his 5th Amendment right, I was
forbidden to ask any further question until such time
as that person would have the opportunity to have his
5th Amendment right adjudicated! Yet, in my case,
the crime with which I am charged is far less harmful
to society. It would seem to me that the right of so-
ciety to compel information from me in such cases would
be far less justified. Further, the nature of the crime I
am charged with involves the use of the 5th Amendment
right. If I had not used the 5th Amendment right and
supplied the information requested, there would be no
prosecution. It was the fact that I did not answer the
question and, instead, asserted my right under the 5th
Amendment, for which I am being prosecuted. Yet, I
have been told in essence, that I have no right to the
38
5th Amendment, no one stopped in their interrogation
of me (even in the circumstance of the compelling situ-
ation of a trial setting), and I was not given any oppor-
tunity for any judicial hearing as to whether my claim
was valid. Not even a hearing of two short minutes.
Just because my attorney, Mr. Joslin, slightly
touched on this issue at the trial, does not mean that
I was given a fair hearing on that issue. When my at-
torney asked me if I would be willing to talk about the
crime that I was hiding from, it must be remembered
that I was in the full view of the jury. As a former
policeman, I did not believe then, and I do not believe
now, that a criminal suspect is obligated to disclose rea-
sons for his assertion of the 5th Amendment in front
of a jury. The very notion of such an obligation seems
to me to be extremely unfair and would destroy the
entire purpose behind the 5th Amendment. Yet, here
I was being compelled, by the circumstances of a jury
trial, to defend myself in front of the jury as to the rea-
son why I used the 5th Amendment.
If the reason I had for not reporting my income
was because that income had in large part come from
a contract-killing, or illegal gambling, or engaging in
white slavery across state lines, would the court be will-
ing to give some serious consideration to my claim? If,
instead of patriotic literature attached to the tax form,
I had attached a copy of the Red Chinese Guerilla
Assassination Manual, would the constitution be inter-
preted to protect me to a greater degree? It seems to
me that the court views me as an average American, and
that the court is not willing to give an average American
the opportunity to use the 5th Amendment. Whereas,
those who hurt, maim, and steal from and against their
fellow man are given that protection. I ask this ques-
tion: Was the constitution intended to protect vile and
wicked men more than it protects lukewarm wrong-
doers or the innocent? I think not.
39
It is not fair for an appeals court to try. to make a
determination of the validity of my 5th Amendment
claim for the first time on appeal. This is especially not
fair when I am not given any opportunity to be present,
to be heard, or give evidence in front of that court on
that matter. I deserve a hearing on the validity of my
5th Amendment claim, even if it is only two minutes
long, before a judge or administrative officer under con-
ditions when it is plain that I am being given the op-
portunity to present facts and evidence on that import-
ant specific constitutional issue. I never got that oppor-
tunity before I went to trial, nor was I allowed to have
that opportunity at the trial, and it is not the least bit
fair for the appeals court to act as if I did receive that
opportunity while on trial in the lower court. In this
respect, it is significant that, even after the trial, I was
approached more than once by an officer of the govern-
ment, who asked if I knew the dangers of a former
police officer going to prison, the possible harm that
could come, that I had no right to assert the 5th Amend-
ment on my return, and if I perhaps would tell him why
I did so, possibly the judge would give a lighter sent-
ence. Of course, he said, there would be no guarantee
the information would not be used against me.
Dated: March 7, 1980
Signed: Robert Neff
State of Oregon
County of Multnomah
Being first duly sworn, the above-named individual
did appear before me, a Notary Public in and for said
County and State, and did sign the foregoing instru-
ment in my presence, this 7th day of March, 1980.
My Commission expires: 5/1/83
Valerie Forskirg
Notary
(Petition for Rehearing, pp. 13-15)
40
POINT SEVEN
THE ACCUSED WAS CHARGED WITH A
CRIME REGARDING A REGULATION OF
SPEECH. THE FIFTH AMENDMENT CLAIM
MADE BY THE ACCUSED SHOULD BE
VIEWED WITHIN THE SENSITIVE CON-
TEXT OF THE FIRST AMENDMENT OF THE
CONSTITUTION
Defendant is compelled to speak. Defendant is
compelled to disclose aspects of his privacy. 26 U.S.C.
Sec. 7203 compels disclosure of information. That is a
direct regulation of speech. As a matter of fact, it is a
more direct regulation of speech than the prohibition
of offensive speech because it pulls out information
against the human will, while prohibitory regulation
only punishes acts of commission.
“_. the liberty to . . . speak includes the corres-
ponding right to be silent...” (16 C.J.S., Con-
stitutional Law, Sec. 213(17), p. 1187).
The right to silence is also intimately connected
with the Fourth Amendment right of privacy (16
C.J.S., Constitutional Law, Sec. 351, p. 677; Barsky
v. United States, 167 F.2d 241).
Compelling a man to speak must be justified under
the First Amendment. Any attempt to restrict First
Amendment liberties must be justified by clear public
interest, threatened not doubtfully or remotely, but by
a clear and present danger (West Virginia State Board
of Education v. Barnette, 319 U.S. 624). The substan-
,
41
tive evil must be extremely serious and the degree of
imminence extremely high (Bridges v. California, 314
U.S. 252; Wood v. Georgia, 370 U.S. 375).
Requesting information about a person's tax deduc-
tions does not begin to arise to the level worthy of
such treatment. Nor does the need for the government
to know the exact amount of income a person deter-
mines that he received. Far more serious evils than the
need to know that kind of information have been struck
down as impermissible regulations of freedom of speech.
Nevertheless, assuming that the government has
some important interest to protect in compelling such
information, it is clear that the utilization of the Fifth
Amendment right against self-incrimination should be
given all the greater bredth and protectiveness in such
an area. The evil protected against by Section 7203 is
very weak, and, the weaker the evil, the greater the
need for a protective application of other applicable
constitutional rights.
This is especially the case when the compelled
activity touches upon two other major constitutional
rights: (1) the right of silence (First Amendment) and
(2) the right of privacy (Fourth Amendment).
There has been a fundamental interplay between
the right of privacy under the Fourth Amendment and
the prohibition against self-incrimination in the Fifth
Amendment (Rex Davis, Federal Searches and Seiz-
ures, 1964, p. 29; Boyd v. United States, 116 U.S. 616;
Weeks v. United States; Oklahoma Press v. Walling,
327 U.S. 186).
42
The common thread running through each of these
precious constitutional rights is the abhorrence of com-
pulsion, except where absolutely necessary. What can
be said of the powerful protection of the Fifth Amend-
ment right to silence is butressed and made even more
necessary because of the intimate contact with, and
threats to, other favored rights.
“The privilege against self-incrimination protects
a witness from being compelled to testify in any
type of proceeding as to matters which may, with-
in the realm of reasonable possibility, tend to in-
criminate him.”
(81 Am.Jur.2d, Witnesses, Sec. 40, p. 69).
“The privilege against self-incrimination secured
by the Fifth Amendment against federal infringe-
ment... protects the right of a person to remain
silent unless he chooses to speak in the unfettered
exercise of his own will, and to suffer no penalty
for such silence.”
(81 Am.Jur.2d, Witnesses, Sec. 30, p. 57; Malloy
v. Hogan, 378 U.S. 1).
The right to silence, the right when to speak, and
unfettered choice are the interlocking fabric of the
First Amendment, Fourth Amendment and Fifth
Amendment. They demand careful consideration in a
case such as this.
43
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POINT EIGHT
EXHIBIT 1-10 WAS COMPLETELY INAD-
MISSIBLE UNDER NUMEROUS TESTS. IT
WAS PREJUDICIAL.
The Prosecution offered Exhibit 1.10 into evidence
against the accused. It was an affidavit prepared ex-
pressly for trial, executed just four days before the trial
began. It purported to be a record of the past history
of the accused in filing his tax forms. Prominantly writ-
ten across one of the pages dealing with the two years
in issue were the words “NO RECORD OF RE-
TURN FILED.” It was the only documentary evi-
dence that testified that the accused had not filed his
tax returns for those two years. As such, it was not a
factual characterization, but a legal opinion by someone
about the form 1040s that were actually filed. To wit,
without explaining who or how the opinion was arrived
at, the affidavit merely concluded, in essence, that the
form 1040s filed were not tax returns, and, therefore,
no tax returns were filed. The affidavit was supposed
to be computer-derived information extracted by the
witness from a computer a thousand miles away from
his office which he was supposed to be “a” custodian of.
