United States v. William D. White and Terry L. Keno
589 F.2d 1283, 1979 U.S. App. LEXIS 16634 (1979)
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Rule of Law:
The Fifth Amendment privilege against self-incrimination does not prevent the admission of a defendant's voluntary, uncompelled testimony from a prior civil proceeding into a subsequent criminal trial, even if the defendant was not advised of their right to remain silent in the civil case. The strategic pressure to testify in a civil case to avoid an adverse judgment, without more, does not render the testimony involuntary or compelled.
Facts:
- Terry Keno was an office manager for Alside, Inc., Ward Broussard was a salesman for the company, and William White was a close friend of Keno.
- In 1972, Keno and Broussard created a company account with Alside under the name 'Georgia Remodeling,' listing White as the firm's president.
- Under Alside's company policy, the Georgia Remodeling account was entitled to receive rebates on its purchases.
- Keno, Broussard, and White were alleged to have used Georgia Remodeling as a dummy account to fraudulently obtain and keep the rebate money for themselves.
Procedural Posture:
- Alside, Inc. filed a state civil lawsuit against Terry Keno, Ward Broussard, and William White.
- A federal grand jury returned a fifty-count indictment against the three men for mail fraud and conspiracy to commit mail fraud.
- During the civil proceedings, both Keno and White testified.
- In the subsequent federal criminal case in U.S. District Court, the prosecution introduced the defendants' prior civil testimony as evidence against them.
- Following a jury trial, Keno and White were convicted on all counts.
- Keno and White (appellants) appealed their convictions to the United States Court of Appeals for the Fifth Circuit.
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Issue:
Does the Fifth Amendment's privilege against self-incrimination prevent the use of a defendant's voluntary, uncompelled testimony from a prior civil proceeding in a subsequent criminal trial, even if the defendant was not advised of their right to remain silent in the civil case?
Opinions:
Majority - Thornberry, Circuit Judge
No, the Fifth Amendment does not prevent the use of testimony from a prior civil proceeding in these circumstances. The court held that testimony given voluntarily in a civil case is admissible in a subsequent criminal prosecution. The court rejected the argument that Miranda-like warnings are required in civil proceedings, noting that the special circumstances of custodial interrogation are absent. For White's testimony, the court found it was voluntary because he wanted to rebut the civil allegations, was aware a criminal indictment was pending, and was not compelled to take the stand. For Keno, the court found he was not unconstitutionally 'forced' to choose between his Fifth Amendment privilege and losing the civil suit. Citing Baxter v. Palmigiano, the court reasoned that invoking the privilege would not have automatically resulted in an adverse judgment, as the plaintiff still had to prove its case. Therefore, the decision to testify was a matter of trial strategy, not unconstitutional compulsion.
Analysis:
This decision clarifies the scope of the Fifth Amendment privilege in the increasingly common scenario of parallel civil and criminal proceedings. It firmly establishes that the strategic pressures inherent in civil litigation do not rise to the level of governmental compulsion necessary to render testimony involuntary. By refusing to extend Miranda-like warnings to civil contexts, the court places the responsibility on litigants and their counsel to assert the Fifth Amendment privilege. This holding reinforces the distinction between strategic choices in litigation and unconstitutional state coercion, impacting how defendants with concurrent legal troubles must approach their defense strategy.
