United States District Court, D. New Jersey
October 5, 2005.
UNITED STATES OF AMERICA, Petitioner,
DENNIS MARRA, Respondent.
The opinion of the court was delivered by: JOHN LIFLAND, Senior District Judge
MEMORANDUM AND ORDER
Before the Court is the Motion of Respondent Dennis Marra
("Marra") to stay the enforcement of the summons issued by the
Internal Revenue Service ("IRS") as ordered on September 16,
2005. Marra seeks a stay pending appeal to the Third Circuit of
the substantive finding that he has no Fifth Amendment privilege
to resist the summons. For the reasons expressed below,
Respondent's Motion is denied.
On September 12, 2005, Marra and the Government appeared before
this Court on an Order to Show Cause ("OTSC") why Marra should
not be compelled to obey an IRS summons served on him in the
investigation of Kenneth Reiher ("Reiher"). Reiher is being
investigated to determine whether he "committed any offense under
the internal revenue laws by filing false or fraudulent returns
or attempted to evade or defeat his Federal income taxes for the years 2000, 2001, and
2002." (Chang Dec. ¶ 2)
In the summons issued to Marra on June 18, 2004, the government
seeks Marra's appearance to "give testimony . . . and to produce
for examination" books, records, papers and other data relating
to Reiher personally and two corporate entities owned by Reiher,
KVR Consultants, Inc. and Healthcare Management, Inc., and for
Statewide Delivery Services, Inc, a corporation owned by Reiher's
father-in-law, Joseph Pezzutti. Specifically, the summons calls
for the production of:
All books, records, bank statements, cancelled
checks, deposit tickets, work-papers, financial
statements, correspondence and other pertinent
documents furnished by or on behalf of the above
named client(s) for the preparation of state and
federal income tax returns and for any other entity
in which either or both of them have a financial
interest, including but not limited to:
All records used in or resulting from the preparation
of federal and state income tax returns consisting of
but not limited to work-papers, notes, papers,
memoranda and correspondence used or prepared by you
relative to the preparation of the aforementioned
Copies of federal and state income and payroll tax
returns, state sales tax returns and amended tax
All records, books of account and other documents or
papers relative to financial transactions of the
All client billing records relative to this client to include records disclosing the dates and types of
services rendered; client account cards; billing
invoices; records reflecting the dates, amounts,
purpose, and method of all payments (cash or check);
and all correspondence with this client.
The Government contends that Marra is "the accountant, tax
preparer and third-party record-keeper" for Reiher and the above
named entities. (Petr.'s Mem. 4-5) As such, he is the custodian
of corporate records. Thus, the Government argues that Marra has
no privilege to withhold the documents it seeks. Marra confirms
that he is Reiher's "tax return preparer" but is not a certified
public accountant. (Marra Dec. ¶ 1)*fn1
papers, Marra's counsel described him as "more than just a
third-party record-keeper." (Resp.'s Br. Supp. Mot. Stay 6) Marra has
declined to produce the books and records, arguing that any such
production or attendant testimony could incriminate him, and
asserting his Fifth Amendment privilege against
self-incrimination as his basis for refusing to obey.
At the OTSC hearing, the Court upheld the summons, ruling that
Marra had ten days to produce responsive materials. The Court
issued an Order requiring Marra to "produce the books, papers,
records and/or other data as demanded by the summons within ten
(10) days of September 16, 2005." Order of September 16, 2005.
The Order further required Marra to appear and give testimony
"with respect to the documents produced." Id. The Order found
that "Dennis Marra does not have a Fifth Amendment privilege to
resist the production of documents described in the summons."
On September 20, 2005, counsel for Marra moved to stay the
enforcement of the summons pending an appeal of the Court's
September 16, 2005 Order to the Third Circuit.
II. LEGAL ANALYSIS
To prevail on a motion for a stay pending appeal, the movant
must establish: (1) a likelihood of success on the merits; (2) a
risk of irreparable injury if the stay is not granted; (3) an absence of substantial harm to other
interested parties; and (4) no harm to the public interest. ECRI
v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). The
elements are discussed below.
Success on the Merits
The issue here is whether Marra is a third-party record-keeper
or similarly, a custodian of corporate records, to whom a
Fifth Amendment privilege is unavailable, or whether he can personally
assert a Fifth Amendment privilege in refusing to turn over the
books and records of a taxpayer and several corporate entities
under investigation by the IRS.
