United States v. Gordon

• Citation: 10 CIT 292,634 F. Supp. 409
• Decision Date: 25 April 1986
• Docket Number: No. 84-1-00074.,84-1-00074.
• Parties: The UNITED STATES, Plaintiff, v. Stanley GORDON, Defendant.
• Court: U.S. Court of International Trade

634 F. Supp. 409

10 CIT 292

The UNITED STATES, Plaintiff, v. Stanley GORDON, Defendant.

No. 84-1-00074.

United States Court of International Trade.

April 25, 1986.

COPYRIGHT MATERIAL OMITTED

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., and Velta A. Melnbrencis, Civil Div., Dept. of Justice, New York City, for plaintiff.

Fronfield & deFuria (Leo A. Hackett, Media, Pa.), for defendant.

OPINION

RESTANI, Judge:

Plaintiff-United States alleges that defendant-Stanley Gordon unlawfully introduced an automobile, attempted to introduce a second automobile, and aided or abetted in the introduction of a third automobile, into the commerce of the United States,¹ in violation of 19 U.S.C. §§ 1481, 1484, 1485 and 1592.² Accordingly, plaintiff seeks to have judgment entered against defendant for monetary penalties as provided for in 19 U.S.C. § 1592 (1982).³ An action is also apparently pending in federal district court, in which plaintiff seeks to have a penalty imposed on this same defendant for his involvement in these same allegedly unlawful importations and attempted importation, pursuant to 19 U.S.C. § 1595a(b).⁴ In connection with discovery in the case at bar, plaintiff has served defendant with a request for production of documents and things and a request for admissions, and has attempted to depose defendant. Defendant, asserting the fifth amendment privilege against compulsory self-incrimination, has failed to comply with the request for the production, has refused to respond substantively to the request for admissions and, beyond stating his present residence and address, has apparently refused to provide substantive answers to plaintiff's deposition questions. Before the court at this time is plaintiff's motion (1) to order defendant to (a) respond fully to plaintiff's first request for production; (b) respond fully to all questions posed by plaintiff at any deposition taken of the defendant; (c) reimburse plaintiff for actual out-of-pocket expenses in connection with the above-mentioned deposition and (2) to deem admitted the matters set forth in plaintiff's first request for admissions. The first issue to be addressed here is to what extent the fifth amendment privilege against self-incrimination may be raised in an action for penalties under 19 U.S.C. § 1592.

The fifth amendment to the United States Constitution states, in relevant part, that no person "shall be compelled in any criminal case to be a witness against himself." Congress intended that section 1592 provide a civil remedial sanction. See United States v. Murray, 5 CIT 102, 105-06, 561 F.Supp. 448, 453 (1983); United States v. Alcatex, Inc., 328 F.Supp. 129, 132-33 (S.D.N.Y.1971). Defendant here may still be within the scope of the fifth amendment's self-incrimination clause, however, because the Supreme Court has interpreted the privilege against compulsory self-incrimination as applying in actions other than those labeled as criminal prosecutions. Constitutional protections afforded criminal defendants may apply, despite Congress' intent to create a civil remedy, if the applicable sanctions are "so punitive either in purpose or effect as to negate that intention." United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (citing Flemming v. Nestor, 363 U.S. 603, 616-21, 80 S.Ct. 1367, 1375-78, 4 L.Ed.2d 1435 (1960)), reh'g denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179 (1980). In addition, the privilege against compulsory self-incrimination may apply in an action that, although civil in form and not so punitive as to give rise to all criminal procedural safeguards, is "quasi-criminal" in nature. Ward, 448 U.S. at 251-54, 100 S.Ct. at 2642-44; see United States v. United States Coin & Currency, 401 U.S. 715, 721-22, 91 S.Ct. 1041, 1044-45, 28 L.Ed.2d 434 (1971); Lees v. United States, 150 U.S. 476, 480-81, 14 S.Ct. 163, 164-65, 37 L.Ed. 1150 (1893); Boyd v. United States, 116 U.S. 616, 633-34, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886). Further, the privilege may apply even in a strictly civil (non "quasi-criminal") action where the testimony sought could subject the person questioned to criminal liability. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) (citing McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924)). In any case, the privilege may be invoked only if the threat of prosecution is "substantial and `real,' and not merely trifling or imaginary." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968) (citing Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344, reh'g denied, 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348 (1951); Brown v. Walker, 161 U.S. 591, 599-600, 16 S.Ct. 644, 647-48, 40 L.Ed. 819 (1896)).

