Coushatta Tribe of Louisiana v. Abramoff et al
ORDER denying 171 Motion to Compel. The application of the Order is stayed until 8/10/2009, to allow appeal of this Order to the District Judge and to allow movants to request a further stay from the District Judge of that part of this Order allowing Scanlon's release as a witness. Signed by Magistrate Judge C Michael Hill on 7/31/2009. (crt,Reasor, M)
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA C O U S H A T T A TRIBE OF LOUISIANA V ER SU S JACK ABRAMOFF, ET AL. R U L IN G B e f o re the court is the Defendants' Motion to Compel Michael Scanlon to Answer Q u e stio n s to Which He Asserted the Fifth Amendment Privilege filed by Liberty Mutual In s u ra n c e Europe Ltd, Columbia Casualty Company, Lexington Insurance Company and L lo yd 's Syndicates 623 & 2623 and 33 in which Arch Specialty Insurance Company and Max B e rm u d a Ltd. have joined (collectively, the "Insurer Defendants"). [rec. doc. 171]. Michael S c a n lo n ("Scanlon") has filed Opposition [rec. doc. 182], to which the Insurer Defendants h a v e filed Replies. [rec. docs. 184, 188 and 191]. Greenberg Traurig, LLP ("Greenberg") has f ile d a memorandum setting forth its position as neither supporting, nor opposing, the Insurer D e f e n d a n ts ' request, so long as it may fully cross-examine Scanlon on all pertinent issues, s h o u ld this court overrule Scanlon's Fifth Amendment objection to questioning. [rec. doc. 181]. For the following reasons, the Motion to Compel Michael Scanlon to Answer Questions to Which He Asserted the Fifth Amendment Privilege is denied. Scanlon's objection to q u e stio n in g based on the assertion of his Fifth Amendment privilege against self-incrimination is sustained, and accordingly, Scanlon is released as a witness. * * * C I V I L ACTION NO. 07-1886 J U D G E MELANÇON M A G I S T R A T E JUDGE HILL
T h e underlying litigation brought by the Coushatta Tribe of Louisiana (the "Tribe") has b e e n settled by an agreement between the Tribe and Greenberg. [rec. doc. 149]. The Tribe, G re e n b erg and Scanlon have all agreed to voluntarily dismiss the claims and cross-claims they f ile d in this litigation. Id. The only remaining dispute is between Greenberg and its insurers o v e r coverage and defense costs under the firm's professional liability insurance. To that end, th e Insurer Defendants have filed Motions to Stay this litigation and to Compel Arbitration. [ re c . docs. 88, 90, 102, and 144]. These motions have been granted by the Court, and a c co rd in g ly, the coverage dispute will be decided by binding arbitration. [rec. doc. 155 and 1 5 7 ]. The Tribe, Greenberg and Scanlon have sought dismissal based upon the settlement a g re e m e n t. [rec. doc. 149]. However, the Insurer Defendants have opposed dismissal until a f te r they are permitted to obtain additional discovery, including the deposition of Scanlon. [ re c . doc. 158]. A hearing on the Motion to Dismiss was conducted on October 10, 2008 before Judge M e lan c o n . At that time, Judge Melancon permitted the deposition of Scanlon, but stayed all o th e r discovery in the case. Ruling on the Motion to Dismiss was deferred. [rec. docs. 164 and 1 6 5 ]. O n November 17, 2008, the deposition of Scanlon was taken. While Scanlon was e x te n siv e ly questioned, and responded to the majority of the questions asked of him, Scanlon re f u se d to answer questions regarding the information disclosed by Scanlon to attorneys from G re e n b e rg during a January 23, 2004 meeting which took place in Miami, Florida, on the basis
o f his Fifth Amendment privilege against self-incrimination. By this Motion, the Insurer D e f en d a n ts seek to compel Scanlon to answer deposition questions about the substance of the c o n v e rsa tio n s between the parties at this January 23, 2004 meeting, overruling Scanlon's Fifth A m e n d m e n t objection. Scanlon pled guilty in the United States District Court for the District of Columbia to a federal criminal conspiracy charge, involving the corruption of public officials and the d e f ra u d in g (by mail and interstate wire) of clients. As part of the conspiracy, Jack Abramoff (A b ra m o f f ) induced Indian tribe clients of Greenberg, including the Coushatta Tribe, to retain th e services of Scanlon and his lobbying-support firm, Capitol Campaign Strategies. Then, S ca n lon and Abramoff would split the profits earned for those services, which were o v e rc h a rg e d to the clients, without disclosing their fee arrangement to the clients. The factual b a sis for Scanlon's plea reveals that the relevant business activities between Scanlon and A b ra m o f f , upon which the charge is based, occurred "from 2001 through at least March 2004". In connection with his plea, Scanlon was provided immunity from future prosecution by th re e federal prosecutorial entities: the Public Integrity Section of the Department of Justice ("D O J), the Fraud Section of the DOJ and the United States Attorney's Office for the Southern D is tric t of Florida; Scanlon does not have immunity from prosecution by any other federal e n tity or any United States Attorney in any other federal jurisdiction, nor does he have im m u n ity from prosecution by any state authority.
