Category Archives: Fifth Amendment

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ByKody Fairfield

Kentucky conservative SenatorRand Paul reintroduced S. 642, theFAIR(Fifth Amendment Integrity Restoration)Acton Wednesday. The intention of the bill isto protect property owners rights and restore the Fifth Amendments role in civil forfeiture proceedings.Rep. Tim Walberg (R-MI) has introduced companion legislation (H.R. 1555) in the U.S. House of Representatives, read an official statement from his office on Thursday.

Specifically, the bill looks to target and limit civil asset forfeiture of citizens who have not been convicted of a crime.

The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime, said Paulin his statement. TheFAIRActwill protect Americans Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process. It guards against abuse while maintaining the ability of courts to order the surrender of proceeds of crime.

Over the past few years, weve seen a wave of stories where the government unjustly seized property from innocent Americans without charging them with a crime, explainedRep. Walberg, in the same statement.These types of abuses of civil asset forfeiture laws should be a clarion call to reform the system and uphold the constitutional rights of the American people. Thats why Im committed to championing the FAIR Act, which includes comprehensive and bipartisan reforms to limit the scope of the governments forfeiture powers and protect individual rights.

The FAIR Act has the backing of some major organizations in politics, includingHeritage Action, the American Civil Liberties Union, Institute for Justice, FreedomWorks, National Federation of Independent Business, National Association of Criminal Defense Lawyers, Drug Policy Alliance, Americans for Tax Reform, and Campaign for Liberty, according to Pauls statement.

Dr. Rand Pauls S. 642, the Fifth Amendment Integrity Restoration (FAIR)Act:

Eliminates Equitable Sharing: The federal equitable sharing program allows state law enforcement officers to turn seized property over to federal officials for forfeitureand get up to 80% of the proceeds of the forfeited property. The FAIR Act ends equitable sharing and ensures that law enforcement cannot ignore state law.

Restores Principle of Innocent Until Proven Guilty: Under current law, federal law enforcement agencies may take property suspected of involvement in crime without charging the property owner with a crime. The FAIR Act places on the government the burden to show that a property owner consented to his property being used in a crime by a third party (or that the property owner was willfully blind to the criminal activity).

Requires Clear and Convincing Evidence: Under current law, the government need only prove by a preponderance of the evidence that a defendants property was used for an illegal purpose to forfeit the property. The FAIR Act would require that the government prove its case by the higher standard of clear and convincing evidence.

Protects the Right to Counsel: Under current law, property owners can receive appointed counsel due to indigency only if (1) they request it, and (2) their home has been seized. The FAIR Act would ensure that owners have the opportunity to receive representation in all civil forfeiture proceedings.

Removes the Profit Incentive: Law enforcement should be motivated by public safety, not financial rewards. The FAIR Act would restore the rule in which the proceeds of forfeiture go to the Treasurys General Fund, where Congress can appropriate the money for any purpose.

Reforms IRS Seizures: The FAIR Act requires that the IRS prove that the defendant knowingly deposited funds with criminal intent before they can seize the property. It also requires that a probable cause hearing be held no later than 14 days after the IRS seizes funds under the pretense of a structuring violation.

Enacts Strong Reporting Requirements: The Department of Justice will be required to compile and publish the percentage of its seizures that were subjected to civil and criminal asset forfeiture.

The push against civil asset forfeiture has been gaining momentum as just the other day, sitting Supreme Court JusticeClarence Thomashas questioned its necessity, specifically highlighting the procedures effect on minority groups.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings, Thomas wrote. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home, Thomas toldthe Huffington Post.

The value collected by law enforcement departments via civil asset forfeiture has bloomed wildly since the mid 80s when it collected roughly $93.7 million in the US, to today where it collects well over $2.5 billion.

5th amendmentCivil Asset Forfeiturefair actrand paultim walberg

Excerpt from:
Rand Paul Reintroduces "FAIR Act" to Restore Respect for the 5th ... - The Libertarian Republic

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This replaced his order from January which was challenged in courts everywhere. The 9th Circuit Court of Appeals ruled the January order should be stayed indefinitely rendering the order unenforceable while in litigation. The court got it wrong completely. Rather than fighting in the liberal 9th Circuitwhich has a staggering 80% reversal rate the second highest in the nation the Administration issued a new more narrow order andavoided the confusing implementation of the January order.

Now we are back in court the 9th Circuit naturally. Thats where the activist judges are. 72% of the judges in the 9th Circuit Court of Appeals were appointed by democrats.Hawaii along withIsmail Elshikh Imam of the Muslim Association of Hawaiisued to block the revised order. The 38 page lawsuit is assigned to US District JudgeDerrick Watson a 2013 appointee of former President Obama. It was no accident it was brought in Hawaiiwhere two of the three federal judges are Obama appointees.

Lets discuss Hawaiis verbose-yet-meritless lawsuit. Theres 29 pages of policy arguments not legal ones.