The Fifth Amendment provides that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself."
U.S. Const. amend. V. The Internal Revenue Code makes it a crime
to "willfully" assist in the preparation of a false or fraudulent
return. 26 U.S.C. § 7206. Willfulness is present if the tax
preparer deliberately falsifies a material statement in the tax
return with full understanding of its materiality and with the
intent that it should be accepted as true. A Justice Department
referral signals that the IRS recommends criminal prosecution or
a grand jury investigation. 26 U.S.C. § 7602(d). If a referral is
in effect, the Government is precluded from issuing or attempting
to enforce a summons to examine books and records. Id. Here,
the Government's papers state clearly that there is no Justice Department referral in effect. (Chang Dec. ¶ 21; Pet. to Enforce
IRS Summons ¶ 9) Furthermore, the Government states that
the [IRS] has not made a recommendation to the
Department of Justice for a grand jury investigation
or criminal prosecution of Kenneth Reiher for the tax
years under investigation. The [IRS] is not delaying
a recommendation to the Department of Justice in
order to collect additional information. Moreover,
the Department of Justice has not made any request
under 26 U.S.C. § 6103(h)(3)(B) for the disclosure of
any return or return information . . . relating to
(Chang Dec. ¶ 21) Thus, it appears that there is no "criminal
case" open against Reiher or Marra or even contemplated against
either person. Nonetheless, the Fifth Amendment has been held to
apply to both civil and criminal tax investigations. United
States v. Egenberg, 316 F. Supp. 86, 89 (D.N.J. 1969).
In United States v. Egenberg, the court considered a claim of
privilege against self-incrimination where the IRS issued
summonses to respondent Egenberg, an accountant, who was himself
under indictment for alleged illegal conduct arising out of his
work in the tax field. Id. at 90. The IRS sought Egenberg's
clients' tax and financial records to determine his personal
income tax liabilities. The IRS testified that "respondent
deposited in his bank account, refund checks issued to
respondent's clients; that respondent allowed some of the clients
to use his credit card; that respondent would loan money to his
clients; and that respondent would recommend a particular broker to take care of his clients' insurance
needs." Id. at 89. These transactions may have led to
unreported income taxable to respondent. Id. The respondent
refused to turn over his clients' records, basing his refusal on
the Fifth Amendment privilege against self-incrimination.
It is "well settled that the Fifth Amendment privilege against
self-incrimination can be invoked in civil and criminal
proceedings, including investigations." Id. The court
specifically recognized that "constitutional claims may be
asserted in proceedings under section 7602 of the Internal
Revenue Code." Id. (citing Reisman v. Caplin, 375 U.S. 440,
449 (1964) ("[T]he witness may challenge the summons on any
appropriate ground."). Ultimately, the court found that because
respondent was under indictment for conduct arising out of his
work as an accountant, compelling the production of the documents
sought by the IRS might tend to incriminate respondent or lead to
incriminating evidence. Id. at 90. The court denied the
application to enforce the summons.
Egenberg contains some factual similarities with the present
case in that Egenberg was an accountant who held records that the
IRS wanted to review. However, unlike Marra, Egenberg was (1) the
person under investigation by the IRS for tax evasion and (2)
already under indictment for bribery of an IRS tax technician.
Here, no criminal proceedings have been instituted against either
Reiher or Marra. Section 7602(d) of the Internal Revenue Code establishes a
bright-line rule permitting the enforcement of an IRS summons
even for the purpose of investigating criminal offenses unless
the matter has been referred to the Department of Justice for
possible criminal prosecution. Pickel v. U.S., 746 F.2d 176,
184 (3d Cir. 1984) ("A summons is now enforceable if it is issued
in good faith, i.e., if it is for the purpose of inquiring into
any offense connected with the administration or enforcement of
the internal revenue laws, and if it is issued before there is a
Justice Department referral."). However, Marra continues to argue
that because Reiher is being investigated by the criminal
division of the IRS for tax fraud, he fears that complying with
the summons could lead to incriminating evidence that may be used
against him personally.
