U.S. v. Koziol

Full title: UNITED STATES of America, William Robertson, Revenue Agent, Internal…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 6, 1999

178 F.3d 1301 (9th Cir. 1999)

Opinion

178 F.3d 1301 (9th Cir. 1999) UNITED STATES of America, William Robertson, Revenue Agent, Internal Revenue Service, Petitioner-Appellee, v. Leonard KOZIOL and Denise Koziol, Respondents-Appellants. No. 94-35981. No. CV-93-19-BLG-JDS United States Court of Appeals, Ninth Circuit May 6, 1999

Submitted ^** December 8, 1995

** The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2) and Ninth Circuit Rule 34-4.

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

83 A.F.T.R.2d 99

Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding.

Before Judges D.W. NELSON, and NOONAN, Circuit Judges; TANNER, ^*** District Judge.

*** The Honorable Jack E. Tanner, Senior District Judge for the Western District of Washington, sitting by designation.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

The facts of this case are well known to the parties and we discuss them here only as necessary to render a decision.

In this suit by the United States to enforce an Internal Revenue Service summons issued to taxpayers, taxpayers asserted that compliance with the summons would violate their Fifth Amendment right against self-incrimination. Upon appeal of the district court's order enforcing the summons, this court remanded for the limited purpose of allowing the district court to conduct an in camera hearing to determine the basis for taxpayers' objections to the summons. Following the hearing, the district court ordered enforcement, determining that because the statute of limitations had run on any criminal prosecution against taxpayers for tax years 1986 thru 1991, no Fifth Amendment privilege was implicated.

The Koziols appealed, arguing that the court's ruling, limited as it was to the tax years upon which the IRS investigation was centered, failed to determine the Koziol's entitlement to invoke the Fifth Amendment as it related to years subsequent to 1991.

Assuming arguendo that the documents sought by the IRS contain information that could be used against the Koziols in a criminal proceeding with regard to tax years subsequent to 1991, taxpayers have demonstrated no more than a generalized fear that turning over their records would result in criminal charges being brought against them with regard to any tax years. To invoke the 5th Amendment privilege, a taxpayer must be faced with substantial hazards of self-incrimination that are real and appreciable, and must have reasonable cause to apprehend such danger. See United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 925 (1980).

The Koziols have failed to produce any evidence that the IRS is conducting any type of criminal investigation into their tax liabilities for 1986 thru 1991 or for subsequent years. Furthermore, the Koziols have failed to identify specifically information in the documents which tends to incriminate them. Any threat of self-incrimination is speculative at best.

Use Immunity

The Koziols' claim of entitlement to use immunity before being compelled to produce evidence that may incriminate them lacks merit. Absent a formal request from the government to the district court, the courts lack jurisdiction to grant use immunity under 18 U.S.C. § 6002 AND 6003. United States v. Doe, 465 U.S. 605, 616 (1984). No such request has been made, thus the Koziols are not entitled to a grant of use immunity.

The decision of the district court is AFFIRMED.