United States of America v. Trowbridge
MEMORANDUM AND ORDER denying 14 MOTION For Grant of Immunity Against Potentioal Self-Incrimination, granting 16 MOTION for Leave to File Response out of Time (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
JOHN PARKS TROWBRIDGE,
November 22, 2017
David J. Bradley, Clerk
§ MISC. ACTION NO. 4:17-MC-1557
MEMORANDUM & ORDER
Pending before the Court is the Request for Grant of Immunity Against Potential SelfIncrimination filed by Respondent John Parks Trowbridge, Jr. (Doc. No. 14.) Petitioner, the
United States of America through the Internal Revenue Service (IRS), has filed a Response out
of time, as well as a motion asking this Court to accept its late response. (Doc. Nos. 16, 17.)
Based on consideration of the filings and applicable law, the IRS’s motion for acceptance of its
late response is granted, and Respondent Trowbridge’s request is denied.
This is not the first fight between these litigants to find its way into federal court. See,
e.g., Trowbridge v. Internal Revenue Service, No. 4:13-cv-1850 (S.D. Tex. 2013–14); United
States v. Trowbridge, No. 4:99-mc-387 (S.D. Tex. 1999–2001). The story goes back at least to
1996, when the IRS conducted an examination concerning tax years 1991 to 1995. (Doc. No. 21
at 13.) Other examinations and investigations followed, including an apparently long-lasting
criminal investigation. (Id. at 16.)
In Trowbridge’s telling, his issues arise from the IRS’s “fail[ure] to identify any
particular statute that makes [him] liable to tax.” (Id. at 15.) He says he has repeatedly asked the
IRS to identify its statutory taxing authority, and he insists that no federal authority has ever
attempted to answer his question. (Id. at 17.) Without specific guidance, the complexity of the
Internal Revenue Code is too great, and so he “cannot in good conscience or under penalty of
perjury” file a tax return. (Id. at 16.) The patent frivolousness of these and other arguments has
brought Trowbridge consistent defeat––as well as sanctions, oftentimes––in previous disputes.
See United States v. Trowbridge, 591 F. App’x 298 (5th Cir. 2015); Trowbridge v. C.I.R., 378
F.3d 432 (5th Cir. 2004); United States v. Trowbridge, 251 F.3d 157 (5th Cir. 2001).
The present dispute reached this Court in June 2017, when the IRS filed a petition to
enforce a summons for Trowbridge to appear, testify, and produce documents so that his tax
liability for the years 2011 to 2014 could be calculated. (Doc. No. 1.) This Court issued an Order
to Show Cause (Doc. No. 2) and, after a hearing, an order compelling compliance with the IRS’s
summons (Doc. No. 11). The Court also denied motions for dismissal and summary judgment
that Trowbridge had filed in the interim. (Doc. Nos. 4, 10.)
On October 2, 2017, Trowbridge appeared at the IRS’s office to meet with Revenue
Agent Kendria Bruno and Special Counsel Lewis Booth. (Doc. No. 15 at 4–5.)1 Early in their
interview, before Bruno or Booth had raised any specific issues, Trowbridge sought assurance
that he would not face criminal prosecution. (Id. at 9.)
Booth explained that Bruno worked on the civil side of the IRS and wanted only to
determine Trowbridge’s tax liability. (Doc. No. 15 at 9.) He clarified that no criminal
investigation was underway and no referral had been made to the U.S. Department of Justice.
Trowbridge has moved the Court to take judicial notice of the transcript of this interview. (Doc.
No. 15.) It will do so.
(Id. at 9–10.) Booth refused, however, to guarantee that a criminal prosecution would never
occur, given the possibility that the investigation could uncover “a clear violation of the criminal
statutes.” (Id. at 9.) He then informed Trowbridge of United States v. Tweel, 550 F.2d 297 (5th
Cir. 1977), which excludes evidence in criminal prosecutions obtained by deliberately deceiving
the defendant about the criminal nature of an investigation against him or her.
Booth’s explanation of the distinction between civil and criminal investigations went on
at some length. (Doc. No. 15 at 9–36.) Booth and Trowbridge also discussed and disagreed on
the application of the Fifth Amendment privilege against self-incrimination. (Id. at 36–41.)
Bruno then took over. Her questions about Trowbridge’s place of residence prompted
Trowbridge to invoke the Fifth Amendment. (Id. at 51.) Trowbridge then answered certain
questions and invoked the Fifth Amendment for others. (Id. at 52–62.) Finally, Trowbridge
refused to produce any documents for the same reason he refused to answer questions, which
brought the interview to an end. (Id. at 62–63.)
During the interview, Trowbridge also tried to make his core argument against tax
enforcement––the IRS’s failure to identify “which tax would be applied” to him, among the
many on the statute books. (Doc. No. 15 at 42.) Unlike the protracted discussion of the
distinction between civil and criminal proceedings, discussion of this idea was brief. Booth cut
Trowbridge off, warning that he was “veering close to arguments that the Government thinks
may be frivolous in nature.” (Id. at 43.)
The U.S. Constitution gives Congress the power to lay and collect taxes. U.S. Const. Art.