In In re Grand Jury Empaneled on April 6, 1993,
869 F. Supp. 298 (D.N.J. 1994), the district court discussed at length the
Fifth Amendment as it applies to corporations and other
collective entities. That case involved the Government's attempt
to compel the respondent, a custodian of corporate records, to
appear and testify before a grand jury as to the corporation's
alleged mail fraud. The respondent was himself a target of the
investigation at the time the grand jury subpoena was issued. The
district court articulated the issue before it, one of first
impression in this Circuit, as "whether compelled business
records testimony is (i) implicit in and auxiliary to the
required production of documents and therefore not violative of
the Fifth Amendment; or (ii) independently incriminating and
therefore proscribed by the Fifth Amendment." Id. at 299. The
court ultimately concluded that compelled business records
testimony would violate respondent's Fifth Amendment rights.
Id. at 300.
Factually, this case is similar to Marra's situation. According
to the IRS, Marra holds financial and tax-related records of the
three corporate entities under investigation, as well as Reiher's
personal records. Marra was requested to appear and give
testimony and to produce books and records related to the
preparation of Reiher's federal income tax returns. However,
unlike Grand Jury Empaneled on April 6, 1993, Marra is not the
target of the IRS's investigation at this time.
To begin the analysis, the district court noted that "a
corporation has no Fifth Amendment privilege to refuse to produce
its records." Id. The court stated that "[u]nder the collective
entity rule as authoritatively pronounced in Braswell, a
custodian of records may not invoke the Fifth Amendment to avoid
producing the documents of a collective entity that are in his
custody, even where production of those documents would be
personally incriminating." Id. at 301; Braswell v.
United States, 487 U.S. 99, 108-09 (1988) ("The plain mandate of these
decisions is that without regard to whether the subpoena is
addressed to the corporation, or as here, to the individual in
his capacity as a custodian . . . a corporate custodian . . . may
not resist a subpoena for corporate records on Fifth Amendment
grounds.") (internal citations omitted). Ultimately, on the issue
of production of documents, the district court found that the
application of the collective entity rule in Braswell
foreclosed any argument that production of documents cannot be
compelled because it would personally incriminate respondent.
Id. at 301.
Courts apply the collective entity doctrine to officers,
current employees, and agents of corporations. Section 7602 of
the Internal Revenue Code specifically authorizes the Government
to summon "any person having possession, custody, or care of
books of account containing entries relating to the business of
the person liable for tax. . . ." 26 U.S.C. § 7602(a)(2).
Accordingly, this Court finds that Marra is a custodian of
corporate records because he is a "person having possession,
custody, or care" of the books and records pertaining to Reiher
and the three corporations at issue. The Braswell Court
recognized that "corporations act only through their agents, . . .
and a custodian's assumption of his representative capacity
leads to certain obligations, including the duty to produce
corporate records on proper demand by the Government."
Braswell, 487 U.S. at 110.
Turning to the issue of oral testimony, the district court
further recognized that "[t]he collective entity rule also
requires that the custodian identify or authenticate, by oral
testimony, the documents produced pursuant to the subpoena."
Grand Jury Empaneled on April 6, 1993, 869 F. Supp. at 301. As to this
prong of the analysis, the court explained that Supreme Court
precedent mandated that "a custodian can be compelled to provide
limited oral testimony" limited in the sense that "a corporate
officer was required to produce corporate records and merely
identify them by oral testimony." Id. at 302 (quoting
Braswell, 487 U.S. at 114). However, the court acknowledged
that Fifth Amendment issues will arise where the Government seeks
to compel the custodian to do more than identify documents
already produced. Id. For example, where the Government
requires testimony on the whereabouts of missing books or
records, or requires the custodian to name the persons in whose
possession the missing books may be found, the Fifth Amendment is
violated. Id. As to the issue of testimony, the Government
readily admits that Marra can assert a Fifth Amendment privilege
to a "specific question, or if he is asked about something beyond
his custody of the documents or their authenticity." (Letter from
Genis to the Court of September 15, 2005) (citing United States
v. Raniere, 895 F. Supp. 699, 704 (D.N.J. 1995) ("A blanket or
general assertion of a Fifth Amendment privilege to resist
enforcement of an IRS summons is insufficient as a matter of law.
Rather a taxpayer must specifically assert the Fifth Amendment
privilege with respect to individual requests.")).
