ARTURO RAINERMAN, APPELLANT,
v.
EAGLE NATIONAL BANK OF MIAMI, APPELLEE
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Rainerman appealed an order compelling him to answer discovery questions in a post-judgment execution proceeding. The court held that Rainerman could invoke the Fifth Amendment privilege against self-incrimination on a blanket basis because the nature of the proceeding—discovery regarding assets in aid of execution—combined with pending criminal proceedings arising from his banking transactions, created a reasonable apprehension that any answers could incriminate him.
Rainerman may assert the Fifth Amendment privilege on a blanket basis in this context. Because the post-judgment proceeding in aid of execution by its nature narrowed the scope of inquiry to questions about assets and financial obligations, and because pending and potential criminal proceedings arising from fraudulent banking transactions suggested that any answers could furnish a link in ongoing criminal investigations, Rainerman had reasonable grounds to believe that answers to relevant questions would incriminate him.
[1] A party may properly assert the Fifth Amendment privilege against self-incrimination during civil discovery if they have reasonable grounds to believe that direct answers…
[2] The privilege against self-incrimination may be asserted when a witness reasonably apprehends a risk of self-incrimination, even if the risk of prosecution is remote.
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Join FLexlaw to unlock all legal intelligence“the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him”
Establishes the general legal standard for invoking the Fifth Amendment in civil discovery
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Join FLexlaw to unlock all legal intelligenceEagle National Bank obtained a judgment against Rainerman on a commercial promissory note and letter of credit. During subsequent bankruptcy proceedin…
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PER CURIAM.
Appellant, Arturo Rainerman, contends that it is sufficient, in order to sustain a claimed fifth-amendment privilege, to show that the nature of the proceeding, or setting where the claim is made, is such that a response to any relevant question might be incriminating. See Compton v. Societe Eurosuisse, S.A., 494 F.Supp. 836 (S.D.Fla.1980) (a witness may properly invoke the privilege against self-incrimination when he reasonably apprehends a risk of self-incrimination, even if the risk of prosecution is remote).
Appellee, Eagle National Bank, responds that approval of a blanket assertion of the privilege, in any setting, would be improvident and that the privilege should be asserted only as to individual questions as they are posited during discovery. See Fischer v. E.F. Hutton & Co., Inc., 463 So. 2d 289 (Fla. 2d DCA 1984) (in exercising his fifth-amendment privilege as to deposition questions, the defendant in a civil action, rather than simply refusing to answer any questions relating to the allegations of the suit, was required to make specific objection to a particular question).
The setting and nature of this proceeding is a deposition for discovery in aid of execution. Eagle was granted a judgment against Rainerman on a commercial promissory note and letter of credit. In a subsequent bankruptcy petition, Rainerman listed the obligations to Eagle among his dis-chargeable liabilities. Eagle obtained a final judgment from the bankruptcy court declaring that because of fraud, $50,000 of the debt owed to Eagle was not dischargea-ble in bankruptcy, 80 BR 549. Eagle is currently searching for Rainerman’s assets in order to satisfy its judgment.
It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him. See Pillsbury Co. v. Conboy, 459 U.S. 248, 266, 103 S.Ct. 608, 619, 74 L.Ed.2d 430, 445-446 n. 1 (1983) (a witness need show only a realistic possibility that his answer will be used against him); Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1123-24 (1951); Meek v. Dean Witter Reynolds, 458 So. 2d 412 (Fla. 4th DCA 1984) (no need to prove actual indictment or investigation); DeLisi v. Bankers Ins. Co., 436 So. 2d 1099 (Fla. 4th DCA 1983); DeLisi v. Smith, 423 So. 2d 934, 938 (Fla. 2d DCA 1982), rev. denied, 434 So. 2d 887 (Fla.1983). See generally Litchford, The Privilege Against Self-incrimination in Civil Litigation, 57 Fla.B.J. 139 (1983).
