CITES BY TOPIC:  Fifth Amendment

Black's Law Dictionary, Sixth Edition, page 1612

Doe v. Glanzer, 232 F.3d 1258, 232 F.3d 1258 (9th Cir. 11/17/2000)

1. INVOCATION OF THE PRIVILEGE

[1] The Fifth Amendment to the United States Constitution provides that "[n]o person . . .shall be compelled in any criminal case to be a witness against himself . . . . " Notwithstanding the text that seemingly limits the right against self-incrimination to the criminal context, the Fifth Amendment's protections have been deemed to apply to civil proceedings. See Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Thus, the Fifth Amendment's protections against self-incrimination can be asserted in any proceeding, be it civil, criminal, administrative, judicial, investigative or adjudicatory. See Kastigar v. United States, 406 U.S. 441, 444 (1972). However, in the civil context, the invocation of the privilege is limited to those circumstances in which the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that manner. See United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995). Therefore, the "privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution" and also covers those circumstances where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence. See United Liquor Co. v. Gard (In re Seper), 705 F.2d 1499, 1501 (9th Cir. 1983). The only way the privilege can be asserted is on a question-by-question basis, and thus as to each question asked, the party has to decide whether or not to raise his Fifth Amendment right. See Bodwell, 66 F.3d at 1001.

[. . .]

2. ADVERSE INFERENCES FROM THE INVOCATION OF THE PRIVILEGE

[2] "It is well established that in a criminal trial a judge or prosecutor may not suggest that the jury draw an adverse inference from a defendant's failure to testify. " United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997). However, in civil proceedings adverse inferences can be drawn from a party's invocation of this Fifth Amendment right. See SEC v. Colello, 139 F.3d 674, 677 (9th Cir. 1998). The seminal case in this area is Baxter v. Palmigiano, 425 U.S. 308 (1976). In Baxter, the Supreme Court was confronted with a prison inmate who had been brought before a prison disciplinary board on charges of inciting a disturbance. When informed that state criminal charges might be brought against him arising out of his conduct while in prison, the inmate was advised that he could remain silent before the board, but that his silence would be used against him. See id. at 312. During the hearing, the inmate was confronted with incriminating evidence, remained completely silent, and as a consequence was given further punishment under the assumption that he perpetrated the acts for which he was being questioned. See id. at 313, 317. The Supreme Court held that the drawing of the adverse inference from the inmate's silence was proper when incriminating evidence had also been presented, and therefore no Fifth Amendment violation had taken place. See id. at 317-18.

[3] The Baxter holding is not a blanket rule that allows adverse inferences to be drawn from invocations of the privilege against self-incrimination under all circumstances in the civil context. Rather, lower courts interpreting Baxter have been uniform in suggesting that the key to the Baxter holding is that such adverse inference can only be drawn when independent evidence exists of the fact to which the party refuses to answer. See, e.g., LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 391 (7th Cir. 1995); Peiffer v. Lebanon Sch. Dist., 848 F.2d 44, 46 (3d Cir. 1988). Thus, an adverse inference can be drawn when silence is countered by independent evidence of the fact being questioned, but that same inference cannot be drawn when, for example, silence is the answer to an allegation contained in a complaint. See Nat'l Acceptance Co. v. Bathalter, 705 F.2d 924, 930 (7th Cir. 1983). In such instances, when there is no corroborating evidence to support the fact under inquiry, the proponent of the fact must come forward with evidence to support the allegation, otherwise no negative inference will be permitted. See LaSalle Bank, 54 F.3d at 391.

The tension between when to allow the adverse inference, and when not to allow it, stems from the consideration that because, in a civil proceeding, "the parties are on a somewhat equal footing, one party's assertion of his constitutional right should not obliterate another party's right to a fair proceeding. " Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir. 1996). Thus, not allowing the negative inference to be drawn "poses substantial problems for an adverse party who is deprived of a source of information that might conceivably be determinative in a search for the truth." SEC v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994); see also id. at 191 (noting that "a party's invocation of the privilege may be proper, but it does not take place in a vacuum: the rights of the other litigant are entitled to consideration as well.").

