United States v. Edwin Pierce

dissenting:

I agree with the majority that Pierce did not waive his Fifth Amendment privilege either by pleading guilty or by accepting probation. I cannot agree that Pierce lost his privilege by the manner in which he raised it, nor can I agree that the condition of probation was valid under the Federal Probation Act ( 18 U.S.C. § 3651 ). The majority’s contrary conclusions rest on a misreading of the record and the teachings of Hoffman v. United States (1951) 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 and United States v. Consuelo-Gonzalez (9th Cir. en banc 1975) 521 F.2d 259 .

The record reveals that the district court imposed the disclosure condition as an aid to its ultimate determination of the amount of the fine that it would assess; the financial examination was not relevant to any future probationary program. The majority opinion’s assumptions about the probationary functions of the ordered disclosure 1 are contradicted by the record. The district court first imposed the maximum fine ($65,-000), committed Pierce to custody until the fine was paid or otherwise discharged in due course of law, stayed the commitment until March 29, 1974, and ordered Pierce to return to…

Pierce failed to comply with a condition of probation requiring him to reveal certain financial information. Probation was re *738 voked and Pierce appeals, contending that the condition was violative of the Fifth Amendment and thus invalid. We affirm.

I

In 1965 the Internal Revenue Service assessed a $248,429.80 wagering excise tax against Pierce. In response, Pierce entered into a scheme to avoid payment. He opened numerous stock brokerage accounts and then bought and sold stock, channeling the payments and receipts through a number of different bank accounts. The result was that Pierce was indicted in 1972 on thirteen counts of concealing property subject to a tax assessment in violation of 26 U.S.C. § 7206 (4), eight counts of mail fraud in violation of 18 U.S.C. § 1341 , and one count of conspiring to do the above acts in violation of 18 U.S.C. § 371 . After Pierce pleaded not guilty, the district court granted his motion to quash the 1965 tax assessment, which provided the basis for the thirteen concealment counts, on the ground that it was derived exclusively from illegally seized evidence.

The government then obtained a second indictment in 1973. In place of the…

561 F.2d 735 UNITED STATES of America, Plaintiff-Appellee, v. Edwin PIERCE, Defendant-Appellant. No. 74-1532. United States Court of Appeals, Ninth Circuit. Aug. 22, 1977. Richard G. Sherman, Los Angeles, Cal., submitted on briefs for defendant-appellant. William D. Keller, U. S. Atty., Earl E. Boyd, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before HUFSTEDLER and WALLACE, Circuit Judges, and FREY, * District Judge. WALLACE, Circuit Judge: 1 Pierce failed to comply with a condition of probation requiring him to reveal certain financial information. Probation was revoked and Pierce appeals, contending that the condition was violative of the Fifth Amendment and thus invalid. We affirm. 2 * In 1965 the Internal Revenue Service assessed a $248,429.80 wagering excise tax against Pierce. In response, Pierce entered into a scheme to avoid payment. He opened numerous stock brokerage accounts and then bought and sold stock, channeling the payments and receipts through a number of different bank accounts. The result was that Pierce was indicted in 1972 on thirteen counts of concealing…