holding that waiver of privilege against self-incrimination is "proceeding specific”
How later courts described this case
- holding that waiver of privilege against self-incrimination is "proceeding specific”
- ‘When a witness is asked a question in a subsequent proceeding, the answer to which could show that he has already committed the crime of perjury in a prior proceeding, his refusal to answer is permissible almost by the definition of self-incrimination. The witness is still criminally accountable for his earlier perjury.”
- “Once a witness has testified under oath, he risks the possibility of perjury charges in addition to any risk he may face for prosecution for non-perjury offenses suggested by his testimony.”
- “A blanket assertion of the privilege by a witness is not sufficient to meet the reasonable cause requirement and the privilege cannot be claimed in advance of the questions. The privilege must be asserted by a witness with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify.”
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
dissenting.
The majority reasons that the considerations that were before the Supreme Court in Pillsbury Co. v. Conboy,-U.S.-, 103 S.Ct. 608 , 74 L.Ed.2d 430 (1983), are not implicated in the instant case because of the particular offense for which appellant-Morganroth fears prosecution. The clear holding in Conboy is that a district court cannot compel a witness to answer deposition questions over a valid assertion of his Fifth Amendment right, absent a duly authorized grant of immunity at the time the testimony is sought. Thus, when a witness or deponent is accorded a grant of immunity for testimony that is given during one proceeding, a subsequent interrogation pertaining to the same subject matter must be accompanied by a new grant of immunity. The majority concludes that this rule is not applicable to the facts sub judice because the witness’ attempt to invoke his Fifth Amendment privilege was based upon his fear of prosecution for perjury. The majority further reasons that
because Morganroth alleges he is presently at risk for a different crime than those for which he initially faced a reasonable risk of prosecution, the question [pertaining to] the waiver issue is not properly raised by the facts.
*171 See Majority Opinion at 166-167. It is upon this basis that I enter my dissent.
My review of the proceedings below indicates that the appellant’s response to the numerous questions that were propounded to him was “I refuse to answer on the ground it may incriminate me.” During these proceedings, Morganroth’s attorney advised the court that if the appellant testified, he ran the risk of possible prosecution for tax evasion.
The majority apparently assumed that since the prosecutor informed the appellant that his answers during the grand jury proceeding contradicted the testimony of other witnesses, the appellant was invoking his right to remain silent in order that he would not perjure himself. However, the appellant declares that he invoked his Fifth Amendment privilege because of the possible threat of perjury and criminal tax evasion. 1 Nevertheless, the majority, characterized the issue as follows: “At issue is what sort of showing must be made by a witness to justify the invocation of the Fifth Amendment privilege when the only possible risk of prosecution which might flow from testimony in a subsequent proceeding is for perjury.” This construction of the issue completely ignores appellant’s claim of possible prosecution for tax evasion. Therefore, it is upon this basis that I construe the majority’s analysis to be in error.
Upon my review of the record, I conclude that this case is appropriate for application of the holding of Conboy because the appellant was faced with the possible prosecution for tax evasion; therefore, a second grant of immunity should have been extended to him. Accordingly, I view the facts herein as warranting a reversal of the district court’s order compelling the appellant to testify absent a subsequent assurance of immunity for that particular testimony.
. See Appellant’s brief page 5, n. 1, which reads: Mr. Morganroth asserted his Fifth Amendment privilege to the same set of questions [in the earlier proceeding] to which he asserts his privilege in the instant action. Immunity was then conferred upon Mr. Morganroth, his testimony given, and thereafter he was advised that his testimony was in serious conflict with that of others appearing before the grand jury. This apparent conflict and two possible legal ramifications flowing from it— threatened perjury and criminal tax evasion exposure — constitute in large part the basis for his imposition of his Fifth Amendment privilege in this action.