557 F.2d 683 (9th Cir. 1977), 77-2184, Federal Deposit Ins. Corp. v. Sovereign State Capital, Inc.

Docket Nº:77-2184.
Citation:557 F.2d 683
Party Name:FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellee, v. SOVEREIGN STATE CAPITAL, INC., Defendant, and C. Arnholt Smith, Defendant-Appellant.
Case Date:July 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 683

557 F.2d 683 (9th Cir. 1977)

FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellee,

v.

SOVEREIGN STATE CAPITAL, INC., Defendant, and C. Arnholt

Smith, Defendant-Appellant.

No. 77-2184.

United States Court of Appeals, Ninth Circuit

July 18, 1977

Page 684

Thomas R. Sheridan, Simon & Sheridan, Los Angeles, Cal., argued for defendant-appellant; Douglas G. Simon, Los Angeles, Cal., appeared.

Thomas W. Reavley, Bronson, Bronson & McKinnon, San Francisco, Cal., argued for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUFSTEDLER, WRIGHT and KENNEDY, Circuit Judges.

PER CURIAM:

Smith appeals from an order holding him in civil contempt for refusing, on Fifth Amendment grounds, to answer a series of questions propounded to him in the course of supplementary proceedings conducted by his judgment creditor, appellee Federal Deposit Insurance Corporation ("FDIC"). Because we conclude that Smith was exonerated from answering by his proper assertion of the Fifth Amendment privilege, we vacate the contempt order and remand the case to the district court.

In April 1975, FDIC filed its complaint against C. Arnholt Smith and Sovereign State Capital, Inc. for fraud, money had and received, and violations of 18 U.S.C. §§ 656, 1005, and 1014. The action arose out of the collapse of the United States National Bank in San Diego and, with it, the crumbling of Smith's financial empire built upon fraudulent dealings and elaborate corporate machinations in which Smith was involved. FDIC, as receiver for United States National Bank, sought damages from Smith based on averments that Smith, as President and Chairman of the Board of United States National Bank, fraudulently and improperly approved loans to corporations that he controlled, the proceeds of which reposed with Sovereign State Capital, Inc., another Smith-controlled corporation. Upon conclusion of that trial, in which Smith did not testify, again asserting his Fifth Amendment privilege, judgment was entered against Smith and Sovereign State Capital, Inc., jointly and severally, for an amount in excess of three million dollars. Smith and Sovereign State Capital, Inc. have appealed the judgment in that action by notice of appeal filed March 18, 1977, and the appeal is presently pending in this court.

On May 2, 1977, FDIC served upon Smith and Sovereign State Capital, Inc. subpoenas dueces tecum compelling Smith and the custodian of records of Sovereign State Capital, Inc. to appear for a debtor's examination in the district court on May 13, 1977. On May 12, 1977, Sovereign State Capital, Inc. filed a Chapter XI petition under the bankruptcy laws in the Southern District of California. The following day, a judgment debtor's examination was held before the district court. Smith moved for a continuance of his examination based upon a pending state criminal indictment against him. He also moved that the examination be held in camera due to the possible prejudicial effect that his responses could have on the pending state criminal case. Both motions

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were denied by the district court. Thereafter, Smith was placed under oath and he testified as a judgment debtor. He answered many of the questions put to him, but he declined to answer 20 questions, again asserting his Fifth Amendment privilege. Thereafter the district court ordered Smith to answer the questions, and Smith, acting on advice of counsel, declined to answer 20 questions after he had been ordered to do so by the district court. The district court adjudicated him in contempt and sentenced him to be imprisoned until he purged himself of contempt. The district court stayed the imprisonment to permit review by this court and we have continued the stay until disposition of the issues on appeal.

In the summer of 1974, Smith was the target of a federal Grand Jury investigation which culminated in a 25-count indictment against him on charges, among others, of conspiracy and misapplication of national bank funds. Smith and his codefendant entered pleas of nolo contendere to several counts of the indictment in 1975 and sentences were imposed upon them. In December 1975, while the FDIC's civil action was pending, the San Diego County Grand Jury returned a 58-count state court indictment against Smith and another for conspiracy, grand theft, income tax evasion, subscribing a false tax return, and misapplication of bank funds. On March 23, 1976, the Grand Jury amended the indictment to charge six more counts, including counts of income tax evasion for two years, grand theft, and forgery. Smith and his codefendant were arraigned in San Diego County Superior Court on the indictment and pretrial proceedings were begun. A copy of the very lengthy state indictment was filed with the district court at the debtor's examination on May 13, 1977. Without going into detail about each of the counts of the state indictment, we can summarize them as follows: Counts 1 and 2 charge violations of California Revenue and Taxation Code §§ 19405 and 19406, concerning charges that Smith evaded California income tax and signed false and fraudulent tax returns in the year 1971. Counts 3 through 10 allege that Smith stole personal property of various Smith-controlled corporations. Among the alleged victims of these grand thefts were Sovereign State Capital, Inc., National Marine Terminal, Inc., Missouri Western Realty Corp., Westgate-California Corp., Westward Realty Company, and British Columbia Investment Company. Count 11 is a conspiracy count charging that between June 1, 1972 and May 25,...

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