P u rsu a n t to the terms of his plea agreement, Scanlon is required to fully cooperate with th e government in other cases and investigations, and, if the government determines that he has p ro v id e d substantial assistance to law enforcement officers in the investigation and prosecution o f others, the government has promised Scanlon that it will file a motion for a downward d e p a rtu re from the United States Sentencing Guidelines under USSG § 5k1.1 or a motion under R u le 35,FRCrP, for a reduction of Scanlon's sentence. Scanlon has not yet been sentenced; Scanlon is currently cooperating with DOJ in o n g o ing criminal investigations as required by the terms of his plea agreement. The record f u rth e r reveals that the government is opposed to this court's ordering Scanlon to answer a d d itio n a l questions due to the "possible negative impact" on these ongoing criminal p r o s e c u t io n s and investigations in which Scanlon is expected to be, or is, a critical witness. [ S e e rec. doc. 182-4, pg. 2-4]. V a lid ity of Scanlon's Invocation of the Privilege T h e Fifth Amendment protects an individual from being compelled to be a witness a g ains t himself. U.S. Const. Amend. V. The Fifth Amendment privilege against compulsory s e lf -in c rim in a tio n "can be asserted in any proceeding, civil or criminal, administrative or ju d ic ia l, investigatory or adjudicatory . . . ." Kastigar v. United States, 406 U.S. 441, 444, 92 S .C t. 1653, 1656, 32 L.Ed.2d 212 (1972); Wehling v. Columbia Broadcasting System, 608 F.2d 1 0 8 4 , 1086 (5 th Cir. 1979) ("The fact that the privilege is raised in a civil proceeding rather th a n a criminal prosecution does not deprive a party of its protection."). This constitutional
p riv ile g e protects a witness against incrimination under federal as well as state law. Murphy v. W a terfro n t Comm'n, 378 U.S. 52, 78, 84 S.Ct. 1594 (1964); Malloy v. Hogan 378 U.S. 1, 11, 8 4 S.Ct 1489 (1964) ("the feared prosecution may be by either federal or state authorities."). Moreover, the privilege extends not only to answers that would in themselves support a c o n v ic tio n , but, likewise, "embraces those which would furnish a link in the chain of evidence n e e d ed to prosecute." Malloy, 378 U.S.at 11. Thus, the privilege "protects against any d is c lo s u re s which the witness reasonably believes could be used in a criminal prosecution or c o u ld lead to other evidence that might be so used." Kastigar, 406 U.S. at 445. T h e privilege against self-incrimination is not waived or extinguished by entry of a g u ilty plea; rather, the privilege remains unimpaired through sentencing. Mitchell v. United S ta te s, 526 U.S. 314, 324-327 (1999). This is so, "because of the danger of responding to q u e stio n s that might have an adverse impact on [the criminal defendant's] sentence or on his p ro s e c u tio n for other crimes." Id. at 327. In sum, "liability for punishment continues until s e n te n c e has been imposed." Id. at 326. Thus, "[w]here the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony." Id.; U n ite d States v. Hernandez, 962 F.2d 1152, 1161 (5 th Cir. 1992). This is particularly true given th a t a defendant's guilty plea is more like an offer to stipulate that he has done "some of" the p ro f f ere d conduct which is sufficient for the court to find an adequate factual basis for the plea, n o t to illicit a waiver of the privilege for proceedings still to follow. Mitchell, 526 U.S. at 324325.
