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Williams v. Baker

United States District Court, W.D. Pennsylvania

April 6, 2017



          Arthur J. Schwab United States District Judge

         Before 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.

         I. Background

         The 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.[1] See doc. no. 200, Defendants' Motion to Continue; and doc. no. 206, Memorandum Order denying Defendants' Motion to Continue.

         In its 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.

         However, 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.[2] 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.

         Defendant 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.

         On the 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).

         II. Analysis

         The 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.)

         The 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 ...

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