In re Mayer MORGANROTH, Petitioner-Appellant. Raymond J. DONOVAN, Secretary of Labor, Plaintiff-Appellee, v. Frank FITZSIMMONS, et al., Defendants.
No. 81-1574.
United States Court of Appeals, Sixth Circuit.
Decided Sept. 30, 1983.
Argued Jan. 19, 1983.
KEITH, Circuit Judge, dissenting.
I respectfully dissent. I cannot agree with the majority‘s holding that this case is controlled by Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). In my opinion, the district court was correct in granting appellee‘s writ of habeas corpus in light of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
In Doyle v. Ohio, supra, the Supreme Court ruled that a habeas petitioner‘s post-arrest silence after receipt of Miranda warnings may not be used for impeachment purposes. The Court held that it would be fundamentally unfair and a deprivation of due process to allow the arrested person‘s silence to be used to impeach an explanation subsequently offered.
Thus, the impropriety of the prosecution‘s conduct in the present case becomes clear. The original trial record is replete with instances where the prosecution, during cross-examination, rebuttal testimony and closing argument, sought to have the jury draw inferences of guilt from the petitioner‘s silence after being arrested. This is exactly the type of prosecutorial misconduct which Doyle seeks to prevent.
Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), which is cited by the majority as controlling authority, has no application to the present case. Unlike the present case which involves references by the prosecution to the petitioner‘s silence, Anderson involved the use of prior inconsistent statements by the prosecution for impeachment purposes. As the district court correctly pointed out, the Supreme Court‘s concern in Anderson was that the defendant‘s silence was used to elicit an explanation for a prior inconsistent statement. This differs from the present case where the prosecution sought to have an impermissible inference of guilt drawn from the petitioner‘s silence.
Moreover, the district court was also correct in deciding that the failure of defense counsel to object to the prosecutor‘s references to the petitioner‘s silence met with the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Defense counsel admitted in the evidentiary hearing before the magistrate that his failure to object to the prosecution‘s conduct was attributable to his lack of knowledge about Doyle violations. This court has previously held that lack of knowledge meets the “cause” standard of Wainwright. See Rachel v. Bordenkircher, 590 F.2d 200, 204 (6th Cir.1978).
Finally, the petitioner was sufficiently prejudiced as a result of the prosecution‘s misconduct to meet the Wainwright “prejudice” standard. Improper references to an accused‘s silence by the prosecution have been previously held to be an error of constitutional magnitude and have provided the basis for the reversal of a guilty verdict. See, e.g., Minor v. Black, 527 F.2d 1 (6th Cir.1975); United States v. Curtis, 644 F.2d 263 (3rd Cir.1981).
Accordingly, I would affirm the judgment of the district court granting the petitioner‘s writ of habeas corpus.
Albert J. Krieger (on brief), Miami, Fla., for petitioner-appellant.
Arthur R. Goldberg, U.S. Dept. of Labor, Special Litigation Staff, Richard P. Carr, Susan S. Slattery, Bruce Rinaldi (argued), Sidney Dickstein, Dickstein, Shapiro & Morin, Washington, D.C., Jack B. Schmetterer, Gottlieb & Schwartz, Marvin Gittler, Asher, Greenfield, Goodstein, Pavalon & Segall, Edward J. Egan, Burke, Weber & Egan, Sherman M. Carmell, Carmell & Charone, Jeffrey D. Coleman, Jenner & Block, James L. Coghlan, Coghlan, Joyce & Nellis, Chicago, Ill., Alan M. Levy, Goldberg, Peviant & Uehlman, Joseph P. Balistrieri, Milwaukee, Wis., Wildman, Harrold, Allen & Dixon, Raymond J. Smith, Chicago, Ill., James P. Hoffa, Hoffa, Chodak & Robiner, Detroit, Mich., Frank M. Covey, McDermott, Will & Emery, Chicago, Ill., Bernard S. Goldfarb, Goldfarb & Reznick, Cleveland, Ohio, F.W. Dennerline, Fillenwarth & Fillenwarth, Indianapolis, Ind., for appellees.
Before KENNEDY, JONES and CONTIE, Circuit Judges.
Petitioner Morganroth seeks review of an order directing him to answer deposition questions to which he asserted his fifth amendment right to remain silent on the ground that his answers might tend to subject him to criminal liability.