However, the Supreme Court has made it clear that certain sanctions stemming from a party's refusal to answer a question on Fifth Amendment grounds are too costly. For example, a state statute that forces an officer of a political party to waive his Fifth Amendment right or forfeit his office is unconstitutional. See Lefkowitz v. Cunnigham, 431 U.S. 801, 807-09 (1977). Similarly, individuals cannot be forced to waive their Fifth Amendment rights against self-incrimination by threats that their employment will be terminated. See Turley, 414 U.S. at 83-85. Moreover, the Rules of Civil Procedure recognize an appropriate role for the exercise of this privilege, and a refusal to respond to discovery under such invocation cannot justify the imposition of penalties. See Fed. R. Crim. P. 26(b)(5); Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1087 (5th Cir. 1979). Also along these lines is a decision in which a court found that no negative inference could be drawn from a party's assertion of the attorney-client privilege. See Nabsico, Inc. v. PF Brands, Inc. , 191 F.3d 208, 226 (2d Cir. 1999). The Nabsico court reasoned that the policy behind the attorney-client privilege was paramount and trumped the questioner's right to acquire information. See id. The court noted that those cases in which a negative inference was allowed against a person asserting the privilege stemmed from the recognition that the person refusing to answer the question posed had some affirmative duty to reveal such information. See id. (citing Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1056 (Fed. Cir. 1994)). Thus, these sources suggest that under certain circumstances, within the civil framework, because of the constitutional nature of the right implicated, an adverse inference from an assertion of one's privilege not to reveal information is too high
a price to pay.

[4] The tension between one party's Fifth Amendment rights and the other party's right to a fair proceeding is resolved by analyzing each instance where the adverse inference was drawn, or not drawn, on a case-by-case basis under the microscope of the circumstances of that particular civil litigation. See Graystone Nash, Inc., 25 F.3d at 192. This approach allows the courts the flexibility to fashion and develop rules pertaining to the privilege, and leaves the door open to change. See Trammel v. United States, 445 U.S. 40, 47 (1980). In each particular circumstance, the competing interests of the party asserting the privilege, and the party against whom the privilege is invoked must be carefully balanced. See Graystone Nash, Inc., 25 F.3d at 192. "Because the privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side. " Id. In that light, no negative inference can be drawn against a civil litigant' s assertion of his privilege against self-incrimination unless there is a substantial need for the information and there is not another less burdensome way of obtaining that information. See, e.g., Serafino, 82 F.3d at 518-19.

[Doe v. Glanzer, 232 F.3d 1258, 232 F.3d 1258 (9th Cir. 11/17/2000)]

United States v. Prescott, 581 F.2d 1343 (9th Cir. 09/14/1978)

The due process rights under the Fifth and Fourteenth Amendments of the Constitution require that the exercise of constitutional rights must be free of penalties imposed by courts say Mr. Justice Black and the majority.*fn1 The difficulty with this is that no such broad principle exists.

If it were to exist, its most probable manifestation would be in connection with the Fifth Amendment privilege. Reducing the cost of exercising the privilege is compatible with its purpose, Viz. the proscription of testimonial compulsion. Schmerber v. California, 384 U.S. 757, 764-65, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Any burden whatsoever on the exercise can be viewed as contributing to compulsion. Therefore, it is not surprising that we have decisions such as Griffin, Grunewald, Doyle, and United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). There are, on the other hand, decisions which recognize that not every contribution to testimonial compulsion is barred by the Constitution. Repeated questions on cross-examination reasonably related to the direct examination that could provoke the exercise of the privilege are a hazard which a defendant must confront in deciding whether he will take the stand on his own behalf. United States v. Hearst, 563 F.2d 1331, 1341 (9th Cir. 1977), Cert. denied, 435 U.S. 1000, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978). Cf. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 108, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1960). That the hazard exists may induce him to refrain from testifying, in which case the purpose of the Fifth Amendment privilege is served while the right to testify is impaired. It might, however, induce the defendant to testify in a manner that eliminates any necessity to claim the privilege, in which case the hazard has contributed to the compulsion of testimony. Or, finally, the hazard may be accepted, as in Hearst, and the privilege claimed as needed on cross-examination. All recognize that under such circumstances the exercise of the privilege is not free of cost.

