CARL BRUNER v. NANCY FOSTER (2023)

ORDER DENYING DEFENDANTS' MOTION TO COMPEL THE DEPOSITION OF NONPARTY MICHAEL LAWSON (ECF NO. 18)

I. Introduction

Defendants Nancy Foster and the City of Detroit move to compel the deposition of nonparty Michael Lawson. ECF No. 18. The Honorable Robert H. Cleland referred the motion to the undersigned for a hearing and determination under 28 U.S.C. § 636(b)(1)(A). ECF No. 19. As stated on the record during the hearing held on May 4, 2023, the Court DENIES defendants' motion.

II. Background

Plaintiff Carl Bruner claims that defendants engaged in misconduct resulting in his wrongful conviction for the June 2012 murder of Marcel Jackson at Club Pandemonium in Detroit. ECF No. 1. After the Michigan Supreme Court vacated Bruner's conviction, he was found not guilty after a retrial. Id., PageID.11. Lawson was also charged with and convicted for Jackson's murder. Id., PageID.5. Lawson has collaterally attacked his conviction in state court, but those proceedings are stayed pending an investigation by the Wayne County Prosecutor's Office Conviction Integrity Unit (CIU). ECF No. 22-2, PageID.164; ECF No. 23-3.

Defendants deposed Lawson in connection with this case and he answered some questions. ECF No. 18-1. But he asserted Fifth Amendment privilege when asked about Bruner and the events in June 2012. Id., PageID.134-139.¹ Defendants move to compel Lawson's deposition, arguing that the Fifth Amendment does not apply and that, even if it did, the questions at issue were not incriminating. ECF No. 18, PageID.124-129.

III. Analysis

A.

“A valid assertion of the fifth amendment privilege exists where a witness has reasonable cause to apprehend a real danger of incrimination.” In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983). A witness must “show a ‘real danger,’ and not a mere imaginary, remote or speculative possibility of prosecution.” Id. “A blanket assertion of the privilege by a witness is not sufficient to meet” the standard. Id. Instead, “[t]he privilege must be asserted by a witness with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify.” Id. Fifth Amendment privilege “must be accorded liberal construction in favor of the right it was intended to secure.” Hoffman v. United States, 341 U.S. 479, 486 (1951). And the privilege applies broadly to both criminal and civil proceedings and “protects parties and non-party witnesses alike.” In re Flint Water Cases, 53 F.4th 176, 192 (6th Cir. 2022).

B.

Defendants argue that Fifth Amendment privilege applies only “until a ‘sentence has been fixed and the judgment of conviction has become final.’ ” ECF No. 18, PageID.126-127 (quoting Mitchell v. United States, 526 U.S. 314, 326 (1999)). They claim that Lawson has no Fifth Amendment privilege now because his sentence was finalized in 2014. Id.

Defendants misconstrue the holding of Mitchell. In that case, the Supreme Court rejected the view that a criminal defendant waived her Fifth Amendment privilege after she pleaded guilty to the charges but before she was sentenced. 526 U.S. at 326. The Court explained, “Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony.” Id. But Mitchell did not hold that the privilege extinguishes after sentencing. It more broadly said, “If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared.” Id. And though defendants are right that Mitchell said that the privilege extinguishes after a conviction is “final,” they are mistaken when they assert that Lawson's conviction became final when he was sentenced. “It appears settled that a conviction is not ‘final’ ” for Fifth Amendment purposes “if an appeal is pending.” Sec. & Exch. Comm'n v. Pence, 323 F.R.D. 179, 188 (S.D.N.Y. 2017).

In Pence, the court found that the privilege applied because a pending motion to vacate under 28 U.S.C. § 2255 raised a possibility that the witness's conviction could be overturned. Id. at 188-89. The witness had “reasonable cause to apprehend that deposition questions relating to the facts underlying his conviction and related matters might incriminate him if answered,” and could thus assert the privilege. Id. (cleaned up). In DeLeon-Reyes v. Guevara, the court agreed that the privilege applies when “pending appeals or collateral attacks could be impacted by [the witness's] deposition testimony.” No. 1:18-cv-01028, 2020 WL 5800727, at *6 (N.D. Ill. Sept. 29, 2020) (cleaned up). But the witness in DeLeon had no pending appeals or collateral attacks, so the Fifth Amendment privilege did not apply. Id. at *6-7.

Lawson has a pending motion to vacate his conviction, and the CIU is investigating the matter. His testimony could impact those proceedings. The Court thus finds that Lawson had a right to assert the Fifth Amendment privilege and refuse to provide answers that might incriminate him.

C.

