Corrugated Container Antitrust Litigation, In re

• Decision Date: 16 October 1981
• Docket Number: No. 81-1960,81-1960
• Parties: 1981-2 Trade Cases 64,334, 9 Fed. R. Evid. Serv. 289 In re CORRUGATED CONTAINER ANTITRUST LITIGATION. Appeal of John CONBOY, Deponent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1145

661 F.2d 1145

1981-2 Trade Cases 64,334, 9 Fed. R. Evid. Serv. 289

In re CORRUGATED CONTAINER ANTITRUST LITIGATION.

Appeal of John CONBOY, Deponent.

No. 81-1960.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 10, 1981.

Decided Oct. 16, 1981.

Michael W. Coffield, Coffield, Ungaretti, Harris & Slavin, Chicago, Ill., for deponent.

Francis J. McConnell, McConnell & Campbell, Chicago, Ill., for appellee.

Before CUMMINGS, Chief Judge, PELL, SPRECHER, BAUER and WOOD, Circuit Judges.

SPRECHER, Circuit Judge.

This is an appeal from an order holding a non-party deponent in civil contempt for asserting the Fifth Amendment in response to questions read verbatim from or closely tracking transcripts of the deponent's previously immunized testimony. The district court ordered the deponent to answer the questions, apparently on the ground that he would not be subject to future criminal prosecution based on this testimony. For the reasons stated herein, we reverse the judgment of the district court.

I

John A. Conboy is a former executive of the Weyerhaeuser Company. He was one of numerous immunized grand jury witnesses in an investigation leading up to the indictments of fourteen companies and twenty-six individuals for a nationwide conspiracy to fix prices in the corrugated container industry. Relying on a promise of immunity from the Justice Department, Conboy submitted to an interview by Justice Department attorneys who questioned him extensively concerning his participation in and knowledge of alleged price communications and agreements among suppliers in the corrugated container industry. Subsequently, Conboy testified before a grand jury regarding these issues, having received a separate and independent grant of use immunity.

Following the conclusion of the criminal trial, numerous civil actions were brought against the major corrugated container manufacturers, including Weyerhaeuser. These civil cases were consolidated in In Re Corrugated Container Antitrust Litigation, MDL 310 (S.D.Tex.). In this litigation, class action plaintiffs either tried or settled their claims. The class trial and many of the class settlements are the subject of pending appeals. Eighteen "opt-out" cases remain pending before the district court. The opt-out plaintiffs allege, among other things, that the defendants were engaged in, and fraudulently concealed, an ongoing price-fixing conspiracy in the corrugated container industry through 1978.

The opt-out plaintiffs subpoenaed several previously immunized grand jury witnesses, including Conboy, for deposition testimony and production of documents. On May 20, 1981, Conboy appeared with counsel in Chicago for deposition pursuant to a subpoena. At his deposition, Conboy initially testified as to the dates and general nature of his employment with Weyerhaeuser. He was then asked: to confirm that he had testified at the Justice Department interview and the grand jury; to identify as "true and correct" a transcript of his interview and of his grand jury testimony; ¹ and whether his responses at the interview and before the grand jury had been true and correct. Conboy refused to answer these and other questions pertaining to his interview and grand jury testimony on the basis of the Fifth Amendment privilege against self-incrimination. ² He did acknowledge that any testimony which he may have provided was given pursuant to prior grants of immunity. Conboy's counsel advised the plaintiffs' counsel that Conboy would invoke his Fifth Amendment privilege in response to all further questions concerning pricing activities during his tenure as Weyerhaeuser's Regional Marketing Coordinator in Worthington, Ohio.

The plaintiffs' counsel then suspended the deposition and telephoned the judge presiding over the multi-district litigation. The judge was informed of the relevant facts regarding Conboy's employment with Weyerhaeuser and that Ohio had no statute of limitations for antitrust actions. ³ Conboy's counsel argued that, even though the prior testimony had been immunized, new answers to those questions, or even new answers confirming that the previous answers had been made could tend to incriminate Conboy.

