Appeal from a judgment entered in the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, granting a writ of habeas corpus to petitioner incarcerated pursuant to a warrant of commitment for civil contempt issued by New York State court for failure to produce records as required by a subpoena duces tecum. Reversed.
Before Oakes and Meskill, Circuit Judges, and Bonsal, District Judge.*fn*
Charles Sigety petitioned the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, for a writ of habeas corpus, contending that his incarceration under a state warrant of commitment for civil contempt violated his rights under the Fifth and Fourteenth Amendments. After determining that the contempt adjudication had been based on testimony elicited in violation of Sigety's privilege against self-incrimination, the district court ordered that the petitioner be released from custody unless a review hearing, as provided by state law, were held within sixty days to reevaluate the grounds of his incarceration. The state appeals this ruling, challenging the conclusion that Sigety's Fifth Amendment rights were violated and arguing that the finding of civil contempt was entirely proper. We reverse.
Charles Sigety is the sole proprietor of the Florence Nightingale Nursing Home. In 1975, the Deputy New York State Attorney General, acting in his capacity as Special Prosecutor for Nursing Homes (Special Prosecutor), served Sigety with a subpoena duces tecum*fn1 directing him to produce the nursing home's books and records for the years 1970 through 1975. After various attempts to quash or avoid the subpoena failed, Sigety produced 120 cartons containing records for all designated years except 1970 and 1971. The Special Prosecutor moved for an order holding Sigety in contempt for failing to comply with the subpoena, pursuant to New York Civil Practice Law and Rules § 2308(b).*fn2 At the hearings held on this motion, Sigety introduced several witnesses in an attempt to show that the missing records could not be located. However, the state court, Peter J. McQuillan, Justice, rejected Sigety's explanation for noncompliance with the subpoena, relying in some degree upon the inference that one once in possession of documents continues in possession thereof, and cited him for contempt. After this decision was affirmed by the New York appellate courts, Hynes v. Sigety, 60 A.D.2d 808, 401 N.Y.S.2d 749 (1st Dep't), appeal dismissed, Hynes v. Sigety, 43 N.Y.2d 947, 403 N.Y.S.2d 896, 374 N.E.2d 1247 (1978), Sigety petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York. Rejecting Sigety's claims that the state court hearings had infringed his Fifth Amendment right against self-incrimination, Judge Morris E. Lasker denied the petition and the request for a certificate of probable cause. Sigety v. Lefkowitz, 78 Civ. 1300 (S.D.N.Y.1978). Sigety's application for a certificate of probable cause in this Court was denied without opinion.
Sigety was finally incarcerated for his civil contempt on April 12, 1978, at the Queens House of Detention. On May 15, 1978, he filed a motion in the state court for a review of his contempt, based on his own affidavit attesting to his lack of knowledge of the whereabouts of the missing records and his inability to produce them.*fn3 The state court rejected Sigety's application. In August, 1978, Sigety again asked for a review of his contempt, offering this time to testify personally about his knowledge of the books and records.
While offering to testify, Sigety also requested that any cross-examination be limited to his present ability to comply with the subpoena, on the ground that anything beyond that might force him to incriminate himself. Sigety reasoned that because the state judge had previously rejected the explanations of his witnesses, the only avenue open to him to attack his contempt was through his own testimony, which he was thus compelled to offer. Because the testimony was compelled, Sigety asserted that he retained a Fifth Amendment right to refuse to answer incriminating questions beyond his statements on direct examination. In addition to attempting to limit cross-examination, Sigety urged that the Special Prosecutor be required to present proof of Sigety's present ability to comply with the subpoena. The state court rejected both requests. After Sigety agreed to testify, he was released from his 129-day confinement.
Testifying at the review hearing, Sigety denied having had any knowledge of the whereabouts of the records on the date the subpoena was served. When the Special Prosecutor questioned him about the records' location prior to issuance of the subpoena, Sigety refused to answer, invoking the protection of the Fifth Amendment. The Special Prosecutor moved to strike Sigety's direct testimony, but Justice McQuillan instructed Sigety to respond to the Special Prosecutor's questions, allowing Sigety a continuing objection to all questions pertaining to the location of the records prior to the subpoena's issuance.