U n d e r Fifth Circuit precedent, the privilege against self-incrimination may be invoked w h e re the witness "reasonably apprehends a risk of self-incrimination, . . . though no criminal c h a rg e s are pending against him, . . . and even if the risk of prosecution is remote." Wehling, 6 0 8 F.2d at 1087, n. 5. In determining whether the witness may validly assert the privilege and refuse to re sp o n d , "the court must determine whether answers to the questions might tend to reveal that th e witness has engaged in criminal activities." In re Corrugated Container Anti-Trust L itig a tio n , 620 F.2d 1086, 1091 (5 th Cir. 1980). "If answering the questions might incriminate th e witness, the court must next ask whether there is a risk, even a remote risk, that the witness w ill be prosecuted for the criminal activities that his testimony might touch on." Id. This d e te rm in a tio n "does not depend upon a judge's prediction of the likelihood of prosecution." Id. "When a witness can demonstrate any possibility of prosecution which is more than fanciful he h a s demonstrated a reasonable fear of prosecution sufficient to meet constitutional muster." Id. at 1092 (emphasis added). Further, "the claim of privilege must be sustained if it is `evident from the implications o f the question, in the setting in which it is asked, that a responsive answer to the question or an e x p lana tio n of why it cannot be answered might be dangerous because injurious disclosure c o u ld result.'" Steinbrecher v. C.I.R., 712 F.2d 195, 198 (5 th Cir. 1983) citing Hoffman v. U n ite d States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
In this case, it is clear that answers to the questions posed might tend to reveal that the w itn e ss , Scanlon, has engaged in criminal activities. The insurer defendants seek to compel S c a n lo n to testify about the criminal conduct he engaged in with Abramoff over a period of s e v e ra l years. Although the insurer defendants couch their request as merely seeking in f o rm a tio n about what Greenberg knew about the criminal enterprise existing between S c a n lo n and Abramoff as set forth in Scanlon's Rule 11 Factual Stipulation supporting his plea, that information cannot be obtained without compelling Scanlon to divulge potentially in c rim in a tin g responses about the criminal referral fee relationship, well beyond those facts w h ic h Scanlon has previously acknowledged, described in a general fashion, in his Rule 11 F a c tu a l Stipulation supporting his plea.1 Indeed, the information sought is about the potentially in c rim in a tin g content of conversations Scanlon had with third parties, which conversations, and
This is particularly the case herein, given Greenberg's request that it be provided its right to fully and meaningfully cross-examine Scanlon should this court overrule his Fifth Amendment objection. As recognized by the Supreme Court, "even if the direct examination is limited to the questions and answers in the immunized transcript, there remains the right of cross-examination, a right traditionally relied upon expansively to test credibility, as well as to seek the truth. Petitioner's recognize this problem, but maintain that the antitrust defendants `would be entitled to test the accuracy and truthfulness of [the witness's] repeated immunized testimony without going beyond the confines of that testimony.' Regardless of any limitations that may be imposed on its scope, however, cross examination is intended to and often will produce information not elicited on direct. We must assume that, to produce admissible evidence, the scope of cross-examination at the deposition cannot easily be limited to the immunized testimony." Pillsbury v. Conboy, 459 U.S. 248, 259-260, 103 S.Ct. 608 (1983) (emphasis added). These same considerations militate against any attempt by this court to limit Greenberg's crossexamination. To do so would deny Greenberg the opportunity to explore Scanlon's truthfulness and the strength of any adverse testimony Scanlon may present against it. "The sufficiency of cross examination depends on the circumstances of each case." United States v. Demchak, 545 F.2d 1029, 1030 (5th Cir. 1977). Under the circumstances of this case, given Greenberg's claimed inability to present its own account of the substance of the conversations at the January 23, 2004 meeting, this court could not adequately protect Greenberg's interests if it were to place a limit on the scope of the cross-examination to only those facts set forth in connection with Scanlon's plea.
