Sunday, December 20, 2015

Thinking of Taking the Fifth? Trust the Government. Don't Trust the Government.

Here's a Fifth Amendment quiz to start off your week:

Jose Delacruz was charged in state court with first-degree murder and aggravated robbery for his part in the beating death and robbery of a methamphetamine dealer. He was tried by a jury and acquitted of the murder but convicted of the robbery. Two months later, he was subpoenaed to testify at a codefendant's trial on similar charges. He refused, despite a state grant of use immunity, claiming that he feared federal prosecution. The United States Attorney had written him a letter stating that no federal prosecution of him would be forthcoming. But the letter also plainly stated that it did not constitute a formal grant of immunity. Did Mr. Delacruz have a valid Fifth Amendment claim?

Petitioners Neil Feinberg and others run a Colorado state-licensed marijuana dispensary. They are fighting the IRS in tax court over whether they can claim business-expense deductions for their dispensary. The IRS issued a discovery request seeking information about the exact nature of the dispensary. The petitioners refused, asserting their Fifth Amendment privilege. The IRS moved to compel a response, arguing that two consecutive Attorneys General have issued memoranda to field investigators in Colorado, instructing them not to prosecute state-licensed marijuana operations, and therefore the petitioners face no real threat of prosecution. Do the petitioners have a valid Fifth Amendment claim?

You can check your answers after the jump.

State v. Delacruz: No valid Fifth Amendment claim, according to the Kansas Court of Appeals, which affirmed Delacruz's conviction and nine-year sentence (yes, you read that right) for criminal contempt of court. The real problem may have been Mr. Delacruz's failure to articulate what federal offense his anticipated testimony may have exposed, but the Court here also appears to place great faith in the government's no-prosecution letter.

In re Feinberg: Probably a valid Fifth Amendment claim, but the Tenth Circuit doesn't reach it in this mandamus action. Nonetheless, the Court voices great skepticism about the government's no-prosecution memos:
[I]t’s true, as the IRS stresses, that two consecutive Deputy Attorneys General have issued memoranda encouraging federal prosecutors to decline prosecutions of state-regulated marijuana dispensaries in most circumstances. But in our constitutional order it’s Congress that passes the laws, Congress that saw fit to enact 21 U.S.C. § 841, and Congress that in § 841 made the distribution of marijuana a federal crime. And, frankly, it’s not clear whether informal agency memoranda guiding the exercise of prosecutorial discretion by field prosecutors may lawfully go quite so far in displacing Congress’s policy directives as these memoranda seek to do. There’s always the possibility, too, that the next (or even the current) Deputy Attorney General could displace these memoranda at anytime — by way of illustration look no further than DOJ’s (still) evolving views on corporate waivers of the attorney-client privilege expressed in so many memoranda by so many Deputy Attorneys General over so many years.

Lastly, the Court offers a general, and important, reminder about Fifth Amendment claims:
[T]his court has long explained that, once a witness establishes that the answers requested would tend to incriminate him under the law of the land, the Fifth Amendment may be properly invoked without regard to anyone’s speculation about whether the witness will in fact be prosecuted.

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