Delisi v. Smith, 82-1161

• Decision Date: 19 November 1982
• Docket Number: No. 82-1161,82-1161
• Citation: 423 So.2d 934
• Parties: Theodore J. DELISI, Jr., and Theodore J. Delisi, Sr., Petitioners, v. Jim SMITH, Attorney General of the State of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 934

423 So.2d 934

Theodore J. DELISI, Jr., and Theodore J. Delisi, Sr., Petitioners, v. Jim SMITH, Attorney General of the State of Florida, Respondent.

No. 82-1161.

District Court of Appeal of Florida,

Second District.

Nov. 19, 1982.

Rehearings Denied Dec. 28, 1982.

Steven Kellough and A.J. Barranco, Jr., of Barranco & Kellough, P.A., Miami, and Law Offices of Michael H. Bloom, Coconut Grove, for petitioners.

Jim Smith, Atty. Gen., and David K. Miller, Asst. Atty. Gen., Tallahassee, for respondent.

PER CURIAM.

In this petition for writ of certiorari we must decide whether or to what extent defendants in a RICO civil forfeiture action can refuse to answer interrogatories, answer questions propounded at deposition, and produce certain business records by invoking their privilege against self-incrimination. ¹

The Attorney General of the State of Florida filed an action against Theodore J. Delisi, Sr., and Theodore J. Delisi, Jr., and others, for forfeiture of properties and money damages pursuant to section 943.464, Florida Statutes (1979). In response to a notice of taking deposition duces tecum, Delisi, Sr., objected but agreed to appear for the deposition in order to create an adequate record for review by the lower court. At the deposition Delisi, Sr., failed to produce the documents and, after stating his name and address, asserted his privilege against self-incrimination as secured by the fifth and fourteenth amendments to the United States Constitution and the Florida Declaration of Rights and declined to answer any of the questions directed to him. Written interrogatories were propounded to Delisi, Jr., and pursuant to Florida Rule of Civil Procedure 1.340(a), his attorney entered objections on the same grounds.

The attorney general moved to compel discovery. The court granted the motions, and the Delisis petitioned for certiorari.

There are two aspects of the privilege against self-incrimination which we must consider. The first involves the absolute prohibition of compelling a defendant in a criminal case to testify against himself. The second pertains to the right of a witness in a proceeding other than a criminal prosecution in which he is a defendant to refuse to respond to interrogation on the grounds that his answers might tend to incriminate him. See McCormick's Handbook of the Law of Evidence § 116(c) (E. Cleary 2d ed. 1972). If this RICO action is construed as a criminal proceeding, the state is not entitled to the discovery which it seeks.

In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Supreme

Court considered a federal statute authorizing fine, imprisonment and forfeiture of imported merchandise for violation of the customs laws. Defendants in a forfeiture proceeding were ordered to produce certain papers to be used against them. The court enunciated the principle that:

"[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal.... [W]e think that they are within the reason of criminal proceedings for all the purposes ... of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself.

116 U.S. at 634, 6 S.Ct. at 534.

Petitioners herein argue that Boyd controls and that, therefore, the lower court's order compelling discovery should be quashed. An examination of case law subsequent to Boyd persuades us to reach a contrary conclusion.

Whether a given sanction is considered civil or criminal is a question of legislative intent. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972). Since Boyd, the Supreme Court has on several occasions sustained the imposition of both a criminal penalty and a civil sanction for forfeiture for the same act or omission, holding that forfeiture proceedings can be civil and remedial if the legislative intent so indicates. See, e.g., One Lot Emerald Cut Stones (forfeiture under customs law); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (forfeiture under fraudulent claims act). In Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), the Supreme Court noted that forfeiture as a remedial sanction has long been recognized as enforceable by civil proceedings, and constitutional guarantees governing criminal prosecutions do not apply. In noting that a defendant in a civil forfeiture action has no constitutional right to refuse to testify, the court did not construe Boyd as holding to the contrary "where the sanction involved is remedial, not punitive." Helvering v. Mitchell, 303 U.S. at 404, n. 12, 58 S.Ct. at 635, n. 12 (1938).