th e content thereof, are not mentioned in Scanlon's plea agreement. F u r th e r, the factual basis supporting Scanlon's plea was limited to the criminal conduct h e engaged in with Abramoff over a period of several years; it included no facts suggesting c rim in a l fee referral relationships Scanlon may have been engaged in with, or suggested to, G re e n b e rg or other third parties. Compelling Scanlon to testify about the presently unknown c o n ten t of the conversation Scanlon had with Greenberg may lead to the disclosure of exactly th is additional potentially incriminating information, facts regarding existing or proposed c rim in a l referral fee relationships or other criminal activity, not previously acknowledged by S c a n lo n in connection with his plea. This additional, and presently undisclosed, information c o u ld furnish a link in the chain of evidence needed to prosecute Scanlon for additional c rim in a l wrongdoing and could lead to other evidence that could be used against him in such p ro s e c u tio n . Malloy, Kastigar, supra. The undersigned also cannot find that answering the challenged questions might not in c rim in a te Scanlon. Here, Scanlon appeared for deposition, and then, with the assistance of c o u n se l, determined whether a truthful answer to each question posed might reasonably tend to in crim inate him. That is exactly what the law entitles him to do. As confirmed by the insurer's c o u n se l during oral argument, neither the Insurer Defendants nor this court know what the tru th f u l answers to the challenged questions will be.2 Hence, there is no basis for this court to d e te rm in e that the answers could not expose Scanlon to adverse consequences, either by way of
Of course, Scanlon and his lawyer know.
a more severe sentence or by way of additional prosecution by any number of state or federal a u t h o r itie s . T h e record before this court demonstrates that Scanlon is presently awaiting sentencing, w h e re in he faces a potential maximum sentence of five years imprisonment. Under the current ju ris p ru d e n c e, the sentencing judge has great discretion to sentence Scanlon at either the high o r low end of the federal sentencing guideline range; the sentencing judge is also vested with a m p le authority to depart upward or downward from the applicable guideline range in the event th e judge finds the known facts justify such action. See United States v. Booker, 543 U.S. 220, 1 2 5 S.Ct. 738, 160 L.Ed.2d 621 (2005); Gall v. United States, --- U.S. ----, 128 S.Ct. 586, 597, 1 6 9 L.Ed.2d 445 (2007); United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir.2006) (n o tin g that under the discretionary sentencing system established by Booker, a district court m a y impose three types of sentences: "(1) a sentence within a properly calculated Guideline ra n g e ; (2) a sentence that includes an upward or downward departure as allowed by the G u id e lin e s, which sentence is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence."). It is therefore clear that any a d d itio n a l incriminating testimony elicited from Scanlon in this action can be considered by the se n ten c in g court as an aggravating factor warranting imposition of a harsher sentence, within o r outside, the applicable guideline range, or make it less likely for Scanlon to get a downward d e p a rtu re from the guideline range.
It is equally clear that Scanlon's potential sentence range may be significantly reduced, e ith e r by way of the filing of a motion for a downward departure from the United States S e n te n c in g Guidelines under USSG § 5k1.1 or a motion under Rule 35, depending upon the v a l u e of his assistance to the government as a cooperating witness. The record demonstrates, h o w e v e r, that the government opposes any order by this court requiring Scanlon to answer a d d itio n a l questions due to the "possible negative impact" on its ongoing criminal prosecutions a n d investigations in which Scanlon is expected to be, or is, a critical witness. Under these circumstances, Scanlon certainly has a legitimate fear of adverse c o n seq u en ce s at his sentencing from further testimony; this court will not jeopardize Scanlon's o p p o rtu n ity to receive a more favorable sentence, or his value to the government, by mandating th a t he answer additional questions. Mitchell, Hernandez, supra. F u r th e rm o re , the record reveals that there is more than a fanciful possibility of further p ro s e c u tio n should Scanlon be compelled to testify. As previously noted, any additional, and p re se n tly undisclosed, information elicited from Scanlon by compelled resumed deposition c o u ld furnish a link in the chain of evidence needed to prosecute Scanlon for additional c rim in a l wrongdoing. Malloy, Kastigar, supra. It is beyond dispute that Scanlon (through his company CCS) and Abramoff did b u s in e ss with Indian tribes in numerous states which are encompassed within the jurisdiction of v a rio u s state and federal prosecutorial agencies. Nothing in Scanlon's plea agreement p r e c lu d e s the initiation of prosecution by any state authority or any federal authority in these
ju ris d ic tio n s , other than the three federal entities set forth in the plea agreement, namely the P u b lic Integrity Section of the DOJ, the Fraud Section of the DOJ and the United States A tto rn e y's Office for the Southern District of Florida. Moreover, as acknowledged by the insurer's counsel during oral argument, it is clear th a t the applicable statute of limitations of various states in which Scanlon conducted f ra u d u le n t criminal activity has not expired, and hence, those states are not legally barred from p r o s e c u t in g Scanlon. For example, as noted by Scanlon, he and Abramoff conducted business w ith the Saginaw Chippewas located in Michigan which has a six year statute of limitations on p ro s e c u tio n s for fraud; that limitation period has not run. Thus, under Fifth Circuit precedent, this risk is more than sufficient support for S c a n lo n 's valid assertion of his Fifth Amendment privilege; Scanlon has demonstrated "any p o ss ib ility of prosecution which is more than fanciful" and that he therefore "has a reasonable f e ar of prosecution." In re Corrugated Container, supra. In light of the above, the court concludes that Scanlon has validly invoked his Fifth A m e n d m e n t right against self-incrimination in these proceedings. It is evident and readily a p p are n t from the record before this court that responsive answers to the Insurer Defendant's q u e s tio n s could result in injurious disclosure which is real and not remote or speculative. Scanlon's privilege must therefore be sustained.3 Steinbrecher, supra.