Its a litany of reasons why Hawaii and the Imam think the order is a big scary monster thats embarrassing and keeps the Imams Syrian mother-in-law from visiting even though she hasnt come to visit since 2005.Theres only 7 pages of legal claims. Lets look at the 29 pages of irrelevant material first. They lay out some policy reasonswhy the executive order, they say, isnt a good idea.

Lead counsel is Neal Katyal former Solicitor General of the US.Professor Katyal is a brilliant lawyer whom I have met several times and is as nice a guy as you could ever meet.Reasonable minds can disagree and we disagree.

Pages 1-2. Hawaiians cant receive visits from or be reunited with people affected by the order. Universities cant recruit as well. The Imam has to live in a country where people think the government disfavors a religion. The order hurts Hawaiis economy.

Response: Theres no constitutional right to receive visits from foreigners. Those words arent in the Constitution. So what if universities cant recruit from 6 nations for a while. National security is more important. What would a terrorist attack do to recruiting? If the Imam thinks the government has established a disfavored religion hes entitled to his opinion but this order affects ANYONE of any religion from a mere six nations. Muslims from every other country remain unaffected by the order. The Hawaiian economy is booming and its speculative at best to think a handful of affected people will change that.

Pages 7-10. These are campaign speeches and other cherry-picked remarks where Trump advocated ideas about immigration and a relationship between terrorism and immigration.

Response: His campaign remarks arent relevant. He wasnt President, the order doesnt mention Muslims and doesnt apply to any single religion.

Pages 11-15. These describe the January Order.

Response: Thats irrelevant. This is a new order. We arent litigating the first.

Pages 16-19. These describe the rollout of the first order, chaos at airports, and confusion in its implementation.

Response: Its true that the rollout couldve been smoother but this is a new order. We arent litigating the first.

Pages 20-25. These quote and describe the new order.

Response: Millers comments are irrelevant because the new order didnt exist then. It doesnt matter what Miller says. It matters what the order says.

Pages 25-30. These rehash in more detail the initial claims. The Imams mother-in-law cant visit, other residents cant receive certain visitors, it makes people feel bad, it harms the economy etc. This is a policydebate. If the Imams mother-in-law cant visit Hawaii for now and her last visit was in 2005 one wonders if this is a real or pretend problem.

Pages 31-37. The legal arguments. They arelegallyincorrect for astonishingly simple reasons:

COUNT 1. First Amendment-Establishment Clause

Hawaii and the Imam allege The Establishment Clause of the First Amendment prohibits the Federal Government from Officially preferring one religion over another. They also allege the order has the effect of disfavoring Islam.

Heres what the Constitution actually says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Ive given you both the Establishment Clause AND the Free Exercise Clause. Read them together.Executive orders are not acts of Congress. Theres no language in the order that mentions Islam. The order does disfavor unfettered entry into the US from the six nations (temporarily) regardless of religion. Muslims fromaround the globe enter the US daily and will continue to despite the order. The Establishment Clause claim islaughable.

COUNT 2: Fifth Amendment-Equal Protection

Hawaii and the Imam allege The Due Process Clause of the Fifth Amendment prohibits the FederalGovernment from denying equal protection of the laws, including on the basis of religion and/or national origin, nationality, or alienage.

The Fifth Amendmentdoes not mention the words Equal Protection. Thats the Fourteenth Amendment. I agree that all peoplewho have rightsunder the Constitution are entitled to equalprotection. Thats simple. But heres the big problem for the plaintiffs: Non-citizens outside of the US have no constitutional rights whatsoever.The peopleto who have constitutional rights are the people of the US or those present within the US. We dont export US Constitutional Rights. Otherwise, the Navy Seals wouldve needed a search warrant to enter Bin Ladens house. There is no constitutional right that belongs to any alien to enter the US. Permanent residents and visa holders have statutory and otherpermissions.

COUNT 3: Fifth AmendmentSubstantive Due Process

Plaintiffs claim The right to international travel is covered by the Due Process Clause of the Fifth Amendment.

Really? Letslook. No person shall be held to answer for a capitalcrime, unless on a presentment or indictment of a Grand Jury, nor shall any person be subject for the same offence to be twice put in jeopardy nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

I dont see any mention of international travel there. Maybe Hawaii has special reading glasses and can see it.

COUNT 4: Fifth Amendment-Procedural Due Process

Plaintiffs claim citizens may assert liberty interests with respect to noncitizen relatives who are deprived of due process

Wrong. It isnt possible to deprive someone of something they dont already possess due process rights.

COUNT 5: Immigration and Nationality Act

Plaintiffs claim the order exceeds the Presidents authority under 8 U.S.C 1182(f) and 1185(a).

Wrong.Article 1, section 8, clause 4 gives plenary (absolute) power over immigration to Congress. Congress has delegated that authority broadly to the President.Section 1182(f), states: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

Click here to read 1185(a). It begins with Unless otherwise ordered by the President .

COUNT 6: Religious Freedom Restoration Act

Who knew the left liked RFRA? They claim RFRA grants citizens the right to welcome visitors from anywhere in the world. It does not.