Nor is claiming the privilege by refraining from taking the stand without its costs as every defense attorney knows. Cf. United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978) Mr. Justice Stewart dissenting, 98 S. Ct. 2610. Such costs could be reduced by permitting the defendant to determine whether the jury should be given a cautionary instruction designed to preclude an adverse inference from being drawn by his failure to testify. The Supreme Court recently has refused to so reduce the costs. See Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978). An even further reduction of the costs of claiming the privilege could be achieved by requiring that the jury be charged that a claim of privilege is evidence of innocence. Diligent search reveals no instance in which this has been considered; yet not to so charge increases the chances that juries will draw adverse inferences from the failure to testify.

Not only are costs, albeit thought to be tolerable in amount, attached to the proper exercise of the Fifth Amendment privilege, but very substantial costs can be assessed for improper efforts to exercise the privilege. Imprisonment for contempt, for example, can be the result of an unjustified refusal on alleged Fifth Amendment grounds to testify before a grand jury. Cf. Brown v. United States, 359 U.S. 41, 79 S. Ct. 539, 3 L. Ed. 2d 609 (1959), Overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S. Ct. 352, 15 L. Ed. 2d 240 (1965), and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); Matter of Fischel, 557 F.2d 209 (9th Cir. 1977). Moreover, a good faith belief in the soundness of the assertion of the privilege does not provide immunity from contempt. Cf. Matter of Fred R. Witte Center Glass No. 3, 544 F.2d 1026 (9th Cir. 1976).

[United States v. Prescott, 581 F.2d 1343 (9th Cir. 09/14/1978)]

Murphy v. I.R.S, 362 F. Supp. 2d 206, 216-17 (D.D.C. 2005)

“Courts generally reject the argument that taxing provisions can be classified as "taking of property without due process of law." See Freeman, 2001 WL 1140022, T.C.M. (RIA) 2001-254 (Tax Ct. 2001); see also Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir. 1986); Van Sant, 98 A.F.T.R.2d 2002-302, *7 (D.D.C. 2001). The Seventh Circuit clarifies the meaning of taking in Coleman, stating that taxation does indeed "take" income, "but this is not the sense in which the constitution uses `takings.'"Id. The Second Circuit further explained that because Article I, section 8, clause 1 of the U.S. Constitution granted Congress the power to tax before the passage of the Sixteenth Amendment, its passage "did no more than remove the apportionment requirement of Article I, § 2, cl. 3, from taxes on `incomes, from whatever source derived.'" Therefore, although taxation on damages that are not exempted under the revised version of § 104(a)(2) may appear to be a "taking" by the government, the constitutional provision was not intended, nor should it be extended, to cover plaintiff's situation in this case.”

[Murphy v. I.R.S, 362 F.Supp.2d. 206, 216-17 (D.D.C. 2005)]

U. S. ex rel. Roberts v. Ternullo, 407 F.Supp. 1172, D.C.N.Y. (1976)

The inspection of records of petitioner's corporations under such circumstances can hardly be viewed as an unreasonable intrusion upon his privacy in violation of the Fourth Amendment. Indeed, the only impropriety that can be detected was the District Attorney's use of a subpoena directed to Lynn rather than to petitioner to produce these records before the grand jury. Had the subpoena been served on petitioner as an officer of the corporations, he would have had to comply, even though he himself might have been incriminated by their production. Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). As Bellis points out, a “long line of cases has established that an individual cannot rely upon the privilege (Fifth Amendment) to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.” Id. 94 S.Ct. at 2183.

