Randall S. Appel v. Norman Bard and Shirley Bard

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RANDALL S. APPEL,
Petitioner,
v.
NORMAN BARD and SHIRLEY BARD,
Respondents.
No. 4D14-2061
[January 21, 2015]
Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Catherine M. Brunson, Judge; L.T.
Case No. 013CA009797XXXXMB.
Esther A. Zaretsky, West Palm Beach, for petitioner.
Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for respondents.
DAMOORGIAN, C.J.
Randall S. Appel petitions this Court for a writ of certiorari, seeking
review of an order granting plaintiffs’ motion to compel answers to
deposition questions and overruling Fifth Amendment privilege objections.
We grant the petition.
Respondents are seeking to execute a domesticated foreign judgment
of more than $1 million dollars against Appel. During discovery, Appel
invoked the Fifth Amendment privilege against self-incrimination and
refrained from answering questions regarding whether he filed tax returns
for a span of years. Respondents filed a motion to compel which the trial
court granted for years 2005 through 2010.
Appel argues that this was a departure from the essential requirements
of law because being forced to admit or deny, under oath, whether he filed
his tax returns could be used by the U.S. Department of Treasury against
him in a future tax prosecution. Appel also argues that his answers could
“evoke a response forming a link in the chain of evidence which might lead
to criminal prosecution.” Delisi v. Smith, 423 So. 2d 934, 938 (Fla. 2d DCA
1982).
“Certiorari will lie to review an order compelling discovery in a civil case
over an objection that the order violates the Fifth Amendment privilege
against self-incrimination.” Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th
DCA 2003).
When presented with a Fifth Amendment privilege objection, the court
“must exercise its discretion and determine whether it is reasonably
possible that answers to either interrogatories or deposition questions
could evoke a response ‘forming a link in the chain of evidence which might
lead to criminal prosecution.’” DeLisi v. Bankers Ins. Co., 436 So. 2d 1099,
1101 (Fla. 4th DCA 1983) (quoting DeLisi, 423 So. 2d at 938).
A witness is generally entitled to invoke the Fifth Amendment
privilege against self-incrimination whenever there is a realistic
possibility that his answer to a question can be used in any
way to convict him of a crime. It need not be probable that a
criminal prosecution will be brought or that the witness’s
answer will be introduced in a later prosecution; the witness
need only show a realistic possibility that his answer will be
used against him. Moreover, the Fifth Amendment forbids not
only the compulsion of testimony that would itself be
admissible in a criminal prosecution, but also the compulsion
of testimony, whether or not itself admissible, that may aid in
the development of other incriminating evidence that can be
used at trial. See Hoffman v. United States, 341 U.S. 479, 486,
71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951).
The privilege is inapplicable only “if the testimony sought
cannot possibly be used as a basis for, or in aid of, a criminal
prosecution against the witness.” Brown v. Walker, 161 U.S.
591, 597, 16 S. Ct. 644, 647, 40 L. Ed. 819 (1896).
Pillsbury Co. v. Conboy, 459 U.S. 248, 267 n.1 (1983) (J. Marshall
concurring) (emphasis added).
In the present case, petitioner has shown a reasonable probability that
the information might be used against him in a prosecution for failure to
file and failure to pay his taxes.1 We conclude that he is entitled to relief.
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Compelling Appel to answer yes-or-no in response to whether he filed
tax returns would be forcing him to admit or deny the very thing the
government would be trying to prove in a federal tax prosecution—an
essential element of the crime, thus lowering the government’s burden.
We disagree with respondents’ contention that because the IRS is already
aware of his filing status he should be compelled to answer.
We find that the trial court departed from the essential requirements of
law in ordering Appel to respond to the deposition questions regarding
whether he filed tax returns for years 2005–2010. We grant the petition,
1
10.05 FAILURE TO FILE
10.05 [1] Elements
To establish the offense of failure to make (file) a return, the
government must prove three essential elements beyond a
reasonable doubt:
1. The defendant was a person required to file a return;
2. The defendant failed to file at the time required by law;
and
3. The failure to file was willful.
U.S. Dep’t of Justice Tax Div., Criminal Tax Manual (2012),
http://www.justice.gov/tax/readingroom/2008ctm/CTM%20Chapter%2010.pd
f (herein DOJ Tax Manual); 26 U.S.C. § 7203; United States v. Hassebrock, 663
F.3d 906, 919 (7th Cir. 2011).
10.06 FAILURE TO PAY
10.06[1] Elements
To establish the offense of failure to pay a tax, the government
must prove beyond a reasonable doubt that
(1) the defendant had a duty to pay a tax,
(2) the tax was not paid at the time required by law, and
(3) the failure to pay was willful.
DOJ Tax Manual at 26–27; United States v. Tucker, 686 F.2d 230, 232 (5th Cir.
1982); 26 U.S.C. § 7203.
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quash the order on review and remand for proceedings consistent with this
opinion.2
Petition Granted.
STEVENSON and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 The petitioner offers a form of alternate relief which does not appear to have
been brought before the trial court. We note that respondents can pursue this
alternate relief as offered by the petitioner.
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