# Petition — NEFF v. UNITED STATES (No. 79-1822) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2057%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 ## Text 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. 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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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2057%3A1. Public record. Not legal advice.