U.S. v. Certain Real Property and Premises Known as: 4003-4005 5th Ave., Brooklyn, N.Y.

• Decision Date: 18 May 1995
• Docket Number: No. 659,D,659
• Citation: 55 F.3d 78
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY AND PREMISES KNOWN AS: 4003-4005 5TH AVE., BROOKLYN, NY, Certain Real Property and Premises Known as: 5014 3rd Ave., Brooklyn, NY, Certain Real Property and Premises Known as: 314 39th St., Brooklyn, NY, Defendants, Maria V. Mendez & Juan A. Tapia, Claimants-Appellants, James W. Poirer, Claimant. ocket 94-6149.
• Court: U.S. Court of Appeals — Second Circuit

Page 78

55 F.3d 78

63 USLW 2762

UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY AND PREMISES KNOWN AS: 4003-4005 5TH

AVE., BROOKLYN, NY, Certain Real Property and Premises Known

as: 5014 3rd Ave., Brooklyn, NY, Certain Real Property and

Premises Known as: 314 39th St., Brooklyn, NY, Defendants,

Maria V. Mendez & Juan A. Tapia, Claimants-Appellants,

James W. Poirer, Claimant.

No. 659, Docket 94-6149.

United States Court of Appeals, Second Circuit.

Argued Jan. 19, 1995.

Decided May 18, 1995.

Arthur P. Hui, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. E.D.N.Y., Deborah B. Zwany, Asst. U.S. Atty.), for plaintiff-appellee.

Albert Brackley, Brooklyn, NY, for claimant-appellant Tapia-Ortiz.

Before: WALKER, JACOBS, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

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.

BACKGROUND

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, 23 F.3d 738 (2d Cir.1994).

In March of 1992, during these criminal proceedings, the Government began the instant in rem action, pursuant to 18 U.S.C. Sec. 981(a) and 21 U.S.C. Sec. 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 the 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, 840 F.Supp. 6, 7-8 (E.D.N.Y.1993). Because Tapia-Ortiz thereafter "failed to produce any evidence by way of documents, testimony or affidavits to support his claim that the property was not used as alleged," the District Court granted the Government's motion for summary judgment, holding that "no issue of fact exists and the government is entitled to judgment as a matter of law." United States v. 4003-4005 Fifth Avenue, 855 F.Supp. 50, 54-55 (E.D.N.Y.1994).

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

                did not in any other way rebut the Government's evidence detailing narcotics sales at the defendant property--evidence that clearly satisfied the Government's initial burden of establishing reasonable grounds to believe that there was a nexus between the seized property and illegal drug activity, see United States v. Daccarett, 6 F.3d 37, 55-56 (2d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1294, 127 L.Ed.2d 648 (1994). 1  Consequently, the only issue we face on this appeal is whether the District Court erred when it prevented Tapia-Ortiz from opposing the Government's motion for summary judgment with affidavits involving matters previously claimed to be within his Fifth Amendment privilege. 2
                

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, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) (explaining that the Fifth Amendment permits an individual "not to answer official questions put to him in any ... proceeding, civil or criminal, formal or informal, where the answer might incriminate him"). And this means that a civil litigant may legitimately use the Fifth Amendment to avoid having to answer inquiries during any phase of the discovery process. See 8 Charles A. Wright, Arthur R. Miller and Richard L. Marcus, Federal Practice and Procedure Sec. 2018, at 273 (2d ed. 1994) [hereafter Wright, Federal Practice ] ("[C]ourts have repeatedly held that the privilege against self-incrimination justifie[s] a person in refusing to answer questions at a deposition, or to respond to interrogatories, or requests for admissions, or to produce documents." (footnotes omitted)).

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., 25 F.3d 187, 190 (3d Cir.1994) ("[I]nvocation of the Fifth Amendment poses substantial problems for an adverse party who is deprived of a source of information that might conceivably be determinative in a search for the truth."). Nevertheless, because litigants do not have a right to discovery of privileged matters, see Fed.R.Civ.P. 26(b), such litigants, even if deprived of key facts through an opposing party's assertion of the Fifth Amendment, often have no recourse in the civil litigation other than to comment upon the claim of privilege in the hope of persuading At the same...