26 F.R.D. 4 | D.N.J. | 1960
This action is under the Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq., upon a libel of information charging misbranding of an article of drug. 21 U.S.C.A. § 352(a). Claimant’s answer denies misbranding, and also affirmatively pleads that a prior proceeding in the Post Office Department, under 39 U.S.C. A. § 259, was settled by claimant’s affidavit of July 17, 1957, the effect of which, claimant contends, was to ratify the marketing of claimant’s product upon condition that specified changes be made in the language of the circular material accompanying the product, which the Post Office Department charged contained false representations. A copy of the Affidavit of Agreement in the Post Office Department suit is annexed to claimant’s answer here. By the terms of that affidavit, claimant agreed to refrain from making any of the therein specified representations or claims respecting his product in any future mail order operation of the enterprise involved in the Post Office Department proceeding. Claimant further pleads in the present case that he has destroyed the literature and circulars complained of by the Postmaster General and has printed new and revised circulars which the Judicial Officer of the Post Office Department, after hearing, has adjudged not to be in violation of claimant’s Affidavit of Agreement. Because these new and revised circulars are alleged by him to be the same as those complained of in the present action, claimant contends that the “adjudication” of the Post Office Department approving them is “res administrata” and a bar to the present action. To the effect that such a plea would not withstand a motion to strike, see United States v. 42 Jars * * * “Bee Royale Capsules”, D.C.N.J.1958, 160 F.Supp. 818, affirmed 3 Cir., 1959, 264 F.2d 666. The Affidavit of Agreement referred to states in part:
“Affiant understands that this affidavit relates exclusively to the proceeding specified in the caption hereof and its- filing will not act as a defense or relieve the undersigned (present claimant) of responsibility for violation of any other statute, but the filing shall not be construed as a confession that the said instant statutes or any other statute has been violated.”
To interrogatories propounded by the Government in the present action, claimant responded that he declined to answer them “on the grounds that the matters inquired into are privileged under the Fifth Amendment of the Constitution of the United States” because “criminal liability may be imposed upon
The motion to strike claimant’s response to the Government’s interrogatories is grounded upon movant’s contention that the constitutional privilege, if any, which claimant might have enjoyed to refuse to answer the Government’s interrogatories has been intentionally and effectively waived by the claimant by pleading the affirmative defense in his answer and by attaching thereto the copy of the “Affidavit of Agreement” filed in the prior Post Office proceeding. In other words, the Government contends that any privilege which claimant might otherwise have to refuse to answer the Government’s interrogatories for risk of self-incrimination has been waived by claimant’s affirmative verified plea that the representations alleged to constitute misbranding were actually made and approved by the Post Office Department in the Fraud Order proceeding which was disposed of by the hearing pursuant to the Affidavit of Agreement. The Government argues that claimant’s verified allegation that the literature involved in the present case is the same as that approved in the Post Office Department proceeding is equivalent to his voluntary disclosure under oath of incriminating facts which amounts to a waiver of the privilege to refuse to answer interrogatories respecting the details and particulars of the representations embodying the mis-branding complained of in the present action. For the purposes of the Government’s motion I must assume that responsive answers to libelant’s interrogatories to claimant would be privileged under the Fifth Amendment. The sole question presented, therefore, is whether such a privilege, if it would otherwise exist, has been waived in the manner and for the reasons asserted by the Government.
In support of its assertion of waiver the Government relies upon Sears, Roebuck & Co. v. American Plumbing & Supply Co., D.C.E.D.Wis.1954, 19 F.R.D. 329, and Brown v. United States, 1958, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589. In the Sears, Roebuck case, the relevant facts were as follows: Plaintiff sought recovery of the amount of secret commissions allegedly paid to its agent by the defendant. In opposition to plaintiff’s motion for summary judgment in a prior action arising out of substantially the same facts, defendant had filed an affidavit made by its president making disclosures of facts which tended to incriminate the affiant. Efforts to further explore the circumstances surrounding the facts disclosed in this affidavit by taking of the affiant’s deposition in the cited case were met by a refusal to testify thereon upon the ground of privilege under the Fifth Amendment. The Sears, Roebuck decision held that disclosures made by the president of the defendant in an affidavit filed in opposition to plaintiff’s motion for summary judgment amounted to a waiver of the constitutional privilege, if any, otherwise available to the affiant when examined on deposition seeking to explore all aspects of the transaction disclosed in the affidavit. In the language of Chief Judge Tehan,
Claimant here relies, inter alia,, upon McCarthy v. Arndstein, 1923, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023, which (together with Arndstein v. McCarthy, 1920, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138) was distinguished by the Court in the Brown case, supra. In the Arndstein case cited by the present claimant (262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023) the „ question of waiver of Fifth Amendment privilege was presented against the following factual background: An involuntary. bankrupt, during the course of a 21a examination, refused to answer numerous questions which were put to him upon the ground that to do so might tend to incriminate him. A motion to punish him for contempt was denied by the District Court. Subsequently, however, the bankrupt filed, without objection, sworn schedules of his assets and liabilities disclosing a substantial bank deposit. He was then recalled for further examination and again refused to answer similar questions upon the ground previously availed of. He was then found guilty of contempt and committed. His petition for a writ of habeas corpus was refused and upon appeal from the denial of the writ, the Supreme Court referring to its prior decision (Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138) held that “As the schedules did not amount to an admission of guilt or furnish clear proof of crime, they did not constitute a waiver of his (the bankrupt’s) right to stop short whenever he could fairly claim that
As recently as 1958, in Isaacs v. United States, 256 F.2d 654, the Eighth Circuit reminded us that the provisions of the Fifth Amendment must be liberally construed toward protection of the rights which it was intended to secure, and that every reasonablé presumption against waiver of such rights must be indulged. See Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. If, as was not the fact in Brown v. United States, supra, the allegations constituting claimant’s affirmative defense do not amount to an admission of guilt or furnish clear proof of crime, claimant’s constitutional privilege to refuse to answer interrogatories must be sustained if responsive answers thereto might tend to incriminate him, Bowles v. Trowbridge, D.C.N.D.Cal.1952, 60 F.Supp. 48; F.R. Civ.P. 26(b). I am unable to spell out a waiver of claimant’s right to avail himself of his privilege under the Fifth Amendment to refuse to answer the interrogatories in question. Claimant’s affirmative defense does not constitute an admission that the representations criticized by the Post Office Department were false, but on the contrary merely states that the Department’s complaint alleged their falsity. It is further expressly stated in the plea that the settlement agreement consummated in the Post Office proceeding involved claimant’s relinquishment of and undertaking not to resume the use of certain representations, and that the Department found that such undertaking had been complied with. Indeed, the plea asserts that the criticized literature was destroyed and replaced by new and revised printed material which was not in violation of the terms of the settlement agreement. I am unable to spell out from the language, either of the claimant’s answer, or of the copy of the Affidavit of Agreement in the Post Office Department proceeding thereto annexed, a voluntary disclosure under oath of facts which might tend to incriminate the claimant. Therefore. I am forced to the conclusion that there has been no waiver of claimant’s claimed privilege to refuse to answer the Government’s interrogatories and that the Government’s first motion must also be denied.
An appropriate order may be presented.