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Dana McCann, alias Danny Combs and D. Dacques Sonner, parlayed a counterfeit $2 million check and a personal relationship with a paralegal (giving him access to her law firm’s accounts and letterhead) into a five-month flurry of fraudulent financial transactions, discovered only after he sold one asset to two separate buyers. When FBI agents approached the man purporting to be Combs for questioning, “McCann answered several questions (including questions about the $2 million check) but refused to provide the agents with his true name when asked,” according to a May 5 decision by the 1st U.S. Circuit Court of Appeals in U.S. v. McCann, 366 F.3d 46. McCann, sentenced to 105 months imprisonment for fraud and money laundering, argued on appeal that his 5th Amendment right against self-incrimination had been violated when an FBI agent testified about his refusal to give his true name during the government’s case-in-chief. Taking the 5th Three circuits-the 5th, 9th and 11th-have held that a criminal suspect has no right to “take the Fifth” until he is taken into custody or is otherwise under government compulsion, thus allowing prosecutors to use his precustodial silence as substantive evidence of guilt. Those courts place heavy emphasis on the word “compelled” in the Fifth Amendment’s declaration: “No person . . . shall be compelled in any criminal case to be a witness against himself.” Three other circuits-the 1st, 7th and 10th-have said that a suspect being questioned by government agents has the right to invoke the Fifth Amendment before his arrest, and that the prosecution consequently cannot rely on precustodial silence to build its case-in-chief. The 7th Circuit has added an additional wrinkle. In 1991′s United States v. Davenport, 929 F.2d 1169, the court held that the right to remain silent could be forfeited by self-serving selective silences: “The privilege against incrimination is not a privilege to attempt to gain an advantage in the criminal process, whether in its investigatory or its trial stage. Having voluntarily given [an Internal Revenue Service] agent their version of the events, the Davenports forfeited their privilege not to answer questions concerning that version.” The 7th Circuit acknowledged that Miranda v. Arizona, 384 U.S. 436 (1966), allows a person in custody to “clam up” during the middle of an interrogation without fear that his invocation of rights will be used to prove his guilt. But it argued that custodial interrogations present special concerns about coercion not present at the investigatory stage. In Jenkins v. Anderson, 447 U.S. 231 (1980), the Supreme Court held that prearrest silence could be used to impeach a defendant’s credibility, but declined to say “whether or under what circumstances pre-arrest silence may be protected by the Fifth Amendment.” In McCann, the 1st Circuit expressed the hope that the Supreme Court will shed some light on the issue in Hiibel v. Sixth Judicial Dist. Ct. of Nevada, No. 03-5554, on which the court heard oral argument in March. But Dudley Hiibel’s challenge to a Nevada law making it a crime to refuse to show ID to an investigating officer might be resolved under the Fourth Amendment instead of the Fifth. The McCann court hinted that it might adopt something like the 7th Circuit’s approach, but ultimately decided not to decide, finding that McCann would have been convicted with or without testimony about his selective silence. Young’s e-mail is [email protected].

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