Count 7: Substantive Violation of the Administrative Procedure Act through Violations of the Constitution, Immigration and Nationality Act, andArbitrary and Capricious Action

Thats the run everything up the flagpole and see if someone salutes approach. This fails for the same reason:Non-citizensoutside the United States have no US constitutional rights. Thats why we have borders and why Article 1 specifically grants plenary power to the Federal government over immigration.

The line must be drawn somewhere and its at the border. We know where it is. Thats where US constitutional rights evaporate. This is common sense stuff that shouldnt stand a chance in court. But its the 9th Circuit. If Hawaii wins it will land in the full US Supreme Court and the 9th Circuit should get reversed again.

View post:
Hawaii V. Trump: A Legal Nothing-Burger - Daily Caller

Forbes

Filing Your Taxes Is Not Self-Incrimination, Rules Court Forbes So he took the Fifth. The court had an easy time with his argument, and rejected the claim. The Fifth Amendment does grant a privilege against self-incrimination. However, that doesn't mean you can just refuse to file taxes. The mere act of filing an ...

Here is the original post:
Filing Your Taxes Is Not Self-Incrimination, Rules Court - Forbes

Immigration Law

Posted Mar 09, 2017 04:50 pm CST

By Lorelei Laird

An ABA amicus brief filed March 8 argues that immigration courts should be required to consider ability to pay and flight risk before deciding on bond.

The brief (PDF) was filed to the 9th U.S. Circuit Court of Appeals in Hernandez v. Sessions, a class action that argues that the federal government violates the Fifth and Eighth amendments as well as the Immigration and Nationality Act when immigration judges set bond without consideration of the noncitizens ability to pay, flight risk or dangerousness.

When bonds are imposed without consideration of less restrictive conditions or the noncitizens financial resources, they may inadvertently cause a noncitizen to be detained solely because of his or her inability to pay, the brief says. That outcome violates bedrock constitutional protections.

The underlying lawsuit was filed by the American Civil Liberties Union of Southern California. According to the complaint (PDF), bond for lead plaintiff Xochitl (so-chee) Hernandez was set at $60,000 in March 2016, even though her sole crime during more than 25 years in the United States was shoplifting. Hernandez came to the United States without authorization as a teenager and is eligible for processes that could legalize her status. But she cannot afford the bond and remains jailed at an Immigration and Customs Enforcement detention facility.

Another lead plaintiff, Cesar Matias, is a Honduran national seeking asylum in the United States because he was persecuted at home for his sexual orientation. He has been detained for more than four years in a city jail in Orange County, the complaint says, because he cannot afford the $3,000 bond set by an immigration court.

The ACLU noted that immigration judges and ICE agentsboth of whom may set bondrequire the full amount of cash bond before release and often set five- or six-figure bond amounts without considering the noncitizens ability to pay. This is not authorized by the INA, the complaint says, and violates the Eighth Amendments excessive bail clause and the rights to due process and equal protection under the Fifth Amendment. A Central California district court issued a preliminary injunction that required consideration of ability to pay and less restrictive conditions of release before imposing bond.

The ABA asked the San Francisco-based 9th Circuit to affirm that ruling. The U.S. Supreme Court has held that pretrial detention violates noncitizens of their fundamental right to liberty, the brief says, and this is permissible only when theres a legitimate law enforcement purpose for the detention. When decision-makers dont take ability to pay into account, the brief says, they violate constitutional principles. They also hurt detained peoples abilities to defend their cases, deprive citizen children of their parents, and overburden the immigration detention and court systems, at a substantial cost to the public.

The ABA has expressly opposed routine detention of noncitizens in the 2006 Report 107E, the brief notes, and has recommended bond or bail only as a last resort in its Criminal Justice Standards and Civil Immigration Detention Standards.

Read more here:
ABA endorses requirement to consider poverty, flight risk when immigration courts set bond - ABA Journal

As criminal law has expanded into almost every sector of the American economy, one byproduct is the rise of "parallel proceedings"lawsuits that proceed concurrently in criminal and civil court based on largely the same facts. Often times, the government is a party to both proceedings. This is most common in False Claims Act cases or in securities enforcement proceedings. But that is not always the case. Civil litigation, especially cases involving claims of fraud and deceit, may also attract the government's attention (sometimes in response to a request by one of the parties). In those cases, at least one of the parties will be confronted with the difficult task of navigating the two proceedings without doing violence to the client's interest in either.

The discovery process typically presents the most treacherous waters for the lawyers tasked with handling parallel proceedings. Criminal and civil practitioners who rarely venture over to the "other side" may forget or be unaware of the dramatic differences in a defendant's ability to request and obtain evidence when the defendant is the subject of an indictment instead of a civil complaint. This article explores some of those differences in the discovery contextthough litigants who find themselves involved in parallel proceedings will quickly find that differences in discovery are only one of the many factors that must be carefully considered as part of an overall litigation strategy.

