USA V. JOSEPH SHAYOTA (9th Cir. 2019) (No.17-10270-08/19/2019)(http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/17-10270.pdf) This case answers the question of whether a defendant’s civil record testimony can be introduced in a subsequent criminal trial. Defendants objected to the use of their civil trial depositions in their criminal case. The two element rule that allows the use of civil deposition in a criminal trial is that (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to confront the declarant through cross-examination. Defendant argued that there was no unavailability despite a decision not to testify because the prosecutor could have granted immunity and force them to testify.
9th Circuit panel continued that raising the Fifth Amendment privilege renders a defendant “unavailable” for purposes of the Confrontation Clause, and that the two element rule was satisfied. The panel went on to find that any error was harmless and defendants would have been found guilty without the deposition testimony.
Lessons learned from the above principle:
(a) Every civil controversy that has any possibility to be followed by a criminal prosecution could raise waivers and admissions in a later criminal case.
(b) For tax, the administrative record of statements of the taxpayer begins with the tax return, followed by every communication of fact to IRS & the courts. “Represent Civilly” by “Thinking Criminally”.
(c) A civil deposition might have been better, even if filled with “Fifth Amendment” excuses not to answer, rather than a wordy, overly chatty, explanative manifesto.
(d) Most famously, bankruptcy provides a matching set of personal financial information which has traditionally provided a significant amount of information relating directly to tax evasion. Tax Evasion Avoidance blog is found at https://rebrand.ly/TaxEvasion