DeMauro v. DeMauro, 97–136.

CourtSupreme Court of New Hampshire
Citation712 A.2d 623,142 N.H. 879
Decision Date16 June 1998
Docket NumberNo. 97–136.,97–136.
Parties Annette B. DeMAURO v. Joseph M. DeMAURO.

Tober Law Offices, P.A., Portsmouth (Stephen L. Tober, on the brief and orally), and S. James Boumil, Lowell, MA, on the brief, for plaintiff.

Sanders & McDermott, P.L.L.C., Hampton (Lawrence M. Edelman, on the brief and orally), for defendant.

HORTON, Justice.

The defendant, Joseph M. DeMauro, appeals a decision of the Superior Court (McHugh , J.) ruling that he improperly asserted his State and federal privilege against self-incrimination. We reverse and remand.

In February 1994, the plaintiff, Annette B. DeMauro, filed a libel for divorce against the defendant. In the libel she alleged that the defendant had engaged in a systematic effort to conceal assets accumulated during their marriage by creating and fraudulently using trusts, foundations, sham corporations, off shore accounts, straws and other entities. The plaintiff also filed the required Rule 158 support affidavit. See Super. Ct. R. 158. In March 1994, the plaintiff filed a motion to seal the record in the divorce proceeding on the basis that "[n]umerous allegations of both uncharged and unconvicted criminal behavior and activity ... will be made within the pleadings."

The defendant contested the divorce and filed a counter-libel, but has never filed a completed Rule 158 affidavit as required, and has refused to answer interrogatories and other requests for admissions concerning, inter alia , his employment, financial background, and living expenses. To date, the defendant has not provided any meaningful financial information to assist in determining an equitable property settlement. See RSA 458:16–a, II (1992).

The defendant first asserted his privilege against self-incrimination at a hearing in another civil case on September 18, 1995. The trial court noted that the defendant's assertion of privilege at that late date made "clear that [the defendant's] decision not to meaningfully comply with any past Court order regarding the divulging of his financial status and asset picture was made long before he realized he had a Fifth Amendment privilege." The court further noted that the defendant's refusal to comply was "based upon his pure contempt of this court and the judicial process."

On November 4, 1995, plaintiff's counsel provided the defendant a draft copy of a civil complaint to be filed in federal court alleging that the defendant had engaged in racketeering and numerous other unlawful activities, see 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1951 (extortionate threats), 1961 (racketeering) (1994), intending to defraud the plaintiff. The plaintiff further alleged that the defendant had established bank accounts in Switzerland, Saudi Arabia, France, Liechtenstein, the United States, and "various and sundry other locations" in the names of "straws, sham trusts, shell companies and phony ‘foundations,’ all designed to conceal the location, extent, and existence of assets from [the plaintiff] and persons with whom he did business." In January 1996, the defendant first filed a formal pleading asserting a blanket privilege against self-incrimination with respect to requests for admissions of facts and production of documents.

The plaintiff filed a complaint, similar to the draft complaint, in the United States District Court for the District of Massachusetts in May 1996. The complaint alleged a multitude of federal crimes spanning the twenty-plus years of the marriage, and continuing to the present day. The district court dismissed the suit because the allegations were similar to the pending divorce proceeding. The United States Court of Appeals for the First Circuit subsequently reversed the trial court, reinstated the suit, and permitted the district court to stay the proceedings pending a decision in the divorce case. DeMauro v. DeMauro, 115 F.3d 94, 99–100 (1st Cir.1997).

The Superior Court (Gray , J.) held the defendant in contempt and ordered him to make support payments to the plaintiff as provided in an earlier order, and to file a completed Rule 158 financial affidavit. The defendant appealed to this court in February 1996, and we directed the trial court to conduct a hearing pursuant to Key Bank of Maine v. Latshaw, 137 N.H. 665, 671, 633 A.2d 952, 956 (1993). See DeMauro v. DeMauro, No. 96–096 (N.H. April 19, 1996). In January 1997, the trial court conducted the hearing. To obtain the information sought on the Rule 158 affidavit, plaintiff's counsel posed over one hundred questions. The defendant refused to answer over seventy questions, claiming the privilege against self-incrimination. As his basis for asserting the privilege, the defendant cites the federal civil RICO complaint and claims that his answers to the questions could serve as a link in the chain of evidence necessary to prosecute him for those offenses.

The trial court found that

the defendant's attempt to broaden any privilege that he might have far beyond the holding in the lead case of Key Bank of Maine v. Latshaw , 137 N.H. 665, 633 A.2d 952 (1993) [,] is wholly without merit. In the Court's view, none of the questions objected to by the defendant invoke any constitutional Fifth Amendment privilege that the defendant has.