United States v. Rand and Federal Discovery

A helpful case study of the different tools available to litigants in the civil and criminal context is the Fourth Circuit's recent decision in United States v. Rand. The government began investigating Michael T. Rand in 2007 in relation to alleged mortgage fraud that occurred while he was acting as chief accounting officer at Beazer Homes USA, Inc. ("Beazer"). In 2009, the SEC brought charges against Rand in a civil, regulatory proceeding on allegations that he had conducted a multi-year fraudulent accounting scheme. Then, in 2010, the government charged Rand criminally with accounting fraud and with obstructing the investigation into Beazer's mortgage practices. Before his trials, Rand sought leave of court to issue subpoenas pursuant to Federal Rule of Criminal Procedure 17(c) to obtain information regarding, among other things, Beazer's accounting systems. Rand's subpoena for documents to Beazer asked for "accounting entries, budgets, budget entries, and financial reports for seven categories of reserve accounts over an eight-year period (the timeframe of the alleged conspiracy)." Rand sought this information to bolster his defense of his accounting practices. The district court denied Rand's requests.

On appeal, the Fourth Circuit examined Rule 17(c) and held that the rule is "not intended to provide a means of pretrial discovery." Instead, the purpose of the rule is to expedite the trial by providing time and place before trial for the inspection of subpoenaed materials. Although requests like those contained in Rand's proposed subpoena would be considered commonplace in civil litigation, the Fourth Circuit found this request to be too broad under the Federal Rules of Criminal Procedure, comparing it to a "fishing expedition."

Criminal vs. Civil Discovery

The court's assessment highlights the differences in discovery in criminal and civil proceedings. Rand's options for discovery were more limited than they would have been in a civil case, as illustrated by the following chart listing the discovery tools available to criminal and civil litigants:

The Civil Side Methods for Obtaining Discovery under the Federal Rules of Civil Procedure

The Criminal Side Methods for Obtaining Discovery under the Federal Rules of Criminal Procedure

Rule 26(b)(1) permits discovery of "any non-privileged matter relevant to any party's claim or defense."

Rule 16 permits discovery, upon the defendant's request, of the defendant's statements, criminal record, and certain documents and tangible evidence the government intends to use in its case-in-chief at trial. Once the government has complied, Rule 16 triggers reciprocal obligations on the defendant's part.

Rule 27 Depositions to perpetuate testimony before an action is filed

Rule 15 Depositions are not allowed by right. Upon a party's motion, the court may allow oral depositions "to preserve testimony for trial" if there are "exceptional circumstances" and it is "in the interest of justice."

Rule 30 Depositions by oral examination

Rule 31 Depositions by written questions

The Criminal Rules do not provide a mechanism to require the opposing party to prepare written responses to questions. Accordingly, this method is not available to force the opposing party to take positions or forecast strategy.

Rule 33 Interrogatories to parties

Rule 36 Requests for admission

Rule 34 Requests for production of documents

Rule 16 The defendant has to make a request to trigger this Rule, which then creates reciprocal obligations to produce pre-existing documents that fit into broad categories articulated in the rule.

Brady v. Maryland, 373 U.S. 83 (1963), established that the government must turn over evidence that is exculpatory, or might exonerate the defendant. This includes evidence that might prove the defendant's innocence or reduce his or her sentence, as well as evidence that impeaches or discredits the government's case.

Giglio v. United States, 405 U.S. 150 (1972), provides that the government must disclose information relating to any deals that witnesses have received in exchange for their cooperation.

The Jencks Act, 18 U.S.C. 3500, requires the government to produce written statements and reports of its witnesses. This law only requires the production of Jencks material after the witness has testified, although the government frequently delivers the materials pre-trial in the interest of efficiency.

Rule 45 Subpoenas to third parties, which may command attendance at a deposition or command a party to produce or permit inspection of documents, electronically stored information, or tangible things.

Rule 17 Does not provide the defendant with a broad-reaching subpoena power. The court authorizes the issuance of a subpoena only if the terms meet the high standard articulated in United States v. Nixon: (1) that the documents are evidentiary and relevant; (2) that [the documents] are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that [the subpoenaing] party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.

By contrast, the government's ability to subpoena third parties through the power of the grand jury is almost unlimited.

As the chart makes clear, a civil litigant has far more ability to obtain information from the opposing side and third parties through a wide variety of tools. While the 2015 amendments to the Federal Rules of Civil Procedure impose a "proportionality" requirement, the civil rules remain designed to help the parties fully flesh out their theories and collect the evidence necessary to support them. It is also critical to remember that civil litigation can, and routinely is, resolved short of trial by jury based on the evidence collected through the discovery process and presented to the court in support of summary judgment. There is no analogous vehicle for challenging a criminal indictment.

