(PS) United States of America v. Torrance ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, No. 2:18-cv-1631-JAM-EFB PS 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 BRIAN TORRANCE, 15 Respondent. 16 17 This case was before the court on April 1, 2020, for hearing on petitioner the United 18 States’ motion to compel respondent Brian Torrance’s compliance with an Internal Revenue 19 Service’s (“IRS”) summons. ECF No. 31. Assistant United States Attorney Steven Tennyson 20 appeared on behalf of petitioner; respondent appeared pro se. Also pending is respondent’s 21 motion to dismiss this case. ECF No. 34. 22 For the reasons stated on the record, and as discussed briefly below, petitioner’s motion to 23 compel is granted. Further, it is recommended that respondent’s motion to dismiss be denied. 24 I. Motion to Compel 25 Revenue Agent David Palmer previously issued an IRS summons directing Torrance to 26 appear before the agent on May 2, 2017, to give testimony and produce for examination books, 27 papers, records or other data. Id. at ¶ 6. After Torrance failed to comply with the summons, the 28 government filed a petition seeking enforcement. ECF No. 1. The court ordered enforcement of 1 the summons and directed Torrance to appear before Agent Palmer to provide testimony and 2 produce the documents requested by the summons. ECF Nos. 20 & 25. Torrance subsequently 3 appeared before Agent Palmer but refused to produce any documents. Palmer Decl. (ECF No. 4 31-2) ¶ 2. Instead, he claimed that all responsive information was privileged under the Fifth 5 Amendment since “any of the information surrendered could be used against [him] criminally.”1 6 Id. ¶ 6. The government now seeks an order directing Torrance to provide the documents 7 demanded by the IRS’s summons. 8 The Fifth Amendment privilege against self-incrimination “protects a person only against 9 being incriminated by his own compelled testimonial communications.” Doe v. United States, 10 487 U.S. 201, 207 (1998) (“[T]he Fifth Amendment would not be violated by the fact alone that 11 [documents] on their face might incriminate the taxpayer . . . .”). Accordingly, for a 12 communication to be privileged under the Fifth Amendment, it “must be testimonial, 13 incriminating, and compelled.” Hiibel v. Sixth Judicial Dist. Ct. of Nevada, Humboldt Cnty., 542 14 U.S. 177, 189 (2004). A taxpayer may assert a claim of Fifth Amendment privilege where there 15 “are ‘substantial hazards of self-incrimination that are real and appreciable, not merely imaginary 16 and unsubstantial,’ that information sought in an IRS summons might be used to establish 17 criminal liability.” United States v. Drollinger, 80 F.3d 389, 392 (9th Cir. 1996) (quoting United 18 States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984)). This requires the taxpayer to establish that 19 the privilege applies to each question and/or document, and “a blanket claim of privilege is 20 unacceptable.” United States v. Christensen, 828 F.3d 763, 803 (9th Cir. 2015); see also Boday v. 21 United States, 759 F.2d 1472, 1474 (9th Cir. 1985) (holding “[a]ppellants failed to meet their 22 burden because they offered no specific evidence . . . [and] merely suggested hypothetical 23 situations in which some of the Form 1040 questions might tend to incriminate the taxpayer.”). 24 ///// 25 26 1 Torrance also refused to provide testimony based on an assertion of the Fifth Amendment privilege against self-incrimination. The government indicated at the April 1 hearing 27 that it currently only seeks to compel Torrance to produce the document’s requested by the IRS summons, not to compel his testimony. Accordingly, the court need not decide at this time 28 whether Torrance’s refusal to provide testimony was appropriate. 1 Here, Torrance has not demonstrated that any specific document contains information that 2 is privileged under the Fifth Amendment. Significantly, he has not produced a privileged log 3 identifying the specific documents he claims to contain privileged information. United States v. 4 Bright, 596 F.3d 683, 691 (9th Cir. 2010) (to allow for a reasoned assessment of a privilege 5 claim, taxpayer must “produce a privilege log or turn over any contested documents for in camera 6 review.”). Rather, he has simply made a blanket assertion of privilege without making any 7 particularized showing. See ECF No. 33. Consequently, he has failed to meet his burden of 8 showing that specific communications are privileged under the Fifth Amendment. Accordingly, 9 the government’s motion compel is granted. 10 II. Motion to Dismiss 11 Torrance’s motion to dismiss this case is premised on his contention that he cannot be 12 compelled to comply with the IRS’s summons because doing so would violate his Fifth 13 Amendment right against self-incrimination. See ECF No. 34. As just explained, Torrance has 14 failed to satisfy his burden of demonstrating that the documents sought by the IRS summons 15 contain privileged information. Accordingly, his motion to dismiss must be denied. 16 III. Conclusion 17 Accordingly, it is hereby ORDERED that: 18 1. Petitioner’s motion to compel respondent’s compliance with the IRS’s summons (ECF 19 No. 31) is granted; 20 2. Within 21 days of this order, Torrance shall produce for examination books, papers, 21 records or other data demanded by the summons; and 22 3. Should Torrance believe that any demanded documents contain privileged information, 23 Torrance shall produce, within 21 days of this order, a privilege log describing “the nature of the 24 documents . . . in a manner that, without revealing information itself privileged or protected,” 25 allows the government to assess his claim(s) of privilege. Fed. R. Civ. P. 26(b)(5). For each 26 document claimed to contain privileged information, Torrance shall identify the date, author and 27 recipient, if any, for each document, and some clarification for why the document meets the 28 requirements for being privileged. wOAOe 6. £0 °UV VEY LOYAL OE PIR eee PAY TT 1 Further, it is RECOMMENDED that respondent’s motion to dismiss this case (ECF No. 2 || 34) be denied. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 || within the specified time may waive the right to appeal the District Court’s order. Turner vy. 9 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 10 | DATED: April 21, 2020. tid, PDEA EDMUND F. BRENNAN 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28