Presently pending against Rainer-man are criminal proceedings arising out of banking transactions with Eagle and, as Eagle admits, there are other charges which could be brought depending on Rain-erman’s answers regarding his assets. Eagle contends that the existence of any privilege, nonetheless, depends on the specific questions propounded.
In Fischer, 463 So. 2d at 290, relied on by Eagle, the defendant refused to answer any questions relating to the allegations of the entire complaint. In that case it was appropriate to require that the objections be limited to only those questions where the privilege specifically applied. Here, however, the post-judgment proceeding in aid of execution, by its very nature, has narrowed the scope of inquiry to questions about Rainerman’s assets and financial obligations. Allegations of Rainerman’s fraudulent banking relationship with Eagle suggest that revelations in the discovery could furnish a link in ongoing and future criminal proceedings. In this posture of the case any answers Rainerman may give to relevant questions may tend to incriminate him, therefore, he has a right to assert the privilege. See, e.g., Stewart v. Mussoline, 487 So. 2d 96 (Fla. 3d DCA 1986) (mother charged with murdering her husband, allegedly for financial gain, was enti- tied to invoke her fifth-amendment privilege and to refuse to answer questions concerning her financial status).
The order compelling answers to discovery in aid of execution is reversed and the cause is remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Magid v. Elliot C. Winter, 654 So. 2d 1037 (Fla. 4th DCA 1995)…crimination may be asserted during discovery if the litigant has reasonable grounds to believe that answers to questions posed would furnish a link in the chain of evidence needed to prove a crime against him. Rainerman v. Eagle Nat’l Bank of Miami, 541 So. 2d 740 [*1039] (Fla. 3d DCA 1989). “It need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that the answers will be used…
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Novak v. Snieda, 659 So. 2d 1138 (Fla. 2d DCA 1995)…invoke the Fifth Amendment when sitting for a deposition in aid of execution if he has reasonable grounds to believe that his answers would provide “a link in the chain of evidence needed to prove a crime against him.” Rainerman v. Eagle Nat'l Bank, 541 So. 2d 740, 741 (Fla. 3d DCA 1989). Section 56.29(8), Florida Statutes (1991) purports to grant immunity to persons examined in proceedings supplementary. Section 56.29(8) provides: A party or a witness examined under these provisions is not excused from answ…
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Zahir Kanji v. Gulfrose Valli, 621 So. 2d 750 (Fla. 5th DCA 1993)…ourt, at which time that court must determine whether the response could result in criminal charges and/or conviction. See Fischer v. E.F. Hutton & Co., Inc., 463 So. 2d 289, 291 (Fla. 2d DCA 1984). But see Rainerman v. Eagle National Bank of Miami, 541 So. 2d 740, 741 (Fla. 3d DCA 1989) (where nature of proceeding “has narrowed the scope of inquiry” to matters germane to potential criminal prosecution, a general objection to all discovery questions permissible). In the absence of same, it cannot be said that…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. United States, 341 U.S. 479 (U.S. 1951)
- Pillsbury Co. v. Conboy, 459 U.S. 248 (U.S. 1983)
- Delisi v. Smith, 423 So. 2d 934 (Fla. 2d DCA 1982)
- DeLISI v. Bankers Ins. Co., 436 So. 2d 1099 (Fla. 4th DCA 1983)
- Fischer v. E.F. Hutton & Co., Inc., 463 So. 2d 289 (Fla. 2d DCA 1984)
- Stewart v. Mussoline, 487 So. 2d 96 (Fla. 3d DCA 1986)
- Wrobleski v. Lottie Wrobleski, 458 So. 2d 412 (Fla. 4th DCA 1984)
- Meek v. Dean Witter Reynolds, Inc., 458 So. 2d 412 (Fla. 4th DCA 1984)
- Compton v. Societe Eurosuisse, S.A., 494 F. Supp. 836 (S.D. Fla. 1980)