No one explained how the computer program could
characterize the accused’s Form 1040s as not being tax
returns. There was no foundation to show that the Ex-
hibit was part of a regulary-conducted business activity
or that it was made at or near the time that the pur-
ported acts took place. (Rule 803(6), Federal Rules
of Evidence) There was no foundation to present com-
puter-derived information. There was no foundation as
eee
47
to a diligent search to find the Form 1040s that the
computer characterized as non-existent. That would
have been a farce, of course, since the I.R.S. had the
Form 1040s in their hands. The exhibit was merely a
tool to get a legal opinion about the 1040s in front of
the jury.
Defense counsel objected to the admissibility of
the Exhibit and to any testimony from the witness
characterizing its evidentiary content. (Transcript, p.
27) Defense Counsel objected on Sixth Amendment
grounds of confrontation (not subject to cross-examina-
tion) and on the grounds of hearsay. (Transcript, p.
35)
The Circuit Court held the Exhibit properly ad-
missible under Rule 803(10) F.R.E., without applying
the necessary statutory tests.
POINT NINE
THERE IS NO ADEQUATE FOUNDATION
TO SUPPORT THE ADMISSIBILITY OF EX-
HIBIT 1-10 USING RULE 803(10) OF THE
FEDERAL RULES OF EVIDENCE.
Here are the statutory tests for Rule 803(10), and
the clear result of their proper application in this case:
CHECKLIST
THE EVIDENCE MUST SUPPORT A “YES”
ANSWER TO EACH AND EVERY ONE OF
48
THE FOLLOWING IN ORDER FOR THE
DOCUMENT TO BE ADMISSIBLE
1. The record, report, statement, or data
compilation must be of the type that is
regularly made by a public office or -..----- V
agency. yes no
2. Evidence must be given to the effect that
a diligent search was made for the record,
report, statement, or data compilation: yes —_ no
NS eh mae so a aia aad ee aan eee V
(a) In the form of a certification
authorized under Rule 902. -»--- V
yes no
or
(b) In form of testimony, = = = — ------ V
yes no
3. Evidence must be given that the diligent
search failed to disclose the sought after
record, report, statement, or eS V
compilation yes no
The Ninth Circuit made no attempt whatever to
apply tests numbered (1) and (3), to wit: “regularly
made” and “failed to disclose.” Quod Vanum Et Inu-
tile Est, Lex Non Requirit. (Co.Litt. 319, the law re-
quires not what is vain and useless) Those tests in the
statute cannot be ignored by Circuit Court judges. They
were put there for a purpose, and that purpose is being
utterly destroyed in this case.
>]
49
The “regularity” test comes from Rule 803(7),
which is based on Rule 803 (6). Applying the correct
statutory tests in this case clearly indicates that the
document does not measure up:
CHECKLIST
THE EVIDENCE MUST SUPPORT A “YES”
ANSWER TO EACH AND EVERY ONE OF
THE FOLLOWING IN ORDER FOR THE
DOCUMENT TO BE ADMISSIBLE
1. The document must consist of a memor-
andum, report, record, or data compila- * Sao
tion, in any form. yes no
2. It must indicate acts, events, conditions,
opinions or diagnoses. , ee
3. It must have been made at or near the
time when the act, event or condition........ V
occurred. yes no
4. It must be by or from a person with
knowledge of the act, event, or condition......... V
yes no
5. It must be a document which is kept in
the course of a regularly conducted busi-........ V
ness activity. yes no
6. It must be the regular practice of that
business activity to make that memoran-........ V
dum, report, or record. yes no
50
7. Each and all of the above requirements
must be shown by the testimony of the........ V
custodian or other qualified witness. yes no
Even if all the above requirements are met, the docu-
ment is not admissible when (a) the source of the in-
formation or (b) the method or circumstances of prep-
aration, indicate a lack of trustworthiness.
The government laid no foundation to show that
the making of Exhibit 1.10 was “kept in the course of
a regularly conducted business activity.” FRE 803(6).
They said nothing at all about this requirement.
The regularity of the activity is one of the essential
features that gives the kind of reliability or trustworthi-
ness to a document which allows the hearsay exception
at all. The Ninth Circuit had previously said:
“The memorandum cannot be considered as hav-
ing been made in the regular course of business
unless it was made pursuant to established com-
pany procedures for the systematic or routine and
timely making and preserving of the records.”
| Standard Oil v. Moore, 251 F.2d 188, 215 (9th
Cir. 1957)
The duty to show this routine procedure devolves
on the appellee.
“If there was any systematic or routine procedure
being followed in the preparation and filing of
such writings, the burden was upon appellee to
prove it.”
Standard Oil, supra, p. 215
%
&
i
ROTTS 2 me
Fer
51
The type of “regularity” that should be displayed
is of the kind which tends to “counteract the possible
temptation to misstatements.” Wigmore, Section 1522;
Hoffman v. Palmer, 129 F.2d 976, 977 (headnote 6),
Am.Dig.Sys., Evidence, Key No. 354(10).
If the supplier of the information (who is alto-
gether unknown in our case) does not act in the regular
course of the business, assurance of accuracy does not
extend to the information itself. (Salzburg and Redden,
Federal Rules of Evidence Manual, 2nd Edition, 1977,
p. 544)
_ FRE 803(6) contains a double requirement regard-
ing the regularity of the activity: (1) the exhibit must
be “kept in the course of a regularly conducted business
activity,” and (2) it must have been part of “the regu-
lar practice of that business activity to make that mem-
orandum” or report. That second requirement was an
attempt by Congress to make very sure that the neces-
sary degree of trustworthiness is maintained. (Federal
Rules of Evidence Manual, supra, pp. 557-558). Neither
of these critical requirements were established as a foun-
dation at the trial for the admission of this prejudicial
exhibit.
POINT TEN
EXHIBIT 1-10 WAS NOT MADE ATOR NEAR
THE TIME OF THE EVENT
FRE 803 (6) requires that the memorandum or re-
port must have been “made at or near the time” of
the acts or events contained therein.
52
That was not done in our case. The events reported
in Exhibit 1.10 occurred in 1972, 1973, 1974, 1975,
1976 (and other times), but were reported in the affi-
davit on January 25, 1979, many years later.
euert, beget course of business must have
been to make such records contemporaneously
or within a reasonable time thereafter.
United States v. Scholle, 553 F.2d 1109, 1124 (8th
Cir. 1977) ; United States v. Anderson, 447 F.2d 833,
838 (8th Cir. 1971).
THERE WAS NO FOUNDATION LAID TO
SHOW THAT THE REPORT WAS MADE
BY A PERSON WITH KNOWLEDGE
FRE 803(6) requires that the report be made by
“a person with knowledge.” That is, there must be some
showing that it was the regular course of the business
for one with personal knowledge to make such a record.
(Also see Model Code Rule 514)
“A sufficient foundation for the introduction of
such evidence will be laid if the party seeking to
‘ntroduce the evidence is able to show that it
was the regular practice of the activity to base
such memorandums, reports, records, or data
complications upon a transmission from a person
with knowledge . . .”
« _ the scope of the phrase ‘person with knowl-
edge’ is meant to be coterminous with the cus-
todian of the evidence or other qualified witness.”
53
Saltzburg, Federal Rules of Evidence Manual, Re-
port of the Senate Committee on the Judiciary, Rule
803 (6), p. 561.
Gary Riddle said that he worked at the Fresno
Service Center (Trial Transcript, Vol. 1, p. 19, line 11).
There was no clear testimony that Mr. Riddle was cus-
todian of the records of the National Computer Center
in Martinsburg, West Virginia, some 2,000 miles away
from where he worked. Mr. Riddle’s testimony that
“T am also custodian of the records” (Transcript, p. 20)
after mentioning his duties with respect to research at
the Service Center and:
“.. return files to the Federal Archives and
Record Center, and the National Computer
Center in Martinsburg, West Virginia.” (Id.)
could not possibly have meant that he was custodian of
the records of all those centers. At the very most he
was “a”, not “the” custodian of records at the Fresno
Service Center, and certainly not “the” custodian of the
records in Martinsburg, West Virginia. .
The information used to prepare Exhibit 1.10 was
taken from the records of the National Computer Center
in Martinsburg, West Virginia. To wit:
“Q. Do you know by whom this document
was prepared /
A. This is the document that I prepared.
Q. And what information did you use to
prepare the document?
54
A. I researched the National Computer
Center in Martinsburg, West Virginia, where all
tax information is merged for every individual
in the nation.” (Testimony of Gary Riddle,
Transcript, p. 27.)
There was no proper foundation laid to show that
Exhibit 1.10 was made by a person with knowledge as
required by FRE 803 (6).
