* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20019

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

April 9, 2008

Charles R. Fulbruge III

Clerk
No. 07-20019

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

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
No. 07-20019

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). 

3

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.6Indeed,

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.