However, another line of Supreme Court cases holds that "the
act of producing documents in response to a subpoena may have a
compelled testimonial aspect." United States v. Hubbell, 530 U.S. 27 (2000); see also
United States v. Doe, 465 U.S. 605 (1984); Fisher v.
United States, 425 U.S. 391 (1976). Thus, despite Braswell, some
uncertainty exists as to whether a custodian of corporate records
can be compelled to testify. Marra relies heavily on Hubbell.
In Hubbell, respondent Webster Hubbell was subpoenaed by
Independent Counsel to produce documents and to testify before a
grand jury in order to determine whether he had in fact provided
full and complete answers to the Whitewater investigation,
pursuant to a prior plea agreement.*fn2 Hubbell,
530 U.S. at 30. Hubbell appeared before the grand jury and invoked his
Fifth Amendment privilege against incrimination. Id. at 31. At
that point, pursuant to 18 U.S.C. § 6002, the district court
ordered him to respond. Id. Section 6002 provides for immunity
if a court directs the witness to answer. Id. at 30 n. 2. Thus,
"no testimony or other information compelled under the order (or
any information directly or indirectly derived from such
testimony or other information) may be used against the witness
in any criminal case, except a prosecution for perjury. . . ."
Id. (citing 18 U.S.C § 6002). Based on this grant of immunity,
Hubbell released thousands of pages of documents, which
ultimately led to this second prosecution for tax-related issues. Id. at 31.
The district court, characterizing the subpoena as a
"quintessential fishing trip," dismissed the second indictment.
Id. at 32. The Court of Appeals for the District of Columbia
Circuit vacated the judgment and remanded for further proceedings
to determine the extent and detail of the Government's knowledge
of Hubbell's financial affairs on the date the subpoena was
issued. Id. The Government was required to prove with
reasonable particularity its prior awareness. Id. at 32-33. On
remand, Independent Counsel acknowledged that he could not
satisfy the standard set by the appellate court and conditionally
agreed to dismiss the indictment unless the Supreme Court ruled
otherwise. Id. at 33.
The Supreme Court granted certiorari "in order to determine the
precise scope of a grant of immunity with respect to the
production of documents in response to a subpoena." Id. at 34.
Commencing the analysis with several settled propositions, the
Court first reiterated that "a person may be required to produce
specific documents even though they contain incriminating
assertions of fact or belief because the creation of those
documents was not `compelled' within the meaning of the
privilege." Id. at 35-36 (citing Fisher v. United States,
425 U.S. 391 (1976) (holding that voluntarily prepared work papers
used in the preparation of tax returns are not protected by the
Fifth Amendment, only the act of production is safeguarded).
Based on the Fisher premise, Supreme Court found that Hubbell could not avoid
compliance with the subpoena merely because the documents
demanded contained incriminating evidence, whether written by
others or voluntarily prepared by him. Hubbell, 530 U.S. at 36.
The Court then turned to a second settled principle, arguably a
conflicting one, that "the act of production itself may
implicitly communicate statements of fact." Id. Where a
custodian of documents responds to a subpoena, he may be
compelled to answer questions under oath designed to determine
whether all responsive documents have been produced. Id. at 37.
When this occurs, the Court found that "the answers to those
questions, as well as the act of production itself, may certainly
communicate information about the existence, custody, and
authenticity of the documents." Id. "Compelled testimony that
communicates information that may lead to incriminating evidence
is privileged, even if the information itself is not
inculpatory." Id. at 38.
After expressing these competing principles, the Hubbell
Court narrowed its focus to the issue before it in order to
address "the Fifth Amendment's protection against the
prosecutor's use of incriminating information derived directly or
indirectly from the compelled testimony of the respondent." Id.
Hubbell produced countless documents in response to the subpoena
which, for example, broadly requested "any and all documents
reflecting, referring or relating to any direct or indirect
sources of money or other things of value received by or provided
to" Hubbell or his family members during a three-year period. Id. at 41 (emphasis added).
The Supreme Court likened the broad production of material to a
witness's preparation of an answer to either a detailed written
interrogatory or a series of oral questions at a discovery
deposition. Id. at 41-42. "It is apparent from the text of the
subpoena itself that the prosecutor needed respondent's
assistance both to identify potential sources of information and
to produce those sources." Id. at 41.
