Forfeiture proceedings, because they permit the Government in a civil action to seize property linked with criminal activities, often raise troublesome legal issues. In defending this civil action to confiscate his property after being convicted on federal narcotics charges, Juan A. Tapia-Ortiz created just such a troublesome issue when he attempted to withdraw a prior invocation of his Fifth Amendment privilege against self-incrimination.
Tapia-Ortiz twice invoked the privilege in refusing to answer the Government’s interrogatories early in this forfeiture proceeding. After the Government moved for summary judgment, Tapia-Ortiz asked to withdraw his assertion of the Fifth Amendment and sought to respond to the Government’s contentions. The United States District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge) held that it was too late for Tapia-Ortiz to withdraw his prior Fifth Amendment claim, and ruled that he could not submit any material previously asserted to be within his privilege against self-incrimination. Since Tapia-Ortiz did not put forth any other evidence, the District Court granted summary judgment to the Government.
On appeal, Tapia-Ortiz claims that he should have been allowed to withdraw his assertion of the Fifth Amendment in order to submit an affidavit that would have created an issue of material fact. Because courts must take care not to punish valid invocations of the privilege against self-incrimination and must try to accommodate those who would properly seek to claim the privilege, a prior assertion of the Fifth Amendment does not preclude a litigant’s later attempt to submit evidence. Nevertheless, because the law cannot permit abuses of the privilege and because trial courts must have broad discretion to control and fashion remedies in the discovery process, we conclude that, on the facts of this case, the District Court did not exceed its discretion when it barred Tapia-Ortiz from testifying as to matters covered by his prior Fifth Amendment claim. Accordingly, we affirm the District Court’s grant of summary judgment to the Government.
Tapia-Ortiz and a co-defendant were convicted in February 1992 for conspiring to distribute heroin and cocaine and for possessing, with an intent to distribute, the same drugs. The evidence presented in their criminal trial indicated that Tapia-Ortiz and his co-defendant had imported cocaine from Florida and had sold and distributed heroin in New York. Much of this evidence came from a cooperating witness, Hector Hernandez, who claimed to have bought narcotics from Tapia-Ortiz many times at various locations. Tapia-Ortiz was initially sentenced in July 1992; a subsequent hearing led to his resentencing on July 9, 1993. On appeal, this Court affirmed Tapia-Ortiz’s conviction, but his sentence was vacated and remanded. See United States v. Tapia-Ortiz,
In March of 1992, during these criminal proceedings, the Government began the instant in rem action, pursuant to 18 U.S.C. § 981(a) and 21 U.S.C. § 881(a), seeking civil forfeiture of the defendant property located at 4003-4005 Fifth Avenue, Brooklyn, New York. Subsequently, in May 1992, the Government filed an amended complaint and served Tapia-Ortiz with a first set of interrogatories. Tapia-Ortiz filed a Notice of Claim as the owner of the defendant property in June 1992, but completely failed to answer the Government’s amended complaint or its first set of interrogatories. In September 1992, the Government served another set of interrogatories upon Tapia-Ortiz, who again did not respond. Finally, in January 1993, Magistrate Judge Michael L. Orenstein ordered Tapia-Ortiz to reply within twenty days.
Tapia-Ortiz submitted an initial set of answers in February 1993, but asserted the Fifth Amendment privilege as his only response to those questions concerning narcotics trafficking activities. After the Government complained about other, unrelated deficiencies in these initial replies, Magistrate Judge Orenstein ordered Tapia-Ortiz to make a further answer. In his supplemental responses, Tapia-Ortiz again invoked the Fifth Amendment to avoid answering questions that related to narcotics trafficking.
The Government scheduled a summary-judgment conference in September 1993, and asserted, in its statement supporting summary judgment, that the defendant property was used in aid of the commission of narcotics crimes. The Government also noted that Tapia-Ortiz had invoked the Fifth Amendment in response to discovery inquiries about his narcotics trafficking activities. In his counter-statement, Tapia-Ortiz disputed that the defendant property was used to facilitate narcotics trafficking crimes. He also indicated that he was in the process of revising his interrogatory responses and that he now would like to withdraw his assertion of the Fifth Amendment privilege against self-incrimination.
