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Relsolelo v. Fisk

November 03, 2000

MURISOL VELOZ RELSOLELO, SPECIAL ADMINISTRATOR OF THE ESTATE OF JOSE HUMBERTO ARELLANO, DECEASED, ET AL., PLAINTIFFS-APPELLEES,
V. JOHN FISK,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 94 L 12266 Honorable Jennifer Duncan-Brice, Judge Presiding.

The opinion of the court was delivered by: Justice Zwick

Defendant, John Fisk, brought this interlocutory appeal, pursuant to Supreme Court Rule 304(b)(5), challenging a civil contempt order entered by the trial court. The trial court held defendant in contempt for his refusal to comply with a prior order compelling his deposition testimony in a personal injury action filed by plaintiffs. The only issue presented is whether the defendant can avoid testifying at the deposition by asserting his constitutional right against self-incrimination based upon certain charges filed against him in Venezuela.

Plaintiffs are or represent Venezuelan nationals or residents who filed the instant action seeking recovery for personal injuries and wrongful deaths caused by a natural gas pipeline explosion which occurred during the installation of a fiber optic telephone cable in Venezuela. Defendant is an American citizen and resident who is alleged to have served as the project manager for the Venezuelan corporation which was responsible for the cable installation project in Venezuela. On September 28, 1993, a rotoexcavator operated by Abengoa Venezuela, S.A., a subcontractor for a portion of the project, apparently came into contact with a subterranean natural gas pipeline located beside a highway near Tijeras, Venezuela. The resulting explosion allegedly caused the injuries and deaths for which plaintiffs now seek recovery.

Shortly after the accident, a warrant was issued for defendant's arrest in Venezuela, charging him with "incendio in forma culposa" in violation of Article 357 of the Venezuelan Penal Code. The Republic of Venezuela allows a private individual to initiate criminal proceedings. Defendant, who is presently in the United States, has not answered the charges against him in Venezuela.

The instant case is one of twelve actions filed against defendant, AT & T Corp., its subsidiaries and employees, and various other corporations throughout the United States. Three of the related actions have been dismissed based upon forum non conveniens. Three, including the instant action remain pending. The balance have been dismissed voluntarily or otherwise. Defendant, who also seeks dismissal for forum non conveniens, has asserted that this action was improperly brought against him, not for the purpose of establishing his liability, but rather to fix venue in this jurisdiction so that corporate defendants may be joined.

Plaintiffs served interrogatories upon defendant on October 10, 1996. Defendant answered those interrogatories on November 12, 1996, in many instances asserting his privilege against self-incrimination based upon a fear of criminal prosecution in Venezuela. During his deposition, defendant again asserted his privilege against self-incrimination. The questions which defendant declined to answer included those seeking information concerning his job title; the nature of his duties; his involvement in planning, engineering, and obtaining permits; and other inquiries which might tend to provide a link in the chain of evidence that could lead to his conviction of the criminal charges.

Plaintiffs filed a motion to compel defendant to answer discovery, asserting that he did not possess a reasonable fear of foreign prosecution. In opposition to plaintiffs' motion to compel, defendant contended that he possessed a right against self-incrimination and that his fear of foreign prosecution was reasonable because (1) there were criminal charges pending against him in Venezuela, (2) the criminal charges arose from the same subject matter as the plaintiffs' civil action, (3) the testimony sought to be adduced would bear directly upon the criminal charges or would provide a link in the chain of evidence which could lead to his conviction, (4) defendant's testimony would further the Venezuelan prosecutions, and there existed a strong likelihood that his compelled testimony would be disclosed to Venezuelan authorities, and (5) the criminal charges pending against him in Venezuela were extraditable offenses pursuant to the Extradition Treaty Between the United States and Venezuela. *fn1

After a succession of hearings before Judge Hogan and Judge Duncan-Brice, the plaintiffs' motion to compel was denied. Judge Hogan specifically found that defendant possessed a reasonable apprehension of foreign prosecution and extradition upon which his privilege against self-incrimination could be based. Judge Duncan-Brice later found that the specific deposition questions posed to defendant fell within the protection of his right against self-incrimination.

Plaintiffs subsequently sought reconsideration of the denial of their motion to compel. Plaintiffs' request for reconsideration was premised upon the United States Supreme Court's ruling in United States v. Balsys, 524 U.S. 666, 141 L. Ed. 2d 575, 118 S. Ct. 2218 (1998), which held that, absent certain particular exceptions, a witness could not assert his federal fifth amendment privilege against self-incrimination based upon a fear of prosecution by a foreign country. In opposition to the plaintiffs' motion for reconsideration, defendant contended that his assertion of the privilege could be sustained under Article I, section 10 of the Illinois Constitution as well as under the fifth amendment. Judge Duncan-Brice ruled that the circuit court was bound by the holding in Balsys and granted the plaintiffs' motion for reconsideration, finding that defendant could not base his privilege against self-incrimination upon a fear of prosecution in Venezuela. When defendant respectfully refused to comply with the order compelling his testimony, Judge Duncan-Brice held him in contempt and assessed a monetary sanction of $10. Defendant thereafter brought the instant appeal.

As noted above, the only issue before this court is whether the defendant is precluded from asserting his constitutional right against self-incrimination based upon the charges filed against him in Venezuela. This issue is one of first impression and presents a question of law, which we review de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961 (1995).

The self-incrimination clause contained in the fifth amendment provides that "[n]o person *** shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. Our state constitution includes a similar privilege in article I, section 10, which states that "[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense." Ill. Const. 1970, art. I, § 10. The privilege against self incrimination may by invoked in any proceeding, civil or criminal, in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent criminal proceeding against him. proceedings. proceedings. Allen v. Illinois, 478 U.S. 364, 368, 92 L. Ed. 2d 296, 303, 106 S. Ct. 2988, 2991 (1986); People v. James, 304 Ill. App. 3d 52, 59, 710 N.E.2d 484 (1999).

In issuing the order compelling defendant to testify, Judge Duncan-Brice determined that the ruling in Balsys was controlling and precluded defendant from asserting his privilege against self-incrimination.

In United States v. Balsys, 524 U.S. 666, 141 L. Ed. 2d 575, 118 S. Ct. 2218 (1998), the respondent, Aloyzas Balsys, was a resident alien, who was subpoenaed to testify about his wartime activities between 1940 and 1944 and his immigration to the United States. Balsys asserted his federal fifth amendment privilege against self-incrimination premised upon a fear of prosecution by a foreign nation. In claiming the privilege, Balsys contended that his testimony could subject him to criminal prosecution by Lithuania, Israel, and Germany for alleged Nazi war crimes. United States v. Balsys, 524 U.S. 666, 670, 141 L. Ed. 2d 575, 583, 118 S. Ct. 2218, 2221 (1998).

The Supreme Court concluded in Balsys that the respondent's fear of foreign prosecution was beyond the scope of the fifth amendment self-incrimination clause contained in the United States Constitution. Balsys, 524 U.S. at 700, 141 L. Ed. 2d at 601, 118 S. Ct. at 2236. In so holding, the Supreme Court resurrected the "same sovereign" rule, which dictates that the privilege may be asserted only when the defendant reasonably fears prosecution by the government seeking to compel the testimony. Balsys, 524 U.S. at 673-74, 141 L. Ed. 2d at 585-86, 118 S. Ct. at 2223. After detailing the historical origin and evolution of the fifth amendment, including its application to state prosecutions by incorporation in the 14th amendment's due process clause (Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964)), the court held that the risk of criminal prosecution by a foreign government not subject to our constitutional guarantees did not implicate the fifth amendment's privilege against self-incrimination. Balsys, 524 U.S. at 673-74, 141 L. Ed. 2d at 585, 118 S. Ct. at 2223. Of pivotal importance in the court's reasoning was the fact that a grant of full immunity by the government compelling the testimony is equivalent to the protection furnished by the privilege. Balsys, 524 U.S. at 677, 141 L. Ed. 2d at 587, 118 S. Ct. at 2225. Therefore, the compelling government has the option of exchanging the witness's privilege for immunity from prosecutorial use of any compelled inculpatory testimony. Balsys, 524 U.S. at 682, 141 L. Ed. 2d at 590, 118 S. Ct. at 2227. Recognizing this, the court stated that the limitation imposed by the fifth amendment does not provide protection of personal testimonial ...


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