           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 9, 2008

                                     No. 07-20019                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

JAMES E STAFFORD

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:06-MC-343


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       James Stafford received a summons from the Internal Revenue Service
concerning his tax liabilities for the 1999, 2000, and 2001 taxable years. The
IRS was attempting to determine to what extent the government could collect
the taxes Stafford owed for that three-year period. To that end, the summons
required Stafford to produce documents and give testimony about his assets and
liabilities from June 2005 until the date of compliance with the summons.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 07-20019

Stafford invoked his Fifth Amendment right not to incriminate himself and
refused to produce any documents or answer most of the IRS’s questions. The
United States then filed suit to enforce the summons. After a hearing, the
district court ordered Stafford to comply with the summons. Stafford appealed.
      The Fifth Amendment’s self-incrimination privilege “applies only when
the accused is compelled to make a testimonial communication that is
incriminating.”1 For a defendant to avail himself of the privilege, however, he
must do more than simply make a blanket assertion of the privilege.2 A court
cannot just rely on a defendant’s claim that responding to certain questions
might tend to be incriminating. That would allow a defendant to assert the
privilege even where the risk of incrimination is remote or entirely imagined.3
At the same time, the defendant cannot be expected to explain in detail in open
court what testimonial communication he would make that would tend to
incriminate him, as that would eviscerate the very purpose of the privilege.4 To
balance these two concerns:
      [A] practice has developed whereby . . . the [individual asserting the
      privilege] will allude in very general, circumstantial terms to the
      reasons why he feels he might be incriminated by answering a given
      question. The judge [will then] examine[] him only far enough to
      determine whether there is reasonable ground to apprehend danger
      to the witness from his being compelled to answer. If the danger
      might exist, the court must uphold the privilege without requiring
      the witness to demonstrate that a response would incriminate him,
      the latter inquiry being barred by the privilege itself.5


      1
       Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 1579 (1976) (emphasis
removed).
      2
          United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980).
      3
          United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976).
      4
          Id.
      5
          Id. (emphasis in original).

                                              2
                                     No. 07-20019

      In short, this inquiry requires a court to examine the appropriateness of
the privilege on an individualized basis so that the court can determine whether
the defendant faces a real risk of incriminating himself by answering a specific
question (or group of related questions).
      Here, Stafford invoked the privilege to prevent the IRS from obtaining
documents on his financial situation and from asking him at least some
questions related to that topic. As far as refusing to answer questions, Stafford
has not detailed any of the questions he refused to answer. That lack of detail
deprived the district court of its ability to judge the risk posed to Stafford with
respect to any given question.          As far as Stafford’s refusal to turn over
documents, Stafford made no attempt to explain how the testimonial aspect of
his turning over the relevant documents could tend to incriminate him.6 Indeed,
he makes no attempt to tether his concerns about being prosecuted with any of
the varied sub-categories of documents subsumed by the IRS’s document request
(e.g., stocks, life insurance policies, checkbooks, cancelled checks). Instead, he
tries to rely on a generalized fear based on his past interactions with the IRS
that any document that could possibly be covered by the request would tend to
incriminate him. That is not a proper use of the privilege.
      AFFIRMED.




      6
        See United States v. Schmidt, 816 F.2d 1477, 1480–81 (10th Cir. 1987) (explaining
how turning over documents can have a testimonial aspect that can be protected by the Fifth
Amendment).

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