U.S. v. Joudis

• Decision Date: 03 October 1986
• Docket Number: No. 86-1418,86-1418
• Citation: 800 F.2d 159
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jurgis JOUDIS, Defendant. In re the Contempt Petition Mecislovas MIKUTAITIS, Deponent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 159

800 F.2d 159

UNITED STATES of America, Plaintiff-Appellee, v. Jurgis JOUDIS, Defendant In re the Contempt Petition Mecislovas MIKUTAITIS, Deponent-Appellant.

No. 86-1418.

United States Court of Appeals Seventh Circuit.

Argued May 13, 1986.

Decided Sept. 2, 1986.

Rehearing and Rehearing En Banc Denied Oct. 3, 1986.

Ronnie L. Edelman, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Charles W. Nixon, Chicago, Ill., for defendant.

Before WOOD, COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The appellant, Mecislovas Mikutaitis, appeals an order of the district court finding him in contempt under 28 U.S.C. Sec. 1826 for refusing to be deposed despite a grant of immunity pursuant to 18 U.S.C. Sec. 6002. Mikutaitis, who is of Lithuanian descent, asserted his Fifth Amendment right against self-incrimination because of the fear that the government's Office of Special Investigations (OSI) would, as it is currently attempting to do with Jurgis Joudis, seek his denaturalization and eventual deportation for his alleged cooperation with the occupying Nazi forces during World War II and the concealment of this cooperation in order to enter the United States following the war. He claims that the information requested by the OSI, if obtained by Soviet authorities, could result in his prosecution should the United States successfully seek his deportation. The district judge in the Middle District of Florida who was assigned the denaturalization case against Joudis attempted to shield Mikutaitis through a grant of immunity and an order that the deposition be put under seal. Mikutaitis considered these protections inadequate and the district court here in Illinois found him in contempt.

We find that the protections offered by the order of the Florida court were sufficient and thus Mikutaitis has failed to establish "a real and substantial fear of foreign prosecution." Therefore, we affirm the district court.

I.

Jurgis Joudis was allegedly a member of the Lithuanian Auxiliary Police between 1941 and 1944. This group of Lithuanian citizens assisted the occupying Nazi forces in the persecution and slaughter of Jews and other groups targeted by the Third Reich. The OSI is currently seeking to strip Joudis of his citizenship on the grounds that he misrepresented and concealed his wartime activities. As part of the discovery in the denaturalization proceedings being conducted in the United States District Court for the Middle District of Florida the government sought to depose Mecislovas Mikutaitis, a resident of Chicago and a wartime citizen of Lithuania. The attorneys for the government had reason to believe that Mikutaitis served in the Auxiliary Police and was familiar with Joudis's activities.

In 1983 the government attempted to depose Mr. Mikutaitis but he refused to answer any questions that went beyond his identity, asserting his rights under the Fifth Amendment. On October 23, 1985 the OSI obtained from the Florida court an order pursuant to 18 U.S.C. Sec. 6002 compelling Mikutaitis to provide the requested information. The order also provided that the testimony and ancillary information be kept under seal. One week later the Clerk of the Court for the Northern District of Illinois issued a deposition subpoena which was served upon Mikutaitis. Counsel for Joudis was also notified.

On November 21, 1985 the government once again attempted to depose Mikutaitis but, notwithstanding the grant of immunity and the sealing order, Mikutaitis continued to refuse to answer based on the privilege against self-incrimination. Immediately thereafter a Motion for Rule to Show Cause why the deponent should not be held in contempt under the Recalcitrant Witness Statute, 28 U.S.C. Sec. 1826, was filed in the district court.

Despite repeated government motions, an evidentiary hearing was not held until March 6 and 7, 1986, a month and one-half after discovery had been cut-off and the parties ordered to stand ready for trial in the denaturalization action in Florida. At the evidentiary hearing Mikutaitis called two witnesses: a professor from the University of Illinois, who testified about the Soviet treatment of alleged war criminals, and the government attorney, who spoke about OSI's basis for wanting to depose Mikutaitis and the nature of information sought. The deponent also attempted to introduce news items and bulletins published by an organization known as Americans for Due Process. These publications summarized published accounts of existing prosecutions of immigrants from the Baltic states who are alleged to have acted in complicity with the occupying Nazi forces. The district judge denied the motion to admit this document on the grounds that it was unreliable.

