Kirtley v. Abrams

• Decision Date: 27 April 1960
• Docket Number: Civ. No. 18532.
• Citation: 184 F. Supp. 65
• Parties: C. M. KIRTLEY, Trustee of Automatic Washer Company, Debtor, in Corporate Reorganization Proceedings, Judgment-Creditor, v. Joseph ABRAMS and Richland Securities, Inc., Judgment-Debtors.
• Court: U.S. District Court — Eastern District of New York

184 F. Supp. 65

C. M. KIRTLEY, Trustee of Automatic Washer Company, Debtor, in Corporate Reorganization Proceedings, Judgment-Creditor, v. Joseph ABRAMS and Richland Securities, Inc., Judgment-Debtors.

Civ. No. 18532.

United States District Court E. D. New York.

April 27, 1960.

Meyer, Kissel, Matz & Seward, New York City (Lester Kissel, Herschel E. Sparks, Jr., H. Donald Busch, New York City, of counsel), for trustee.

Howard Henig, New York City (Seymour Howard, New York City, of counsel), for Joseph Abrams.

BRUCHHAUSEN, Chief Judge.

The judgment-debtor Joseph Abrams, presently detained in a Federal penitentiary, was brought to this court pursuant to order dated March 14, 1960, for examination by the plaintiff, judgment-creditor, concerning his income, property and assets. On December 18, 1959, judgment was granted against both defendants in favor of the plaintiff. This court retained jurisdiction to enforce a constructive trust impressed upon certain proceeds of stock in the amount of $154,000. The said Joseph Abrams was declared the constructive trustee of said proceeds and was ordered to pay to the Clerk of this court the trust res of $154,000. To date Abrams has failed to comply with the said order.

The said order directed Abrams to produce at such examination (1) all of his personal books, records, papers, correspondence and documents relating to his income, property and assets, including his bank statements, canceled checks and federal income tax returns for the years 1956 through 1959, and (2) all of the books, records, papers, correspondence and documents of any and all corporations owned or controlled by him.

The examination was commenced. Questions were asked relating to his income, assets, realty, personalty and associations with corporations. The witness refused to answer all questions, except one, claiming privilege under the Fifth Amendment to the Constitution of the United States.

Defendant Abrams alleges that shortly prior to this examination, he was indicted by a Federal Grand Jury, and at his arraignment pleaded not guilty to all counts. He further states that other Government agencies are investigating his business affairs with the view of possible prosecution, and that the fear of prosecution and incrimination is real.

The issue presented is whether the judgment-debtor's said claim of privilege is well founded.

At the outset it is noted that the defendant is not appearing for questioning before a Grand Jury. The judgment-creditor is attempting to locate assets of the judgment-debtor for satisfaction of its judgment.

In Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, the Court held:

"This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 142 U.S. 547, 562 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Arndstein v. McCarthy, 254 U.S. 71, 72-73 41 S.Ct. 26, 65 L.Ed. 138 (1920).

"The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 340 U.S. 159 71 S.Ct. 223, 95 L.Ed. 170 (1950). But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 244 U.S. 362, 365 37 S.Ct. 621, 622, 61 L.Ed. 1198 (1917), and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367 71 S.Ct. 438, 95 L.Ed. 344 (1951), and to require him to answer if `it clearly appears to the court that he is mistaken.' Temple v. Commonwealth, 75 Va. 892, 899 (1881). However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the 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."

In United States v. Doto, 2 Cir., 205 F.2d 416, this circuit has followed the above Supreme Court rules concerning the privilege against self-incrimination.

Applying these rules to the case at bar, the judgment-debtor has failed to show that his responses to the questions would be incriminating. The constitutional protection against self-incrimination "is confined to real danger, and does not extend...