667 F.3d 539
5th Cir.2012Background
- Davis-Lynch sued Moreno and Pucek among others under RICO and Texas law for embezzlement-related schemes involving Nancy Moreno and Hanna-Skye; district court struck the defendants' Fifth Amendment affidavits and granted summary judgment.
- Moreno and Pucek initially invoked the Fifth Amendment; Moreno waived at a contempt hearing, and Pucek later waived in response to a summary judgment motion; the district court refused to allow withdrawals.
- The only detailed undisputed facts concern Moreno’s receipt of a machine by Hanna-Skye without payment and Pucek’s receipt of over $96,000 and checks traceable to him; the Cummings report provides limited specifics about the others.
- Davis-Lynch moved for summary judgment on many claims; the district court granted summary judgment against all defendants and struck Moreno’s and Pucek’s affidavits.
- On appeal, the Fifth Circuit affirmed the denial of Pucek’s withdrawal but reversed the denial of Moreno’s withdrawal and reversed/remanded the summary judgment for both appellants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moreno properly withdrew the Fifth Amendment privilege | Davis-Lynch contends Moreno’s withdrawal was improper | Moreno argues withdrawal was proper and timely | Moreno’s withdrawal affirmed; reversal of district court on Moreno's withdrawal |
| Whether Pucek properly withdrew the Fifth Amendment privilege | Davis-Lynch argues withdrawal was improper and prejudicial | Pucek argues timely withdrawal | Pucek’s withdrawal denied; affirmed district court ruling on that point |
| Whether Davis-Lynch established substantive RICO claims against Moreno and Pucek under §1962(a)/(c) | Davis-Lynch claims investment of racketeering proceeds and injury | Moreno/Pucek contend no injury from investment or operation of enterprise | District court erred; no proof of injury from investment or operation by either defendant; remanded for further proceedings |
| Whether Davis-Lynch established RICO conspiracy claim under §1962(d) | Davis-Lynch asserts conspiracy injury from independent wrongful acts | Moreno/Pucek argue lack of independently wrongful act and causation | Beck v. Prupis standard applied; injury not shown from independently wrongful act; remand for proper analysis |
Key Cases Cited
- Beck v. Prupis, 529 U.S. 494 (2000) (civil RICO conspiracy requires injury from an independently wrongful act)
- Salinas v. United States, 522 U.S. 52 (1997) (conspiracy liability and knowledge of the objective; scope clarified)
- Certain Real Prop. and Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78 (2d Cir. 1995) (withdrawal of Fifth Amendment privilege; prejudice concerns)
- Edmond v. Consumer Prot. Div., 934 F.2d 1304 (4th Cir. 1991) (avoidance of undue prejudice; waiver timing considerations)
- Parcels of Land, 903 F.2d 36 (1st Cir. 1990) (withdrawal of Fifth Amendment privilege; discovery/summary judgment context)