On March 11, 1986 the district court held that although Mikutaitis had a realistic fear of foreign prosecution, this fear was mooted by the Florida court's sealing order. Despite this finding the district court remained reluctant to incarcerate the seventy-year-old Mikutaitis and encouraged the parties to negotiate an alternative resolution. The government offered to refrain from taking any action to deport him if Mikutaitis agreed to testify and renounce his United States citizenship. This offer was refused and Mikutaitis was subsequently found to be in contempt and ordered to report to the United States Marshal to begin his incarceration. Mikutaitis has not served any time in custody; he is currently free on bail pending the outcome of this appeal.

On appeal Mikutaitis raises a number of issues, the vast majority of which are spurious ¹ and serve only to detract from the central question of this case: is Mikutaitis sufficiently protected by the orders of the Florida court such that his right, should this right exist, to invoke the protections of the Fifth Amendment based on the fear of foreign prosecution, has been overcome.

II.

As an initial matter the existence of the Fifth Amendment right asserted by Mikutaitis is questionable. In a recent decision involving the family of former Philippine president Ferdinand Marcos, the Fourth Circuit ruled that the protections of the right against self-incrimination did not extend to foreign prosecution. United States v. (Under Seal), 794 F.2d 920 (4th Cir.1986). The Supreme Court stayed the order of contempt pending review by the Court. In so doing Chief Justice Burger concluded that "there is a 'fair prospect' that a majority of this court will decide the issue in favor of the applicants [the Aranetas]. Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), contains dictum which, carried to its logical conclusion, would support such an outcome." Araneta v. United States, --- U.S. ---, 107 S.Ct. 1, 92 L.Ed.2d ---- (1986).

There is no need to reach this difficult issue in the present case because Mikutaitis's real and substantial fear of Soviet prosecution did not survive the attempt by the district court in Florida to protect the deponent. "It is well established that the privilege protects against real dangers, not remote speculative possibilities." Zicarelli v. New Jersey State Commission of Investigations, 406 U.S. 472, 478, 92 S.Ct. 1670, 1674-75, 32 L.Ed.2d 234 (1972). In evaluating whether a "real and substantial" danger exists the court should

focus upon such questions as whether there is an existing or potential foreign prosecution of him; what foreign charges could be filed against him; whether prosecution of them would be initiated or furthered by his testimony; whether any such charges would entitle the foreign jurisdiction to have him extradited from the United States; and whether there is a likelihood that his testimony given here would be disclosed to the foreign government.

United States v. Flanagan, 691 F.2d 116, 121 (2d Cir.1982). See also In re Grand Jury Proceedings (Chevrier), 748 F.2d 100, 103 (2d Cir.1984); In re Grand Jury Proceedings (Nigro), 705 F.2d 1224, 1227-28 (10th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983).

When we analyze this case under the factors elucidated by the Second Circuit, the precise nature of Mikutaitis's claim is readily apparent. Unlike the members of the Marcos family in Araneta the deponent here does not face an existing prosecution in his country of origin nor does the government have an extradition treaty with the Soviet Union. Furthermore, while Mikutaitis presented evidence that the Soviets routinely provide information to the OSI, he has not claimed, and the record does not indicate, that the OSI shares the information it obtains in its denaturalization cases with Soviet authorities. Cf. United States v. (Under Seal), 794 F.2d at 925 (F.R.Crim.P. 6(e) inadequate to protect grand jury testimony where government subject to diplomatic pressures to divulge the testimony to a foreign power).

Under these circumstances Mikutaitis's sincere fear is that on the basis of his testimony he will be denaturalized and deported, and that his testimony will somehow become public--thus allowing the Soviets to use it in a war crimes prosecution. Denaturalization and deportation are civil proceedings, Fedorenko v. United States, 449 U.S. 490, 516, 101 S.Ct. 737, 752, 66 L.Ed.2d 686 (1982); United States v. Kairys, 782 F.2d 1374, 1382 (7th Cir.1986), and cannot serve as the basis for his assertion of the privilege. ² See generally, Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 541-42 (7th Cir.1977). Thus the potential for Mikutaitis's testimony serving as the basis for his denaturalization and deportation is relevant only to the extent it makes foreign prosecution utilizing that testimony more likely. All of this then boils down to the question of the likelihood that this information will be disseminated to the Soviet Union. This in turn isolates the only serious issue in this case: namely, whether the sealing order is adequate to protect Mikutaitis from Soviet acquisition of his...