This court has previously concluded that section 1592 is not "so punitive as to `transform what was clearly intended as a civil remedy into a criminal penalty.'" Murray, 5 CIT at 106, 561 F.Supp. at 453 (double jeopardy clause of fifth amendment not applicable in section 1592 action) (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956)).⁵ Thus, defendant is clearly not entitled to the litany of protections afforded criminal defendants. A determination that section 1592 is "quasi-criminal," however, would place defendant within the scope of the fifth amendment's privilege against compulsory self-incrimination. See Ward, 448 U.S. at 253-54, 100 S.Ct. at 2643-44 (considering whether action was so far criminal in nature to give rise to fifth amendment protection against compulsory self-incrimination despite inapplicability of such protections as those of sixth amendment and double jeopardy clause of fifth amendment) (citing United States v. Regan, 232 U.S. 37, 50, 34 S.Ct. 213, 217, 50 L.Ed. 494 (1914) (fifth amendment privilege against compulsory self-incrimination broader than protections of article III and of sixth amendment)).

Defendant relies in large part on United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), wherein the Supreme Court held the fifth amendment privilege against compulsory self-incrimination applicable in a civil forfeiture action. The statute at issue in U.S. Coin, 26 U.S.C. § 7302, provides that it is unlawful to possess property intended for use in violating provisions of the internal revenue laws and that "no property rights shall exist in any such property." A forfeiture action was instituted, pursuant to this statute, following defendant's conviction for both failing to register as a gambler with the Internal Revenue Service and failing to pay the related gambling tax. The Court stated that "`proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal' for Fifth Amendment purposes." 401 U.S. at 718, 91 S.Ct. at 1043 (quoting, with emphasis added, Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886) (privilege against self-incrimination applicable in customs forfeiture action.)) In support of the conclusion that the statute in question did in fact target for forfeiture an individual's property "by reason of offences committed by him," the Court noted that remission was provided for in accordance with the customs laws. U.S. Coin, 401 U.S. at 721 & n. 8, 91 S.Ct. at 1045 & n. 8 (citing 26 U.S.C. § 7327). Thus, an "innocent owner" could seek remission from the Secretary of Treasury by proving that the "`forfeiture was incurred without willful negligence or without any intention on the part of the petitioner ... to violate the law....'" Id. at 721, 91 S.Ct. at 1045 (quoting 19 U.S.C. § 1618). The Court was convinced, therefore, that the forfeiture statute in question was "intended to impose a penalty only upon those who are significantly involved in a criminal enterprise." Id. at 721-22, 91 S.Ct. at 1045. As such, defendant could invoke the fifth amendment privilege against compelled self-incrimination.

The statutory provision for administrative remission referred to in U.S. Coin appears, along with section 1592, in Chapter 4 of Title 19 of the United States Code and is applicable to the imposition of a penalty under section 1592.⁶ There are, however, several factors which distinguish the instant case from U.S. Coin. These distinguishing features become evident when U.S. Coin is read in the light of the Court's analysis in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 reh'g denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179 (1980).

After determining that the statute in Ward was neither intended to impose a criminal sanction nor "so punitive either in purpose or effect to negate that intention," 448 U.S. at 248-49, 100 S.Ct. at 2641, the Court went on to consider whether the statute was "quasi-criminal," thereby affording defendant the privilege against compulsory self-incrimination.⁷ In this analysis, the Ward Court first noted three factors distinguishing the case from Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). First, the penalty of forfeiture in Boyd "had absolutely no correlation to any damages sustained by society or the cost of enforcing the law," 448 U.S. at 254, 100 S.Ct. at 2644, whereas the monetary penalty in Ward was "much more analogous to traditional civil damages." Id. Second, as compared to the forfeiture provision in Boyd, which was part of the same statutory section as the provision for imprisonment, the civil and criminal remedies in Ward were in separate statutes enacted seventy years apart. Id. Third, while in Boyd there was the danger that the appellant's testimony could prejudice him in future criminal proceedings, the statute in Ward specifically barred the use of...