More recently, the United States Supreme Court addressed this issue in depth in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). In Ward, the lessee of a drilling facility in Oklahoma notified an office of the Environmental Protection Agency that oil was escaping from its retention pit. The notification was in accordance with the Federal Water Pollution Control Act which imposed a duty upon anyone in charge of an appropriate facility to report discharges of oil into navigable waters. The act included a form of "use immunity" which specified that any such notification could not be used against the person making the required report in any criminal case except for prosecution for perjury or for giving a false statement. Thereafter, pursuant to another section of the same act, the Coast Guard assessed a civil penalty of $500 against the reporting lessee. He appealed on grounds that the reporting requirements of the act violated his privilege against compulsory self-incrimination. The case finally reached the Supreme Court after the court of appeals had determined that the act was sufficiently punitive to intrude upon the fifth amendment protections against self-incrimination. The Supreme Court reversed with two concurring and only one dissenting opinions.

The Court first analyzed the act to see whether Congress intended to provide a civil or a criminal penalty. Noting that Congress had labelled the sanction a "civil penalty," the Court concluded that it had no doubt that Congress intended to allow the imposition of the penalties without regard to the procedural protections and restrictions available in criminal prosecutions. The Court went on to hold that the statutory scheme was not so punitive either in purpose or effect as to negate that intention despite the fact that the behavior to which the penalty applied was a crime in and of itself. The Court found it significant that civil penalties were enacted in a separate act passed many years after the criminal statute.

Finally, the Court addressed the lessee's argument predicated upon Boyd that while the penalty provision of the act may not provide him with the other procedural guarantees normally associated with criminal prosecutions, it was nevertheless "quasi-criminal" and therefore sufficient to implicate the fifth amendment's protection against compulsory self-incrimination. In addressing Boyd, the Court first observed:

This Court has declined, however, to give full scope to the reasoning and dicta in Boyd, noting on at least one occasion that "[s]everal of Boyd's express or implicit declarations have not stood the test of time."

448 U.S. at 253, 100 S.Ct. at 2643. The Court went on to distinguish Boyd in several particulars, including the observation that Boyd dealt with a forfeiture of property that was a penalty having absolutely no correlation to any damages sustained by society or the costs of enforcing the law. In the final analysis, however, the Court fell back upon the intent of Congress when it said:

More importantly, however, we believe that in the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that § 311(b)(6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read Boyd as requiring a contrary conclusion.

448 U.S. at 254, 100 S.Ct. at 2644.

The remedial character of the Florida RICO forfeiture action is made clear by an examination of the legislative findings of fact made in conjunction with passage of the RICO Act.

WHEREAS, the Legislature finds that organized crime is a highly sophisticated, diversified, and widespread problem which annually drains billions of dollars from the national economy by various patterns of unlawful conduct, including the illegal use of force, fraud, and corruption, and

WHEREAS, organized crime exists on a large scale within the State of Florida, and it engages in the same patterns of unlawful conduct which characterize its activities in other states, and

WHEREAS, seventeen of the twenty-one publicly identified organized crime "families" are reported to operate within Florida, and because no single "family" is considered by the other "families" to have exclusive dominion in the state, Florida is considered by organized criminal operatives as an "open state" and other organized criminal operatives are now migrating to Florida from other states, and

WHEREAS, organized crime is infiltrating and corrupting legitimate businesses operating within this state and this infiltration and corruption uses vast amounts of money, power, and all the techniques of violence, intimidation, and other forms of unlawful conduct to accomplish its goals, and

WHEREAS, in furtherance of such infiltration and corruption, organized criminal operatives utilize and apply to their unlawful purposes laws of the State of Florida conferring and relating to the privilege of engaging in various types of business enterprises, and

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