Delisi v. Smith

Citation: 423 So. 2d 934Docket: 82-1161

Court: District Court of Appeal of Florida; November 18, 1982; Florida; State Appellate Court

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The case involves a petition for writ of certiorari by Theodore J. Delisi, Jr. and Theodore J. Delisi, Sr. against Jim Smith, the Attorney General of Florida, regarding the invocation of the privilege against self-incrimination in a RICO civil forfeiture action. The Attorney General sought forfeiture of properties and damages under Florida law. Delisi, Sr. appeared for a deposition but refused to answer questions or produce documents, citing his Fifth and Fourteenth Amendment rights. Delisi, Jr.'s attorney similarly objected to written interrogatories. The court granted the Attorney General's motion to compel discovery, leading to the Delisis' petition for certiorari.

The court examined two aspects of the self-incrimination privilege: the absolute right of a defendant in a criminal case not to testify against themselves, and the right of a non-defendant witness in other proceedings to refuse answers that may incriminate them. The court referenced Boyd v. United States, which recognized that civil forfeiture proceedings could have criminal implications, suggesting that such proceedings might be treated as criminal for the purposes of the self-incrimination privilege. However, the court concluded that later case law indicated that whether a sanction is civil or criminal depends on legislative intent, allowing civil and remedial forfeiture actions alongside criminal penalties. The court ultimately found that the legislative intent in this case did not support the Delisis' claim to refuse discovery based on self-incrimination.

In Helvering v. Mitchell, the Supreme Court established that civil forfeiture is a remedial sanction enforceable through civil proceedings, meaning that constitutional protections applicable to criminal prosecutions do not apply, and defendants in such actions lack a constitutional right to refuse to testify. The Court clarified that this position is distinct from the findings in Boyd, which addressed punitive sanctions. 

In United States v. Ward, the Supreme Court further explored the relationship between civil penalties and self-incrimination. The case involved a lessee who reported oil discharges in compliance with the Federal Water Pollution Control Act, which included a provision for use immunity in criminal cases. The Coast Guard subsequently assessed a civil penalty against the lessee, who argued that this violated his Fifth Amendment rights. 

The Supreme Court ultimately reversed the lower court's decision, which had deemed the penalty punitive and thus intrusive on self-incrimination protections. The Court determined that Congress intended the penalty to be civil, based on its explicit labeling, and that the statutory scheme was not punitive enough to trigger Fifth Amendment protections, despite the underlying conduct constituting a crime. The Court also distinguished Ward from Boyd, emphasizing that Boyd involved a forfeiture with no correlation to societal damages, whereas Ward's civil penalty was clearly legislative intent. Thus, the Court concluded that the civil penalty did not invoke criminal procedural safeguards nor the protections against self-incrimination as outlined in Boyd.

The Florida RICO forfeiture action is characterized as remedial, as indicated by legislative findings that highlight organized crime's significant impact on the economy through unlawful conduct such as force, fraud, and corruption. The findings emphasize the pervasive presence of organized crime in Florida, with a majority of identified crime families operating within the state and a noted influx of criminal operatives from other regions. This infiltration corrupts legitimate businesses, undermines competition, and poses a threat to the state's economic welfare. To combat these issues, the legislation aims to provide new criminal and civil remedies, including the forfeiture action, which serves multiple purposes: it hinders criminals from concealing their operations, removes illegal capital from legitimate businesses, and reduces profits for criminal enterprises to deter further organized crime migration to Florida.

The RICO statute's civil remedies are designed to reclaim ill-gotten gains rather than impose unrelated forfeitures. Consequently, petitioners cannot refuse to testify or provide discovery under section 943.464 of the Florida Statutes. However, concerns about self-incrimination must be assessed by the trial court using its discretion, rather than being solely determined by the witness. The court found no legal error in denying most objections raised by Delisi, Jr. regarding interrogatories.

Interrogatories 1, 3, 5, and 6 are deemed appropriate within civil discovery parameters, and the trial judge did not abuse discretion in ruling that responses would not likely lead to criminal prosecution. Interrogatories 7 and 8, pertaining to the defendant's address, may cause apprehension but do not incriminate him since he is already a fugitive. Interrogatories 9, 11, 12, and 13 were limited by the trial court to lawful employment and affiliations, and thus their answers should not incriminate the defendant. However, interrogatory 2, which requests identification of exculpatory witnesses, should have been stricken as it effectively asks the defendant to name inculpatory witnesses, potentially leading to self-incrimination. Interrogatory 10, concerning lawful income reported on federal tax returns, may also pose a risk of self-incrimination by suggesting undisclosed unlawful income. Delisi, Sr. invoked the Fifth Amendment in response to a subpoena duces tecum, refusing to produce financial records or answer questions. The court ruled that, due to his prior nolo contendere plea and conviction related to the RICO action, he waived his right to invoke the privilege. Delisi, Sr. argues in his certiorari petition that he retains this privilege due to ongoing federal prosecution risks. The doctrine of 'dual sovereignty' allows prosecution under both state and federal laws for the same criminal conduct.

The court sought additional briefs to determine if compelled discovery in a civil RICO action, when invoking the Fifth Amendment right against self-incrimination, grants immunity for unprosecuted crimes. The court found that Florida's immunity statute does not apply to civil RICO proceedings since it only protects against self-incrimination in criminal cases. Consequently, Delisi, Sr.'s concerns about potential federal prosecution were justified. The trial judge's ruling, which deemed Delisi, Sr.'s prior state conviction as a bar to self-incrimination objections, left certain deposition questions unaddressed. Some of these questions did not warrant objections related to federal prosecution. On remand, the court must specifically address these questions.

Delisi, Sr.'s objection to producing financial records pertaining to various entities was also examined. The court ruled that the custodian of corporate or partnership records cannot refuse production on self-incrimination grounds, even if linked to potential criminal activity. The court will assess the structures of unnamed business entities to determine if they are subject to the precedent set in Bellis v. United States. The issue of whether Delisi, Sr. can refuse to produce his son's records was not previously addressed and will be considered on remand. The court partially granted the certiorari petition, quashing the order requiring Delisi, Sr. to produce all requested records and answer all questions, while denying the petition in other respects. The case is remanded for further proceedings, allowing parties to operate under the guidelines established in this opinion.

An earlier challenge to a preliminary injunction was addressed in Delisi v. Smith, 401 So.2d 925 (Fla. 2d DCA 1981). The objection raised may now be moot due to the state's report that Delisi, Jr. has been apprehended. The document outlines that individuals served with a subpoena are required to testify or produce documents in felony cases, regardless of potential self-incrimination. However, they cannot be prosecuted based on their testimony or evidence provided, with the statute having been amended in 1982 to remove transactional immunity. The legislature has not authorized immunity in civil RICO proceedings. The judge noted that Delisi, Sr. might have waived his self-incrimination privilege as part of a plea deal, suggesting that the state could explore this further upon remand, as such a waiver would limit Delisi, Sr.'s ability to retract his statements.