The District Court concluded that “Tapia-Ortiz may not invoke his privilege against self-incrimination to hinder the government’s discovery efforts and then seek to waive or deny the existence of the privilege on thé eve of trial or equivalent thereof.” It therefore refused Tapia-Ortiz’s request to withdraw the privilege and ruled that Tapia-Ortiz was not to “be permitted to oppose the government’s summary judgment motion with any material previously claimed to be within [his] Fifth Amendment privilege against self-incrimination.” United States v. 4003-4005 Fifth Avenue,
DISCUSSION
In his brief on appeal, Tapia-Ortiz concedes that once he was precluded from withdrawing his assertion of the Fifth Amendment and from submitting an affidavit disputing the Government’s contentions, summary judgment for the Government was appropriate. We agree because Tapia-Ortiz
Asserting (and Withdrawing) the Fifth Amendment in Civil Actions
While the Fifth Amendment states only that “[n]o person ... shall be compelled in any criminal case to be a witness against himself,” U.S. Const, amend. V, there is no question that an individual is entitled to invoke the privilege against self-incrimination during a civil proceeding. See, e.g., Lefkowitz v. Turley,
Though constitutionally protected, a civil litigant’s invocation of the privilege against self-incrimination during the discovery process is far from costless. It will, for example, always disadvantage opposing parties— at least to some extent — since it keeps them from obtaining information they could otherwise get. See SEC v. Graystone Nash, Inc.,
At the same time, however, an invocation of the Fifth Amendment “is not a substitute for relevant evidence,” and a litigant claiming the privilege is not “freed from adducing proof in support of a burden which would otherwise have been his.” United States v. Rylander,
The tension between self-incrimination concerns and the desire to testify may be especially acute for a claimant in a civil forfeiture proceeding. In forfeiture, a claimant typically must prove that the defendant property was not used unlawfully or not derived from or traceable to criminal transactions, or else he must establish a statutory “innocent owner” defense. See 18 U.S.C. § 981(a); 21 U.SC. § 881(a). Yet the claimant is often subject to criminal prosecution based on the same alleged illegal behavior that supports the confiscation. The claimant thus “faces a dilemma: remain silent and allow the forfeiture or testify against the forfeitability of his property and expose himself to incriminating admissions.” United States v. $250,000,
In view of this dilemma, appellate courts have held that upon a timely motion by the claimant, district courts should make special efforts to “accommodate both the constitutional [privilege] against self-incrimination as well as the legislative intent behind the forfeiture provision.” United States v. United States Currency,
More generally, because all parties— those who invoke the Fifth Amendment and
In some instances, however, a litigant in a civil proceeding who has invoked the Fifth Amendment may not seek any accommodation from the district court, and may instead simply ask to withdraw the privilege and testify. In other cases, a litigant may ask to give up the privilege rather than accept the accommodation that the court has offered. The district court should, in general, take a liberal view towards such applications, for withdrawal of the privilege allows adjudication based on consideration of all the material facts to occur. The court should be especially inclined to permit withdrawal of the privilege if there are no grounds for believing that opposing parties suffered undue prejudice from a litigant’s later-regretted decision to invoke the Fifth Amendment. See Graystone Nash,
This does not mean that withdrawal of the claim of privilege should be permitted carelessly. Courts need to pay particular attention to how and when the privilege was originally invoked. Since an assertion of the Fifth Amendment is an effective way to hinder discovery and provides a convenient method for obstructing a proceeding, trial courts must be especially alert to the danger that the litigant might have invoked the privilege primarily to abuse, manipulate or gain an unfair strategic advantage over opposing parties. See Graystone Nash, 25 F.3d at 190 (discussing “the potential for exploitation” through abusive assertions of the Fifth Amendment in civil actions). If it appears that a litigant has sought to use the Fifth Amendment to abuse or obstruct the discovery process, trial courts, to prevent prejudice to opposing parties, may adopt remedial pro
In the end, exactly how a trial court should respond to a request to withdraw the privilege — or indeed, more generally, how it should react to any motion precipitated by a litigant’s assertion of the Fifth Amendment in a civil proceeding — necessarily depends on the precise facts and circumstances of each case. And it is not the province of appellate courts to try “to set down a hard and fast rule ... when, typically, the District Court is in a better position to know what means will accomplish the end of accommodating [all] interests.” United States Currency,
A reviewing court must still make sure that a trial court has not, through inappropriate procedural remedies or unwarranted sanctions, unduly burdened litigants’ valid attempts to seek the protection that the privilege against self-incrimination provides. And we must do so especially when there is nothing to suggest that the Fifth Amendment or its attempted withdrawal was used abusively or to gain an unfair tactical advantage.
Tapiar-Ortiz’s Attempt to Withdraw His Invocation of Fifth Amendment
The preceding principles lead us to the conclusion that the District Court did not abuse its discretion in its response to Tapia-Ortiz’s use of the Fifth Amendment. Accordingly, we have no basis to reverse the Court’s ruling that Tapia-Ortiz may not submit in evidence any material previously claimed by him to be within the privilege against self-incrimination.
The District Court expressly recognized that it “should strive to accommodate” a litigant’s valid Fifth Amendment interests in a civil proceeding. 4003-4005 Fifth Avenue,
The underlying facts amply support the District Court’s conclusion that Tapia-Ortiz was using the Fifth Amendment improperly. Before his initial invocation of the Fifth Amendment, Tapia-Ortiz, by failing to answer any of the Government’s interrogatories for nearly a year, had stonewaEed the Government’s attempt to proceed with its action. After ■ a Magistrate Judge, losing patience, ordered him to reply to the Government’s attempts to obtain discovery within twenty days, Tapia-Ortiz finally responded but limited his answers by invoking the Fifth Amendment. When ordered to supplement some of his other deficient answers to the Government’s questions, he again asserted the privilege against self-incrimination. At last, a full six months later and only after the Government had actually moved for summary judgment did Tapia-Ortiz indicate that he wished to waive the Fifth Amendment and submit to the Government’s discovery efforts. At no time during any stage of the proceedings did Tapia-Ortiz approach the District Court to seek any sort of accommodation of his Fifth Amendment interests.