FRE 803(6), it must be remembered, is a great
step away from the demanding hearsay exception re-
quirements of the business records exception that was
existent at the time of the ratification of the Sixth
Amendment. At that time:
“If the entrant himself lacked personal knowl-
edge, the foundation for the records required the
testimony of all those giving information to their
personal knowledge or proof of their unavail-
ability.”
McCormick, Evidence, Sec. 310, p. 725.
If the inadequacy of the foundation of a “person
with knowledge” is shaky in the light of the contempor-
ary rule 803 (6) itself, consider how indefensible it is in
the light of the Sixth Amendment right of confrontation.
“If the witness cannot vouch that the requirements
of Rule 803(6) have been met, the entry must be ex-
cluded.”
W einstein’s Evidence, Sec. 803 (6) (2), p. 803-13; Hal-
perin, 441 F.2d 612 (5th Cir. 1971).
55
POINT ELEVEN
NO PROPER FOUNDATION WAS LAID FOR
THE ADMISSION OF COMPUTER-DERIVED
INFORMATION AS CONTAINED IN EX-
HIBIT 1.10
The fact that Exhibit 1.10 was prepared from com-
puter storage (See Riddle’s testimony, Transcript, p.
27) only makes the strictness of the requirements of
laying a proper foundation more demanding.
Aside from the very compelling rule that public
reports and computer data compilations are precluded
from use against an accused under the Federal Rules of
Evidence (United States v. Ruffin, 575 F.2d 346, 355-
356 (2d. Cir. 1978); Am.Dig.System, Criminal Law,
Key No. 419(12); also see the very scholarly analysis
in United States v. Oates, 560 F.2d 45 (2d. Cir. 1977),
the use of computer retrieved information requires a
more substantial foundation for admissibility than other
types of records. (See Note, “Appropriate Foundation
Requirements for Admitting Computer Printouts Into
Evidence,” 1977 Wash. U.L.Q. 59; 126 U.Pa. L.Rev.
425 (1977); Monarch Fedl S. & L. v. Genser, 156
N.M. Super. 107, 383 A.2d 475 (excellent discussion
of the proper foundation for computerized business
records).
“ .. the complex nature of computer storage calls
for a more comprehensive foundation (than for
ordinary business records) . . . . Assuming prop-
erly functioning equipment is used, there must
be not only a showing that the requirements of
the Business Records Act (presumably Rule
56
803(6) have been satisfied, but in addition the
original source of the computer program must
be delineated, and the procedures for input con-
trol including tests used to assure accuracy and
reliability must be presented.”
United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977),
quoted in Federal Rules of Evidence Manual, 1978
Supp., p. 162.
The record is painfully clear that no such proper
foundation was laid.
“Some courts have been too lenient in allowing
the admission of computer evidence inadequately
supported by corroborating testimony. The facts
are that the reliability of computer records is
clouded hy a large number of nonobvious oppor-
tunities for error or misuse.”
126 U.Pa.L.Rev. 425, 451 (1977)
POINT TWELVE
THE PURPOSE OF 803(10) WAS TO RECOG-
NIZE THE ABSENCE OR NON-EXISTENCE
OF SOUGHT-FOR DOCUMENTS, NOT TO AL-
LOW SELF-SERVING OPINIONS ABOUT
EXISTENT DOCUMENTS
The damaging and prejudicial impact of Exhibit
1.10 is found most clearly in the five times repeated
opinion:
“NO RECORD OF RETURN FILED.” This is
the portion of Exhibit 1.10 for which the government
cites FRE 803(10).
57
FRE 803(10) cannot be used as a technique of
intentional blindness to records or documents known
by the government to exist. If any form of the sought-
after document is know to exist, the government cannot
use a rule 803(10) certificate to say no such form was
found.
The clear wording of FRE 803(10) makes it ob-
vious that the sought-after document or record (e.g.,-a
tax return for a given year) must be absent and non-
existent “in any form” in order for the public agency to
use rule 803(10). The words “in any form” are repeated
two times in the body of the rule itself. The reason is
obvious. The persons who wrote the rule did not want
some agency saying that no such document existed be-
cause they characterized the documents they did find
in such a way as to define them out of existence. A
crude example of my own will suffice: (hypothetical
example)
Department of Transportation has a regulation
requiring truckers to file “log sheets” with the
agency annually. The DOT regs. say if the date
is not typed on the upper right hand corner of
each such sheet, then it is not deemed to con-
stitute a lawful “log sheet.” Standard forms are
supplied by the agency bearing the name “log
sheets.” Trucker Brown, using the agency stan-
dard forms, places information on them, omits
the typed date in the corner and files the “log
sheets” with the agency. Later, the trucker is
subject to litigation for his alleged failure to file.
The agency tries to use 803(10) to assert that it
serached its files and just could not find any
“log sheets” for the years in question, because
58
of the way they legally interpret the character
of the sheets they absolutely know he filed.
This kind of semantical chicanery is expressly for-
bidden by the words “in any form.” It is obvious to
the reasonable mind that any document that somewhat
resembles the sought-for record, and particularly a
document on the standard agency form used for that
purpose, in spite of its questionable form, constitutes a
form of the document sought. If this were not so, any
public agency could merely define away the existence
of any unacceptable document.
The Defendant undeniably filed with the Internal
Revenue Service the standard form 1040, U.S. Indi-
vidual Income Tax Return, for the taxable years 1974
and 1975 charged in the indictment. They bore his
name, his signature and other answers to questions
thereon. The Internal Revenue Service knew he had
filed these documents. Gary Riddle, the witness used
to offer them into evidence, knew of their existence
(although Exhibit 1.10, which he said he prepared, said
“NO RECORD OF RETURN FILED”) (See Ex-
hibit 1.6 — Neff 1040 form for 1974 — and Exhibit
1.9 — Neff 1040 form for 1975 —, offered into evidence
through witness Riddle, Transcript, Vol. 1, pp. 22 and
25).
The only purpose, therefore, of the five-times re-
peated opinion on Exhibit 1.10 was to attempt to in-
fluence the jury to believe that the legal opinion of the
character of the tax returns filed by the Defendant giv-
en by the Service was correct. The I.R.S. wanted to
59
make the question of fact very simple for the jury by
giving them an evaluative report that concluded in five
simple words “NO RECORD OF RETURN
FILED.” The entire last page of Exhibit 1.10 was a
legal maneuver to color the jury’s view of documents
(1040 forms) known to exist — known not to be absent
in any manner from the Service records.
Exhibit 1.10 (especially the last page) is nothing
less than the old-fashioned technique of TRIAL BY
AFFIDAVIT, condemned by our system of law for
decades. (Mattox v. United States, 156 U.S. 287, 242-
243 (1895); Douglass v. Alabama, 380 U.S. 415, 418-
419 (1965) ; Barber v. Page, 390 U.S. 719, 721. (1968) ;
Am.Dig.Sys., Criminal Law, Key No. 662 (1, 3).
POINT THIRTEEN
THERE WAS NO FOUNDATION TO SHOW
THAT A DILIGENT SEARCH WAS MADE
WHICH FAILED TO DISCLOSE THE
SOUGHT-AFTER TAX RETURNS
FRE 803(10) requires that a foundation be laid
in certificate or testimonial form to show that “diligent
search failed to disclose” the sought-after document.
Simply stated, there was no such foundation laid.
The certificate on page three of Exhibit 1.10 did not
say that. Gary Riddle did not testify to that. There
was no foundation.
Of course, it would have been a solemn mockery
to have attempted such a foundation since the witness
|
+ re, Pag
60
was being used to offer into evidence the very docu-
ments he would have to say he could not find after a
“diligent search.”
There must be a declaration clearly setting forth
the fact that “after diligent search no record or entry
of a specified tenor was found in the records designated
by the statement.” Weinstein’s Evidence 803-2.
The record makes it obvious that there was no
testimony nor certification that a search had been made
for “1040 forms” or the like for the years in question.
The Circuit Court opinion, that a “Mere failure to
include the word ‘diligent’ is not sufficient to defeat
the applicability of Rule 803(10),” is pure subterfuge.
The record is clear that no search whatsoever was made
for those particular Form 1040s. “No search” is a far
cry from a “diligent search.” Surely the statutory rule
of “diligent search” cannot be twisted so far out of shape
that the courts will allow a Rule 803(10) admission
when there is no search at all for the sought after docu-
ments! No one ever said that a search had been made
for Neff's tax returns. That is the very least that must
be said to support a Rule 803 (10) hearsay exception!
It must be said in testimony or in a certificate, and it
was not.
POINT FOURTEEN
EXHIBITS PURPORTING TO BE FACTUAL
REPORTS THAT ARE PREPARED FROM
INVESTIGATIONS LEADING TO CRIMIN-
aa ae allie ae
61
AL TRIALS CANNOT BE ADMISSIBLE
AGAINST AN ACCUSED.