For these same reasons, SR International Business Company SE's request, by Reply herein, that this court c o n d u c t an in camera hearing to determine if Scanlon has satisfied his burden of proof is not warranted. [rec. doc. 1 9 1 ].
S c a n lo n did not Waive the Privilege This court's finding that Scanlon has validly asserted his Fifth Amendment privilege d o e s not end this court's inquiry. The next question is whether, given Scanlon's guilty plea in th e criminal action and his actions and testimony in this civil action, his Fifth Amendment p riv ile g e can be deemed waived in this case. The privilege against self-incrimination is guaranteed by the Constitution, and the courts m u s t therefore "indulge every reasonable presumption against waiver . . . ." Smith v. United S ta te s, 337 U.S. 137, 150, 69 S.Ct. 1000 (1949); Emspak v. United States, 349 U.S. 190, 198, 7 5 S.Ct. 687 (1955). Thus, waiver of the privilege is not lightly to be inferred. Smith, 337 U.S. a t 150; Poretto v. United States, 196 F.2d 392, 394 (5 th Cir. 1952). Further, waiver cannot p ro p e rly be found on vague and uncertain evidence. Smith, 337 U.S. at 150. S c a n lo n 's guilty plea in his criminal proceeding is not sufficient to constitute a waiver of h is Fifth Amendment privilege in this civil lawsuit. In Mitchell v. United States, the Supreme C o u rt found that "a guilty plea is more like an offer to stipulate than a decision to take the s ta n d " and that the "purpose of Rule 11 is to inform the defendant of what he loses by forgoing th e trial, not to elicit a waiver of the privilege for proceedings still to follow." Mitchell, 526 U .S . at 323, 119 S.Ct. 1307. Although Mitchell concerned the issue of whether a defendant's g u ilty plea functioned as a waiver of the defendant's right to remain silent at sentencing, and th u s did not directly address the relationship between a guilty plea and subsequent civil p ro c e e d in g s that occur before sentencing, the Court explicitly held that a "waiver of a right to
tria l with its attendant privileges is not a waiver of the privileges which exist beyond the c o n f in e s of the trial." Id. at 324, 119 S.Ct. 1307. That is the case herein. Moreover, the Fifth Circuit, like other circuit courts, has held that "the constitutional p riv ile g e attaches to the witness in each particular case in which he is called upon to testify, w ith o u t reference to his declarations at some other time or place or in some other proceeding." Poretto, 196 F.2d at 394. Indeed, most courts that have considered this issue have held that the w a iv e r of the privilege against self-incrimination in one proceeding does not affect the right of a witness or accused to invoke the privilege as to the same subject matter in another in d e p e n d e n t proceeding, but is limited to the proceeding in which it occurs. United States v. J a m e s, 609 F.2d 36, 43 (2 n d Cir. 1979) citing Ottomano v. United States, 468 F.2d 269, 273 (1 s t Cir. 1972) and United States v. Miranti, 253 F.2d 135, 139-40 (2d Cir. 1958); In re Neff, 2 0 6 F.2d 149, 152 (3 r d Cir. 1953); Ginyard v. United States, 816 A.2d 21, 33 (D.C. 2003); M o r r is Kirschman & Company, LLC v. Hartford Fire Insurance Company, 2004 WL 1373277, * 3 (E.D.La. 2004); In re Vitamins Antitrust Litigation, 120 F.Supp.2d 58, 66 (D.D.C. 2000) c itin g 42 A.L.R. Fed 793 at § 3 (1979) (citing cases with similar holdings in the First, Second, T h ird , Fourth and Ninth Circuits). R e c o g n iz in g the effects of this line of cases, by Reply, the Insurer Defendants argue that S c a n lo n waived his privilege against self-incrimination by his conduct in this litigation. They c ite his failure to assert the privilege earlier in this proceeding, his verified responses to d is c o v e ry, and testimony elicited at his deposition.
