Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76-C-4383 -- Bernard M. Decker, Judge.
Before Cummings, Pell and Cudahy, Circuit Judges.
Anthony Robert Martin-Trigona (Trigona) appeals from the order of the district court finding him to be a recalcitrant witness.*fn1 Pursuant to that order he has been confined to the Metropolitan Correctional Center until he answers certain questions. Trigona's two applications for bail pending appeal have been denied by this court in orders dated July 22, and July 31, 1980.*fn2 Pursuant to 28 U.S.C. § 1826(b) this appeal has been decided on an expedited basis.*fn3
This appeal stems from supplementary proceedings initiated by the appellees to discover Trigona's assets. The appellees seek to collect upon a $200,000 judgment entered upon their counterclaim against Trigona in 1979. That judgment was affirmed by this court in an unpublished order earlier this year. Martin-Trigona v. Gouletas, 622 F.2d 592 (1980).*fn4 Supplemental proceedings-or a citation to discover assets-were apparently commenced because Trigona neither sought to stay the judgment nor to voluntarily satisfy it. Trigona initially did not respond to the citation and the district court, after issuing a rule to show cause, adjudicated him in contempt. This is the subject of a separate appeal now pending before this court in No. 80-1009.*fn5 In January 1980, the appellant appeared in district court, requested that he be purged of contempt, and represented that he was willing to respond to the citation to discover assets. The citation proceedings were then referred to a magistrate and a hearing held on February 5, 1980. At that hearing Trigona refused to answer 169 questions claiming his Fifth Amendment privilege against self-incrimination. In his report and recommendation, the magistrate found Trigona's invocation of the privilege well-taken as to certain questions, but inapplicable as to others and waived as to still others. (R. 143). The district court generally accepted the magistrate's conclusions, but afforded Trigona another opportunity to explain why the seemingly innocuous questions might elicit incriminating information. R. 148. Consequently, a renewed hearing before Judge Decker was held on July 22, 1980. At that hearing, Trigona again asserted the privilege against self-incrimination and declined to answer certain questions. Trigona also maintained that he did not know or was unable to remember the information requested in certain other questions. The district court thereupon held that Trigona could not rely on the Fifth Amendment as to some of the questions asked and that his claims of a lack of memory or absence of knowledge were made in bad faith. The court found Trigona in contempt and ordered his confinement until he answered the questions. R. 149A; Tr. at 94-100.*fn6
Trigona's attack on the district court's order adjudging him a recalcitrant witness is three-pronged. First, Trigona maintains that several of the questions asked were irrelevant, i.e., the information they sought to elicit could not aid in discovering his current assets. Second, Trigona declares that the district court erred in finding that his claims of lack of memory or knowledge were made in bad faith. Finally, Trigona argues that the district court improperly held that the Fifth Amendment did not shield Trigona from answering most of the remaining questions put to him.
Trigona objects to six questions as irrelevant. Although the relationship of the questions to Trigona's current assets was somewhat remote, we cannot say that the trial court abused its discretion in permitting inquiry into these matters.*fn7 "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Trigona's place of birth, for example, might aid in identifying him as the owner of some assets. The location of his phone might aid in understanding his business activities. The questions concerning his line of business and ownership of bonds prior to November 1977 might aid in discovering assets which he has retained since that time. (Both of these questions were limited to the period prior to November 1977 in an attempt to assuage Trigona's professed fear of self-incrimination.)*fn8 The question concerning his public filings as a candidate for office could lead to current assets since often candidates are required to disclose financial interests. The question concerning his campaign committee was also relevant because the appellees had reason to suspect that Trigona was the only contributor to his campaign. Such a campaign fund might in some circumstances be regarded as a personal asset. Because the questions were aimed at eliciting relevant evidence, the trial court properly directed Trigona to answer them.
Bad Faith Refusal to Answer
Judge Decker found that Trigona's claimed inability to answer certain questions was a bad faith refusal to answer the questions. Trigona attacks that finding as unsupported by any "objective showing that (his) loss of memory is false." Appellant's Brief at 8. Trigona maintains that since some of the questions related to events several years ago and others concerned matters which could be outside his knowledge or experience, the district court's finding is in error.
Although Trigona's refusal to answer some of the questions could be viewed as a good faith inability to answer when the questions are reviewed in isolation, Judge Decker did not err in declining to credit Trigona's testimony. Trigona's interest in this litigation is obvious. As he himself acknowledged before the magistrate, he "dedicates his life to fighting corruption . . . (and) the American Invesco Company," one of the appellees here. It may also be fairly assumed that he has a motive not to answer questions in order to shield his assets from execution. His claim must be viewed in the light of his conduct during the course of these proceedings. Trigona has proved to be an extremely uncooperative litigant. He failed to answer the appellees' counterclaim leading eventually to the entry of a default judgment against him. He at first failed to respond to the appellees' requests to appear to answer questions in these supplementary proceedings, and he responded only after he had been found in contempt. The appellees' initial attempts to question him were met with what the trial court found was a blanket invocation of the Fifth Amendment. Against this background of intransigence, the trial court had good reason to question Trigona's credibility.
The record itself suggests that Trigona's claimed inability to answer was an attempt to evade answering the questions. When pressed, he would assert his Fifth Amendment privilege:
The Court: Well, let's-what is-well, let's say today, what is your usual business, profession or occupation at this time?
The Witness: I don't know.
The Court: Do you have any business?
The Witness: I don't know how to answer that question. I am not sure.
The Court: Are you engaged in any profession?
The Witness: I am not sure I can answer that question.
The Court: Do you have any occupation at all?
The Witness: My time at this time-
The Court: And this relates to seventy-
The Witness: -is involved in the defense of this litigation and criminal prosecution. So if you are talking about occupation by ...