Belmonte v. Lawson, Civ. A. No. 90-00529-A.
Decision Date | 14 November 1990 |
Docket Number | Civ. A. No. 90-00529-A. |
Citation | 750 F. Supp. 735 |
Parties | John BELMONTE, et al., Plaintiffs, v. David H. LAWSON, et al., Defendants. |
Court | U.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.
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.
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:
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.
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.
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) ( ).
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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