DOCUMENT COPIED AND OCR ADJUSTED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES, ................................................................ .....§ ................................CASE NO. 96-CV-2040 K
............................. Plaintiff ........................................................§ .................................ORDER REGARDING
..........vs. ....................................................................................§ .................................DEFENDANT'S REFUSAL TO
R. RICHARD EVANS, ...............................................................§ .................................ANSWER QUESTIONS ON
.......... .......... ........Defendant. .......... .......... .......... ...................§ .................................FIFTH AMENDMENT GROUNDS
..........Defendant R. Richard Evans requests that he not be required to respond to certain questions posed by the Internal Revenue J. Gatti. Mr. Evans refused to answer these questions on Fifth Amendment grounds. As to certain questions, Mr. Evans is willing to provide answers: as to others he asserts his Fifth Amendment privilege against self incrimination. Below, the court deals with each question in turn.
FACTUAL BACKGROUND
.........On November 29, 1996, an Internal Revenue Service ("IRS") summons was served on Mr. Evans, ordering him to appear before Revenue Officer J. Gatti on June 11, 1996 to testify and produce records concerning Payan Pool Service. Evans failed to comply with the summons. On December 2, 1996, the government filed a Petition to Enforce IRS Summons. That day, the court issued an order that Mr. Evans must appear in court on February 27, 1997 to show cause why he should not be compelled to obey the summons.
..........On December 12,1996, Evans appeared at Officer Gatti's office with his attorney Kevin Elmore Gatti asked Evans 32 questions. Mr. Evans refused to answer some questions, asserting his 5th Amendment privilege against self-incrimination.
..........On December 19, 1997, Mr. Elmore filed a response to the OSC on behalf of Mr. Evans.
..........On February 24, 1997, the court referred the matter to Magistrate Judge Cynthia G. Aaron to conduct an in camera hearing regarding Mr. Evans's assertion of his 5th Amendment privilege. On March 4, 1997, Judge Aaron issued an order scheduling an ex parte conference for April 7, 1997, and ordering Mr. Evans to appear with counsel at that time to provide additional information concerning his assertion of the Fifth Amendment privilege. Mr. Evans appeared on April 7, 1997 at Judge Aaron's chambers but requested that the conference be continued because he wished to obtain new counsel. The conference was rescheduled for May 8, 1997. On May 8, Mr. Evans appeared without counsel stating that he had not been able to obtain new counsel.
..........Judge Aaron rescheduled the hearing for May 21.
.......... On May 21, Judge Aaron conducted the ex parte hearing concerning Mr. Evans's assertion of his Fifth Amendment privilege, at which Mr. Evans appeared with counsel.
DISCUSSION
.......... Based on the court's review of the record and on Judge Aaron's report and recommendation, the court addresses each of the following questions posed by Officer Gatti, which are referred to by page and line numbers. These numbers refer to Exhibit B of the Second Declaration of Officer Gatti, which is a list of questions he posed to Mr. Evans when he appeared at Gatti's office on December 18, 1996.
Page 1 Line 7: Who appointed/hired you?
..........Mr. Evans refused to answer this question, asserting his Fifth Amendment privilege. The court affirms his assertion of the privilege and finds that he should not be compelled to answer this question.
Page 1. Line 11: Who else are you a trustee for?
.......... Mr. Evans refuses to answer this question, asserting his Fifth Amendment privilege. The court affirms his assertion of the privilege and finds that he should not be compelled to answer this question.
Page 1. Line 13: Who is Son Nguen - where is he now? (address)
.......... Mr. Evans has indicated that he is willing to answer both of these questions.
Page 1, Line 25: Is this the first Trust or Amended (2nd) trust?
..........Mr. Evans has indicated that he is wiling to answer this question.
Page 14, Line 27: What kind of assets are held in the trust?
..........Mr. Evans refuses to answer this question, asserting his Fifth Amendment privilege. The court affirms his assertion of the privilege and finds that he should not be compelled to answer this question.
Page 2, Line 4: Are there any distributions paid out from the trust?
..........Mr. Evans has indicated that he is willing to answer this question.
Page 2, Line 6: To whom are they paid?
..........Mr. Evans has indicated that he is willing to answer this question.
Page 2, Line 8: How often are you paid - How - When - by whom?
..........Mr. Evans refuses to answer this question, asserting his Fifth Amendment privilege. The court affirms his assertion of the privilege and finds that he should not be compelled to answer these questions.
Page 2, Line 10: Where does the Trust bank at?
..........Mr. Evans has indicated that he is willing to answer this question.
Page 2, Line 12: Does the Trust bank across the border?
.......... Mr. Evans has indicated that he is willing to answer this question.
Page 2, Line 14: Any assets in any other states? Where? Address?
..........Mr. Evans has indicated that he is willing to answer these questions.
Page 2, Line 18: How many employees are there?
.......... Mr. Evans has indicated that he is willing to answer this question.
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CONCLUSION
As indicated above, the court finds that Mr. Evans should not be compelled to answer the four questions to which Mr. Evans asserts his Fifth Amendment privilege.
IT IS SO ORDERED.
DATED: .......... .......... .......... ......... ............
......... .......... .......... ........... .......... .......... .......... ..........Judith N. Keep, Chief Judge
.......... .......... .......... .......... .......... .......... .......... ..........United States District Court
CC: ALL COUNSEL