W a iv e r may be inferred, in an appropriate case, from a witness's voluntary conduct with re s p e c t to a subject matter of the litigation. Morris, Kirschman & Company, 2004 WL 1 3 7 3 2 7 7 at *3; In re Vitamins Antitrust Litigation, 120 F.Supp.2d at 66. "[W]here a witness has v o lu n ta rily answered as to materially [in]criminating facts . . . he cannot then stop short and re f u s e further explanation, but must disclose fully what he has attempted to relate." Rogers v. U n ite d States, 340 U.S. 367, 373-374, 71 S.Ct. 438 (1951). Thus, where incriminating facts h a v e been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the d e ta ils . Id. at 373. However, a witness does not lose his Fifth Amendment privilege unless he te stif ie s to an incriminating fact. Rogers, 340 U.S. at 372-74. Accordingly, if the witness d is c lo s e s nothing that might be characterized as incriminating, he does not waive his privilege. S e e James, 609 F.2d at 45; Morris, Kirschman & Company, 2004 WL 1373277 at *4; In re V ita m in s Antitrust Litigation, 120 F.Supp.2d at 67-68. The Insurer Defendants argue that in Scanlon's discovery responses, he voluntarily d is c lo s e d incriminating facts mandating revelation of further details about the substance of the conversations he and the Greenberg partners had during the January 23, 2004 meeting in F lo rid a . The court disagrees. In his discovery responses, S c a n lo n disclosed that he had communicated with numerous G re e n b e rg employees during the course of his consulting work with the Tribes, and his a tten d an ce at progress and sales meetings at Greenberg's Washington office, and a "January 2 0 0 4 Greenberg Traurig shareholders meeting at which Scanlon made a presentation regarding
h is relationship with Abramoff." See Answer to Interrogatory 14. In his deposition, Scanlon a d m itte d that he attended a meeting in January 2004 with Greenberg partners in Florida, stating th e date, place and time of the meeting, as well as the persons who attended. N o n e of these disclosures are sufficiently incriminating so as to constitute a waiver, re q u irin g Scanlon to testify, under oath, to the content of the meetings. The fact that Scanlon c o m m u n ic a te d with Greenberg employees or attended Greenberg meetings during the course of h is work with the Tribes is not incriminating as this information in no way, in and of itself, lin k s Scanlon to criminal activity. Scanlon worked in association with Abramoff, therefore any d is c lo s u re that Scanlon had contact with employees of Abramoff's firm, Greenberg, would be e x p e c ted . Importantly, Scanlon does not state, nor does he suggest, that his contacts with G ree n b erg employees, or his attendance at Greenberg meetings, were other than in the ordinary c o u rse of lawful business. In sum, Scanlon's responses to discovery and interrogatories simply d o not indicate that any type of criminal activity occurred, nor do they in any way link him to s u c h activity, as such, they are not incriminating.4 N o r is there anything incriminating about Scanlon's divulging in his deposition that he w a s told by Abramoff that the "need" for the meeting was for him to "give a presentation to s e n io r lawyers at Greenberg Traurig about [his] clients and the payment of potential referral f e es for calendar year 2004." While the Insurer defendant's place great emphasis on the fact th e Scanlon used the term "referral fees", as that is the term used to describe the illegal
Of course, forcing Scanlon to testify about what went on at those meetings might well be highly in c r im in a tin g .
