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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 123 of 239 3. The Defendant’s Motion to Suppress Evidence Obtained Pursuant to the Subpoena Under the Fifth Amendment Is Without Merit The defendant’s motion to suppress all evidence obtained pursuant to the subpoena on Fifth Amendment grounds fails for multiple, independent reasons. As an initial matter, Boies Schiller is not the Government and was not acting as an agent of the Government when it deposed the defendant or otherwise litigated the civil case against her. That the defendant may regret her choice to respond to Boies Schiller’s questions during two depositions instead of invoking her privilege against self-incrimination does not transform that choice into a Fifth Amendment violation. a. Applicable Law i. The Fifth Amendment — Generally The Fifth Amendment provides in pertinent part: “No person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. To establish a Fifth Amendment violation, an individual must “demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that communication.” Jn re Grand Jury Subpoena, 826 F.2d 1166, 1168 (1987); see also, e.g., In Re Three Grand Jury Subpoenas Jan. 5, 1988, 847 F.2d 1024, 1028 (2d Cir. 1988). It is “axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials.” United States v. Washington, 431 U.S. 181, 186 (1977). “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.” Jd. at 187. “[T]he Fifth Amendment proscribes only self-incrimination obtained by a ‘genuine compulsion of testimony.’” /d. (quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974)); see also Washington, 431 U.S. at 187 (“Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.”). Nor does the Constitution “prohibit every 96 DOJ-OGR-00003057