The Government's use of these documents eventually led to the
return of an indictment on charges that were unrelated to the
original plea agreement. Id. at 42. The Court found it
undeniable that Hubbell's act of producing the documents, of
making "extensive use of the contents of his own mind in
identifying the documents responsive to the requests in the
subpoena," id. at 43, was the first step in a chain of evidence
that led to his prosecution, id. at 42. Simply stated, without
Hubbell's assistance the Government would not have learned of
other instances of tax evasion for which Hubbell was subsequently
prosecuted. The indictment was dismissed.
Marra argues in this connection that the act of producing
documents and records responsive to the IRS summons relating to
Reiher and the corporate entities could incriminate him based on
the reasoning in Hubbell that the thought-processes necessary
for selecting documents responsive to the subpoena could be
construed as compelled testimony. In an attempt to align his
objections with Hubbell, Marra expressly takes issue with the summons' language requiring "all
records . . . used or prepared by you relative to the
preparation of the aforementioned returns;" "all records . . .
relative to financial transactions of the principals"; and "all
client billing records relative to this client. . . ."
The facts in Hubbell distinguish it from Marra's case. First,
Hubbell was the one under investigation and compelled to testify
before a grand jury. Second, Hubbell was asked to produce his own
personal records, not those of other corporate entities. Finally,
the prosecutor in Hubbell had no independent knowledge of
Hubbell's wrongdoings or the existence of documents supporting it
until he received Hubbell's assistance and compliance with the
subpoena. Here, Marra is not under investigation; apart from
Marra's billing records, he is not being asked to produce
personal documents; and the Government presumably knows that
Reiher and the corporations filed tax returns. The IRS's attempt
to check Reiher's personal and corporate tax returns for accuracy
against books, records, bank statements, and other supporting
papers is not the same as a "fishing expedition" commenced to
confirm whether Hubbell was in violation of his plea agreement.
At the OTSC hearing and again in the papers submitted with the
Motion to stay, Marra contends that Judicial Watch Inc. v. U.S.
Dep't of Commerce, 196 F.R.D. 1 (D.D.C. 2000), further supports
his arguments based on Hubbell. In this case, plaintiff Judicial Watch filed a Freedom of Information Act ("FOIA")
request for the production of documents from non-party witness
Yah Lin Trie ("Trie") in an attempt to show that Trie was a
principal actor in the illegal sale of seats on various
Department of Commerce trade missions. Judicial Watch,
196 F.R.D. at 1. Trie had previously pled guilty to one count of
making a false statement to the Federal Election Commission and
one count of making an election contribution in the name of
another. Id. The subpoena duces tecum directed to Trie
called for "any and all documents and things that refer or relate
in any way to the Department of Commerce Secretarial trade
missions." Id. at 3. The district court found that a response
to this request would be compelled testimony under Hubbell,
[a]side from attesting to the authenticity and source
of any documents he produced, by responding to such a
broad request, Trie would be called upon to conclude
whether a document "relates to" the various subject
categories. In doing so, Trie might determine that a
document "relates to" Department of Commerce trade
missions, while, on its face, the document does not
refer to or make any mention of direct or oblique
the Department of Commerce trade missions. . . .
[T]he testimony sought by Judicial Watch could
reasonably implicate Trie in other crimes to which he
has not pled guilty and for which the statute of
limitations has not run.
Again, the Judicial Watch situation is wholly different from
that of Marra's. It is clear that the IRS summons seeks whatever
documents Marra has that were used in the preparation of the tax returns at issue. The IRS is not
asking Marra to make qualitative determinations about relational
aspects of documents. The IRS has authority to audit taxpayers by
comparing returns with supporting documentation. The IRS's
requests for production here are tailored to accomplish its
investigation of Reiher's potential tax liability such that
comparison to the broadly worded requests in Hubbell and
Judicial Watch is inappropriate. Furthermore, there is no
Justice Department referral in place. Marra is not under
investigation, and as far as we know, has never pled guilty to
willfully assisting in the preparation of false tax returns. An
application of Hubbell in this context would strip the IRS of
its ability to enforce the tax laws.