[U. S. ex rel. Roberts v. Ternullo, 407 F.Supp. 1172, D.C.N.Y. (1976)]

Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 2003)

In the Fifth Amendment context, we have created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. See, e.g., Tucker, 417 U.S., at 444, 94 S.Ct. 2357 (describing the “procedural safeguards” required by Miranda as “not themselves rights protected by the Constitution but ... measures to insure that the right against compulsory self-incrimination was protected” to “provide practical reinforcement for the right”); Elstad, supra, at 306, 105 S.Ct. 1285 (stating that “[t]he Miranda exclusionary rule ... serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself”). Among these rules is an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminal cases, unless that testimony has been immunized *771 from use and derivative use in a future criminal proceeding before it is compelled. See Kastigar, supra, at 453, 92 S.Ct. 1653; Maness v. Meyers, 419 U.S. 449, 461-462, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) (noting that the Fifth Amendment privilege may be asserted if one is “compelled to produce evidence which later may be used against him as an accused in a criminal action” (emphasis added)).

By allowing a witness to insist on an immunity agreement before being compelled to give incriminating testimony in a noncriminal case, the privilege preserves the core Fifth Amendment right from invasion by the use of that compelled testimony in a subsequent criminal case. See Tucker, supra, at 440-441, 94 S.Ct. 2357 (“Testimony obtained in civil suits, or before administrative or legislative committees, could [absent a grant of immunity] prove so incriminating that a person compelled to give such testimony might readily be convicted on the basis of those disclosures in a subsequent criminal proceeding”). Because the failure to assert the privilege will often forfeit the right to exclude the evidence in a subsequent “criminal case,” see Murphy, 465 U.S., at 440, 104 S.Ct. 1136; Garner v. United States, 424 U.S. 648, 650, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976) (failure to claim privilege against self-incrimination before disclosing incriminating information on tax returns forfeited the right to exclude that information in a criminal prosecution); United States v. Kordel, 397 U.S. 1, 7, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970) (criminal defendant forfeited his right to assert Fifth Amendment privilege with regard to answers he gave to interrogatories in a prior civil proceeding), it is necessary to allow assertion of the privilege prior to the commencement of a “criminal case” to safeguard the core Fifth Amendment trial right. If the privilege could not be asserted in such situations, testimony given in those judicial proceedings would be deemed “voluntary,” see Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 95 L.Ed. 344 (1951); United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943); hence, insistence on a prior grant of immunity is essential to memorialize the fact that the testimony had indeed been compelled and therefore *772 protected from use against the speaker in any “criminal case.”

Rules designed to safeguard a constitutional right, however, do not extend the scope of the constitutional right itself, just as violations of judicially crafted prophylactic rules do not violate the constitutional rights of any person. As we explained, we have allowed the Fifth Amendment**2004 privilege to be asserted by witnesses in noncriminal cases in order to safeguard the core constitutional right defined by the Self-Incrimination Clause-the right not to be compelled in any criminal case to be a witness against oneself.FN3 We have likewise established the Miranda exclusionary rule as a prophylactic measure to prevent violations of the right protected by the text of the Self-Incrimination Clause-the admission into evidence in a criminal case of confessions obtained through coercive custodial questioning. See Warren v. Lincoln, 864 F.2d 1436, 1442 (C.A.8 1989) (alleged Miranda violation not actionable under § 1983); Giuffre v. Bissell, 31 F.3d 1241, 1256 (C.A.3 1994) (same); Bennett v. Passic, 545 F.2d 1260, 1263 (C.A.10 1976) (same); see also New York v. Quarles, 467 U.S. 649, 686, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Marshall, J., dissenting) (“All the Fifth Amendment forbids is the introduction of coerced statements at trial”). Accordingly, Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional rights and cannot be grounds for a § 1983 action. See Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) ( Miranda 's warning requirement is “not itself required by the Fifth Amendmen[t] ... but is instead justified only by reference to its prophylactic purpose”); Tucker, supra, at 444, 94 S.Ct. 2357 ( Miranda's safeguards “were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected”). And the absence of a “criminal case” in which *773 Martinez was compelled to be a “witness” against himself defeats his core Fifth Amendment claim. The Ninth Circuit's view that mere compulsion violates the Self-Incrimination Clause, see 270 F.3d, at 857; California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1045-1046 (1999); Cooper, 963 F.2d, at 1243-1244, finds no support in the text of the Fifth Amendment and is irreconcilable with our case law. FN4 Because we find that Chavez's alleged conduct did not violate the Self-Incrimination Clause, we reverse the Ninth Circuit's denial of qualified immunity as to Martinez's Fifth Amendment claim.