In 1975 the Central States, Southeast & Southwest Areas Pension Fund made a loan to Indico Corporation of $7,000,000. Morganroth was president of Indico Corporation at that time. Subsequently, Indico defaulted on the loan and as a result the Pension Fund suffered significant losses on its investment. Morganroth has since been involved in a number of lawsuits. He was indicted by a federal grand jury on conspiracy and mail and wire fraud charges arising out of this loan transaction with the Pension Fund. On October 20, 1979, subsequent to his indictment, Morganroth was deposed in a civil action, Trustees of Central States, Southeast & Southwest Areas Pension Fund v. Indico Corp., then pending in Florida state court. This civil case was a foreclosure proceeding in connection with the same loan. At that deposition Morganroth appeared voluntarily and answered all questions put to him. Morganroth is himself an attorney. In March 1980, Morganroth was acquitted of the federal criminal charges. It appears that after his acquittal, Morganroth was subpoenaed to appear before a New York federal grand jury and was asked the same set of questions which he voluntarily answered in the Florida state foreclosure proceeding. Morganroth asserted his fifth amendment privilege to these same questions. Immunity was conferred upon Morganroth, his testimony given, and thereafter he was advised by one of the prosecutors that his testimony was in serious conflict with that of others appearing before the grand jury.
Subsequent to his acquittal and the immunized testimony before the New York federal grand jury, the Secretary of Labor subpoenaed Morganroth to appear for a deposition as a non-party witness in this civil action pending in the United States
Morganroth then filed for certification under
When a deponent has testified on October 20, 1979, in a deposition pursuant to a civil proceeding in which he is not a party without invoking his Fifth Amendment privilege against self-incrimination, and later on June 29, 1981, in a separate and unrelated proceeding to which he is also not a party, he refused to answer the same question asked in the earlier deposition on the basis that his answer would further incriminate him, may he do so, or does his earlier testimony constitute a waiver of the privilege, notwithstanding any possible intervening circumstances.
In granting Morganroth‘s petition for leave to appeal, this Court stated that it may consider other issues raised in the order of the District Court even though they were not included in the certified question formulated by the District Court.
The fifth amendment states that “No person shall be ... compelled in any criminal case to be a witness against himself ...”
In this appeal, Morganroth urges that this Court reject the “minority” rule adopted by the District Court, or its application of that rule, and adopt the “majority” rule that waiver of the privilege and voluntary testimony in response to specific questions or a particular subject matter in one proceeding does not constitute a waiver of the fifth amendment privilege with respect to identical questions or a particular subject matter in a second proceeding if the witness remains at risk for the same offense. United States v. Licavoli, 604 F.2d 613 (9th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980); United States v. Cain, 544 F.2d 1113 (1st Cir.1976); United States v. Lawrenson, 315 F.2d 612 (4th Cir.1963); United States v. Miranti, 253 F.2d 135 (2d Cir.1958). The policy behind the majority rule that the privilege is “proceeding specific” and not waived in a subsequent proceeding by waiver in an earlier one, rests on the thought that during the period between the successive proceedings conditions might have changed creating new grounds for apprehension, e.g., the passage of new criminal law, or that the witness might be subject to different interrogation for different purposes at a subsequent proceeding, or that repetition of testimony in an independent proceeding might itself be incriminating, even if it merely repeated or acknowledged the witness’ earlier testimony, because it could constitute an independent source of evidence against him or her. Miranti, supra, 140; In re Corrugated Container Antitrust Litigation, Conboy, 661 F.2d 1145, 1155 (7th Cir.1981), aff‘d, Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (hereinafter Conboy).
The Secretary of Labor urges that the District Court correctly adopted and applied the minority rule set forth in Ellis v. United States, 416 F.2d 791 (D.C.Cir.1969). In Ellis, the court held that a waiver of the assertion of a valid privilege in one proceeding, where a witness places himself or herself at risk of prosecution for a particular offense, constitutes a waiver of the privilege in all subsequent proceedings in response to the identical questions or the same general subject matter where the risk of prosecution for the identical offense remains the same. An exception to the minority view exists where new material or new conditions may give rise to further incrimination. Id. 802. The rationale behind the minority view of Ellis is that, absent intervening circumstances, a witness’ repetition of the same information in a subsequent proceeding for which he originally placed himself at risk of prosecution in an earlier proceeding would not expose him to any real danger of legal harm to which he had not already exposed himself by virtue of his prior voluntary testimony. Id. The rationale of the minority view of Ellis applies only where the witness faces the identical risk of prosecution in both proceedings in which he is called upon to testify. The Ellis court‘s exception recognizes this limitation.
