basically says that because the fifth amendment privilege is a privilege directed to individuals and not to entities that a corporation or a union similar business entity  cannot invoke the fifth amendment privilege of suspected documents or any other fifth amendment privilege and therefore an officer of the that such an entity cannot invoke privilege with respect to the end to these documents the issue in this case is entity kinds of here is is this is the same in specifically the court said that that traditional trust and i want to point out that the david marcella trust was created by an individual is beneficiary for a life time and part of the trust and the other beneficiaries are her son in law and her grandson has about diversity jer's dictions and yes that case was about diversity restrictions or to the substantive massachusetts which involved a message to says nominee trust not necessarily a traditional trust now under new york law a trust is not an entity in new york law if you want to sue with respect to a trust you need to sue the trustee under new york law if a trust has a claim is the trustee that has to sue the trust is not recognized as a separate legal entity some states recognizes trust as a separate entity may be that you should depend on state law because the issue has to do with whether or not it's a quote collected entity and whether or not there's an entity has an identity separate from the from the trustee the supreme court america old now is clearly dicta even in that case and certainly it's it's addictive as it might apply to a fifth amendment case but the supreme court pointed out that a traditional trust issue that when you do those a specific request is like a specific question you invoke the privilege with respect to that group of documents or records relating to such and such in the government's position is that all of these specific requests are important because they're looking to show that mr relevance is your partner usually you see the district court looking at the specific requests give you a chance to tell the court why for that request he was going not going to have a transcript of the of the argument and he will from the ranch i would say that he had written his post to assess your objection on appeal i suppose it was the answer is you could determine from the wreckage of cells that were made within the case with instructions to that we should be the district court and look at every document i didn't figure out what for example particular doctrine applies to each one of the documents you're asking us to do well i was that what you're asking us to do either that or remand the case for further analysis by the district judge you didn't do any analysis he made a broad statement with his guard to where one of these productions applies to these giuliani's questions what's wrong as a policy matter with requiring a document by document invocation of the act production privilege well i think that we comply with that you want to by going through each of the items in the request and explaining why the fifth amendment privilege applied a specific document by document is very difficult your honor because in our brief why the fifth amendment privilege would apply that very crimes that the government is the radically investigating for early put income force returns and you're satisfied with the procedures the district  utilized here i'm not i'm not satisfied with his and i lack of analysis your honor so what you're really looking for a ticket ultimately is a will would love us to just reverse but what you're essentially looking it please the court jennifer g for the united states your honor the district court's order enforcing the irises summonses should be affirmed because the government met its minimal burden to show the potential relevance of all of the documents that are requested and because mr friedman is not entitled to the fifth amendment act of privilege going to turn first to the issue of mr freeman's blanket in the cation of that privilege it's the taxpayers burden to establish the act of protection a production privilege with respect to each document that so the nights are given us he bright talks about some of the policies in connection with not requiring a document by document invocation of the privilege for documents my guess is some money might be one thing documents might be another thing because the judge can see what the document requests is can you address that yes the the break decision made a distinction between oral testimony you know which is moving thing in progress and document requests which are static and as a result can be analyzed however the judge pauley in the gen drew decision discussed the break decision and noted that where it's not readily apparent from the document request whether all of the documents response have to that request would be privileged you need to look further than just the document requests and that's the case here you cannot tell from the face of these document requests whether all documents that are responsive the act of producing that trigger or of affect self incrimination and as a result you can you know on a document request by document request basis determine that all responsive documents or privileged meet you need to look further and it's not the contents of the documents that are it's the act of producing them stick if the categories is enough and this seems to happen and that record here and the interview of the taxpayer in which he invoked the privilege in a blanket fashion specific part of the judge order where he you know having a list the district court didn't do that because it found that that objection to the petition was itself insufficient there's no indication that mr freeman actually collected any of these documents and reviewed them to determine that the act of producing them would be in incriminatory in fact the government in mr freeman after the notice of appeal in this case was filed entered into a stipulation which which is on the district court's record that mr friedman would know now that  appeal is pending gather all those documents presumably for the first time a rule that the taxpayer in this case has gone it's a affirmatively represent that he or she or it has he or she has  reviewed all the documents you want we're invoking the fifth move not aware of a specific role but i think it's implicit in the fact that as countless courts have said you have to make your invocation of this privilege on a document by a document basis you can't possibly do that if you r i don't believe that brady address this particular issue it made a sort of higher level distinction between oral testimony and documents but with respect to these particular documents at issue in this case i don't believe right applies because in the required records exception is a perfect example there are documents that are responsive to some of the government's requests the act of producing of which is not incriminatory because they're required records and some documents in response that's correct that's correct and mr friedman simply failed to carry