The opinion of the court was delivered by: ROSLING
The circumstantial context in which the motion is made, the relief sought, the objections interposed and the threshold problems are sufficiently set out in the interim memorandums filed by the Court on March 29 and April 17, 1967, so that no repetition except, possibly, tangential reference required to maintain continuity of discussion will here be made.
A principle of general application accords the privilege against self-incrimination to all who claim it in " any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory * * * it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." The excerpt is from Murphy v. Waterfront Commission, 378 U.S. 52, at 94, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964), the underscoring being added to indicate where Justice Fortas, delivering the opinion for the Court in Matter of Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, decided by the Supreme Court May 15, 1967, felt it necessary to emphasize by italics. Gault is a landmark case which deals with the right of children charged as delinquents to exercise and enjoy the rights of adults accused of adult crime. The high court was close to unanimity in its assertion that labeling a proceeding "civil" will not justify placing those proceeded against or involved in it as witnesses beyond the pale of constitutional protection. Thus in Gault, the Court declares (slip memorandum, p. 46):
"It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to 'criminal' involvement. * * * To hold otherwise would be to disregard substance because of the feeble enticement of the 'civil' label-of-convenience which has been attached to juvenile proceedings."
The right of the witness to claim the privilege, therefore, may not be diluted by denominating the Internal Revenue Service inquisition a civil proceeding; indeed, the department here recognized the force of such principle, for the second question put to respondent, Mrs. Goldsmith, by Mr. Sheffield, the "Special Procedure Advisor," [Special Agent] was the formulary, "In accordance with the rights guaranteed you by the Constitution of the United States, you are not required to answer or testify concerning any matter that may incriminate or degrade you, you understand that?"
That respondent did not assert a 5th Amendment immunity in the course of her interrogation is clear. She was represented at the hearing by her present attorney and the procedure they adopted with respect to the questions which are the subject of the government's motion to compel answer, was that the attorney would signal when the question was put to the client, by uttering the single word "objection." Thereupon Mrs. Goldsmith would announce without other particularization, with only immaterial variations, "I refuse to answer on advice of counsel."
When the questioning had concluded the attorney introduced into evidence without explanation as to his reason for so doing the two letters, both dated March 2, 1966, addressed by him to the Internal Revenue Service, copies of which marked, Exhibits A and B, are annexed to respondent's "Affidavit and Memorandum of Law, in Opposition" to the government's motion sub jud. The letters do not make claim of 5th Amendment privilege.
The letter in Frieda Goldsmith's behalf declares that the attorney-author "would not permit her to be examined as to 'tax liability' [of her husband]
and that she would not comply with the demand for submission of records to complete her financial statement; she is not the taxpayer involved." The letter then incorporates by reference the comments made in the Louise Goldsmith companion letter. Louise's letter deals with the terms upon which the attorney is prepared to produce Louise in response to the summons the Internal Revenue Service served upon her. She is the wife of Nathan Goldsmith, brother of Frieda's husband, who is also the subject of investigation as a delinquent taxpayer. His difficulty arises out of a business in which the two brothers had jointly engaged. The Louise letter proposes to submit her "to give testimony in relation to the collection of the taxes of Nathan Goldsmith for any periods not outlawed by the statute of limitations."
Reiterating in the case of Louise the refusal by Frieda to produce records in connection with her own financial statement, the Louise letter continues with a contention that the government's "collection procedures have been barred by the statute of limitations under the [applicable] 1939 Revenue Act. If you have any extensions or waivers of the statute of limitations in respect of collection procedures, I would appreciate your arranging to allow me to inspect same before any examination of witnesses takes place."
The appended footnote 2 demonstrates the untenability of the claimed expiry of the statute of limitations for transferee assessment as justifying respondent's refusal to answer questions soliciting information concerning her husband's assets and what had become of them.
But the reach of the summons served by the department goes far beyond an inquiry into whether the taxpayer has transferred assets to his spouse that in equity would be made available to the government for the satisfaction of the husband's debt to the fisc. For if respondent has knowledge of the place of hiding of untransferred cash or property belonging to Isidor, or if such assets had been given to her without intent to change title, but merely to conceal on her person or elsewhere, it is manifest she would have been required to make disclosure. For her contumacious failure to do so she would face severe criminal penalties.
The government, citing respondent's failure to raise the claim of 5th Amendment immunity at the hearing before the Administrative Examiner, argues that such omission operates as a waiver, the effect of which she cannot now avert, although her papers presently interpose such claim. The government's argument is not persuasive.
The government, by abandoning its earlier attempt to move directly to punish respondent for contempt in refusing to answer before the Examiner
and in applying for a preliminary direction by order to compel obedience to the mandate of the summons, i.e. to answer the unanswered questions, acknowledges that on the state of the record made at the departmental inquiry the initial refusal of respondent was not contumacious. Such procedure opens up to respondent the opportunity here to claim the 5th Amendment immunity. See Reisman v. Caplin, 375 U.S. 440, 84 S. Ct. 508, 11 L. Ed. 2d 459 (1964); United States v. Murdock, 284 U.S. 141, 147-149, 52 S. Ct. 63, 76 L. Ed. 210 (1931). Cf. Brody v. United States, 243 F.2d 378 (1st Cir. 1957), cert. denied, 354 U.S. 923, 77 S. Ct. 1384, 1 L. Ed. 2d 1438.
No extended exposition is required at this late date to state the broad principles to be applied in according to the one who raises the claim of such privilege a protection as broad as the amendment contemplates. And it surely does not contemplate that the immunity shall be rendered nugatory by compelling answers to questions intended to test good faith to the point where disclosure of the crime establishes a right to withhold such disclosure. (See Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951); Malloy v. Hogan, 378 U.S. 1, 11-12, 84 S. Ct. 1489, ...