The court also found that "the mere making of those allegations [in the civil RICO complaint] does not entitle the defendant to provide no useful information to the plaintiff and the divorce court so as to effectively prevent an equitable divorce from being granted."

The defendant argues on appeal that the trial court erred by: (1) "ruling that state and federal privileges against self-incrimination afforded [the defendant] no protection with respect to any of the questions posed concerning his financial activities during the last twenty (20) years"; and (2) holding that the defendant "had waived his constitutional privileges against self-incrimination when he made financial disclosures prior to receiving notice of the federal RICO Complaint."

We address the defendant's claims first under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), and "[w]here, as in the instant case, the federal law is not more favorable to the defendant, we make no separate federal analysis." State v. Davis, 139 N.H. 185, 189, 650 A.2d 1386, 1388 (1994) ; see State v. LaFountain, 138 N.H. 225, 227, 636 A.2d 1028, 1029 (1994).

Part I, Article 15 of the New Hampshire Constitution provides that "[n]o subject shall ... be compelled to accuse or furnish evidence against himself." For a witness to invoke this privilege, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." State v. Wheeler, 128 N.H. 767, 771, 519 A.2d 289, 291 (1986) (quotation omitted). "The privilege against self-incrimination extends not only to answers that in themselves would support a conviction, but also to any information sought which would furnish a link in the chain of evidence needed to prosecute." State v. O'Connell, 131 N.H. 92, 94, 550 A.2d 747, 748 (1988). A party in a civil proceeding may assert the privilege to particular questions if the answer to the question could result in criminal liability. See Latshaw, 137 N.H. at 669–70, 633 A.2d at 955. "[W]hether a witness' claim of the privilege is justified is a decision which rests within the trial court's exercise of sound discretion." O'Connell, 131 N.H. at 94, 550 A.2d at 749.

The fact that the allegations in the divorce libel and the RICO complaint involve civil proceedings, rather than criminal proceedings, does not deprive a person of the privilege against self-incrimination. Sevigny v. Burns, 108 N.H. 95, 96–97, 227 A.2d 775, 777 (1967). The RICO allegations invoke federal statutes for which a defendant may incur both civil and criminal liability for the same activities. Although federal prosecution may be unlikely, the test is not whether prosecution will occur, but whether prosecution could occur. See Wyman v. DeGregory, 100 N.H. 163, 165, 121 A.2d 805, 807 (1956).

At the Latshaw hearing in this case, plaintiff's counsel posed over one hundred questions to the defendant. With respect to at least seventy questions, the defendant asserted his rights against self-incrimination. The defendant asserted his privilege with respect to each question, rather than asserting a blanket privilege. See O'Connell, 131 N.H. at 94, 550 A.2d at 749; Estate of Fisher v. C.I.R., 905 F.2d 645, 649 (2d Cir.1990). Colloquies between the judge and the attorneys during the hearing elucidated the basis and scope of the privilege asserted by the defendant.

The questions to which the defendant asserted his privilege fell into several categories. First, some questions did not implicate even a remote possibility of self-incrimination, even given the broad scope of the alleged criminal and civil wrongdoing asserted in the RICO complaint. These questions included, inter alia , "[d]o you own a set of golf clubs," "[d]id you at one time belong to the Abenaqui Golf Club," and "didn't Mr. Jasinski at one time own the Rye Beach property." Although the defendant erroneously asserted his privilege to these questions, the answers would not have provided the plaintiff with any additional information material to determining the size of the marital estate.

Second, the very nature of some questions indicates that the plaintiff has information regarding the scope and location of the defendant's financial dealings. Plaintiff's counsel asked the defendant whether he had a Bell Cell Visa card, a National Bank credit card, an AFT Universal Card, a current account at J.C. Penney, and two accounts at Sears & Roebuck. Plaintiff's counsel then proffered a copy of the defendant's credit report to show that the...

To continue reading

Request your trial
1 cases
  • DeMauro v. DeMauro, 97-136
    • United States
    • Supreme Court of New Hampshire
    • June 16, 1998
    ...712 A.2d 623 Annette B. Joseph M. DeMAURO. No. 97-136. Supreme Court of New Hampshire. June 16, 1998. Rehearing Denied July 31, 1998. Page 624 Tober Law Offices, P.A., Portsmouth (Stephen L. Tober, on the brief and orally), and S. James Boumil, Lowell, MA, on the brief, for plaintiff. Sande......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT