The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
Currently pending is the motion of Anthony Robert Martin-Trigona, the
plaintiff and counter-defendant, to vacate this court's order setting a
hearing for December 29, 1980. The purpose for the hearing was to give
Martin-Trigona an opportunity to purge himself of contempt by answering
certain questions that had previously been put to him pursuant to the
counter-plaintiffs' citation to discover assets. Martin-Trigona has moved
to vacate the order setting a hearing date on the grounds that his
recently filed bankruptcy has automatically stayed this citation
proceeding. This motion is denied.
Were this merely a case of civil contempt, the court would be inclined
to agree with Martin-Trigona that no useful purpose would be served by
insisting on the forthcoming hearing. It is certainly true that the
bankruptcy has automatically stayed the citation proceeding.
Accordingly, it would be pointless to exercise this court's contempt
powers merely in order to foster compliance with the counter-plaintiffs'
efforts to enforce their judgment. The contempt in this case is,
however, of a more serious nature.
These citation proceedings were initiated more than 15 months ago.
Martin-Trigona has yet to submit in good faith to the questioning of his
judgment creditors. Initially, this refusal took the form of
Martin-Trigona's failure to appear at all. When repeated resort to this
tactic led this court to hold him in contempt and to issue a warrant for
his arrest, Martin-Trigona appealed the finding of contempt and finally
presented himself for questioning. The order for Martin-Trigona's arrest
was stayed pending his attempt to purge himself of his contempt, and the
appeal was dismissed for want of jurisdiction. Now, however,
Martin-Trigona's lack of cooperation revealed itself in a new way;
namely, by his repeated and unwarranted invocations of the Fifth
Amendment privilege against self-incrimination. This behavior was
initially manifested before Magistrate Sussman and then, despite the
issuance of a memorandum opinion carefully describing the contours of
Martin-Trigona's privilege in this case, before this court. At this point
Martin-Trigona was again found in contempt, this time as a recalcitrant
witness, see 28 U.S.C. § 1826, and was confined in the Metropolitan
Correctional Center until he was willing to submit himself to the
authority of this court. This finding of contempt was affirmed on
appeal. The hearing set for December 29 was initially intended as an
opportunity for Martin-Trigona to terminate his status as a recalcitrant
witness. In view, however, of this extended pattern of
contumacious conduct, this court has come to view the pending hearing as
having a second significance.
Martin-Trigona has repeatedly ignored the orders of this court. His
behavior in this regard has had all of the earmarks of intentional
conduct. In short, the court would be hard put not to view the narrative
summarized above as describing adequate grounds for a finding of criminal
contempt. The court, accordingly, has come to view the presently
scheduled hearing as presenting Martin-Trigona with an opportunity to
demonstrate that he does not seek to flout this court's authority, and to
dispel the appearance of criminally contumacious conduct that clings to
his previous behavior. It is for this purpose that the court wishes to
pursue the December 29 hearing. The bankruptcy filing does not
automatically stay this criminal contempt proceeding. 11 U.S.C. § 362
(b)(1); David v. Hooker, Ltd., 560 F.2d 412, 417-418 (9th Cir. 1977); In
re Spagat, 4 F. Supp. 926, 927 (S.D.N.Y. 1933); In re Hall, 170 F. 721
For all of the above reasons, plaintiff counter-defendant's motion to
vacate is denied.
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