Given this pattern of abusing the discovery process, the District Court appears to have been acting well within its discretion when it ruled that Tapia-Ortiz was to be prevented from submitting “any material previously claimed to be [covered by his] Fifth Amendment privilege against self-incrimination.” 4003-4005 Fifth Avenue,
The District Court did not explicitly review whether the Government had suffered or was likely to suffer prejudice from Tapia-Ortiz’s actions, factors that should have been considered expressly. But given the lengthy delay Tapia-Ortiz precipitated, and the timing of his attempt to withdraw his prior assertion of the Fifth Amendment, the Court in this case could reasonably presume prejudice to the Government from the manner in which he had utilized the privilege. As courts and commentators have noted, opposing parties will frequently suffer prejudice (at the very least from increased costs and delays) when a litigant relies on the Fifth Amendment during discovery and then decides to waive the privilege much later in the proceeding. See, e.g., Graystone Nash,
Significantly, the preclusion order entered here was reasonably and appropriately tailored to the circumstances of this case. The District Court did not bar Tapia-Ortiz from submitting any evidence at all. It ruled only that he could not submit evidence concerning matters he had previously shielded from discovery through his invocation of the Fifth Amendment. In other words, in the scope of its order, no less than in its decision to issue
CONCLUSION
In sum, a trial court, to prevent prejudice to opposing parties and to control attempts to manipulate discovery, may in appropriate cases bar litigants from testifying concerning those matters about which they had previously improperly impeded discovery through an invocation of the Fifth Amendment. And the District Court here did not abuse its discretion when it decided, under the circumstance of this case, that the appropriate response to Tapia-Ortiz’s actions was precisely such a sanction. Moreover, since the Government made a sufficient showing to carry its initial burden in this forfeiture proceedings, and Tapia-Ortiz did not submit any evidence to show that the defendant property was not utilized in the manner alleged by the Government, we affirm the District Court’s grant of summary judgment to the Government.
Notes
. Late in his brief, Tapia-Ortiz appears to suggest that his Notice of Claim, which included a statement that the defendant property was not used to facilitate narcotics activity, alone sufficed to create a genuine issue of material fact to preclude summary judgment. We are unclear whether Tapia-Ortiz actually intends to make such a claim of error given the two prior concessions in his brief that summary judgment was appropriate once the District Court refused to allow him to withdraw his invocation of the Fifth Amendment. In any event, since a defendant seeking to defeat summary judgment cannot normally rely on his pleadings alone, but instead must come forward with "specific facts showing that there is a genuine issue for trial,” Fed. R.Civ.P. 56(e); see also Celotex Corp. v. Catrett,
. Tapia-Ortiz’s brief mentions in passing the recent decision of Austin v. United States,-U.S. -,
. As the Supreme Court has explained, the fact that a litigant may be forced to choose "between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination." Williams v. Florida,
. These considerations do not mean that a district court, in trying to accommodate all interests, is necessarily required to stay a forfeiture action while a claimant seeks to resolve a parallel criminal action or that it must enter a protective order which would keep a claimant’s testimony from being used in any other proceeding. See United States v. 566 Hendrickson Boulevard,
. As this Court has explained, the "full disclosure of all evidence that might conceivably be relevant ... represents the cornerstone of our administration of civil justice.” Martindell v. International Telephone and Telegraph Corp.,
. What serves as an appropriate procedure for accommodating the interests of the party asserting the Fifth Amendment, while at the same time respecting opposing parties' right to fair treatment within the litigation, will necessarily vary from case to case. Courts have explored a range of approaches, including: the entry of a protective order prohibiting the use of the civil litigant's responses in any criminal proceeding in that district, see Parcels of Land,
. A trial court's authority in'this regard stems from its broad discretion to control and to fashion remedies for abuses of the discovery process. See Fed.R.Civ.P. 26; National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643,
. Thus, circuit courts have reversed decisions in which a trial court has automatically entered judgment against the party that invoked the Fifth Amendment or has precluded that party from presenting any evidence whatsoever. See Graystone Nash,
. When it is unclear whether a litigant’s attempt to withdraw a prior assertion of the Fifth Amendment presents the possibility for prejudice, the trial court, before entering a preclusion order or other significant sanction, ought explicitly to explore the effects that the assertion of the privilege had on all concerned. See Graystone Nash, 25 F.3d at 192-94. See generally Robert Heidt, The Conjurer’s Circle — The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1130-31 (1982) (suggesting that when prior invoker of the Fifth Amendment indicates a "willingness to waive and respond to discovery,” whether to allow testimony "should turn on the degree of prejudice caused ... by ... earlier invokings”).