Background
In two thousand and eighteen, the government charged Saleem Naazir Hakim with willfully failing to file tax returns and tax evasion. He was convicted and sentenced to imprisonment followed by supervised release. The conditions required him to disclose his finances and submit to audits. When his probation officer requested documents, Hakim expressed reluctance and filed a Notice of Non-Consent. He eventually provided the documents after a threat of court action. The district court revoked his supervised release for failing to meet deadlines. After a prior appeal vacated his convictions due to a waiver of counsel, a grand jury returned a superseding indictment with additional counts. Hakim was retried pro se and convicted again.
The court’s reasoning
The court reviewed the evidentiary challenges for plain error. It noted that the Fifth Amendment privilege is self-executing only when the government denies a free choice to remain silent. Amendment eighty-three of the Sentencing Guidelines clarified that a defendant’s legitimate invocation of the Fifth Amendment shall not be considered a violation of supervised release conditions. This amendment effectively abrogated the prior precedent in United States versus Robinson. The court found that Hakim never unambiguously invoked his privilege and that his fear of punishment was not reasonable under the legal landscape following the amendment. Additionally, the district court did not plainly error by failing to conduct a Kastigar hearing sua sponte.
What it means going forward
The ruling confirms that supervised releasees cannot claim a classic penalty situation for refusing to answer questions after November first, two thousand and sixteen, unless they reasonably believe they face punishment for invoking the privilege.
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