FN3. That the privilege is a prophylactic one does not alter our penalty cases jurisprudence, which allows such privilege to be asserted prior to, and outside of, criminal proceedings.

FN4. It is Justice KENNEDY's indifference to the text of the Self-Incrimination Clause, as well as a conspicuous absence of a single citation to the actual text of the Fifth Amendment, that permits him to adopt the Ninth Circuit's interpretation.

Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), on which Justice KENNEDY and Justice GINSBURG rely in support of their reading of the Fifth Amendment, was a case addressing the admissibility of a coerced confession under the Due Process Clause. Mincey did not even mention the Fifth Amendment or the Self-Incrimination Clause, and refutes Justice KENNEDY's and Justice GINSBURG's assertions that their interpretation of that Clause would have been known to any reasonable officer at the time Chavez conducted his interrogation.

Our views on the proper scope of the Fifth Amendment's Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment's Due Process Clause, rather than the Fifth Amendment's Self-Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances.FN5

FN5. We also do not see how, in light of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), Justice KENNEDY can insist that “the Self-Incrimination Clause is applicable at the time and place police use compulsion to extract a statement from a suspect” while at the same time maintaining that the use of “torture or its equivalent in an attempt to induce a statement” violates the Due Process Clause. Post, at 2016 (opinion concurring in part and dissenting in part). Graham foreclosed the use of substantive due process analysis in claims involving the use of excessive force in effecting an arrest and held that such claims are governed solely by the Fourth Amendment's prohibitions against “unreasonable” seizures, because the Fourth Amendment provided the explicit source of constitutional protection against such conduct. 490 U.S., at 394-395, 109 S.Ct. 1865. If, as Justice KENNEDY believes, the Fifth Amendment's Self-Incrimination Clause governs coercive police interrogation even absent use of compelled statements in a criminal case, then Graham suggests that the Due Process Clause would not.

[Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, (2003)]

Minnesota v. Murphy, 465 U.S. 420 (1984)

The Fifth Amendment, in relevant part, provides that no person "shall be compelled in any criminal case to be a witness against himself." It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). In all such proceedings,

"a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution." Id., at 78 (citations omitted).

A defendant does not lose this protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted. See Baxter v. Palmigiano, 425 U.S. 308, 316 (1976). The issue in this case is whether the Fifth Amendment right that Murphy enjoyed would be violated by the admission into evidence at his trial for another crime of the prior statements made by him to his probation officer. [465 U.S. 420, 427]  

We note first that the general obligation to appear and answer questions truthfully did not in itself convert Murphy's otherwise voluntary statements into compelled ones. In that respect, Murphy was in no better position than the ordinary witness at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt, unless he invokes the privilege and shows that he faces a realistic threat of self-incrimination. The answers of such a witness to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege. This much is reasonably clear from our cases.

As this Court has long acknowledged:

"The [Fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been `compelled' within the meaning of the Amendment." United States v. Monia, 317 U.S. 424, 427 (1943) (footnote omitted).