The district court judge advised the parties that he was empowered to sit as a district judge in Illinois under 28 U.S.C. § 1407, ⁴ and began to question Conboy regarding his employment history in Ohio and his knowledge of possible prosecution by Ohio authorities. ⁵ Based on Conboy's inability to establish the existence of a pending criminal investigation, the court ordered him to answer the specific questions previously asked. Conboy again refused to answer, asserting his Fifth Amendment privilege. The court found him to be in civil contempt pursuant to 28 U.S.C. § 1826, fined him $5,000, and imposed a six-month imprisonment. The court stayed execution of the order pending appeal. Conboy now appeals to this Court pursuant to 28 U.S.C. § 1826. ⁶

II

There are two major issues in this appeal. The first is whether Conboy faces any risk of prosecution. ⁷ The second is, even if there is a risk of prosecution, whether a court can deny the protection of the Fifth Amendment if it concludes that the answers to the questions asked will be so "tainted" by previous grants of immunity that those answers will be inadmissible in subsequent criminal proceedings. Before reaching these two issues, however, it is important to examine the proper scope of interpretation of the Fifth Amendment's protection against self-incrimination.

The Fifth Amendment to our Constitution states that "(n)o person shall ... be compelled in any criminal case to be a witness against himself." U.S.Const.Amend. V. The plaintiffs argue that the testimonial privileges of the Fifth Amendment must be narrowly construed. Relying on Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972), the plaintiffs argue that "the public is entitled to every man's evidence." Pl.Br. at 6. First, Branzburg is inapposite, as it held that the First Amendment created no "reporter's privilege" not available to other citizens. Second, plaintiffs failed to complete the quoted sentence in Branzburg. The Court carefully acknowledged limitations on the right to evidence, stating, "the longstanding principle that 'the public ... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, ... is particularly applicable to grand jury proceedings." (emphasis added) (citations and footnote omitted). Indeed, the Branzburg Court added, to further emphasize that it in no way envisioned any narrowing of the Fifth Amendment:

Until now the only testimonial privilege for unofficial witnesses that is rooted in the federal constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.

408 U.S. at 689-90, 92 S.Ct. at 2661 (footnote omitted).

The plaintiffs also rely on United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) as supporting their contention that a constitutional protection should be narrowly interpreted when balanced against a private litigant's evidentiary need. But the plaintiffs' reliance on Nixon is also misplaced. The Nixon Court emphasized that the issue before it did not involve balancing a specific constitutional privilege against the need for evidence in civil litigation. ⁸ The Court's care in expressing what it was not considering suggests that even an evidentiary privilege not specifically stated in the Constitution, such as that asserted by President Nixon, should be given a high degree of deference. Nixon in no way derogates from the fundamental primacy of constitutional principles.

The Fifth Amendment privilege against self-incrimination is one of the core concepts of our adversary judicial system. The privilege is a shield against the dangers of an inquisitorial system of jurisprudence. As Justice Blatchford stated in Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892), the Fifth Amendment privilege "must have a broad construction in favor of the right which it was intended to secure." The passage of time since Counselman has not seen any diminution in the need for constant vigilance by courts against the narrowing of this fundamental constitutional protection.

In view of the high place that the Fifth Amendment privilege occupies, both in our Constitution and in our judicial system, and in view of the strong traditional respect for each individual's rights that undergirds the privilege, the Court "has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action." Maness v. Meyers, 419 U.S. 449, 462, 95 S.Ct. 584, 593, 42 L.Ed.2d 574 (1975) (citations omitted). As the Court stated in Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972):

But the power to compel testimony is not absolute. There are a number of exceptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty .... This Court has been zealous to safeguard the values that underlie the privilege.

(footnotes omitted). See Murphy v. Waterfront Comm'n., 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964) ("The Fifth Amendment privilege reflects many of our fundamental values and most noble aspirations ...."); Ullman v. United States, 350 U.S. 422, 426, 426-29, 76 S.Ct. 497, 500-501, 100 L.Ed. 511 (1956) ("Time has not shown that protection from the evils...