Pipitone v. City of New York et al

Filing 131

ORDER: For the reasons discussed in the attached order, I find that Mr. Caracappa retains a Fifth Amendment privilege with respect to deposition questions that touch upon the factual basis of his prior criminal conviction, and therefore order that Mr . Caracappa's deposition be stayed pending conclusion of his habeas proceedings. Ordered by Magistrate Judge Joan M. Azrack on 4/25/2012. Associated Cases: 1:06-cv-00145-RJD-JMA, 1:06-cv-02864-RJD-JMA, 1:06-cv-03101-RJD-JMA (Beauchamp, Peter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PAULINE PIPITONE, individually and as the
administrator of the estate of NICHOLAS GUIDO,
Plaintiff,

ORDER
06-CV-0145 (RJD) (JMA), et al.

-againstCITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, STEPHEN CARACAPPA and
LOUIS EPPOLITO,
Defendants.
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I. BACKGROUND
On September 20, 2011, I ordered defendant Stephen Caracappa to appear for deposition
in accordance with my prior order of July 14, 2011. ECF No. 126. District Judge Trager had
previously ordered that Mr. Caracappa be precluded from participating in these consolidated
civil actions until after “all direct appeals are decided.” ECF Nos. 28, 90, Greenwald v. City of
New York, et al., No. 06-CV-2864 (RJD). All of Mr. Caracappa’s direct criminal appeals were
decided as of November 29, 2010, when the United States Supreme Court denied certiorari to the
Second Circuit Court of Appeals.

Caracappa v. United States, 131 S. Ct. 675 (2010).

Accordingly, because any petition for habeas corpus review filed by Mr. Caracappa would be a
collateral challenge, not a direct appeal, see Bousley v. United States, 523 U.S. 614, 621 (1998),
I held that he was no longer entitled to a stay of his participation in these civil actions.
Unknown to this Court, on September 30, 2011, District Judge Jack B. Weinstein ordered
that a prior letter submitted by Mr. Caracappa be treated as a petition for a writ of habeas corpus.
ECF No. 2, Caracappa v. United States of America, No. 11-CV-4921 (JBW). On December 2,
2011, Judge Weinstein ordered that CJA counsel be appointed to represent Mr. Caracappa in his

habeas proceeding. Id. ECF No. 3. On December 5, 2011, attorney Zoe Jayde Dolan was
appointed as Mr. Caracappa’s habeas counsel. Id. ECF No. 4. On March 21, 2012, Ms. Dolan
filed a formal first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Id. ECF No.
17.
On March 29, 2012, counsel for plaintiffs and defendant City of New York traveled to
the Florida detention facility where Mr. Caracappa is currently serving his criminal sentence in
order to conduct his deposition. Planning for this deposition dated back to the issuance of my
order in September of 2011. Upon their arrival, Mr. Caracappa informed counsel that he refuses
to testify at deposition on the basis of his Fifth Amendment privilege against self-incrimination,
which he claims to retain in light of his petition for habeas corpus review of his criminal
conviction. Mr. Caracappa also informed the parties for the first time that he has habeas counsel.
Thereafter, the Court consulted with Ms. Dolan, who also argued that her client retains a Fifth
Amendment privilege in light of his habeas request for a new criminal trial.1 I ordered plaintiffs,
the City of New York, and Ms. Dolan to submit letter-briefs regarding the question of Mr.
Caracappa’s continuing Fifth Amendment privilege.
II. DISCUSSION
The Supreme Court and the Second Circuit have clearly established that where a
defendant has “already been convicted and sentenced with respect to the crime of which he was
asked to speak, he [has] no right to refuse to answer on the ground of self-incrimination.”
McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (citing Mitchell v. United States, 526 U.S.
314, 325–26 (1999)). It is less clear, however, whether a defendant retains a Fifth Amendment

1

Although Ms. Dolan does not represent Mr. Caracappa in the instant civil actions, she makes arguments to the
Court here in order to protect her client’s interests in his habeas action, Carcappa v. United States of America, No.
11-CV-4921 (JBW).

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privilege after all direct criminal appeals have been exhausted, but prior to exhaustion of all postconviction or collateral challenges.
In light of this uncertainty in the law, all of the parties agree, for the purposes of this
deposition, that Mr. Caracappa may assert a Fifth Amendment privilege in response to questions
specifically concerning the facts of the crimes for which he could potentially be retried if his
habeas petition is successful. What remains to be decided is the extent to which Mr. Caracappa
should be made to testify at deposition as to factual matters that are unrelated to his criminal
conviction. Plaintiffs seek to depose Mr. Caracappa as to: (1) his disciplinary history with the
NYPD; (2) his duties and responsibilities while employed by the NYPD; (3) the circumstances of
his hiring by the NYPD; and (4) his relationship on the job with defendant Louis Eppolito. Pls.’
Ltr. at 2, ECF No. 124, Greenwald. The City of New York and Ms. Dolan contend that certain
questions along these inquiries may implicate Mr. Caracappa’s Fifth Amendment privilege. ECF
Nos. 129, 130.
I find that Mr. Caracappa retains a Fifth Amendment privilege with respect to deposition
questions that touch upon the factual basis of his prior criminal conviction. See Kastigar v.
United States, 406 U.S. 441, 444–45 (1972) (The Fifth Amendment “can be asserted in any
proceeding, civil or criminal . . . and it protects against any disclosures that the witness
reasonably believes could be used in a criminal prosecution or could lead to other evidence that
might be so used.”). I further find that legal and logistical considerations weigh against taking
any deposition of Mr. Caracappa prior to conclusion of his habeas proceedings. While there are
surely some questions pertaining to plaintiffs’ Monell claims to which Mr. Caracappa could
show no “legitimate fear of prosecution” by answering, a second deposition would almost
certainly be necessary once either his Fifth Amendment privilege expires or a new criminal trial

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is granted at the conclusion of his habeas proceedings. United States v. Blumberg, 787 F. Supp.
67, 70 (S.D.N.Y. 1992). In the event that Mr. Caracappa’s habeas petition results in a new trial,
the factual issues decided in his criminal trial would necessarily lose their collateral estoppel
effect in these actions, thereby necessitating a second deposition of much wider scope than
plaintiffs seek now. What is more, the facts underlying plaintiffs’ Monell claims are likely to be
so intertwined with those of Mr. Caracappa’s criminal conviction that very little of his
prospective deposition testimony would not implicate his Fifth Amendment right. For instance,
it is hard to imagine that testimony about Mr. Caracappa’s relationship with co-defendant Louis
Eppolito would not implicate the factual bases upon which the two have been jointly convicted.
Thus, the value of what Mr. Caracappa could now be compelled to testify about is de minimis.
Accordingly, I hereby order that Mr. Caracappa’s deposition be stayed pending conclusion of his
habeas proceedings.

SO ORDERED.

Dated: April 25, 2012
Brooklyn, New York

/s/
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE

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