1, § 8, cl. 1. The Sixteenth Amendment specifically authorizes taxes on incomes. U.S. Const.
amend. XVI. The statutory framework for levying, calculating, and collecting taxes is the
Internal Revenue Code, found in Title 26 of the U.S. Code. The Internal Revenue Code gives
district courts “jurisdiction by appropriate process to compel [the] attendance, testimony, or
production of books, papers, or other data” of “any person summoned under the internal revenue
laws.” 26 U.S.C. § 7402(b). Another provision, 26 U.S.C. § 7604(a), confers the same authority.
“[T]he effective operation of the revenue system requires that the Commissioner [of Internal
Revenue] be free to inspect taxpayers’ records in order to ensure compliance with the revenue
laws.” United States v. Roundtree, 420 F.2d 845, 850–51 (5th Cir. 1969).
“[T]ypically it is unclear whether a given tax investigation will lead to criminal
proceedings. The IRS often must see the taxpayer’s records before it can make that
determination.” Roundtree, 420 F.2d at 850 (citing United States v. Powell, 379 U.S. 48, 53–54
(1964)). “It would be a misuse of the tax summons for the IRS to endeavor to use it to obtain
evidence for use in an existing criminal prosecution.” Venn v. United States, 400 F.2d 207, 210
(5th Cir. 1968). In addition, “if the purpose of the summons is … solely to build a criminal
prosecution, the courts will not enforce the summons.” Roundtree, 420 F.2d at 847. “However,
the mere fact that the evidence obtained through the summons may later be used against the
taxpayer in a criminal prosecution is no barrier to enforcement [of the summons].” Venn, 400
F.2d at 210–11.
When the Fifth Amendment privilege against self-incrimination is asserted under these
circumstances, “the burden of proof is on the taxpayer.” Roundtree, 420 F.2d at 851 (citing
Powell, 379 U.S. at 58). The privilege against self-incrimination “applies only when the
possibility of self-incrimination is a real danger, not a remote and speculative possibility.”
Steinbrecher v. C.I.R., 712 F.3d 195, 197 (5th Cir. 1983) (citing Zicarelli v. New Jersey State
Comm’n of Investigation, 406 U.S. 472, 478 (1972)). “The witness is not exonerated from
answering merely because he declares that in doing so he would incriminate himself––his say-so
does not of itself establish the hazard of incrimination. It is for the court to say whether his
silence is justified.” Id. at 197–98 (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).
Before reaching Trowbridge’s Request for Grant of Immunity, the Court must decide
whether to consider the IRS’s late-filed Response. (Doc. No. 16.) The prescribed period for
responses is twenty-one days. S.D. Tex. L.R. 7.3–7.4. The IRS’s Response arrived a month after
Trowbridge’s Request. “When an act may or must be done within a specified time, the court
may, for good cause, extend the time … on motion made after the time has expired if the party
failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1). The Supreme Court has said
that “excusable neglect” can mean “inadvertence,” “mistake,” “carelessness,” or “intervening
circumstances beyond the party’s control,” where appropriate in the district court’s judgment.
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 388 (1993). The IRS
pleads inadvertence, noting confusion about the titling of Trowbridge’s filing. (Doc. No. 16 at 2–
3.) The Court finds neglect on the part of the IRS, but it is excusable. The delay was brief, and it
has neither evinced bad faith nor caused any real harm. Given that, and given that the Response
is an aid to the Court’s deliberation, the Court will accept it.
Trowbridge requests a broad grant of immunity. (Doc. No. 14 at 5–6.) To the extent
Trowbridge seeks to be immunized against any criminal prosecution for violation of tax laws, the
Court finds that he seeks a form of relief that the Court cannot provide. It is not for the judiciary
to dictate the executive branch’s exercise of its prosecutorial discretion.
To the extent Trowbridge seeks to be freed of his obligations under the IRS summons, he
has not met his burden. As noted, the possibility of self-incrimination must be a real danger, not
a remote and speculative possibility, for the privilege against it to apply. Counsel and personnel
for the IRS assiduously explained to Trowbridge the civil nature of the current investigation and
the clear separation from the IRS’s criminal function. On the basis of these representations,
Trowbridge’s refusal to answer questions and to produce the summoned documents was not
justified. The criminal investigation he evidently underwent years before is not an adequate basis
for invoking the privilege against self-incrimination now.
If, in the future, the IRS’s representations are revealed to be false, the law offers
protections. See Tweel, 550 F.2d 297. Until then, or until Trowbridge can demonstrate that the
current summons is for the purpose of building a criminal case against him, the Fifth
Amendment does not negate Trowbridge’s obligation to comply with the law or shield him
against its enforcement.
To be clear, Trowbridge’s history of frivolous and sanctionable litigation is not the basis
for this Court’s rejection of his request for a grant of immunity. The U.S. Constitution protects
him whether or not his arguments on tax liability have merit. His history does warrant a warning,
however. Trowbridge knows full well the sanctions that courts can impose, having experienced
them before. See, e.g., Trowbridge, 378 F.3d at 433 (affirming a $25,000 sanction imposed by
the Tax Court and adding a $6,000 for the frivolousness of his appeal). The Court hopes that
Trowbridge will hereafter comply with the Court’s orders and the IRS’s lawful summons, so that
no further sanctions will be necessary.
The Motion to File Petitioner’s Response Out of Time filed by the Petitioner, the United
States of America through the Internal Revenue Service, is GRANTED. Respondent John Parks
Trowbridge, Jr.’s Request for Grant of Immunity is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 22nd day of November, 2017.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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