We need not reach the issue of whether this Circuit should adopt the majority or minority view on waiver as framed in the question certified by the District Court because we find neither applicable to a factual situation where a fifth amendment privilege is asserted solely because the witness alleges he is apprehensive of providing incriminating evidence in regard to a possible perjury charge stemming from responses in an earlier proceeding under oath.1 The District Court‘s adoption and
The risk of prosecution for which Morganroth has articulated a fear of prosecution in this case is that for perjury in his prior testimony. This possibility of prosecution exists independently of and is unaffected by his acquittal of federal conspiracy and mail and wire fraud charges. It is unclear whether he fears perjury charges stemming from his deposition testimony in the Florida state foreclosure proceeding or his New York federal grand jury testimony. Either could provide a basis for a valid assertion of the privilege.2 Morganroth remains at risk for state and federal perjury prosecutions until the risk is removed by a running of the applicable statute of limitations for perjury or a guilty plea or conviction. Therefore, because Morganroth alleges he is presently at risk for a different crime than those for which he initially faced a reasonable risk of prosecution, the question of whether the minority view should control the waiver issue is not properly raised by the facts.
We do, however, consider another issue raised by the order of the District Court even though not included in the certified question. At issue is what sort of showing must be made by a witness to justify the invocation of the fifth amendment privilege when the only possible risk of prosecution which might flow from testimony in a subsequent proceeding is for perjury.
We conclude that it is not enough that Morganroth answer each deposition question propounded by the Secretary of
Before a witness, such as Morganroth, is entitled to remain silent, there must be a valid assertion of the fifth amendment privilege. See Conboy, supra, 103 S.Ct. 608, 614 n. 13. It is for the court to decide whether a witness’ silence is justified and to require him to answer if it clearly appears to the court that the witness asserting the privilege is mistaken as to its validity. Hoffman, supra. A valid assertion of the fifth amendment privilege exists where a witness has reasonable cause to apprehend a real danger of incrimination. Id. A witness must, however, show a “real danger,” and not a mere imaginary, remote or speculative possibility of prosecution. United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 955-956, 63 L.Ed.2d 250 (1980); Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972); Rogers v. United States, 340 U.S. 367, 374-75, 71 S.Ct. 438, 442-443, 95 L.Ed. 344 (1951); cf., Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). While the privilege is to be accorded liberal application, the court may order a witness to answer if it clearly appears that he is mistaken as to the justification for the privilege in advancing his claim as a subterfuge. Hoffman, supra, 341 U.S. 486; In re Brogna, 589 F.2d 24, 27 (1st Cir.1979); Ryan v. Commissioner, 568 F.2d 531, 539 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978). A blanket assertion of the privilege by a witness is not sufficient to meet the reasonable cause requirement and the privilege cannot be claimed in advance of the questions. The privilege must be asserted by a witness with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify. See Hoffman, supra, 341 U.S. 486-88.
A witness risks a real danger of prosecution if an answer to a question, on its face, calls for the admission of a crime or requires that the witness supply evidence of a necessary element of a crime or furnishes a link in the chain of evidence needed to prosecute. In Hoffman, the Supreme Court held that a real danger of prosecution also exists where questions, which appear on their face to call only for innocent answers, are dangerous in light of other facts already developed. In such a situation a witness bears no further burden of establishing a reasonable cause to fear prosecution beyond asserting the privilege and identifying the nature of the criminal charge or supplying sufficient facts so that a particular criminal charge can reasonably be identified by the court. The witness has met his burden and the court does not need to inquire further as to the validity of the assertion of the privilege, if it is evident from the implications of a question, in the setting in which it is asked, that a responsive answer might be dangerous to the witness because an injurious disclosure could result. Id. 486-87. In appraising the claim, the court “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Id. 487; Malloy v. Hogan, 378 U.S. 1, 34, 84 S.Ct. 1489, 1507, 12 L.Ed.2d 653 (1964) (White, J., dissenting); United States v. Moreno, 536 F.2d 1042, 1047 (5th Cir.1976); Klein v. Smith, 559 F.2d 189, 200 (2d Cir.1977), cert. denied, 434 U.S. 987, 98 S.Ct. 617, 54 L.Ed.2d 482 (1977).