The exchange of information in criminal cases, by contrast, is designed to expedite the decision to seek a trial of the case, or negotiate a plea. The government's obligation to produce information obtained during the course of the investigation is fairly broad, though the timing of the disclosures can often be a source of dispute since there are few firm deadlines established by the criminal rules. However, nothing obligates the government to investigate potential defenses to a charge. As such, the decision to accept a plea offer is made based not on a thorough review of all the available evidence, but on an evaluation of the evidence the government intends to present at trial. To the extent an affirmative defense rests on facts not collected during the government's investigation, the burden falls to the defendant to use the limited criminal discovery tools in his arsenal to collect potentially exonerating evidence.

This is precisely where Mr. Rand found himself. Rand's subpoena requests to Beazer would have been routine in a civil case. But because Rand was a defendant in a criminal matter, his ability to obtain such information from Beazer was significantly, if not entirely, diminished. Rand may have utilized civil discovery tools in the SEC's case against him, but that civil suit settled prior to the resolution of the criminal matter. While Rand would have had the opportunity to serve discovery and subpoena third parties in the civil matter, whether or not he would have elected to do so raises a number of critical strategic and legal questions that all litigants in parallel proceedings must consider.

Discovery Issues in Parallel Proceedings

Access to Discovery

For a defendant in a criminal case, the expansive discovery power in a civil action might seem to be an attractive way to get additional information. However, there are downsides to attempting to use a parallel civil case to obtain discovery that would also be useful for a criminal defense. First, courts are wary of criminal defendants skirting the criminal rules by using civil discovery tools. Despite the broad latitude civil litigants generally enjoy in conducting discovery, the court may be more willing to quash or limit requests geared towards the criminal defense, particularly if the government objects.

Additionally, the litigant must also consider that the same discovery tools used to obtain information may be used against him or her. While the discovery rules (especially the civil rules) often allow for broad investigation of the opposing side's case, they simultaneously create broad exposure to respond to civil discovery requests, which can multiply costs and create self-incrimination issues. These considerations become particularly complicated when the opposing civil litigant is a government entity. Federal agencies involved in civil enforcement actions work closely with the Department of Justice, and information obtained in these civil actions can be used in a later criminal proceeding.

Along the same lines, civil litigants also must exercise caution regarding the discoverability of materials provided to the government if the parties are in a cooperative posture. Regulatory agencies provide strong incentives for companies and individuals to cooperate in civil and administrative regulations. However, statements and documents provided in these civil proceedings are likely to be shared among agencies and may form the basis for a subsequent criminal prosecution.

Fifth Amendment Implications

The Fifth Amendments protection against self-incrimination applies to individuals in both civil and criminal proceedings. However, the application of this right differs in each arena. A criminal defendants decision to invoke his or her Fifth Amendment rights may not be used against him or her. Because the government cannot force a defendant to make pre-trial statements or testify at trial, a fact-finder is unlikely to even hear a defendant invoke his or her right against self-incrimination.

By contrast, in a civil setting, a party has no ability to assert a blanket invocation of his or her Fifth Amendment rights. Instead, these rights must be asserted on a question-by-question basis in response to written discovery requests, deposition questions, or even examination at trial. Further, unlike in the criminal setting, the invocation can be used against the individual who makes it. If an individual invokes his or her Fifth Amendment privilege against self-incrimination in a civil proceeding, the opposing party is entitled to an instruction to the fact-finder that it may draw an adverse inference from the invocation of Fifth Amendment rightsin other words, the fact-finder may infer that the invoking party is guilty of some wrongdoing.

Moreover, business entities have no testimonial protection under the Fifth Amendment, and cannot assert the privilege on behalf of individual employees. The Fifth Amendment does protect a witness from having to produce documents if doing so would be testimonial in nature by revealing the witness's mental processes. However, the privilege does not apply to corporate records or documents kept pursuant to law.

Stays of Litigation

Due to these complications, parties frequently seek stays of civil litigation pending the resolution of the related criminal matter. Criminal defendants might seek a stay to avoid making damaging admissions in the civil proceeding, or to avoid the application of the adverse inference. The government might wish to stay the civil litigation to prevent the defendant from using civil discovery to prepare his or her defenses, particularly since the defendants Fifth Amendment rights prevent the government from using civil discovery similarly. While requests for stays technically are not granted as a matter of course, courts generally will stay the civil litigation if one or more parties can demonstrate true risk of injury arising from the concurrent proceedings.

Conclusion

Successfully litigating through parallel proceedings is an endeavor fraught with peril. Litigants involved in concurring civil and criminal matters, like the defendant in Rand, should seek the advice of counsel skilled in navigating parallel proceedings to avoid potential discovery pitfalls.

Excerpt from:
A Parallel Universe: Navigating Discovery in Concurrent Civil and Criminal Proceedings - JD Supra (press release)

History >> US Government The Fifth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It covers a number of topics and issues including the grand jury, double jeopardy, self-incrimination ("taking the fifth"), due process, and eminent domain. We'll explain each of these in more detail below.

From the Constitution

Here is the text of the Fifth Amendment from the Constitution:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Taking the Fifth

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

Miranda Warning

You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.