that burden in on the record of that failure alone this court could affirm so i'll move next to the there are specific points ro greenfield it does sided after it does your honor so the greenfield decision sided with approval the two cases that the government relies on the most for its foregone conclusion exception argument and that's right in norwood and this is very similar case it's a straightforward application of the of the foregone conclusion doctrine to requests for bank records from banks that the government knows mr friedman controls and knows specifically which bank it which bank it's at the bank name but also the account number and so those are the exact facts and braden norwood we're not looking for more exotic documents these are customary bank documents mr all of the relevant identifying information with all of the yes with all the identifying information and the you know we could get them from the banks but we're not required to get them from the banks or owner that's another avenue however you know the higher rest with limited resources should be and is entitled under seventy six o two to go directly to the source and get all the documents at once rather than expending more resources you know going around to all the banks and collecting documents  o to return to your question that eight j letter that mr friedman submitted mention two arguments and in the greenfield case that were never raised previously before the district court the government considers those arguments to be waived but  the government can also address them in a believes that greenfield is distinguishable from from the instant case and that's the two arguments are with respect to authentication again there's no record on authentic ation because mr friedman never raised the authentication issue before the district court however the there are many potential avenues for authenticating these documents they're all third party documents which is not the case in the greenfield decision the documents there were included memos that belong to the tax payer that related to the entities at issue here they're only third party document sent as a result that can be authenticated by bank employees they can also be potentially authenticated under the hague evidence convention and all but one of the bank nations where these bank accounts are are parties to the hague convention they also can potentially be authenticated under federal rule of evidence no one before by comparing them to other bank documents and the government has put in evidence in the kob declaration and as attachments that it has many bank documents already from some of the same bank accounts and so it can compare the documents that receives to those two areas that's correct and with respect to the tempora argument also of this issue is not raised but unlike in greenfield there's no showing that has been made by the taxpayer that producing documents in two thousand and fourteen on the date of the summons would add additional incriminating information that the government does not already have in the greenfield case because there was an issue related to the taxpayers father is it a taxpayer under the taxpayers father who control this entity and the fact that the taxpayer continue to have the documents and produce them in two thousand and fourteen could show that he was the actual mastermind behind the entities is yours you like that he there's no issue like that here and as a result that that distinguishable these are bank accounts that the government knows are in mr fried name it has a lot of information from tax year two thousand and eight f bars in two thousand and eight that were filed as well as some bank account statements from two thousand and eight and it for one of the accounts the h s b c account in the name of the trust it has a bank account statement through two thousand  and the norwood decision was part of the problem is that if we were to disagree with you as to the blanket invocation argument then it seems to be that we're we seem to be required then let the district court do the job well there's a there's a remarkable amount of agreement as in the briefs as to which document requests are at issue the government has laid out as it did in its briefs and before the district court in an oral argument which unfortunately was not recorded and in its appellate briefs that it it's only seeking to apply certain exceptions to certain documentary quest it's not seeking to apply all exceptions to all document requests and i believe that you know we we understand each other as to which ones th wasn't when i tried to order the transcript for the form was a hearing you really aren't one we're in part one and the hearing was i would say approximately an hour and the judge did rule from the bench and you know he said more i think the court should understand that the idea and this is jude mentioned the incriminating information in the documents the documents the fact that whether or not there's incriminating evidence in the documents information dogma is irrelevant to the fifth amendment aspects of the fifth amendment privilege with respect to document production so in camera view to me doesn't make a lot of sense for this court or for a district court judge i also want to point out that if the court if your hon nine which is ten years before they even issue please list the opening closing date of each but all that there is no specificity for everything you tell us what you have that's really testimonials even documented auction you don't want to carry i don't think i can we do is relevant i think i think maybe you should explain if necessary although i don't think it's fair to a defendant to say to to acquire him tell the judge your honor this is  critical a crime i'm particularly concerned about the government is saying it's investigating tax fraud and you put a link on false returns hiding income offshore accounts they are investigating that and in the  revenue agent which by the way was filed a year and a half after the summons was issued explains the relevance of each of these document requests and says relevant to our investigation of tax fraud on report an income false return so the government's telling us why it's relevant and so i'm supposed to protect my client supposed to reduce these documents and by the way he's supposed to go out and find them if he doesn't have them so that when he produces them he's sort of admitting that he had them well he didn't under compulsion because the mr hubbell was was basically using his own intellect to decide what was relevant because and what was called for and that was a violation of the state's amendment making that from the bench he didn't do any analysis and by the way the government is going to have its own have it both ways first it has an affidavit say that all of these are all relevant for its investigation of tax crimes and tax fraud they were relevant for that respect to all if your honor just low eight knows what greenfield says better than anyone in this courtroom and he listed all my foreign bank accounts i joined reluctantly oh