Evaluating Sigety's testimony, Justice McQuillan found that Sigety had not given a reasonable explanation for his failure to produce the 1970 and 1971 books and records. He therefore continued the warrant of commitment stating that Sigety would be released when he produced the missing books and records or offered a reasonable explanation for their nonproduction. Justice McQuillan's order was again affirmed by the New York appellate courts. Hynes v. Sigety, 67 A.D.2d 872, 413 N.Y.S.2d 1019 (1st Dep't), app. dismissed, 47 N.Y.2d 763, 417 N.Y.S.2d 465, 391 N.E.2d 301, leave to appeal denied, -- - A.D.2d -- - (1st Dep't 1979).
In June, 1979, Sigety filed a second petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. Citing the compulsion under which he testified, Sigety again argued that his incarceration was ordered continued in violation of his Fifth Amendment rights. Sigety also alleged that he was deprived of his due process rights because the state court had based its finding of contempt on a subjective refusal to accept the proffered explanation for the nonproduction despite the fact that Sigety had placed himself in danger of a perjury charge if his testimony could be proven false. Sigety further objected to the state court's failure to require the Special Prosecutor to offer evidence demonstrating that Sigety had the present ability to comply with the subpoena. Judge Lowe, agreeing that Sigety's further incarceration had been based on testimony compelled in disregard of his privilege against self-incrimination, ordered that unless a review hearing was held within sixty days, Sigety was to be released from custody. Sigety v. Abrams, 492 F. Supp. 1123 (S.D.N.Y.1980). Judge Lowe reasoned that Sigety had had a duty to give nonprivileged direct testimony that he was unable to comply with the subpoena duces tecum, and that such testimony was "auxiliary" to the nonproduction of the books and records, citing United States v. O'Henry's Film Works, Inc., 598 F.2d 313, 318 (2d Cir. 1979). After establishing that Sigety's direct testimony was compelled, Judge Lowe concluded that Sigety's assertion of his Fifth Amendment privilege to refuse to answer questions concerning the whereabouts of the books and records on cross-examination had been proper and, therefore, that Justice McQuillan had erred in continuing Sigety's incarceration based on the compelled testimony. The Special Prosecutor appeals Judge Lowe's decision, arguing that Sigety's direct testimony was voluntary and that his invocation of the Fifth Amendment on cross-examination was, therefore, improper.
Assuming arguendo that the District Judge's determination that Sigety was within his rights in invoking the Fifth Amendment on cross-examination was correct, we are unable to affirm the decision below on that ground because we find nothing incriminating in his testimony. Further, we reject the alternative grounds offered by Sigety as supporting the issuance of the writ, and we hold that the state court's exercise of its contempt power violated none of petitioner's rights.
II. FIFTH AMENDMENT PRIVILEGE
The district court premised issuance of the writ of habeas corpus on the theory that the state court's commitment order was based on testimony compelled in contravention of Sigety's privilege against self-incrimination.*fn4 We are unable to affirm the decision on this ground. Our examination of Sigety's compelled responses indicates that his continued commitment was not based on any testimony that can be characterized as "incriminating."
On direct examination Sigety admitted receipt of the subpoena in 1975, denied personal possession of the books and records at the time the subpoena was issued, and asserted a total lack of ability to produce the missing items. He also testified about the conditions of his recent incarceration in the Queens House of Detention. On cross-examination, after initial skirmishes among the attorneys and the court, Sigety testified under a continuing objection based on his Fifth Amendment privilege. This testimony, which occupies approximately 180 pages of the record on appeal, covered many topics, from Sigety's initial venture into the nursing home business, to his daily reading habits, and finally to his control over the nursing home's accounting procedures. Throughout this questioning, Sigety continued to deny both possession and knowledge of the missing items. Sigety admitted destruction of certain payroll records and timecards during a pre-subpoena search for personal files at the nursing home, described various post-subpoena searches for the books and records, and explained his knowledge of the investigation from its commencement in 1975, but at no time during the cross-examination did Sigety make any incriminating statements. Indeed, in the face of wide-ranging and vigorous questioning by the Special Prosecutor, Sigety offered nothing but exculpatory answers. While such testimony may have influenced the state judge's determination that Sigety had failed to offer a reasonable explanation for his ...