The case of United States v. Oates (560 F.2d 45
(2d Cir. 1977) is the most carefully reasoned and care-
fully presented discussion of this issue existent. It war-
rants particular consideration by the Supreme Court.
“We thus think it manifest that it was the clear
intention of Congress to make evaluative . . . re-
ports absolutely inadmissible against defendants
in criminal cases.” (Page 72)
* * *
... under FRE 803(6) or any other exception
to the hearsay rule.” (Page 77)
* * *
. in criminal cases reports of public agencies
. setting forth factual findings resulting from
investigations . . . cannot satisfy the standards
of any hearsay exception if those reports are
sought to be introduced against the accused.”
(Page 84)
* * *
“’. . when there is a tension between the con-
frontation clause of the Sixth Amendment .. .
and the literal language of the various hearsay
exceptions it was the congressional intent that a
less literal reading of the rules would be justi-
fied.” (Page 79)
United States v. Oates, 560 F.2d 45, 79 (2d. Cir.
1977) (2d Cir. 1977). The Oates case carefully dis-
cusses the background and legislative purpose of Rule
803, as well as the Sixth Amendment context of that
62
rule. It is the most scholarly and wise judicial opinion
extant on this issue. The Circuit Court in our case woe-
fully misconstrued the Oates case in its handling of this
issue.
“the rule with respect to evaluative reports
. . is very specific: they are admissible only in
civil cases and against the government in crim-
inal cases in view of the almost certain collision
with confrontation rights which would result from
their use against the accused in a criminal case.”
Moore’s Federal Practice, Vol. 11, Sec. 803 (8)
(7), p. VIII-151 (1976); also see Franklin v. Skelly
Oil Co., 141 F.2d 568 (10th Cir. 1944) ; Lomax Trans-
portation Co. v. United States, 183 F.2d 331 (9th Cir.
1950) ; Yung Jin Teung v. Dulles, 229 F.2d 244 (2d
Cir. 1956) ; Annotation, 69 ALR2d 1148.
Exhibit 1.10 in our case has great similarity to the
IRS worksheets not admissible in the case of Hartzog
v. United States, which were also made in preparation
for that prosecution. Those worksheets were “the prod-
uct of his [an IRS agent's] judgment and discretion
and not a product of any efficient clerical system”
“There was no opportunity for anyone . . . to tell
when an error or misstatement had been made.”
They were
<
*...no more than (an) unsworn, unchecked ver-
sion of what he thought (the) records contained.”
217 F.2d 706, 710 (4th Cir. 1954). The necessary
“earmarks of reliability” were clearly lacking. Id., p.
710; Palmer v. Hoffman, 318 U.S. 109, 113-114.
63
“The ‘regular course of business’ exception to the
hearsay rule does not cover a regular practice of
making records with the purpose of supplying
evidence in a highly probable lawsuit when those
records are hate by persons with every possible
temptation to misstatements.”
Headnote 6, Hoffinan v. Palmer, 129 F.2d 976,
977 (2d Cir. 1942) ; dm.Dig.Sys., Evidence, Key No.
354(10).
POINT FIFTEEN
THE CIRCUIT COURT ERRS IN SUGGEST-
ING THAT INDICIA OF RELIABILITY AS
A TEST CAN DO AWAY WITH THE OTHER
SPECIFIC TESTS OF RULE 803(10) AND
THE SIXTH AMENDMENT
The Circuit Court in this case acts as if the sole
test for admissibility of Exhibit of 1.10, in light of Rule
803(10) and the Sixth Amendment, is to find sufficient
“indicia of reliability.” (Slip Opinion, p. 11) Using
that vague test, the Circuit Court ignores the specific
statutory tests of Rule 803(10). That cannot be done.
The “regularity” test must be applied. Those statutory
tests cannot be ignored for some vague notion of “in-
dicia of reliability.”
The “indicia of reliability” test is really nothing
more than the “lack of trustworthiness” test suggested
in Rule 803(6), Rule 803(7) and 803(8) Federal
Rules of Evidence. Such a test was intended to be a
further shield against documents that already measured
up under all the specified statutory tests. The “trust-
64
worthiness” or “reliability” test was never intended to
be a separate independent test to be used to admit
documents that did not measure up under the other
specified statutory tests. Instead, it was intended to be
a backup catchall protection to prevent otherwise ad-
missible documents from being admitted.
The application of this test by the Circuit Court is
conclusory, erroneous and misdirected. The Court im-
plies that there is a “systematized data storage and re-
trieval” system for which there is no foundation in the
record. (Slip Opinion, p. 11) The absence of a foun-
dation for the admission of computer-derived informa-
tion in this case should be a fact proving unreliability.
The reference to some kind of a presumption of the
trustworthiness of public records is ridiculous. Those
records must measure up to the Federal Rules of Evi-
dence and the constitution or they are not admissible.
This Circuit Court’s approach to the Federal Rules
of Evidence would destroy the meaning of the tests
clearly set forth therein. It will create a dangerous
precedent.
POINT SIXTEEN
ADMITTING INTO EVIDENCE EXHIBIT
1.10 VIOLATED THE DEFENDANT'S SIXTH
AMENDMENT RIGHT TO CONFRONTATION
“In all criminal prosecutions, the accused shall en-
joy the right . . . to be confronted with the witnesses
against him” (Sixth Amendment, United States Con-
stitution ) .
65
“,.. the rights of confrontation and cross-examin-
ation are among the fundamental requirements of a
constitutionally fair trial” Parker v. Gladden, 385 U.S.
363 (1966) at p. 365; In re Oliver, 333 U.S. 257;
Pointer v. Texas, 380 U.S. 400 (1965) ; Kirby v. United
States, 174 U.S. 47.
“The fact that this right appecrs in the Sixth
Amendment of our Bill of Rights reflects the
belief of the Framers of those liberties and safe-
guards that confrontation was a fundamental
right essential to a fair trial in a criminal prose-
cution.” Pointer v. Texas, supra, p. 404;
also see Kirby v. United States, supra, characterizing
this right as “one of the fundamental guarantees of life
and liberty,” at p 56; Gideon v. Wainwright, 372 U.S.
335, 342; Am.Dig.System, Criminal Law, Key Num-
ber 662 (1).
The purpose of the right of confrontation was to
give the defense an opportunity to test recollection, sift
the conscience of the witness, judge his demeanor, ex-
pose falsehood, bring out the truth and determine the
worthiness for belief. Mattox v. United States, 156
U.S. 287, 242-243 (1895); Douglas v. Alabama, 380
U.S. 415, 418 (1965); see also 5 Wigmore, Evidence,
Sections 1365 and 1397 (3d ed. 1940). The enormous
worth of this right to confrontation is carefully described
in the case of California v. Green, 399 U.S. 149 (1970)
at page 158. |
One of the undeniable methods for the utilization
of the right to confrontation is cross-examination. Cross-
66
examination is a primary purpose of the right to con-
frontation. Douglas v. Alabama, supra, p. 418; Bruton
v. United States, 391 U.S. 123 (1968), at p. 126; Cali-
fornia v. Green, supra, p. 158 Cross-examination is “one
of the safeguards essential to a fair trial”. Mr. Justice
Stone writing for the court in Alford v. United States,
282 U.S. 687, at p. 692; also see In re Oliver, 333 U.S.
257, at p. 273; Pointer v. Texas, supra, at pp. 404-405;
Dowdell v. United States, 221 U.S. 325, at p. 330;
Motes v. United States, 178 U.S. 458, at p. 474; Kirby
v. United States, supra, pp. 55-56; Mattox v. United
States, supra, pp. 242-243; Hopt v. Utah, 110 U.S. 574,
at p. 581.
The courts have “been zealous to protect these
rights from erosion” (speaking of confrontation rights,
Pointer v. Texas, supra, 6. 405; Greene v. M ci lroy,
360 US. 474, at pp. 496-497.)
Exhibit 1.10 is in the nature of an affidavit. This
was the very type of evidence the Sixth Amendment
was intended to prevent.
“The primary object of the constitutional pro-
vision in question was to prevent depositions or
ex parte affidavits . . . being used . . . in lieu of
personal examination and cross-examination of
the witness...”
Mattox v. United States, supra, pp. 242-243; Doug-
las v. Alabama, supra, pp. 418-419; Barber v. Page,
390 U.S. 719 (1968), at p. 721, Dec. Dig. System,
Criminal Law, Key Number 662 (1, 3).
67
Defendant, Neff, similar to the Defendant in the
case of Bruton v. United States, supra, finds himself
deprived of the opportunity for cross-examination con-
cerning information which he himself was supposed to
have supplied to the government agency previously.
