(2d Cir. 1984). Defense counsel argues that his client faces the risk of criminal prosecution because of thefts that allegedly took place at Longfellow in 1984 and 1985. The government contends that the applicable statutes of limitations on these crimes have run. "Such an absolute bar to subsequent prosecution may be dispositive in ascertaining the permissible scope of a claim of Fifth Amendment privilege." Fisher, 905 F.2d at 651. The applicable federal statute of limitations for embezzlement, wire fraud and mail fraud is five years under 18 U.S.C. § 3282. The applicable statute of limitations for tax evasion is six years under 26 U.S.C. § 6531. I must agree with the government that Blumberg faces no real risk of prosecution for embezzlement, mail fraud and wire fraud based on events in 1984 and 1985.
The question remains whether any of the statute of limitations periods could have been tolled. Defense counsel argues that:
Transfers of this money following this period into subsequent years could extend the statute of limitations . . . . Even answers to questions about his current financial holdings could lead to proof against him, if such holdings are connected to the fruits of the alleged crime.
Amorosa Letter at 1. The government responds that these arguments are too speculative and do not raise a real fear of prosecution. A civil investigation of tax liability standing alone is simply not a sufficient basis for a fear of criminal tax prosecution. See, e.g., Donaldson v. United States, 400 U.S. 517, 534-36, 27 L. Ed. 2d 580, 91 S. Ct. 534 (1971). Defense counsel's vague assertions that the statutes of limitations could have been tolled, without citation to case law, does not persuade me that Blumberg has a real fear of prosecution.
Defense counsel contends that since the IRS asked questions about financial matters dating back to January 1, 1984, the IRS is not only concerned about locating present assets but is also investigating past wrongdoing. See Blumberg Dep. at 13. The IRS investigation specifically targets the collection of Blumberg's tax liability for the year ending December 31, 1984 so that questions extending back to January 1, 1984 seem logical. See Ferrato Aff. P7. The fact that the statutes of limitations have run on crimes committed in 1984 and 1985 makes it unreasonable for Blumberg to claim the privilege on events in 1984. Defense counsel's suggestion that the government give Blumberg immunity is a result that cannot be compelled by this Court. See United States v. Salerno, 937 F.2d 797, 807 (2d Cir. 1991), cert. granted, 112 S. Ct. 931, 117 L. Ed. 2d 103 (U.S. Jan. 21, 1992).
I must conclude that Blumberg's assertion of the Fifth Amendment privilege at the December 23, 1991 deposition was not based on a reasonable fear of criminal prosecution. Therefore, I conclude that Blumberg must answer the questions that were put to him.
For the reasons set forth above, the motion to compel compliance is granted and Blumberg is ordered to answer the questions that he refused to answer at the December 23, 1991 deposition.
Dated: New York, New York
March 26, 1992
CHARLES S. HAIGHT, JR.
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