DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RANDALL S. APPEL,

Petitioner,

v.

NORMAN BARD and SHIRLEY BARD,

Respondents.

No. 4D14-2061

[January 21, 2015]

Petition for writ of certiorari to the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Catherine M. Brunson, Judge; L.T. 

Case No. 013CA009797XXXXMB.

Esther A. Zaretsky, West Palm Beach, for petitioner.

Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for respondents.

DAMOORGIAN, C.J.

Randall S. Appel petitions this Court for a writ of certiorari, seeking 

review of an order granting plaintiffs’ motion to compel answers to 

deposition questions and overruling Fifth Amendment privilege objections. 

We grant the petition.

Respondents are seeking to execute a domesticated foreign judgment 

of more than $1 million dollars against Appel. During discovery, Appel

invoked the Fifth Amendment privilege against self-incrimination and 

refrained from answering questions regarding whether he filed tax returns 

for a span of years. Respondents filed a motion to compel which the trial 

court granted for years 2005 through 2010.

Appel argues that this was a departure from the essential requirements 

of law because being forced to admit or deny, under oath, whether he filed 

his tax returns could be used by the U.S. Department of Treasury against 

him in a future tax prosecution. Appel also argues that his answers could 

“evoke a response forming a link in the chain of evidence which might lead 

to criminal prosecution.” Delisi v. Smith, 423 So. 2d 934, 938 (Fla. 2d DCA 

1982).
- 2 -

“Certiorari will lie to review an order compelling discovery in a civil case 

over an objection that the order violates the Fifth Amendment privilege 

against self-incrimination.” Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th 

DCA 2003).

When presented with a Fifth Amendment privilege objection, the court 

“must exercise its discretion and determine whether it is reasonably 

possible that answers to either interrogatories or deposition questions 

could evoke a response ‘forming a link in the chain of evidence which might 

lead to criminal prosecution.’” DeLisi v. Bankers Ins. Co., 436 So. 2d 1099, 

1101 (Fla. 4th DCA 1983) (quoting DeLisi, 423 So. 2d at 938).

A witness is generally entitled to invoke the Fifth Amendment 

privilege against self-incrimination whenever there is a realistic 

possibility that his answer to a question can be used in any 

way to convict him of a crime. It need not be probable that a 

criminal prosecution will be brought or that the witness’s 

answer will be introduced in a later prosecution; the witness 

need only show a realistic possibility that his answer will be 

used against him. Moreover, the Fifth Amendment forbids not 

only the compulsion of testimony that would itself be 

admissible in a criminal prosecution, but also the compulsion 

of testimony, whether or not itself admissible, that may aid in 

the development of other incriminating evidence that can be 

used at trial. See Hoffman v. United States, 341 U.S. 479, 486, 

71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

The privilege is inapplicable only “if the testimony sought 

cannot possibly be used as a basis for, or in aid of, a criminal 

prosecution against the witness.” Brown v. Walker, 161 U.S. 

591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896).

Pillsbury Co. v. Conboy, 459 U.S. 248, 267 n.1 (1983) (J. Marshall 

concurring) (emphasis added).

In the present case, petitioner has shown a reasonable probability that 

the information might be used against him in a prosecution for failure to 

file and failure to pay his taxes.

1 We conclude that he is entitled to relief.
- 3 -

Compelling Appel to answer yes-or-no in response to whether he filed 

tax returns would be forcing him to admit or deny the very thing the 

government would be trying to prove in a federal tax prosecution—an 

essential element of the crime, thus lowering the government’s burden. 

We disagree with respondents’ contention that because the IRS is already 

aware of his filing status he should be compelled to answer.

We find that the trial court departed from the essential requirements of 

law in ordering Appel to respond to the deposition questions regarding 

whether he filed tax returns for years 2005–2010. We grant the petition, 

1 10.05 FAILURE TO FILE

10.05 [1] Elements

To establish the offense of failure to make (file) a return, the 

government must prove three essential elements beyond a 

reasonable doubt:

1. The defendant was a person required to file a return;

2. The defendant failed to file at the time required by law; 

and

3. The failure to file was willful.

U.S. Dep’t of Justice Tax Div., Criminal Tax Manual (2012), 

http://www.justice.gov/tax/readingroom/2008ctm/CTM%20Chapter%2010.pd

f (herein DOJ Tax Manual); 26 U.S.C. § 7203; United States v. Hassebrock, 663

F.3d 906, 919 (7th Cir. 2011).

10.06 FAILURE TO PAY

10.06[1] Elements

To establish the offense of failure to pay a tax, the government 

must prove beyond a reasonable doubt that

(1) the defendant had a duty to pay a tax,

(2) the tax was not paid at the time required by law, and

(3) the failure to pay was willful.

DOJ Tax Manual at 26–27; United States v. Tucker, 686 F.2d 230, 232 (5th Cir. 

1982); 26 U.S.C. § 7203.
- 4 -

quash the order on review and remand for proceedings consistent with this 

opinion.2

Petition Granted.

STEVENSON and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2 The petitioner offers a form of alternate relief which does not appear to have 

been brought before the trial court. We note that respondents can pursue this 

alternate relief as offered by the petitioner.