See Bruton, supra, p. 126.
Trial by affidavits violates the Sixth Amendment
right. See California v. Green, supra, p. 156; Reynolds
v. United States, 98 U.S. 145 (1879) ; Mattox v. United
States, supra; Motes v. United States, supra; Kirby v.
United States, supra. Particularly see the opinion by
Justice Harlan concurring in California v. Green, supra,
at 181 n. 15.
“In the constitutional sense, trial by jury in a
criminal case necessarily implies at the very least
that the ‘evidence deve sal against a defendant
shall come from the witness stand in a public
courtroom where there is full judicial protection
of the defendant’s right of confrontation, of cross-
examination...”
Turner v. Louisiana, 379 U.S. 466, 472-473: Poin-
ter v. Texas, supra, p. 405.
Even if the information used in exhibit 1.10 had
been taken under oath, at a time when defense counsel
were present and given limited cross-examination, even
then such a document could not later be admitted into
a case against the accused absent confrontation of the
witness. Pointer v. Texas, supra, p. 402 and 407; Barber
v. Page, supra, p. 721. If it could not be done under
those conditions, how can it constitutionally be done in
our case?
68
The use of a paper transcript or the like by the
prosecution can be a fatal consideration. See the dic-
tum in Dutton v. Evans, 400 U.S. 74 (1970) at p. 87
regarding “the use by the prosecution of a paper tran-
script.” Also see Pointer, supra, Brookhart wv. Janis,
384 U.S. 1; and Barber v. Page, supra.
It is not necsesary to prove a violation of the
evidentiary “hearsay rule” to indicate a deprivation of
the right to confrontation. “. . . no hearsay rule closely
approximates the advantages of confrontation . . .”
(“Confrontation and the Hearsay Rule,” Note, 75 Yale
L.J. 1434-1442 (1966), at p. 1437.)
“While it may readily be conceded that hearsay
rules and the Confrontation Clause are generally
designed to protect similar values, it is quite a
different thing to suggest that the overlap is com-
plete and that the Confrontation Clause is noth-
ing more or less than a codification of the rules
of hearsay and their exceptions as they existed
historically at common law. Our decisions have
never established such a congruence; indeed, we
have more than once found a violation of con-
frontation values even though the statements in
issue were admitted under an arguably recog-
nized hearsay exception.”
California v. Green, supra, pp. 155-156; Dutton v.
Evans, 400 U.S. 74 (1970) at pp. 81 and 86 n. 17. This
should be kept firmly in mind as one considers the
hearsay exception(s) suggested by the government in
this case.
Constitutionalizing the hearsay rules would put
69
them beyond the reach of Congress. Justice Harlan,
concurring in California v. Green, supra, p. 180 n. 14.
«“<
. . . the Constitution requires a reappraisal of
every exception to the hearsay rule, no matter
how long established, in order to determine
whether . . . it is supported by ‘salient and cogent
reasons. ”
Dutton v. Evans, supra, p. 80.
Very few exceptions to the hearsay rule were in
existence at the time of the ratification of the Consti-
tution, and among those conspicuously absent was any
exception such as F.R.E. Rule 803(6) for third per-
sons. A third party clerk’s entries could not be admitted
unless the clerk was called to testify. See 5 Wigmore,
Evidence, Sec. 1518 (2) (b), p. 429.
“The common law exception for business rec-
ords required that the entries have been made
by one with personal knowledge of the matter
entered or upon reports to him by one with per-
sonal knowledge. If the entrant himself lacked
personal knowledge, the foundation for the rec-
ords required the testimony of all those giving in-
formation to their personal knowledge or proof
of their unavailability.”
McCormick, Mvidence, Sec 310, p. 725
Do we have any testimony whatever of personal
knowledge of the truth of the matters asserted in Ex-
hibit 1.10? No, not one shred. Someone wrote it down
somewhere, sometime, and we are to assume that one of
them or all of them, how ever many there may be, had.
70
personal knowledge. ven the I’ederal Rule of Evi-
dence itself requires personal knowledge. F.R.E., Rule
803(6) ; McCormick, Sec. 310, p. 725. Suffice it to say,
the common law of hearsay extant at the ratification of
the Constitution and the Sixth Amendment required it.
There must be some substantial showing that the
transmitter of the information on which the record is
based must have had personal knowledge of the matter
on which he expressed an opinion. W einstein’s Evi-
dence, (1978), Vol. 4, p. 803-162. That is an elemental
requirement that must be satisified even before one
faces the more demanding requirements of the Sixth
Amendment itself. “If the witness cannot vouch that
the requirements of Rule 803(6) have been met, the
entry must be excluded.” W einstein’s Evidence, Sec.
803(6) (2), p. 803-13; Halperin, 441 F.2d 612 (5th
Cir. 1971)
The Sixth Amendment, however, is bigger than any
hearsay exception. Trivial compliance with a hearsay
exception does not ensure a compliance with the great
right of confrontation.
“It is inconceivable that if the Framers intended
to constitutionalize a rule of hearsay they would
have licensed the judiciary to read it out of ex-
istence by creating new and unlimited excep-
tions.”
Harlan, concurring, California v. Green, supra, p.
179.
The Supreme Court has been very careful to scrut-
inize such “exceptions.”
)
Perro: UENO We
71
“Some ‘exceptions’ to the hearsay rule, which per-
mit the introduction of evidence despite the ab-
sence of the declarant usually on the theory that
the evidence possesses other indicia of ‘reliability’
and is incapable of being admitted, despite good
faith effort of the state, in any way that will se-
cure confrontation with the declarant. Such ex-
ceptions, dispensing altogether with the liberal
right to ‘confrontation’ and cross-examination,
have been subjected on several occasions to care-
ful scrutiny by this Court.”
California v. Green, supra, pp 161-162.
The use of affidavits instead of witnesses is, of
course, an easier way to put people in prison. Which
was probably why the colonial English governors used
the technique against early Americans, and was the
primary impetus to the creation of the Bill of Rights in
the first place. The ease of such prosecutorial techniques
has a tendency to lull prosecutors away from the Con-
stitution and toward negligence.
. it may induce prosecutorial negligence in
securing witnesses b hiding out the easy altern-
ative of presenting their statements through other
witnesses. Such practices undermine any sys-
tem of criminal justice that presumes innocence
and insists that the process of rebutting the pre-
sumption be absolutely above reproach.”
“Confrontation and the Hearsay Rule,” Note, 75
Yale L. J., 1434 (1966), at p. 1439.
At the time of the ratification of the Sixth Amend-
ment, proof by a certificate of the lack (absence) of a
record could not be admissible under the common law.
72
“At common law, absence could not be establish-
ed by the custodian’s certificate of due search and
inability to find.”
. when there is a tension between the con-
frontation clause of the Sixth Amendment .. .
and the literal language of the various hearsay
exceptions it was the congressional intent that a
less literal reading of the rules would be justified.”
“The hearsay exceptions of FRE 803 were only
designed to prevent automatic exclusion on hear-
say grounds...
not designed to insure admissibility of the ques-
tioned evidence.”
W einstein’s Evidence, United States Rules, Par.
803(10) (01), p. 803-194; also see 5 Wigmore, Evi-
dence, Sec. 1678 at 754 (8rd Ed. 1940).
United States v. Oates, 560 F.2d 45, 79 (2d. Cir.
1977) In our case, there is no tension between the rule
and the Sixth Amendment because the clear wording of
the rule itself forbids the admissibility of the exhibit.
If there were such a tension, the Sixth Amendment
demands greater protective treatment. United States
v. Oates, supra, p. 66. This is in recognition of the
separateness of the confrontation clause of the Sixth
Amendment and the hearsay rule, which Sixth Amend-
ment right “clearly extends beyond the confines of the
hearsay rule.” (Id.)
POINT SEVENTEEN
THE ADMISSION OF EXHIBIT 1.10 WAS
CLEARLY PREJUDICIAL ERROR
73
Exhibit 1.10 was the only documentary exhibit that
said that the accused had failed to file his tax returns
for the years in question. (Transcript, p. 27)
The Circuit Court wrongly suggests that the actual
1040s for those years had the same evidentiary value.
. (Slip Opinion, p. 12) The Form 1040s said nothing at
all about what did or did not constitute a failure to file
a return. To the contrary, they were evidence that the
accused had filed his tax returns.
:
|
;
.
The Circuit Court suggests that a jury could look
at the Form 1040s and conclude, “within the meaning
of the Internal Revenue Code,” that sey were not
“proper tax returns.” There is just as much logic in
4 suggesting that an examination of those forms by the
jury could lead to the conclusion that proper tax returns
were filed. The real key to that issue, as has been point-
. ment claim taken on those forms.