The facts of this case make the Hoffman approach to a witness’ burden of establishing a foundation for the reasonable cause determination, or rather lack of it, inapplicable. Morganroth is allegedly raising the specter of a perjury prosecution; i.e., his proposed truthful testimony might provide
The Hoffman guidelines for determining whether an assertion of the privilege against self-incrimination should be respected works well in cases in which an individual is at risk of prosecution on substantive charges or in which an individual expresses a concern of perjury prosecution stemming from statements made in earlier proceedings in which the trial judge has a personal familiarity. The Hoffman guidelines, however, are of little help in a case such as the one on appeal where the District Court making the privilege determination has no personal knowledge of the scope of content of prior proceedings and where the only possible prosecution for which the witness is at risk is perjury. This is due to the nature of the perjury offense in relation to the assertion of the privilege and the inability of the trial court, in this case and others like it, to draw upon its own knowledge of the case. In Hoffman, the Supreme Court stressed facts within the knowledge of the trial court. There the trial court was instructed that the privilege be “evident from the implications of the question in the setting in which it was asked,” that the determination be governed “as much by his [trial judge‘s] personal perception of the particularities of the case as by the facts actually in evidence,” and that it consider the “circumstances” of the case. Hoffman, supra, 341 U.S. 486-87 (emphasis added). Hoffman is typical of subsequent cases applying the Hoffman guidelines. As in Hoffman, those cases, in contrast to the one on appeal, reveal a superior knowledge by the trial court of the “setting in which it [the questions to which the privilege is sought] is asked.” In Hoffman, the petitioner was asked if he knew or was acquainted with the whereabouts of a missing man who was being sought for his connection with violations of a large number of federal statutes. Petitioner had already admitted he knew the missing man but invoked the privilege when asked of his whereabouts. The Supreme Court noted that if he answered the question from which he sought protection under the fifth amendment, his answer would have a strong possibility of implicating him in some of the crimes under investigation or in harboring a fugitive and upheld the trial court‘s approval of the invocation of his privilege. In Hoffman, however, the trial court had some concrete information to work with. First, the petitioner‘s invocation of the privilege was to protect against the prosecution for substantive crimes. Therefore, the elements of the underlying violation and the necessary facts to support them could be inferred by the trial court. In addition, the Court noted that the trial court had impaneled the grand jury before whom Hoffman refused to testify, was intimately familiar with the purposes of the grand jury investigation and knew that petitioner had a long police record and was widely recognized as a key member of an organized crime underworld. These circumstances, in relation to the nature of the potential prosecution, gave the trial court the ability to make a reasoned inference that Hoffman‘s answer would tend to incriminate him.
Similarly, in United States v. Wilcox, 450 F.2d 1131 (5th Cir.1971), cert. denied, 405 U.S. 917, 92 S.Ct. 941, 30 L.Ed.2d 787 (1972), where the perjury/incrimination issue was raised, the trial court making the privilege determination was intimately familiar with the facts. In Wilcox, damaging testimony against Wilcox had been given by a witness in two prior trials, each of which resulted in convictions followed by reversals and new trials following appeals. The third time around, the witness refused to testify on the ground that subsequent testimony might provide evidence that he had perjured himself in the earlier proceedings.
This case is in sharp contrast to Hoffman and Wilcox. The trial court did not have any background familiarity with the setting in which the assertion was raised. The District Court had not participated in either the grand jury matter in New York or the Florida foreclosure proceeding. With respect to the New York grand jury statements, he did not even know the substance of those statements, the nature of the conflicting testimony by other witnesses or contradictory documentary evidence which might tend to show that Morganroth had perjured himself in that proceeding. Nor did Morganroth apprise the District Court that his testimony or deposition answers would differ from statements given in the earlier proceedings. The District Court in this case was merely informed by Morganroth‘s attorney that there was a possibility that material inconsistencies would exist between his proposed testimony, based on his current memory of the loan transactions, and prior testimony. This possibility, however, exists in every case in which a witness has given prior testimony. Thus, perjury prosecutions which are prospective and possible in nature present special problems in determining appropriate invocation of the fifth amendment right.
