Belmonte v. Lawson, Civ. A. No. 90-00529-A.

Decision Date14 November 1990
Docket NumberCiv. A. No. 90-00529-A.
Citation750 F. Supp. 735
PartiesJohn BELMONTE, et al., Plaintiffs, v. David H. LAWSON, et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia

Jonathan Shapiro, Jonathan Shapiro & Associates, P.C., Alexandria, Va., for plaintiffs.

Jack L. Gould, Fairfax, Va., for Jonathan R. Williams.

Wallace Dudley, Alexandria, Va., for David H. Lawson, Allan R. MacDonald, Mary Provost.

Robert S. Corish, Slenker, Brandt, Jennings & Johnson, Merrifield, Va., for S. Williams.

MEMORANDUM OPINION

ELLIS, District Judge.

This matter is before the Court on plaintiffs' appeal from the Magistrate's Order denying plaintiffs' motion to compel and granting defendant Williams' request for a protective order against the taking of any discovery in derogation of defendant's Fifth Amendment privilege against self-incrimination. The specific question presented is whether a party may invoke the Fifth Amendment privilege where, as here, the statute of limitations has run on any possible state criminal prosecution and the federal prosecutor, by affidavit, avers that there is no "reasonable likelihood of any federal prosecution." Plaintiffs, seeking to compel defendant's testimony over the Fifth Amendment claim, assert that the privilege is not available here because there is no "realistic possibility" of prosecution. See Pillsbury Co. v. Conboy, 459 U.S. 248, 266 n. 1, 103 S.Ct. 608, 618 n. 1, 74 L.Ed.2d 430 (1983) (Marshall, J., concurring). Defendant resists on the ground that the "realistic possibility" standard is not met here, and that res judicata bars the parties from relitigating the issue in this case because an essentially similar issue was disposed of by the state court in a previous, related proceeding.

Because it cannot be said that there is no realistic possibility of prosecution, the Court concludes that defendant is entitled to invoke his privilege against self-incrimination and therefore affirms the Magistrate's ruling.

Facts

Plaintiffs are mentally handicapped individuals who, from October 1985 through December 1986, resided at the Northern Virginia Training Center ("Center") in Fairfax County, Virginia. Defendants were staff members at the Center during this period. In their complaint, plaintiffs alleged they were physically abused by defendants throughout this period. The alleged abuse consisted of defendants striking plaintiffs on the chest and other parts of the body with their fists, kicking plaintiffs, pulling plaintiffs' hair and other abusive behavior. Defendant Williams was one of the alleged abusers. Early in the authorities' investigation of this matter, Williams admitted his involvement in the abusive behavior to the Center's Director, to state police investigating the matter and to a Fairfax Adult Services Investigator. At the time he made these admissions, Williams was under the mistaken impression that he had been given complete immunity from state prosecution. In fact, he was never given such immunity.

Thereafter, in the course of discovery, Williams invoked his Fifth Amendment privilege in refusing to respond to requests to admit and other discovery aimed at his knowledge of, and involvement in, the alleged abuse. More specifically, he declined to answer the following requests to admit:

1. The statements attributed to Jonathan Williams on page 7 of the attached document were made by him and are true.
2. Jonathan Williams hit John Belmonte in the stomach and chest while on duty at the Northern Virginia Training Center.
3. Jonathan Williams frequently hit John Belmonte while on duty at the Northern Virginia Training Center.
4. Jonathan Williams hit residents aside from John Belmonte while on duty at the Northern Virginia Training Center.
5. Jonathan Williams frequently hit residents aside from John Belmonte while on duty at the Northern Virginia Training Center.
6. The statements attributed to Jonathan Williams in the attached document were all made by him. For purposes of this request, please assume that the deleted name is the name of the appropriate resident at NVTC. Please specifically identify which, if any, you claim were not made by you.
7. The statements attributed to Jonathan Williams in the attached document are all true. For purposes of this request, please assume that the deleted name is the name of the appropriate resident at NVTC. Please identify which, if any, you claim are not true.

It is not difficult to see that all of these requests "required answers that would forge links in a chain of facts imperiling Williams ... with conviction of a federal crime." Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951).

In the face of Williams' refusal to respond to discovery, plaintiff filed a motion to compel. Williams countered with a request for a protective order against the taking of any discovery in violation of his Fifth Amendment privilege. The matter was heard by the Magistrate, who upheld the privilege claim. This appeal followed.

Analysis

The motion to compel rests chiefly on plaintiffs' contention that Williams cannot rely on the Fifth Amendment because there is no reasonable possibility that he would face prosecution as a result of truthful discovery responses.1 In support, plaintiffs point out that any state prosecution would be barred by the statute of limitations2 and any federal prosecution, while not yet similarly barred,3 will never occur, as it has been disavowed by the federal prosecutor. A supporting affidavit from the United States Attorney reflects that the matter was investigated, the evidence reviewed and a decision then made not to prosecute. The affidavit further reflects that the file has been closed and no further investigation is contemplated. The United States Attorney concludes as follows:

In my opinion, there is no reasonable likelihood of any federal criminal prosecution of any staff members at the Northern Virginia Training Center for abuse of residents occurring between 1985 and 1987.4

The question presented is whether the privilege may be validly invoked under these circumstances.

While there is no Supreme Court or circuit authority directly on point, the dispositive legal principle is well settled. Almost a century ago, the Supreme Court in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896) recognized that the privilege against self incrimination was not to be invoked where prosecution was no more than an imaginary possibility, a prospect too remote to be anything other than fanciful.5 Not long thereafter, the Supreme Court again had occasion to invoke this principle. In Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198 (1917), the Court affirmed a trial Court ruling requiring a witness to testify in a grand jury gambling investigation despite that witness' invocation of the privilege. In the Court's words,

The constitutional protection against self-incrimination "is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law." Heike v. United States, 227 U.S. 131, 144 33 S.Ct. 226, 228, 57 L.Ed. 450 1913.
* * * * * *
In Reg. v. Boyes (1861) 1 Best & S. 311, 329, 330 ... Cockburn, Ch. J., said ... "We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice."

244 U.S. at 365, 366, 37 S.Ct. at 622.

The next prominent statement of the general principle appears in Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951), where the Supreme Court upheld the privilege because "it was not `perfectly clear, from a consideration of all the circumstances in the case, ... that the answers cannot possibly have such a tendency' to incriminate" (quoting from Temple v. Commonwealth, 75 Va. 892, 898 (1880) (emphasis in the original). We owe the most recent formulation of the general principle to Justice Marshall. In a concurring opinion in The Pillsbury Company v. Conboy, 459 U.S. 248, 266 n. 1, 103 S.Ct. 608, 618 n. 1, 74 L.Ed.2d 430 (1983), he states:

A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness' answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him.

See also United States v. Seewald, 450 F.2d 1159, 1163 (2d Cir.1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1206, 31 L.Ed.2d 253 (1972); In re Master Key Litigation, 507 F.2d 292 (9th Cir.1974); compare Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972) (privilege against self-incrimination protects against real dangers, not remote and speculative possibilities).

The precise question presented is therefore whether, given the facts at bar, there is any realistic possibility that Williams would be prosecuted if compelled to testify. Measured against this standard, the privilege here prevails. The Court cannot confidently conclude that there is no realistic possibility of prosecution in the event Williams is compelled to testify. While the United States Attorney disavows any current intention to prosecute, the future is more...

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