United States District Court, W.D. Pennsylvania
J. Schwab United States District Judge
the Court is Defendant Matakovich's Motion in
limine filed by his criminal defense counsel, and new
civil attorney in this civil case, Tina Miller. Doc. no. 227.
The Court ordered that all Trial Counsel for Plaintiff and
Defendants meet and confer with Defendant Matakovich's
new civil attorney and attempt to resolve this matter on or
before April 6, 2017, at 10:00 a.m. See Text Orders at doc.
nos. 228 and 231. However, because no agreement was reached,
Co-Defendants filed Response to the Motion (doc. no. 235)
essentially joining in the Motion, and Plaintiff filed a
Response in Opposition. Doc. no. 237.
basis for this Motion in limine is that Defendant
Matakovich is currently facing criminal prosecution in
federal and state courts, and has indicated that he will
assert his Fifth Amendment privilege against
self-incrimination when called to testify during the trial of
this civil matter. The Court denied Defendants' previous
Motion to Continue this trial (which was also predicated upon
the likelihood that Defendant Matakovich would assert his
Fifth Amendment privilege during this civil trial), filed on
behalf of all named Defendants. See doc. no. 200, Defendants'
Motion to Continue; and doc. no. 206, Memorandum Order
denying Defendants' Motion to Continue.
Memorandum Order denying the Motion to Continue, the Court
applied a six-factor test outlined in Barker v.
Kane, 149 F.Supp.3d 521, 525 (M.D. Pa. 2016), and
concluded that “it would be an extraordinary measure to
stay the trial in this case (which is already more than two
years old, and had been trial-ready for its original trial
date of April 18, 2016), and a measure that is not warranted
here.” Doc. no. 206, p. 2, 7. Nothing about the instant
Motion in limine changes the outcome of the
Court's Memorandum Order denying a trial continuance.
Defendant Matakovich's Motion in limine notes
that at the time this Defendant was deposed in this case - on
December 29, 2015 - he had “no notice or
knowledge” that he was being investigated by federal
authorities. Essentially, Defendant Matakovich is arguing
that he could not waive his Fifth Amendment right at the time
he gave his deposition in this civil case, because he did not
know he was under criminal investigation, nor that he would
be criminally prosecuted in both state and federal
court. In his Motion, Defendant Matakovich
suggests that if this Court were to recognize “Sgt.
Matakovich's right to assert his Fifth Amendment rights,
” and if the Court were to excuse his testimony during
the trial of this civil matter, Plaintiff could introduce
Defendant Matakovich's deposition testimony under Federal
Rules of Evidence 801(d) and 804.
Matakovich claims that by asserting his Fifth Amendment
privilege his testimony he becomes “unavailable”
under Federal Rule of Evidence 804(a)(1). See
California v. Green, 399 U.S. 149, 168 n.17
(1970) (“The hearsay exception itself has generally
recognized that a witness is ‘unavailable' for
purposes of the exception where through lapse of memory or a
plea of the Fifth Amendment privilege, the State cannot
secure his live testimony”). Next, Defendant Matakovich
suggests that due to his lack of availability, his deposition
testimony in this case could be read to the jury under F.R.E.
801(d). Although Rule 801(d)(1) does not apply, but Rule
801(d)(2) reads in relevant part:
(2) An Opposing Party's Statement. The
statement is offered against an opposing party and:
(A) was made by the party in an individual or representative
capacity . . . .
F.R.E. 801(d)(2). Co-Defendants concur with the Court
handling Defendant Matakovich's testimony in this
fashion. See doc. no. 235.
other hand, Plaintiff claims that the Motion in
limine should not be granted because: (1) the
Court's Order denying the trial continuance constitutes
“law of the case, ” and Defendant Matakovich has
not advanced any reason which would warrant reconsideration
of the Court's prior ruling; (2) the deadline for filing
Motions in limine has long passed; and (3) there
were criminal charges already pending against
Defendant Matakovich at the time he was deposed - state court
charges involving “G.D.” (which, as noted in
footnote 2, above, also relate to the federal prosecution).
Fifth Amendment right against self-incrimination can be
invoked “in any proceeding, civil or criminal,
administrative or judicial, investigatory or
adjudicatory[.]” Kastigar v. United States,
406 U.S. 441, 444, (1972). The right protects against
disclosures “which the witness reasonably believes
could be used in a criminal prosecution or could lead to
other evidence that might be so used.” Id. at
444-45, 92 S.Ct. 1653. See also Maness v. Meyers 419
U.S. 449, 461 (1975) (The protection does not merely
encompass evidence which may lead to criminal conviction, but
includes information which would furnish a link in the chain
of evidence that could lead to prosecution, as well as
evidence which an individual reasonably believes could be
used against him in a criminal prosecution.)
protection from self-incrimination applies where the
individual demonstrates that there is a possibility that he
will be criminally prosecuted based on his testimony.
Carter-Wallace, Inc. v. Hartz Mountain Industries,
553 F.Supp. 45 (S.D.N.Y. 1982). However, it is equally clear
that a party who has already testified to incriminating facts
cannot refuse to answer further questions which would not
subject him to further incrimination. Rogers v. United
States, 340 U.S. 367 (1951). Invocation of the privilege
must be upheld unless it is “perfectly clear, from a
careful consideration of all the circumstances of the ...