Whether a witness risks a “real danger” of prosecution from questions which appear on their face to call for only innocent answers and where the incriminating nature of the answer is not evident from the implications of the question in the setting in which it is asked, is a difficult question left unanswered by Hoffman. On one hand, while it is clear that a witness, upon interposing his claim of privilege, is not required to prove the hazard in the sense in which a claim is usually required to be established in court, Hoffman, supra, 341 U.S. 486, it is equally clear that a witness’ “say so” does not by itself establish the hazard of incrimination. Id. Where there is nothing suggestive of incrimination about the setting in which a seemingly innocent question is asked, the burden of establishing a foundation for the assertion of the privilege should lie with the witness making it. See Moreno, supra; United States v. Rosen, 174 F.2d 187, 188 (2d Cir.1949), cert. denied, 338 U.S. 851, 70 S.Ct. 87, 94 L.Ed. 521 (1949). We do not hold, however, that a witness has the burden of proof on this issue. A witness presents sufficient evidence to establish a foundation for the assertion of the privilege and shows a real danger of prosecution if it is not perfectly clear to the court “from a careful consideration of all of the circumstances in the case, that a witness is mistaken, and that the answer[s] cannot possibly have such a tendency to incriminate.” Hoffman, supra, 341 U.S. 488. Stated differently, sufficient evidence is presented by a witness if a court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution. Short of uttering statements or supplying evidence that would be incriminating, a witness must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution3 and, if
Public policy also requires that a witness bear the burden of establishing the foundation of the privilege beyond his mere “say so.” Unless something more is required in situations such as the one on appeal where seemingly innocent questions exist in a setting presently devoid of incriminating overtones, witnesses such as Morganroth will be the final arbiters of the validity of their asserted privileges. A litigant‘s right to information must be balanced against a witness’ constitutional right to invoke the privilege. Only where there is some real danger can the loss of information to a litigant or to the judicial system be justified. See Emspak v. United States, 349 U.S. 190, 205-06, 75 S.Ct. 687, 705-706 (1955) (Harlan, J., dissenting). In addition, unless some additional showing beyond the mere assertion of the privilege is required, no witness would ever have to testify twice regarding the same subject matter because the possibility of perjury would always exist in theory.
From the record on appeal, it appears that Morganroth has not met this burden of establishing a foundation necessary for the valid assertion of the privilege based on his alleged fear of a perjury prosecution. Accordingly, we remand this case to the District Court for further proceedings consistent with this opinion.
NATHANIEL R. JONES, Circuit Judge, dissenting.
The majority reasons that the considerations that were before the Supreme Court in Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983), are not implicated in the instant case because of the particular offense for which appellant-Morganroth fears prosecution. The clear holding in Conboy is that a district court cannot compel a witness to answer deposition questions over a valid assertion of his Fifth Amendment right, absent a duly authorized grant of immunity at the time the testimony is sought. Thus, when a witness or deponent is accorded a grant of immunity for testimony that is given during one proceeding, a subsequent interrogation pertaining to the same subject matter must be accompanied by a new grant of immunity. The majority concludes that this rule is not applicable to the facts sub judice because the witness’ attempt to invoke his Fifth Amendment privilege was based upon his fear of prosecution for perjury. The majority further reasons that because Morganroth alleges he is presently at risk for a different crime than those for which he initially faced a reasonable risk of prosecution, the question [pertaining to] the waiver issue is not properly raised by the facts.
My review of the proceedings below indicates that the appellant‘s response to the numerous questions that were propounded to him was “I refuse to answer on the ground it may incriminate me.” During these proceedings, Morganroth‘s attorney advised the court that if the appellant testified, he ran the risk of possible prosecution for tax evasion.
The majority apparently assumed that since the prosecutor informed the appellant that his answers during the grand jury proceeding contradicted the testimony of other witnesses, the appellant was invoking his right to remain silent in order that he would not perjure himself. However, the appellant declares that he invoked his Fifth Amendment privilege because of the possible threat of perjury and criminal tax evasion.1 Nevertheless, the majority, characterized the issue as follows: “At issue is what sort of showing must be made by a witness to justify the invocation of the Fifth Amendment privilege when the only possible risk of prosecution which might flow from testimony in a subsequent proceeding is for perjury.” This construction of the issue completely ignores appellant‘s claim of possible prosecution for tax evasion. Therefore, it is upon this basis that I construe the majority‘s analysis to be in error.
Upon my review of the record, I conclude that this case is appropriate for application of the holding of Conboy because the appellant was faced with the possible prosecution for tax evasion; therefore, a second grant of immunity should have been extended to him. Accordingly, I view the facts herein as warranting a reversal of the district court‘s order compelling the appellant to testify absent a subsequent assurance of immunity for that particular testimony.
CORNELIA G. KENNEDY
Circuit Judge