Due Process

The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

Eminent Domain

The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

Interesting Facts about the Fifth Amendment

To learn more about the United States government:

Works Cited

History >> US Government

More here:
US Government for Kids: Fifth Amendment

Daniela Vargas speaks at news conference on March 1 about her deportation fears.

ABC News

Last week, officers from Immigration and Customs Enforcement arrested 22-year-old Dreamer Daniela Vargas, a Mississippi resident who has been living in the United States since she was 7. But for a temporary lapse in her status under the Deferred Action for Childhood Arrivals immigration policy, Vargas has been everything America says it wants in an immigrant: well-educated, ambitious, law-abiding, and patriotic. It should surprise nobody that she is about to be deported.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Vargas was taken into ICE custody just moments after she publicly criticized the Trump administrations immigration raids, a move that makes it appear as if she was swept up by the immigration agency on account of what she said to the press. ICE agents have confirmed that Vargas was taken into custody during a targeted immigration enforcement action. One may well wonder what was being targeted in that action, if not her speech. In part because her arrest seemed so deliberately linked to her decision to speak out, her lawyers, the Southern Poverty Law Center, and other civil rights groups filed a petition in the U.S. District Court for the Western District of Louisiana on Monday to stop her deportation. Her attorneys are claiming that Vargas arrest amounts to retaliation against someone exercising her First Amendment rights.

The petition explains that Vargas graduated high school in 2013 with honors and that she has attended East Central Community College and the University of Southern Mississippi, where she has studied to be a math teacher. In addition to her pending DACA renewal, she also has a petition pending for a U nonimmigrant visa, which is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Vargas was at home in February when her brother and father were taken into ICE custody. Having lost her DACA status last Novemberher attorneys say she could not afford the $495 renewal fee at the timeVargas had reapplied last month. When ICE agents raided Vargas home on Feb. 15, they led her father and brother away in handcuffs. According to her petition, Vargas told the agents she had been granted DACA status. She then went into her house, locked the door, and hid in a closet. The ICE agents returned with a search warrant. The petition alleges they broke down the front door and that an agent pointed a gun at Vargas when she emerged from the closet. Before they left the house, Vargas was allegedly told that they knew her DACA had lapsed, but that they were giving her a hall pass. Vargas then left the house and spoke to local media , which had gathered outside during the raid.

Vargas hall pass apparently expired a few weeks later. On March 1, she spoke at a press conference, describing the raid on her home and the need for a pathway to citizenship. Moments later, she was pulled out of her friends car by ICE agents and arrested. According to her petition, one of the ICE agents who had been at the raid at her home said, Remember me? You know who we are; you know why were here, and youre under arrest for being an illegal immigrant. Vargas has been in an ICE detention facility ever since. Her petition concludes that she is now at imminent risk of deportation to Argentinaa country she left in 2001 at age seven, that she scarcely knows, and to which she fears returning.

Nobody knows whether DACA is at risk under the Trump regime.

ICE originally stated that Vargas case would be heard before an immigration judge. The Department of Homeland Security has apparently gone back on its word; it is now taking the position that Vargas is not entitled to contest her deportation as she entered this country in 2001 through the Visa Waiver Program. The statute establishing the VWP requires any noncitizen entering the U.S. to waive his or her right to contest, other than on the basis of an application for asylum, any action for removal of the alien. Her lawyers argue that detaining and deporting Vargas without a hearing violates her Fifth Amendment due process rights, because at age 7 she could not have knowingly and voluntarily waived her right to seek a hearing to contest deportation.

Vargas speech claims have broad implications not just for DACA recipients but for whistleblowers and immigration activists around the country. Her petition cites cases from the Fourth and Ninth Circuits, holding that everyone in the United States, including noncitizens, enjoys the right to peaceful expression of views through public demonstration. Vargas lawyers argue that the First Amendment prevents law enforcement officials from retaliating against speakers by targeting, detaining, arresting, and/or seeking to deport an individual engaging in protected speech where the officials actions caused [the speaker] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity and when those officials were substantially motivated against the plaintiffs exercise of constitutionally protected conduct.

There can be no dispute that Vargas remarks about the ICE raid on her family home represent the kind of core political speech the First Amendment is designed to protect. Its also beyond dispute that Vargas had been permitted to stay in the country only days before and that the speech seems to have triggered a change in ICE policy. The Trump immigration effort, we were told, was supposed to consist of stepped-up deportations of criminalsnot lawful political speakers. Vargas did nothing to warrant deportation without due process.

The other problem, as her lawyers contend, is that nobody knows whether DACA is at risk under the new regime. DACA has afforded protections to 750,000 immigrants since the Obama administration launched it in 2012. In the weeks since his inauguration, Trump has given wildly conflicting messages about whether it will continue to be in effect. If Vargas is now at risk because of a brief technicality around her Dreamer status, its hardly clear that DACA still has real force. And if Dreamers can be removed for little more than giving a political speech, they are now as much at risk as other noncriminals in Trumps America.