In fact, however, the only evidence of a failure to
file the tax returns, made in express form, was on the
face of Exhibit 1.10. It said: “NO RECORD OF RE-
> TURN FILED.” That is a legal opinion, as it must
be a characterization of the returns which were actually
filed. That legal opinion necessarily involves a deter-
mination by some unseen person somewhere that he did
not believe that the Fifth Amendment claimed thereon
» was valid. For, if the Fifth Amendment were validly
taken, there is no basis to say that the Form 1040s were
not proper tax returns. It is, therefore, opinion evi-
ed out before, lies in the validity of the Fifth Amend-
{
'
Le
74
dence. It is a legal opinion, and it is a complex consti-
tutional legal opinion made by someone not subject to
cross-examination.
This exhibit was used by the government to by-
pass the problem of proving the invalidity of Neff’s
Fifth Amendment claim. Convicting the accused is so
much easier when it can be done by out of court state-
ments, made by unidentified persons, through question-
able computer systems, that make legal conclusions,
which expressly supply the jury with a simple phrase
that helps them to find one of the three major elements
to be proved for a conviction.
Take away Exhibit 1.10, and the Prosecutor must
use complex reasoning to try to show that the assertion
of the Fifth Amendment on a tax return is the same
thing as no tax return, “within the meaning of the In-
ternal Revenue Code.”
The admission of that exhibit was clearly prejudicial
error.
REASONS FOR GRANTING THE WRIT
There are two major reasons for granting the writ:
1. To give the accused a chance to present his evi-
dence on the validity of his Fifth Amendment claim.
It is horribly unjust to sentence him to prison for two
years for the crime of asserting the Fifth Amendment,
when he was refused a chance to prove to a judge that
his claim was valid.
75
2. The Circuit Court opinion in construing Rule
803 (10) is going to cause great harm. The approach of
the Circuit Court is to bypass the tests of that section
altogether, rendering it meaningless. This Circuit Court
decision introduces a blatant split of authority among
the circuit courts, particularly against the Second Cir-
cuit and the well-reasoned line of cases stemming from
United States v. Oates, 560 F.2d 45 (2d Cir. 1977).
This split of authority must be resolved. The Circuit
Court introduced a sloppy “indicia of reliability” test
that side steps the statute and opens the door to “trial
by affidavit”, condemned by a long line of Supreme
Court decisions stretching back to Mattox v. United
States, 156 U.S. 237 (1895).
CONCLUSION
For the foregoing reasons, this petition for a writ
of certiorari should be granted.
Gary James Joslin
7742 Mountain Estates Drive
Salt Lake City, Utah 84121
Counsel for Petitioner
May 13, 1980
A-l
United States Court of Appeals
For THE NIntTH CIRCUIT
No. 79-1286
OPINION
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
vs
ROBERT NEFYF,
Defendant-A ppellant.
Appeal from the United States District Court
for the Northern District of California
Before: WALLACE and KENNEDY, Circuit
Judges, and LARSON,* District J udge
WALLACE, Circuit Judge:
Neff appeals his conviction pursuant to 26 U.S.C.
§7203 for willful failure to file income tax return. He
claims that prosecution for the crime violated his Fifth
Amendment privilege against self-incrimination and
that the admission of certain evidence was erroneous
because it was hearsay and because it denied his Sixth
Amendment right to confrontation We reject his claims
and affirm the conviction.
* Honorable Earl R. Larson, United States District Judge, Dis-
trict of Minnesota, sitting by designation.
A-2
I
During 1974 and 1975, Neff was employed as a
police officer and received wages from the City of San
Jose, California. During 1974 he also received capital
gains from dealings in gold and silver coins. His com-
munity property share of income from employment and
investments exceeded $14,000 in 1974 and $8,500 in
1975. During each of these years, Neff, who had pre-
viously filed proper returns, submitted to the IRS a
standard individual income tax return form (form 1040)
on which Neff provided no financial information from
which his tax liabilities could be calculated. As returned
by Neff, the forms contained only essential identifica-
tion information and Neff’s signature. In response to
more than 25 questions about his financial and tax
status, Neff had printed the words “Object: Self-In-
crimination.” Remaining questions had been answered
either “None” or “Unknown.” Neff also appended to
the forms, in each of these years, over 100 pages of
general protest material challenging, among other
things, the national monetary system, government
spending, and federal reserve notes.
The Internal Revenue Service (IRS) responded
by letter to Neff, explaining that the forms as he filled
them out were not acceptable tax returns and providing
additional blank forms for proper completion. Neff
refused to comply, claiming that by doing so he would
waive his Fifth Amendment privilege against self-in-
crimination. The government filed an information
charging Neff with two counts of willful failure to file
A-3
income tax returns, and a jury found him guilty of both
counts.
We first consider Neff’s claim of denial of the
privilege against self-incrimination. We then examine
the alleged hearsay evidence and denial of the right to
confront adverse witnesses.
II
By asserting his Fifth Amendment privilege at the
time he filed the 1040 forms, Neff complied with the
well-established rule that a self-incrimination objection
to an income tax return must be raised at the time of
filing. Garner v. United States, 424 U.S. 648, 665 &
n.21 (1976); United States v. Raborn, 575 F.2d 688,
689 (9th Cir. 1978). After the jury was impaneled, and
just before opening statements were to begin, Neff
moved for a pretrial ruling on the validity of his Fifth
Amendment claim. This motion was denied as un-
timely.' Neff complains that he never thereafter re-
ceived a judicial ruling on the validity of his asserted
privilege. We disagree. An examination of the record
shows that the district judge repeatedly expressed his
conviction that Neff had no valid self-incrimination
claim. In his instructions to the jury, the judge stated
that Neff’s belief to the contrary was “erroneous as a
matter of law.” Our responsibility on review is to de-
termine the propriety of that ruling.
1 Neff does not contest before us the propriety of that denial.
Moreover, the Supreme Court has said that such a pretrial rul-
ing on a Fifth Amendment refusal to provide tax information
is not constitutionally required. Garner v. United States, 424
U.S. 648, 664-65 (1976).
A-4
The Supreme Court has stated that the privilege
against self-incrimination, if validly exercised, is an ab-
solute defense to a section 7203 prosecution for failure
to file an income tax return. Garner v. United States,
supra, 424 U.S. at 662-63. The Court has also held,
however, that the privilege does not justify an outright
refusal to file any income tax return at all. United
States v. Sullivan, 274 U.S. 259, 263 (1927). Further-
more, an objection may properly be raised only in re-
sponse to specific questions asked in the return. Id.
See Garner v. United States, 501 F.2d 228, 239 n.18
(9th Cir. 1974) (en banc), affd Garner v. United
States, supra, 424 U.S. 648.
We are here faced with a case in which the tax-
payer did assert his privilege in response to specific
questions in the tax return form, but did so on such a
wholesale basis as to deny the IRS any usefu! financial
or tax information.’ Other circuits, faced with similar
wholesale assertions of the privilege against self-incrim-
ination, have concluded that a tax return form which
contains no information from which tax liability can be
calculated does not constitute a tax ~eturn within the
meaning of the IRS laws. Once these courts determine
that the taxpayer has filed no return, simple application
of the Sullivan precedent, which states that the Fifth
2In addition to refusing to disclose the total amount of his in-
come, Neff even claimed the privilege in refusing to disclose
his wife’s social security number and the names of his depend-
ent children Neither the Supreme Court nor this court has yet
decided what specific tax return questions are so neutral (un-
likely to incriminate) that the privilege could rarely, if ever,
be asserted to justify a refusal to answer, Garner v. United
States, supra, 424 U.S. at 650 n.3, and we do not find it neces-
sary to make that determination in this case.
cf
a
qi
A-5
Amendment will never justify a complete failure to file
a return, invalidates the Fifth Amendment defense.
Eg., United States v. Irwin, 561 F.2d 198, 201 (10th
Cir. 1977), cert. denied, 434 U.S. 1012 (1978) ; United
States v. Silkman, 543 F.2d 1218, 1219-20 (8th Cir.
1976) (per curiam), cert. denied, 431 U.S. 919 (1977) ;
United States v. Daly, 481 F.2d 28, 30 (8th Cir.) (per
curiam), cert. denied, 414 U.S. 1064 (1973).
Although we recognize the ease with which the
logic used in these cases would resolve the issue before
us, we conclude that such reliance upon the definition
of a tax return is inappropriate, because it lacks inde-
pendent Fifth Amendment analysis. Moreover, the use-
fulness of this definitional approach is too limited be-
cause it is confined to facts such as those presented
here: the wholesale assertion, albeit in response to spec-
ific questions, of the privilege against self-incrimination.
