667 F.3d 539
4th Cir.2012Background
- Davis-Lynch sues Moreno and Pucek among many defendants under RICO and Texas law for alleged embezzlement and related scheme.
- Moreno and Pucek initially invoked Fifth Amendment privilege; Moreno later waived in open court, Pucek attempted to withdraw during summary judgment briefing.
- District court struck their affidavits withdraw, denied withdrawal, and granted summary judgment to Davis-Lynch against all defendants.
- Cummings report provides scant specifics about Moreno and Pucek; allegations relate to funds and a machine transfer without payment.
- Appellate court affirms Pucek withdrawal denial, reverses Moreno withdrawal denial, and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moreno's later withdrawal of Fifth Amendment privilege was proper | Davis-Lynch argues Moreno abused process by invoking privilege late | Moreno contends withdrawal was proper given discovery timing | Moreno's withdrawal properly permitted; reversed and remanded |
| Whether Pucek's withdrawal of Fifth Amendment privilege was permissible | Davis-Lynch argues Pucek sought last-minute advantage harming discovery | Pucek contends timely withdrawal within response window | Withdrawal denied; affirmed |
| Whether Davis-Lynch established RICO § 1962(a)/(c) ownership/investment injuries | Davis-Lynch claims proceeds were used/invested by enterprise causing injury | Moreno/Pucek argue no proven investment injury and lack of control | District court erred; no injury shown from investment |
| Whether Davis-Lynch proved RICO conspiracy under § 1962(d) | Davis-Lynch asserts conspiracy to commit predicate acts harmed it | Defendants argue lack of independently wrongful act and evidence | Beck v. Prupis required independently wrongful act; reversal |
| Whether Texas civil conspiracy/aiders-and-abettors claims were properly awarded | Davis-Lynch seeks state-law liability for overt acts and conspiratorial conduct | Moreno/Pucek challenge evidentiary basis for overt acts | Summary judgment for state-law claims not supported; remand for full discovery |
Key Cases Cited
- Beck v. Prupis, 529 U.S. 494 (U.S. 2000) (civil RICO conspiracy requires independently wrongful act)
- Salinas v. United States, 522 U.S. 52 (U.S. 1997) (knowledge of overall objective suffices for criminal liability on conspiracy)
- Edmond v. Consumer Prot. Div., 934 F.2d 1304 (4th Cir.1981) (withdrawal of Fifth Amendment privilege and summary judgment affidavits)
- United States v. Certain Real Prop, and Premises Known as 4003-4005 5th Ave., Brooklyn, 55 F.3d 78 (2d Cir.1995) (district court may deny withdrawal of Fifth Amendment privilege)
- Parcels of Land, 903 F.2d 36 (1st Cir.1990) (withdrawal timing and prejudice considerations in discovery)
- Beck v. Prupis, 529 U.S. 494 (U.S. 2000) (reiterated necessity of injury from act independently wrongful under RICO)
- Evans v. City of Chicago, 513 F.3d 735 (7th Cir.2008) (late-stage withdrawal considerations and discovery impact)