Defendants also argue that Lawson improperly made a blanket assertion of Fifth Amendment privilege without showing a danger of incrimination. ECF No. 18, PageID.125-126. They are right that “a blanket assertion of the privilege by a witness is not sufficient” and that “the privilege must be asserted by a witness with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify.” Morganroth, 718 F.2d at 167 (cleaned up). But Lawson did not make a blanket assertion of the privilege; he appeared for the deposition and answered some questions posed to him. ECF No. 18-1.

Defendants cite questions to which Lawson asserted the privilege that defendants claim did not risk incrimination. ECF No. 18, PageID.122-125. The questions defendants point to are about Lawson's associations and communications with Bruner and others; what happened at Club Pandemonium in June 2012 and whether Lawson was there; whether Lawson knew who took part in Jackson's shooting; who used some telephone numbers; and whether Lawson had the nickname of “Lucky.” Id. At the hearing, defendants argued that Lawson failed to meet his burden of showing that the questions were incriminating. That argument lacks merit because Lawson does not bear the burden defendants assert.

A witness may assert the Fifth Amendment privilege when a question requires him to “supply evidence of a necessary element of a crime or furnishes a link in the chain of evidence needed to prosecute.” Morganroth, 718 F.2d at 167. A danger of incrimination exists even when apparently innocent questions “are dangerous in light of other facts already developed.” Id. And the witness bears no burden of proof on the issue.

Where there is nothing suggestive of incrimination about the setting in which a seemingly innocent question is asked, the burden of establishing a foundation for the assertion of the privilege should lie with the witness making it. We do not hold, however, that a witness has the burden of proof on this issue. A witness presents sufficient evidence to establish a foundation for the assertion of the privilege and shows a real danger of prosecution if it is not perfectly clear to the court from a careful consideration of all of the circumstances in the case, that a witness is mistaken, and that the answers cannot possibly have such a tendency to incriminate. Stated differently, sufficient evidence is presented by a witness if a court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution.

Id. at 169 (cleaned up, emphasis added); see also Convertino v. U.S. Dep't of Just., 795 F.3d 587, 595-96 (6th Cir. 2015).

No judicial imagination is needed to conceive of the dangers posed by defendants' questions related Lawson's presence at Club Pandemonium in June 2012 and his knowledge about the shooting. The Court cannot take seriously defendants' claim that there is insufficient evidence that those questions, which go to the heart of the murder, are not incriminating.

And the Court can imagine that questions about Lawson's associations or communications with Bruner and others could be incriminating. Courts have sustained “invocation of the Fifth Amendment privilege in response to questions regarding the individual's personal or professional associations when asked in a setting of possible incrimination.” Convertino, 795 F.3d at 593-94 (cleaned up); see also Emspak v. United States, 349 U.S. 190, 200-01 (1955) (holding that requiring a witness to testify about his associations “could well have furnished ‘a link in the chain' of evidence needed to prosecute petitioner for” federal crimes targeting communists and that Fifth Amendment protections do not cease “merely because the witness if subsequently prosecuted could perhaps refute any inference of guilt arising from the answer”). Lawson's answers to questions about who he knows could link him to Jackson's murder. Defendants argue that Lawson's associations are not an element of the crime for which he was convicted, but it is enough that Lawson's answers could supply a “link in the chain” of circumstantial evidence. See Morganroth, 718 F.2d at 167.

Thus, Lawson properly asserted Fifth Amendment privilege in response to the deposition questions highlighted in defendants' briefing. ECF No. 18, PageID.122-124.²

IV. Conclusion

The Court DENIES defendants' motion to compel Lawson's deposition (ECF No. 18).

NOTICE TO PARTIES ABOUT OBJECTIONS

Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed. R. Civ. P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.

CERTIFICATE OF SERVICE

The undersigned certifies that this document was served on counsel of record and any unrepresented parties via the Court's ECF System to their email or First-Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 15, 2023.

MARLENA WILLIAMS Case Manager

FOOTNOTES

1.   Lawson asserted the privilege in response to questions about (1) whether he knew Bruner and when they met, (2) the nature of his associations with Bruner, (3) what happened in June 2012 at Club Pandemonium, (4) whether he went to Club Pandemonium in June 2012, (5) whether he knew a list of other named people, (6) whether he knew who shot Jackson, (7) how he became a suspect in the murder, (8) phone calls he made while in prison, (9) whether he knew about exculpatory evidence, and (10) whether he used the alias “Lucky.” ECF No. 18-1, PageID.135-139.

2.   Defendants argued at the hearing that they objected to Lawson asserting privilege for some deposition questions not cited in their brief. But the Court has “determine[d] the propriety of the refusal to testify” only for the questions defendants raised by their briefing. Morganroth, 718 F.2d at 167.

ELIZABETH A. STAFFORD United States Magistrate Judge