This principle has been applied in cases involving a variety of criminal and noncriminal investigations. See, e. g., United States v. Kordel, 397 U.S. 1, 7 -10 (1970); Rogers v. United States, 340 U.S. 367, 370 -371 (1951); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 112 -113 (1927). These cases, taken together, "stand for the proposition that, in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not `compelled' him to incriminate himself." Garner v. United States, 424 U.S. 648, 654 (1976) (footnote omitted). Witnesses who failed to claim the privilege were once said to have "waived" it, but we have recently abandoned this "vague term," Green v. United States, [465 U.S. 420, 428]   355 U.S. 184, 191 (1957), and "made clear that an individual may lose the benefit of the privilege without making a knowing and intelligent waiver." Garner v. United States, supra, at 654, n. 9.

Although we have sometimes suggested in dicta that the usual rule might give way in situations where the government has "substantial reason to believe that the requested disclosures are likely to be incriminating," Roberts v. United States, 445 U.S. 552, 559 (1980), we have never adopted the view that a witness must "put the Government on notice by formally availing himself of the privilege" only when he alone "is reasonably aware of the incriminating tendency of the questions." Id., at 562, n.[*] (BRENNAN, J., concurring). It has long been recognized that "[t]he Constitution does not forbid the asking of criminative questions," United States v. Monia, supra, at 433 (Frankfurter, J., dissenting), and nothing in our prior cases suggests that the incriminating nature of a question, by itself, excuses a timely assertion of the privilege. See, e. g., United States v. Mandujano, 425 U.S. 564, 574 -575 (1976) (plurality opinion). If a witness - even one under a general compulsion to testify - answers a question that both he and the government should reasonably expect to incriminate him, the Court need ask only whether the particular disclosure was "compelled" within the meaning of the Fifth Amendment.

United States v. Kordel, supra, perhaps the first case squarely to hold that a witness under compulsion to make disclosures must assert the privilege in a timely manner, is illustrative. In answering interrogatories submitted by the Government in a civil case against a corporation, a corporate officer who had been notified of contemplated criminal action against him supplied evidence and leads helpful in securing his indictment and conviction. Although the relationship between the civil and criminal actions was clear and "[w]ithout question [the officer] could have invoked his Fifth Amendment privilege," id., at 7, he did not do so. The Court concluded without hesitation that "[h]is failure at any time to [465 U.S. 420, 429]   assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself." Id., at 10 (footnote omitted).

[Minnesota v. Murphy, 465 U.S. 420 (1984)]

Swisher Intern., Inc. v. U.S., (2001), 178 F. Supp. 2d 1354, 1362 (Ct. Int'l Trade 2001)

“Generally, taxation is not considered to be a taking because the monies paid are not a recognizable protected property interest. See, e.g., United States v. Sperry Corp., 493 U.S. 52, 53, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989) (holding that a deduction of a tribunal user fee from a settlement award is not a taking); Commercial Builders v. Sacramento, 941 F.2d 872, 876 (9th Cir. 1991) (holding that a purely financial exaction does not constitute a taking); Coleman v. C.I.R., 791 F.2d 68, 70 (7th Cir. 1986) (holding that taxes are not takings, unless the Government tries to "achieve through special taxes what the Takings Clause of the Fifth Amendment forbids if done directly."); Atlas Corp. v. United States, 895 F.2d 745, 756 (Fed. Cir. 1990) ("Requiring money to be spent is not a taking of property"); Commonwealth Edison Co. v. United States, 46 Fed. Cl. 29, 40 (2000) (same); Branch v. United States, 69 F.3d 1571, 1576 (Fed. Cir. 1995) (rejecting the argument that a federal statute constituted a taking, "because the property allegedly taken was money").

[. . .]