The casual cruelty of Trumps war on lawful immigrants depends on the complicity of citizens, and the chilling of both protest and media watchdogging. In addition to our collective vigilance, the solution for the cruelty around the action against Daniela Vargas will be the same as the solution to Trumps original, vicious travel ban: lawyers. Lots of them. The Southern Poverty Law Center announced Tuesday that its launching a new project to ensure that detained immigrants will have access to free lawyers. We are going to need them.

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Daniela Vargas embodies the casual cruelty of Trump's war on ... - Slate Magazine

The Fifth Amendment grants the federal government the right to exercise its power of eminent domain the power to take private property for public use by a state, municipality, private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

State Rep. DeWayne Burns, R-Cleburne, filed House Bill 2684 on Thursday, which aims to level the playing field for property owners when they face off with government entities and corporations with infinitely greater resources.

Burns said it was his personal experience with eminent domain that prompted him to file the bill.

I know first hand the burden that the eminent domain process places on landowners, he said. You climb off a tractor and there is a person there telling you they are there to negotiate a fair price for land you didnt want to sell and at the end of the day if you dont want to sell it, it will be taken from you.

Burns said his family owns property in the southwest part of Johnson County and several years ago when the Barnett shale was really active, he and many other landowners in the area found themselves in negotiations for eminent domain.

We had multiple pipeline companies that were wanting to come across our property, he said. Some of the companies were easy to deal with and some were not. Sometimes we felt threatened by them. I felt like landowners at the time had no information and nowhere to turn and were dealing from a position of not knowing what is going on.

That is why I am fighting to ensure property owners are in the best possible position when faced with the taking of their property. In Texas, private property rights are a sacred principle, and I believe this legislation will help preserve that right without adversely affecting the businesses that are helping to grow our economy.

Malachi Solomon Tomlinson posted on the Times-Review Facebook page that he is in favor of the proposed bill.

In theory, Burns plan would give people more power over their own property against corporations, he said. Sad that we had to get to this point to make a bill when the constitution and the clause already give those rights. But what about when the state turns around and finds loopholes to seize land or work on it like they often do highways or roads? Still powerless.

Jennifer Hamblin said she thinks HB 2684 might not be effective.

We never truly own [our property] anyway even after the loan is paid off you still pay taxes, she said. You dont pay taxes they take your property either way. The government will take it like they do everything else. Plus they only give you barely what it is worth which if you try to find the same amount of property it costs double what you already had. Not very fair.

Burns said Texas is a growing state with a strong appetite for new development which has put a target on Texas property, leaving landowners searching for a fair offer and process in eminent domain cases.

The new legislation will provide for the reimbursement of landowner expenses if they are sued by a condemner and are ultimately awarded significantly more than the final offer, he said, It will also spell out the use and restriction details required within a condemners bona fide offer to ensure the entity will properly use and maintain the property.

Burns legislation was met with approval from individuals and organization who advocate on behalf of property owners across Texas.

This new legislation is a tremendous step toward fixing a faulty process that places landowners at a huge disadvantage when navigating the condemnation process, said Richard Thorpe, president of the Texas and Southwestern Cattle Raisers Association. We are grateful to have strong allies like Burns who are committed to defending the rights of private landowners and preserving our future.

HB 2684 will level the playing field

The rest is here:
Burns files bill to protect property owners - Cleburne Times-Review

The police cannot force you to tell them the passcode for your phone. Forcing you to turn over or type in your passcode violates the Fifth Amendment privilege against self-incriminationthe privilege that allows people to plead the Fifth to avoid handing the government evidence it could use against them. And if you have a phone thats encrypted by default (which we hope you do), forcing you to type in your passcode to unlock the device means forcing you to decrypt your phone, too. That forced translationof unintelligible information to intelligiblealso violates the Fifth Amendment.

But theres a problem: not all law enforcement officers have received the memo. In one particularly egregious case, military investigators forced the defendant, Sergeant Edward J. Mitchell, to unlock and decrypt his iPhone 6 after he asked for a lawyer. Not only was the investigators continued interrogation of Sgt. Mitchell without a lawyer a clear violation of U.S. Supreme Court precedent, but compelling him to unlock and decrypt his phone also violated the Fifth Amendment. The case is currently on appeal to a federal military appeals court, and we filed an amicus brief with the court explaining why.

The Fifth Amendment privilege against compelled self-incrimination protects testimonial communications. Testimonial communications are those that require a person to use the contents of his own mind to communicate some fact. Testimonial communications dont have to be verbal; the key is that the information conveyed must come from the suspects own mind. As we explain in our brief, compelled passcode-based decryption is inherently testimonialand thus always prohibited by the Fifth Amendmentfor two reasons.

First, the compelled entry of a memorized passcode forces a person to reveal the contents of their mind to investigatorscontents that are absolutely privileged by the Fifth Amendment. As far as the Fifth Amendment is concerned, theres no difference between forcing a person to type their passcode directly into their phone and forcing them to say it out loud to an investigator. The trial judge in this case understood that and found that typing in a passcode was a testimonial act. So just by forcing the defendant to unlock his phone, the investigators violated his Fifth Amendment right.