p a ym e n ts Scanlon made to Abramoff, there is nothing per se illegal in the contractual, d is c lo s e d payment of a referral fee. The fees paid to Abramoff were illegal, not because they w e re paid, but because they were made without disclosure to the clients, in contravention of A b ra m o f f 's fiduciary duty to the clients, for his personal gain. Finally, the court does not find that, by confirming his financial agreement with 5 , and p a ym e n ts to 6 , Abramoff in discovery responses, or by giving testimony during his deposition th a t he plead guilty to a federal criminal conspiracy charge or his confirmation and verification o f the truth of the facts generally set forth in the factual basis supporting his plea, Scanlon w a iv e d his privilege with respect to questions regarding the substance of the conversations S c a n lo n had with the Greenberg partners during the January 23, 2004 meeting. Scanlon's responses about the factual basis for his plea do not touch on the substance of h is unknown and undisclosed conversations with Greenberg, and Scanlon never testified as to th e content of these conversations, instead consistently invoking his privilege with regard to th is line of questioning. This factual information therefore did not open the door to this line of q u e stio n in g sought by the Insurer Defendants herein. Further, the court cannot construe any p u rpo rted waiver so broadly as to encompass details of a conversation Scanlon had with third
See Answer to Interrogatory 6 wherein Scanlon confirmed that he agreed to give Abramoff fifty percent of th e profits received from CCS contracts with the Tribes, referring the reader to both the information in his plea a g r e e m e n t and the "Gimme Five" Final Report Before the Committee on Indian Affairs, both a matter of public r e c o r d . This fact was expressly disclosed in paragraph 6 of the factual basis supporting Scanlon's plea. S e e Answer to Interrogatory 9 wherein Scanlon confirmed payment of fees to Abramoff. In paragraph 8 o f the factual basis supporting Scanlon's plea, payments made by Scanlon to Abramoff with respect to Indian tribe c lie n ts were estimated to be $19,698,644.00.
p a rties . That is particularly the case here, given that any compelled further responses would e x p o se Scanlon to extensive cross-examination by Greenberg, potentially exposing him to the h o s t of additional adverse consequences set forth above. B a se d on the foregoing, indulging every reasonable presumption against waiver and m in d f u l not to infer waiver on vague and uncertain evidence, the undersigned cannot find a w a iv e r in this case. Smith, Emspak and Poretto, supra. Scanlon disclosed nothing that might b e characterized as incriminating with respect to the January 23, 2004 meeting, and therefore, h e did not waive his privilege as to this line of questioning. James, Morris, Kirschman & C o m p a n y , and In re Vitamins Antitrust Litigation, supra. Scanlon consistently objected to each q u e stio n which might implicate an incriminatory response with respect to the subject meeting a n d did not voluntarily reveal any materially incriminating facts on this subject. He therefore c a n properly invoke the privilege to avoid disclosure and further explanation of the details and su b sta n c e of his conversations with Greenberg partners sought by the Insurer Defendants h e re in . Rogers, supra. W ith respect to the timing of the assertion of the privilege, the Supreme Court has stated th a t "[a] witness who is compelled to testify . . . has no occasion to invoke the privilege against se lf -in c rim in a tio n until testimony sought to be elicited will in fact tend to incriminate. It would in d e e d be irrelevant for him to do so. If he is to have the benefit of the privilege at all, and not b e confronted with the argument that he has waived a right even before he could have invoked it, he must be able to raise a bar at the point in his testimony when his immunity becomes
o p e ra tiv e ." Brown v. United States, 356 U.S. 148, 155, 78 S.Ct. 622 (1958). In this case, the re c o rd reveals that Scanlon invoked the privilege when compelled at his deposition to provide w h a t he reasonably believed to be incriminating testimony. Prior to that time, he had no reason to do so. Accordingly, this court cannot find that Scanlon waived the privilege by failing to a ss e rt it earlier in this litigation. F o r the above reasons, the Motion to Compel Scanlon to answer questions to which he a s s e rte d his Fifth Amendment right [rec. doc. 171] is denied. T h e application of the Order is hereby stayed until August 10, 2009, to allow appeal of th is Order to the District Judge and to allow movants to request a further stay from the District J u d g e of that part of this Order allowing Scanlon's release as a witness. Signed this 31 st day of July, 2009, at Lafayette, Louisiana.
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