In settings in which the Fifth Amendment right has
been more discretely asserted, it would be difficult to
conclude that no return has been filed, and, therefore,
inappropriate to apply this definitional analysis.” We
therefore choose not to follow the lead of the cited cases.
We believe that the better approach to this and future
Fifth Amendment tax return cases is to apply more tra-
ditional Fifth Amendment analysis."
3 Moreover, we are not certain that these circuit court decisions
comport with Supreme Court precedent. The cases indicate
that the taxpayer may never assert his privilege against self-
incrimination in lieu of tax form responses essential to the
calculation of tax liability. This rule, which limits the tax form
questions to which a Fifth Amendment response is proper to
those questions not essential to tax liability calculation, neces-
sarily limits — perhaps too much — the scope of the Supreme
Court’s declaration in Garner that the Fifth Amendment may
be asserted on a tax return. 424 U.S. at 662.
A-6
The requirement that citizens file a yearly income
tax return does not, of itself, violate their privilege
against self-incrimination. This conclusion is implicit in
the Supreme Court ruling that taxpayers cannot rely
upon the Fifth Amendment to justify a complete failure
to file. See Sullivan v. United States, supra, 274 U.S.
at 263. Other statutory reporting requirements have
been found to violate the privilege, but the reporting
schemes in these cases were “directed at a highly selec-
tive group inherently suspect of criminal activities . . .
in an area permeated with criminal statutes... .” Al-
bertson v. SACB, 382 U.S. 70, 79 (1965). Questions
on income tax returns, in contrast, are “neutral on their
face and directed at the public at large... .” Id. See
also California v. Byers, 402 U.S. 424, 429 (1971);
Marchetti v. United States, 390 U.S. 39, 57 (1968) ;
Grosso v. United States, 390 U.S. 62, 64 (1968). There-
fore, in order for Neff to escape prosecution under sec-
tion 7203, there must be something peculiarly incrimin-
ating about his circumstances that justifies his reliance
on the Fifth Amendment. Before examining that cir-
cumstance, we will set forth pertinent Fifth Amend-
ment principles.
To claim the privilege validly a defendant must be
faced with “ ‘substantial hazards of self incrimination, ”
California v. Byers, supra, 402 U.S. at 429, that are
4 This is not to say that we reject the previous decision by this
court that tax return forms devoid of financial information are
not tax returns within the meaning of 26 U.S.C. § 7203. United
States v. Klee, 494 F.2d 394, 397 (9th Cir. 1974). Such pre-
cedent has value in determining when section 7203 has been
violated. We simply conclude that it does not have value as a
means to determine the validity of Neff’s assertion of the priv-
ilege against self-incrimination.
A-7
“‘real and appreciable’ and not merely ‘imaginary and
unsubstantial.’” Marchetti v. United States, supra, 390
U.S. at 48, quoting in part Rogers v .United States,
340 U.S. 367, 374-75 (1951). Moreover, he must have
“reasonable cause to apprehend [such] danger from a
direct answer” to questions posed to him. Hoffman v.
United States, 341 U.S. 479, 486 (1951). The infor-
mation that would be revealed by direct answer need
not be such as would itself support a criminal convic-
tion, however, but must simply “furnish a link in the
chain of evidence needed to prosecute the claimant for
a federal crime.” Id. See also Hashagen v. United
States, 283 F.2d 345, 348 (9th Cir. 1960). Indeed, it
is enough if the responses would merely “provide a lead
or clue” to evidence having a tendency to incriminate.
Id. at 348.
In determining whether such a real and appreci-
able danger of incrimination exists, a trial judge must
examine the “implications of the question[s] in the
setting in which [they are] asked... .” Hoffman v.
United States, supra, 341 U.S. at 486; United States
v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977), cert. de-
nied, 435 U.S. 923 (1978) ; Hashagen v. United States,
supra, 283 F.2d at 350. He “‘[m]ust be governed as
much by his personal perception of the peculiarities of
the case as by the facts actually in evidence. ” Hoffman
v. United States, supra, 341 U.S. at 487, quoting Ix
Parte Invine, 74 F. 954, 960 (C.C. Ohio, 1896) ; United
States v. Pierce, s vpra, 561 F.2d at 741. If the trial
judge decides from this examination of the questions,
their setting, and the peculiarities of the case, that no
A-8
threat of self-incrimination exists, it then becomes in-
cumbent “upon the defendant to show that answers to
[the questions] might criminate him.” United States
v. Weisman, 111 F.2d 260, 261 (2d Cir. 1940). See
also Garner v. United States, supra, 424 U.S. at 658 n.
11; United States v. Daly, supra, 481 F.2d at 30; In
re U.S. Hoffman Can Corp., 873 F.2d 622, 628 (3d
Cir. 1967) ; Hashagen v. United States, supra, 283 F.2d
at 350. This does not mean that the defendant must
confess the crime he has sought to conceal by asserting
the privilege. The law does not require him “ ‘to prove
guilt to avoid admitting it.” Marchetti v. United
States, supra, 390 U.S. at 50, quoting United States v.
Kahriger, 345 U.S. 22, 34 (1953) (Jackson, J., concur-
ring). But neither does the law permit the defendant
to be the final arbiter of his own assertion’s validity.
“The witness is not exonerated from answering merely
because he declares that in so doing he would incrim-
inate himself — his say-so does not of itself establish
the hazard of incrimination. It is for the court to de-
cide whether his silence is justified . . . .”. Hoffman v.
United States, supra, 341 U.S. at 486. See also Mar-
chetti v. United States, supra, 390 U.S. at 50; Albert-
son v. SACB, supra, 382 U.S. at 79; United States v.
Johnson, 577 F.2d 1304, 1811 (5th Cir. 1978) ; United
States v. Daly, supra, 481 F.2d at 30; Hashagen v.
United States, supra, 283 F.2d at 348.
Thus, the defendant is placed in a delicate position,
well described by Judge Learned Hand:
Obviously a witness may not be compelled to do
more than show that the answer is likely to be
a
4
(i
A-9
dangerous to him, else he will be forced to dis-
close those very facts which the privilege pro-
tects. Logically, indeed, he is boxed in a paradox,
for he must prove the criminatory character of
what it is his privilege to suppress just because it
is criminatory. The only practicable solution is
to be content with the door’s being set a little
ajar, and while at times this no doubt partially
destroys the privilege, and at times it permits
the suppression of competent evidence, nothing
better is available.
United States v. Weisman, supra, 111 F.2d at 262.
Applying these principles to the facts before us,
we conclude that the trial judge correctly decided that
Neff had no valid Fifth Amendment defense to the
section 7203 prosecution. The questions asked of Neff
on the income tax form did: not, of themselves, suggest
that the response would be incriminating; nor did the
setting in which they were asked — a general inquiry
about Neff’s financial and tax status, to be completed
in the privacy of his own home — alter the non-incrim-
inatory nature of those questions. Moreover, the pecu-
liarities of the case did not strengthen Neff’s claim.
If anything, the tax protest nature of defense witness
Holmes’ testimony and of the materials that Neff ap-
pended to his returns suggest that Neff’s refusal to com-
plete the forms was motivated by a desire to protest
taxes, rather than a fear of self-incrimination. In short,
the whole circumstance was “innocuous and thus un-
protected absent some positive disclosure by the witness
of its hidden dangers ... .” Hashagen v. United States,
supra, 283 F.2d at 350. Neff made no such disclosure.
At no point during the trial, including when Neff
A-10
testified, was the district judge presented with any in-
dicia of potential incrimination.’ On the contrary, Neff's
counsel argued that Neff’s sincerity of belief was suf-
ficient to validate his assertion of the privilege, and
that Neff alone should be the final arbiter of the asser-
tion’s validity.* As we have seen, that is not the law.
Neff did not show that his response to tax form ques-
tions would have been self-incriminating. He cannot,
therefore, prevail on his Fifth Amendment claim.
III
During trial, the government introduced into evi-
dence an IRS Certificate of Assessments and Payments
which stated that Neff had filed no proper tax returns
during 1974 and 1975. Neff complains that such evi-
dence was inadmissible hearsay and that its admission
violated his Sixth Amendment confrontation right.
5 That Neff never received a pre-trial evidentiary hearing on his
Fifth Amendment claim does not mean that he was deprived
of the opportunity to establish its validity. It is clear from the
record that Neff’s attorney attempted to validate the assertion
of the privilege by questioning Neff about his reasons for
asserting it and his sincerity in doing so. When the district
judge instructed Neff’s attorney that Neff could diclose as much
or as little of the criminal conduct as he wished, the attorney
asked Neff no questions about the underlying reason for his
fear of incrimination.