However, assume arguendo, that, in preparing Reiher's tax
returns, Marra engaged in some alleged wrongdoing, in a situation
where the Fifth Amendment might attach. Indeed, Marra's argument
has seemingly evolved in this direction. Now Marra suggests that
the papers and work product that the Government seeks belong to
him personally. (Resp. Br. Supp. Mot. Stay 4) To this, the
Government responds that Marra has not validly invoked the
privilege against self-incrimination, because he has not appeared
in response to the summons, with documents in hand, to assert the
privilege on an question-by-question basis. See Hubbell,
530 U.S. at 31. Marra contends that he did attempt to properly invoke
his privilege when his counsel wrote to Special Agent Chang on August 5, 2004 and again on December 3,
2004 to request that a date be set for Marra's official
invocation. (Fettweis Dec. ¶ 2, Ex. A) Inexplicably, the
Government never responded to either request. (Id. ¶ 3)
The privilege against self-incrimination extends to protect the
private papers and personal effects of the person asserting it.
United States v. White, 322 U.S. 694, 699 (1944). In U.S. v.
Raniere, supra, the district court stated that "a taxpayer
seeking the protection of the Fifth Amendment to avoid compliance
with an IRS summons must provide more than mere speculative,
generalized allegations of possible tax-related prosecution. . . .
The taxpayer must be faced with substantial and real hazards of
self-incrimination." Raniere, 895 F. Supp. at 704-05. This
statement obviously applies to the taxpayer, but it could apply
in Marra's case as well. In Raniere, the court outlined several
pre-Braswell cases where the Third Circuit remanded the matter
to develop the record regarding a corporate custodian's claim of
privilege. However, as explained above, Braswell makes the line
as to custodians of corporate records much brighter. A custodian
of corporate records cannot assert the privilege against
self-incrimination with regard to the production of corporate
records, but may assert the Fifth Amendment on a
question-by-question basis with regard to any attendant
testimony. See Raniere, 895 F. Supp. 706-07; cf. United
States v. Allshouse, 622 F.2d 53, 56 (3d Cir. 1980) (stating
that specific assertion of the privilege serves the dual purpose of permitting the court to make an assessment whether the
privilege is justified and preventing the taxpayer from using the
privilege as a shield for unprivileged evidence of wrongdoing).
The Government asserts that the "Fifth Amendment privilege is
not applicable when records are in the possession of a third
party." (Petr.'s Letter Br. in Reply to Mot. to Enforce Summons
2) (citing Couch v. United States, 409 U.S. 322 (1973)). In
Couch, the taxpayer attempted to prevent her accountant from
complying with an IRS summons to produce her books and records in
connection with an investigation into her tax liability. Couch,
409 U.S. at 323. The Supreme Court held that the taxpayer could
not assert a Fifth Amendment privilege to prevent her
accountant's compliance with the summons. In language that
supports Marra's position more so than the Government's, the
Couch Court stated that "[t]he summons and the order of the
District Court enforcing it are directed against the accountant.
He, not the taxpayer, is the only one compelled to do anything.
And the accountant makes no claim that he may tend to be
incriminated by the production." Id. at 329. In the present
case, Marra has made the general claim that producing the books
and records may incriminate him.
A blanket or general assertion of a Fifth Amendment privilege
is improper. Instead, an individual claiming the privilege must
appear and raise the privilege with respect to each question posed and each document sought. Even
though (by ignoring his letters), the Government deprived Marra
of the opportunity to invoke the privilege in this manner, this
Court gave him that opportunity by its Order of September 16,
2005. Compliance with that Order would have enabled the Court to
examine and assess the basis for his assertion of the privilege.
Absent such compliance, including identification of the basis for
assertion of the privilege as to a particular question, the Court
cannot determine the likelihood of success on the merits on this
motion to stay, a matter on which Respondent bears the burden. As
the first prong of the analysis of the motion to stay is
undeterminable, it is unnecessary to consider the others at this
juncture. Respondent's motion to stay enforcement of the IRS
summons must be denied.
Accordingly, IT IS on this 5th day of October 2005
ORDERED that Respondent's Motion to stay enforcement of the
IRS Summons is denied; and IT IS
FURTHER ORDERED that on or before October 11, 2005, or on
such other date as is agreed to by the parties, the parties shall
meet and shall comply with this Court's Order of September 16,
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