# Eastham v. Arndt > Court of Appeals of Washington · March 2, 1981 · 28 Wash. App. 524 URL: https://www.frixlaw.com/law-library/cases/9883265 ## Case - **Full name:** Richard M. Eastham, Respondent, v. Ferdnand M. Arndt, Et Al, Appellants - **Court:** Court of Appeals of Washington - **Decided:** March 2, 1981 - **Citations:** 28 Wash. App. 524; 624 P.2d 1159; 1981 Wash. App. LEXIS 2037 - **Precedential status:** Published - **Opinion:** Concurrence by Williams - **Judges:** Callow - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883265 ## Opinion text Williams, J. (concurring)—Ferdnand M. Arndt did not demonstrate to the trial judge at the in camera hearing any basis for claiming a blanket Fifth Amendment privilege as to every question concerning his assets. His position is summed up in the last sentence of the portion of his testimony quoted in the majority opinion, at page 535: Mr. Arndt: I think, your Honor, that the value and the amount of the assets, you know, broad scope coverage would put me in severe jeopardy as far as opening up the door and explaining how the assets were obtained as they relate to the [named federal agency] prohibitions. The trial court did not have the slightest interest in how Arndt obtained his assets. Its only concern was to identify and locate them so that they could be seized, sold and the proceeds applied to the judgment debt. *537 In order to satisfy the court that there is a need to invoke the Fifth Amendment, the witness must demonstrate that there is a real danger that incriminating information will be revealed. [T]he asserted hazard of self-incrimination must appear to be genuine; if fanciful or illusory, the claim of immunity should be rejected as insufficient to overcome the correlative duty to the court and litigants to testify to the truth. This means that the power to decide whether the hazards of self-incrimination are genuine and not merely illusory, speculative, contrived or false, must rest with the trial court before whom the witness is called to give evidence. The power to decide whether the witness shall be immune from answering certain questions put to him on the ground that the answers will incriminate him is thus vested in the trial court to be exercised in its sound discretion under all of the circumstances then present. State v. Parker, 79 Wn.2d 326, 332 , 485 P.2d 60 (1971). Arndt pointed to no real danger. See, e.g., Zicarelli v. New Jersey Investigation Comm'n, 406 U.S. 472, 480 , 32 L. Ed. 2d 234 , 92 S. Ct. 1670 (1972). His cryptic assertion that there are "a whole series of other problems" stemming from a federal grand jury and federal agency investigation, does not in any way establish why he will incriminate himself under federal law if he tells about his assets. In determining whether there has been an adequate basis established to assert the privilege of the Fifth Amendment, the tried court must consider the setting in which the information is asked for. See Hoffman v. United States, 341 U.S. 479, 486 , 95 L. Ed. 1118 , 71 S. Ct. 814 (1951). The setting in this case is a court of general jurisdiction attempting to uncover a judgment debtor's assets. Arndt did not establish a basis for claiming the protection of the Fifth Amendment merely by making a nebulous reference to a federal grand jury and agency investigation. The trial court did not abuse its discretion in concluding Anrdt would not be placed in any genuine hazard of self-incrimination on the basis of his vague statements at the in camera hearing. Arndt claims that by answering questions at the in cam *538 era hearing regarding the federal agency and grand jury investigation he would waive his Fifth Amendment privilege. A waiver of the Fifth Amendment is not lightly implied. Smith v. United States, 337 U.S. 137 , 93 L. Ed. 1264 , 69 S. Ct. 1000 (1949). The whole purpose of the in camera hearing was to determine whether Arndt had a sufficient basis to invoke the Fifth Amendment. Arndt's disclosures to the trial court in such circumstances would not constitute a waiver of the Fifth Amendment for any subsequent federal criminal proceeding. United States v. Larry, 536 F.2d 1149 (6th Cir. 1976); Stone v. State, 85 Wn.2d 342, 344 , 534 P.2d 1022 (1975). Arndt also claims that he would incriminate himself if he testified as to the identity and location of any of his assets. It strains credulity to believe that every asset Arndt owns would somehow incriminate him under federal law. See Zicarelli v. New Jersey Investigation Comm'n, supra at 481. As the record now stands, it is impossible to determine whether Arndt would have been placed in danger of testifying as to the location and identity of assets which would "furnish a link in a chain of evidence sufficient to connect . . ." him with a crime. Malloy v. Hogan, 378 U.S. 1, 13 , 12 L. Ed. 2d 653 , 84 S. Ct. 1489 (1964). . The Fifth Amendment was designed to protect citizens from being forced to disclose evidence which would make them criminally liable, not to allow judgment debtors to hide assets. The trial court's order of contempt should be upheld. Reconsideration denied May 7, 1981. Review denied by Supreme Court July 17, 1981. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883265. Public record. Not legal advice.