6 Counsel for Neff stated in his closing argument:
There’s only one test that’s important, whether or not
Mr. Neff, in good faith, believed that he might be in-
criminated if he gave information .... If you find that
his belief was erroneously held, but was held in good
faith, then he had a right to use it, even if it’s erroneous,
as long as he’s sincere. That has to be the test in this
country, otherwise every man, when he asserted his right
to privacy, would be subject to some other person’s test
for whether or not he was really a criminal. ... He
may raise the objection in the {tax} return and if he be-
lieved it in good faith, it was right. And that’s the
whole issue.
A-ll
We have said:
Although the right of confrontation and the
hearsay rule protect similar interests of a de-
fendant, they do not have identical applications.
Evidence may be admissible under an exception
to the hearsay rule and still violate the Confront-
ation Clause. Or, it may not violate the Con-
frontation Clause, but still be inadmissible hear-
say.
United States v. Lee, 589 F.2d 980, 987 (9th Cir.
1979). We will discuss the hearsay and Confrontation
Clause issues separately.
A
Rule 27 of the Federal Rules of Criminal Proced-
ure states that “[a]n official record or an entry therein
or the lack of such a record or entry may be proved in
the same manner as in civil actions.” Rule 803(10) of
the Federal Rules of Evidence specifically permits the
admission of negative records:
The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness :
(10) Absence of public record or entry. To
prove the absence of a record, report, statement,
or data compilation, in any form, or the nonoccur-
rence or nonexistence of a matter of which a
record, report, statement, or data compilation, in
any form, was regularly made and preserved by
a public office or agency, evidence in the form
of a certification in accordance with rule 902, or
testimony, that diligent search failed to disclose
the record, report, statement, or data compilation,
or entry.
A-12
The document in question was admitted to prove the
“nonoccurrence’ of Neff’'s 1974 and 1975 tax returns,
was “made and preserved” by the IRS, “a public office
or agency, and was “evidence in the form of a certifica-
tion in accordance with rule 902,” specifically Rule 902
(4) and (1). Neff contends that the prosecution failed
to show that a “diligent search” had been made in con-
nection with the production of the document as required
by Rule 803(10), and that the document was, therefore,
not admissible under that exception to the hearsay rule.
The custodian of IRS records testified, however, that
in producing the document he “researched the National
Computer Center in Martinsberg, West Virginia, where
all tax information is merged for every individual in the
nation.” Mere failure to include the word “diligent” is
not sufficient to defeat the applicability of Rule 803
(10). United States v. Lee, supra, 589 F.2d at 987
n.7. Accord, United States v. Farris, 517 F.2d 226,
228 (7th Cir.), cert. denied, 423 U.S. 892 (1975);
United States v. Dota, 482 F.2d 1005, 1007 (10th Cir.),
cert. denied, 414 U.S. 1071 (1973). We hold that the
IRS Certificate of Assessment and Payments was ad-
missible under the Rule 803(10) exception to the hear-
say rule.
B
In order to rule that Neff’s Sixth Amendment right
to confront adverse witnesses was not violated by ad-
mission of the IRS document we must be convinced
that the document was reliable, for “the mission of the
Confrontation Clause is to advance a practical concern
for the accuracy of the truth-determining process in
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criminal trials by assuring that ‘the trier of fact [has]
a satisfactory basis for evaluating the truth of the prior
statement.” Dutton v. Evans, 400 U.S. 74, 89 (1970),
quoting California v. Green, 399 U.S. 149, 161 (1970).
In examining the document and the circumstances
under which it was admitted into evidence, we find
sufficient “indicia of reliability,” Dutton v. vans, supra,
400 U.S. at 89, to convince us that it was not error to
place the document before the jury.
The primary object of the [Confrontation
Clause] was to prevent depositions or ex parte
affidavits . . . being used against the prisoner in
lieu of a personal examination and cross-examin-
ation of the witness in which the accused has an
opportunity, not only of testing the recollection
and sifting the conscience of the witness, but of
compelling him to stand face to face with the
jury in order that they may look at him, and
judge by his demeanor upon the stand and the
manner in which he gives his testimony whether
he is worthy of belief.
Mattox v. United States, 156 U.S. 237, 242-43 (1895).
The document in question here was the product of
systematized data storage and retrieval by a public
agency charged with the responsibility of maintaining
accurate financial and tax information. Its admission
into evidence involved no risk of faulty human recollec-
tion and little likelihood of misrepresentation of signifi-
cant data. Clearly, the public record indicating that
Neff failed to file proper tax returns in 1974 and 1975
was not the inherently unreliable out-of-court statement
at which the Confrontation Clause was directed. “The
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rationale which underlies all of the public document
exceptions to the hearsay rules is that statements made
by public officials in the discharge of their duties are
generally trustworthy.” United States v. Lee, supra,
589 F.2d at 988.
We, along with a clear majority of those courts
which have weighed the admission of negative public
records against a Sixth Amendment challenge, have
concluded that admitting such documents does not vio-
late the defendant’s right to confrontation. United
States v. Lee, supra, 589 F.2d at 988-89. E.g., United
States v. Downing, 454 F.2d 378, 376 (10th Cir. 1972) ;
Warren v. United States, 447 F.2d 259, 262 (9th Cir.
1971) ; United States v. Mix, 446 F.2d 615, 622-23 (5th
Cir. 1971) ; United States v. Thompson, 420 F.2d 536,
545 (3d Cir. 1970).’
7 Neff urges us to rely upon United States v. Oates, 560 F.2d
45 (2d Cir. 1977), and thus hold that admission of the IRS doc-
ument violated his right to confrontation and was inadmiss-
ible hearsay because it was a public report offered by the
government in a criminal trial contrary to the implication of
Federal Rule of Evidence 803(8). We decline to do so. The
IRS document offered into evidence against Neff is distinguish-
able from the “evaluative reports” considered in Oates. Id. at
67 n.19, 68, 69. There, the evidentiary report chronicled the
chemical analysis of a substance, eventually identified in the
report as heroin. The chemist who performed the analysis was
not present at trial to testify about the chemical procedures
used in making the identification, or about the reasons for his
conclusion that the substance was heroin. Other examples of
“evaluative reports” referred to in the opinion are psychiatric
and psychological examination, and documents reporting the
testing of grain. Id. at 67 n.19. It appears to us self-evident
that the national records of IRS receipts reported by a cus-
todian of those records are inherently less needful of probing
cross-examination than are conclusions reached through sci-
entific examination by an out-of-court analyst.
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Moreover, the nonexistence of Neffs 1974 and
1975 tax returns was well established by other evidence
at trial. The actual 1040 Income Tax Return Forms
which Neff completed and filed were introduced into
evidence. Those returns, which contained no informa-
tion from which tax liability could be calculated, them-
selves demonstrated that Neff filed no proper tax re-
turns during 1974 and 1975 “‘within the meaning of
the Internal Revenue Code or the regulations adopted
by the Commissioner.” United States v. Klee, 494
F.2d 394, 397 (9th Cir.), cert. denied, 419 U.S. 835
(1974) ,° quoting United States v. Porth, 426 F.2d 519,
523 (10th Cir.), cert. denied, 400 U.S. 824 (1970).
We conclude that Neff has no valid hearsay evi-
dence or Confrontation Clause challenge to his convic-
tion.
AFFIRMED.
Petitioners Note:
1. The Circuit Court says that the returns “con-
tained no information from which tax liability
could be calculated.” That is absolutely false!
Neff indicated the amount of his withholding and
incorporated by reference his W-2 forms on the
very face of his tax returns. Any accountant could
calculate tax liability from that information.
2. Only information regarding “income” can possibly
be required under the law. The Circuit Court's
8 See note 4, supra.
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phrase “wholesale assertion” of the Fifth Amend-
ment is misguided. No judge could rationally claim
that citizens can be imprisoned for a failure to re-
port “deductions” or “credits.” If that were the case,
everyone in America would be criminals.
CERTIFICATE OF SERVICE
Gary James Joslin, Attorney for the Petitioner
and a member of the Bar of the Supreme Court of the
United States, does hereby certify that two copies of the
foregoing Petition were served upon the office of the
United States Attorney to the attention of Nancy Simp-
son, Assistant United States Atomney, P.O. Box 36055,
450 Golden Gate Avenue, San Francisco, California
94102, by mailing the same, postage prepaid on or
about the 14th day of May, 1980, all in accordance with
the Rules of this Court.
Gary James Joslin
Attorney at Law
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.