Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 624 -- Hubert L. Will, Judge .
Before Fairchild, Chief Judge, and Bauer and Wood, Circuit Judges.
This appeal arises from a district court order holding R. Harper Brown in civil contempt. Brown asserted a fifth amendment privilege and refused to answer questions propounded at a civil deposition after the court had ordered him to testify. He argues on appeal that he had "just cause" to assert the privilege because never having been granted immunity, prosecution remained possible. This court has jurisdiction under 28 U.S.C. § 1291 and the proceeding is governed by the recalcitrant witness statute.*fn1 This court stayed execution of the district court's commitment order pending disposition of the appeal.*fn2
In 1976 a Department of Justice investigation of the folding carton industry culminated in the indictment of twenty-three folding carton producers and fifty of their executives with one Sherman Act misdemeanor count charging a conspiracy to fix prices from 1960 to December 1974. United States v. Consolidated Packaging Corp., 575 F.2d 117 (7th Cir. 1978). At the time of the indictment Brown was the President and Chief Operating Officer of Container Corporation of America (CCA), the largest producer of folding cartons. Brown pleaded nolo contendere on April 23, 1976. The district court imposed a sentence of 15 days incarceration, $15,000 fine, and a mandatory probationary project. Mr. Brown completed his sentence and paid the fine.
In addition to the indictment, the Department of Justice filed a civil action for damages for alleged violations of the antitrust laws and false claims act. United States v. Alton Box Board Co., et al., No. 76 C 1638 (N.D.Ill.). This civil action and various related private treble damage actions commenced in the Northern District of Illinois and elsewhere were transferred to the Northern District of Illinois as MDL No. 250.*fn3 Brown's first deposition was conducted on December 28, 1978. Brown provided his name and residence address but refused on fifth amendment grounds to answer all further questions. On January 26, 1979 plaintiffs moved to compel the testimony of twenty-one witnesses, including Brown, who had refused to testify on fifth amendment grounds. On February 16, 1979 the court compelled the testimony of several other deposition witnesses who had interposed the fifth amendment privilege. The court's reasoning was memorialized in Pretrial Order No. 41.*fn4 On June 7, 1979 the court granted the motion to compel the testimony of Brown for the same reasons previously set forth in Pretrial Order No. 41.
At the deposition held on June 12, 1979 Brown appeared for questioning but refused to answer certain questions again asserting a fifth amendment privilege. Brown stated his name and address but refused to disclose the name of his present employer and refused to acknowledge that the order compelling testimony applied to him. Brown consented only to answer further questions concerning his educational background. On June 12, 1979 the district court granted plaintiffs' motion to hold Brown in contempt but stayed commitment for five hours to permit Brown to appeal. Although the minute order does not disclose the reasoning of the district court in holding the witness in contempt, the transcript of the proceedings discloses that the district court found that the witness possessed a degree of double jeopardy protection arising from his prior conviction which outweighed the fifth amendment objection. The court expressed concern that a witness could jeopardize the conduct of discovery in civil antitrust litigation when "he couldn't conceivably be subject to prosecution as far as any information he gave at this deposition." This court granted a stay of the commitment order pending appeal.
II. Pretrial Order No. 41
In Pretrial Order No. 41 the district court presented a thirty-one page discussion of the propriety of compelling deposition testimony of a group of witnesses over claims of fifth amendment privilege. In Pretrial Order No. 51 the court specifically made this reasoning applicable to Brown. In sum the court concluded that Brown did not have "a sufficient fear of prosecution" to invoke his fifth amendment privilege. For our purposes a brief outline of the court's analysis provides a sufficient background against which to consider the parties' arguments on appeal. From the general proposition that the fifth amendment does not exonerate a witness from testifying unless there is a real danger of self-incrimination, the court went on to explore the meaning of "reasonable fear of prosecution." The court concluded that there was no reasonable fear of prosecution when actual prosecution was only a speculative possibility as he perceived it to be in this case. Even though the statute of limitations has not run, and the witness has not been granted immunity, the court concluded that prosecution was remote when there was no indication that federal officials would reopen their massive completed investigation. The court further saw no indication that state prosecutors might have any interest in criminally charging the witnesses. Finally, the district court concluded that when there is no reasonable fear of prosecution, there is no danger of self-incrimination and therefore there is no bar to compelling the witness' testimony.
In reaching its conclusion to compel testimony the court refused to follow the law in two circuits which rejects the "likelihood of prosecution" test of fifth amendment protection outright (United States v. Johnson, 488 F.2d 1206 (1st Cir. 1972); United States v. Miranti, 253 F.2d 135 (2d Cir. 1957)) and distinguished the holdings of two other circuit courts of appeals which rejected the test on the facts before them (In re Master Key, 507 F.2d 292 (9th Cir. 1974); United States v. Seavers, 472 F.2d 607 (6th Cir. 1972)). Finally, the court concluded that this court in Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 539 (7th Cir. 1977), "implicitly accepted a court's authority to evaluate the practical likelihood of a subsequent prosecution." While recognizing that a district court could not initiate and grant immunity the court ruled that "in the unlikely event that a subsequent prosecution is initiated by either state or federal authorities for the activities which were charged and proven as to other defendants for the pre-December, 1974 period in the original federal indictment, any use or derivative use of any incriminating testimony given in the compelled deposition answers in a subsequent criminal proceeding would be impermissible." In a footnote the court advised that the deposition answers should be filed under seal until the time of trial and be otherwise subject to a protective order preventing disclosure.
III. Fifth Amendment Protection
The only issue raised on this appeal is whether the district court abused its discretion in holding Brown in civil contempt for failing to comply with its order rejecting Brown's invocation of his fifth amendment privilege and requiring him to testify.*fn5 In our view of the record the district court relied principally on the reasons articulated in Pretrial Order No. 41 when it concluded that Brown can properly be compelled to testify. Thus, our principal focus on review is the propriety of the district court's view that lack of a substantial likelihood of prosecution can be equated with a lack of self-incrimination.
A. The Possibility of Subsequent Prosecution
In compelling Brown's testimony the district court charted its course among the precedents established in four other circuits because it perceived a need for courts to forestall the ability of a previously convicted civil deponent to limit the conduct of discovery. However real that need, and however much we appreciate the legitimate practical concerns of the trial court, we cannot agree that a witness' constitutional privilege against self-incrimination depends upon a judge's prediction of the likelihood of prosecution. Rather, we conclude that it is only when there is but a fanciful possibility of prosecution that a claim of fifth amendment privilege is not well taken. See, e. g., In re Brogna, 589 F.2d 24 (1st Cir. 1978); United States v. Goodman, 289 F.2d 256, 259 (4th Cir. 1961), Vacated on other grounds, 368 U.S. 14, 82 S. Ct. ...