Second, the process of decryption itself is testimonial because it involves translating unintelligible, encrypted evidence into a form that can be used and understood by investigatorsagain relying on the contents of the suspects mind.

Encryption transforms plain, understandable information into unreadable letters, numbers, or symbols using a fixed formula or process. When information is encrypted on a phone, computer, or other electronic device, it exists only in its scrambled format. If Sgt. Mitchells phone had merely been locked but not also encrypted, had the officers broken into the phone, they would have been able to access and understand the information stored on the phone. But since the phone was encrypted, if they had tried to break into the phone, they would have found only scrambled, encrypted data; they wouldnt have been able to understand it. The officers needed Sgt. Mitchell, and his unique knowledge, to translate the information on the phone into its unscrambled, intelligible state for them to be able to use it against him. In other words, they were seeking transformation and explanation of data by an accused of the very data they sought to incriminate him with. This thus violated the Fifth Amendment for a second and independent reasonbecause of the nature of compelled decryption.

Oral argument in this case is scheduled for 12:30 p.m. on April 4, 2017 at the University of Notre Dame Law School in Indiana, as part of the Court of Appeals for the Armed Forces student outreach program. We hope the court holds that, because of the very nature of decryption, compelled passcode-based decryption hits at the heart of the Fifth Amendments privilege against self-incrimination.

Thanks to the American Civil Liberties Union and ACLU of the District of Columbia for joining our brief.

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EFF to Court: Forcing Someone to Unlock and Decrypt Their Phone Violates the Constitution - EFF

The year is 2019. The government sends in a SWAT team to seize any corporate property it wants without the due process or just compensation required by the Fifth Amendment to the Constitution. The government also has the power to swipe bank assets, raid newspaper offices without warrants or just cause, and even censor any news published by a media corporation. No, its not the plot of a newly unearthed Orwell novel. These tactics, and more, would be legal under an amendment to the U.S. Constitution just introduced by Montana Sen. Jon Tester.

Testers amendment aims to strip rights from corporate entities. His amendment would provide that (1) The rights enumerated in this Constitution and other rights retained by the people shall be the rights of natural persons; (2) As used in this Constitution, the terms people, person, and citizen shall not include a corporation, a limited liability company, or any other corporate entity established by the laws of any state, the United States, or any foreign state.

Senator Tester justifies his proposal by arguing that a corporation doesnt hop on the combine to try and get harvest done. Well.

Seven years after Citizens United, the whole corporations arent people and therefore shouldnt have rights bit is getting pretty tiresome. Certainly, our elected officials should be held to a higher standard of debate.

Yes, its true that if youve never thought about it, the idea that corporations are people seems absurd on its face. Corporations are not people, of course. But, for many purposes, it makes perfect sense that the law treats them as such. For example, if the law did not treat corporations as people, they couldnt be sued.

The bigger point, though, is that corporations have rights because people have rights, and people form and own corporations. This is a principle as old as the American Republic, re-emphasized by the Supreme Court as early as 1819 in Trustees of Dartmouth College v. Woodward. A corporation, the Court noted, is an artificial being, invisible, intangible, and existing only in contemplation of law. But that didnt mean that people gave up their rights when they formed a corporation. Rather, the decision emphasized that when people join together to accomplish things, they usually need some form of organization, and shouldnt have to sacrifice their rights just because they organize. Individuals, wrote the Court, find it impossible to effect their design securely and certainly without an incorporating act. Corporate rights are the rights people have when they act together.

Oddly enough, in the momentous Citizens United decision that prompts Testers proposal, not even the Courts dissenters ever mentioned the issue of corporate personhood. Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about.

So lets think about Testers reasoning. There are over 29,000 farms and ranches in Montana. Many of these are incorporated. And indeed, around the country a great many, perhaps most, family farms are incorporated. So in a sense, when your local family farmer gets to work, it is indeed a corporation who hops on that combine. In fact, Testers family farm is incorporated it is T-Bone Farms, Inc. Does Tester think it should be illegal for him to post a political sign on his farms property?

Under Testers proposed constitutional amendment, the government could deprive him of a right to a jury trial any time a lawsuit involved his farm. The government could simply take his land, without due process, for any reason, and without compensation, all in violation of the takings clause. All this because, by incorporating his farm, he would give up his constitutional rights.

Constitutional amendments, such as that offered by Tester, will not pass in the next few years but they indicate the general hostility to free speech that many senators have, and their willingness to silence speakers they dont like. They also show the willingness to advocate rash and dangerous proposals to accomplish that end. In the long term, that should concern us all.

Brad Smith is the chairman of the Center for Competitive Politics and the former chairman of the Federal Election Commission.

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ONLINE-ONLY OPINION: Tester's assault on corporate rights is an assault on people's rights - The Missoulian