“Even if Plaintiffs' unconstitutionally exacted money was a recognized protected property interest, Plaintiffs fail to satisfy the second step of the takings analysis. The HMT does not constitute a taking because the HMT was not a valid exercise of Congress' power of eminent domain. The HMT on exports was an unauthorized use of Congress' otherwise valid power to tax under Article I of the Constitution, not a valid exercise of the government's power of eminent domain. See U.S. Shoe, 523 U.S. 360, 118 S.Ct. 1290. "[T]he power of taxation should not be confused with the power of eminent domain. Each is governed by its own principles." Houck v. Little River Drainage Dist., 239 U.S. 254, 264, 36 S.Ct. 58, 60 L.Ed. 266 (1915). Because Congress was not exercising its power of eminent domain in passing the HMT, a takings analysis is inappropriate.”

[Swisher Intern., Inc. v. U.S., (2001), 178 F. Supp. 2d 1354, 1362 (Ct. Int'l Trade 2001)]

[EDITORIAL: Parties who are the object of tax are always fictional offices exercising privileges. The OFFICE is the subject of the tax, not the OFFICER. The property taxed is owned by the OFFICE, not the officer. The OFFICER is protected by the Fifth Amendment, the OFFICE is NOT. PERSONS protected in the CONSTITUTIONAL context are human beings. PERSONS protected in the STATUTORY context are fictional offices. The office is legislatively CREATED and therefore OWNED by its CREATOR as property. Under Constitution Article 4, Section 3, Clause 2, congress can do whatever it wants with its own property and therefore offices without violating the constitution. This case merely recognizes this without clarifying the important distinction between OFFICES and OFFICERS. They don't clarify it, because they are engaging in SOPHISTRY to hide the origin of their jurisdiction. Taxation statutes are "rules" that regulate the use of government property, not laws that apply equally to ALL, meaning BOTH human beings and fictions.

Attaching an SSN to property is the method of connecting formerly PRIVATE property to the office. It functions as what the FTC calls a "franchise mark". When you "mark" your property with Caesars mark (what the bible calls "the mark of the beast"), it becomes "private property donated to a public use and a public office to procure the benefits of a franchise". That is why 26 C.F.R. §301.6109-1 says the SSN is only required for NRAs engaged in the "trade or business" franchise, and why it is ALWAYS required for "citizens" and "residents" there: Because both citizens and residents are, themselves OFFICES while "nonresident aliens" are not.

More on this subject at:

  1. Why Statutory Civil Law is Law for Government and Not Private Persons, Form #05.037
  2. Proof That There Is a Straw Man, form #05.042
  3. About SSNs and TINs on Government Forms and Correspondence, Form #05.012]

Lewis v. BNSF Ry. Co., 14-cv-7173 (N.D. Ill. Aug. 17, 2015)

“Concerning Plaintiff's claim for violation of due process rights under the Fifth Amendment, Judge Finnegan rejected Plaintiff's claim that Defendant's withholdings of his wages have forced him into a "state of peonage" made illegal under the Thirteenth Amendment. See R&R II 13. Specifically, Judge Finnegan found that a Fifth Amendment Due Process claim can only be brought against government actors, and therefore the claim against the Defendant must be dismissed. See id. (citing Esang v. U.S. Sec'y of Hous. & Urban Dev., No. 01 C 5537, 2002 WL 31655215, at *2 (N.D. Ill. Nov. 25, 2002). The Court agrees. Generally, the Fifth Amendment "protects citizens from conduct by the government, but not by conduct by private actors, no matter how egregious that conduct might be." Hallinan v. Fraternal Order of Police of Chic. Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009). Plaintiff cannot bring a Fifth Amendment claim against the Defendant here.”

[. . .]

“Plaintiff argues that the Defendant was acting under "the color of state law," and therefore was a government actor for purposes of the Fifth Amendment, when it withheld taxes. According to Plaintiff, by virtue of collecting taxes pursuant to federal law, the Defendant became a state actor. But Plaintiff provides no authority to support this position. Moreover, as noted above, a private company collecting taxes pursuant to federal law is immune from suit. See Burda, 2 F. 3d at 775.”

[Lewis v. BNSF Ry. Co., 14-cv-7173, at *11-12 (N.D. Ill. Aug. 17, 2015)]