## Facts

- Central States, Southeast & Southwest Areas Pension Fund made a $7 million loan to Indico Corporation, a company operated by Mayer Morganroth.
- Indico defaulted on the loan, and the pension fund suffered substantial losses.
- A federal grand jury indicted Morganroth on conspiracy, mail-fraud, and wire-fraud charges arising out of the loan transaction.
- After the indictment, Morganroth was deposed in a Florida state-court civil foreclosure action relating to the loan and answered all questions without invoking the Fifth Amendment.
- Morganroth was later acquitted on all federal criminal charges.
- After the acquittal, Morganroth was subpoenaed to appear before a New York grand jury and was asked the same questions he had answered in the Florida deposition.
- Morganroth asserted the Fifth Amendment before the New York grand jury, was granted immunity, and then testified; the prosecutor later told him his testimony conflicted significantly with that of other witnesses.
- In a separate civil enforcement action brought by the Secretary of Labor, Morganroth was subpoenaed as a nonparty witness for a deposition.
- At the later deposition, Morganroth answered basic identifying questions but refused to answer substantive questions on the same general topics, invoking the Fifth Amendment on the ground that further testimony could expose him to prosecution for perjury (based on inconsistent prior sworn statements) and criminal tax evasion.
- The Secretary of Labor moved to compel testimony, arguing Morganroth waived the privilege by testifying in Florida and that his acquittal removed any reasonable risk of prosecution.
- The district court granted the motion to compel and ordered Morganroth to answer (limiting the questioning to matters covered in the Florida deposition), and the order was certified for appellate review.

## Issues

1. Does a witness’s voluntary testimony in one civil proceeding waive the Fifth Amendment privilege in a later, separate proceeding addressing the same subject matter?
2. May a nonparty witness invoke the Fifth Amendment in a civil deposition when truthful answers could reasonably expose the witness to prosecution for perjury based on prior sworn testimony, or for other offenses such as tax crimes?
3. Can a witness refuse to answer all substantive questions by a blanket assertion of the Fifth Amendment, or must the privilege be evaluated on a question-by-question basis?

## Decision

- The Sixth Circuit vacated the order compelling Morganroth to testify and remanded for further proceedings.
- The court rejected the view that Morganroth’s Florida deposition testimony created a continuing subject-matter waiver in later, separate proceedings.
- The court held that the Fifth Amendment may be invoked in a civil deposition when there is reasonable cause to fear a real danger of incrimination, including perjury exposure tied to prior sworn statements.
- The court also held that Morganroth could not rely on a blanket refusal; the district court had to evaluate the privilege question-by-question (with in camera procedures if needed).

## Legal Principles

- The Fifth Amendment privilege applies in civil proceedings and protects a witness from being compelled to give testimony that could be used to prosecute the witness, including testimony that would provide a link in the chain of evidence.
- A witness may invoke the privilege when there is reasonable cause to apprehend a real danger of incrimination; a merely imaginary, remote, or speculative possibility of prosecution is not enough.
- The privilege is ordinarily asserted and assessed on a question-by-question basis; a blanket assertion is improper unless the court can determine, from context, that essentially all responsive answers would pose a real risk of incrimination.
- Voluntary testimony can waive the privilege, but waiver is narrowly construed and is limited to the proceeding in which the testimony is given; prior testimony does not automatically waive the privilege in later, distinct proceedings, even on the same topics.
- A prior acquittal on charges arising from the underlying transaction does not eliminate the possibility of prosecution for other offenses that could be revealed or supported by later testimony, including perjury based on inconsistent sworn statements and separate tax offenses.
- Prior immunized testimony in a different forum does not, by itself, bar a later Fifth Amendment claim where the witness faces a realistic risk of prosecution not covered by that immunity (such as perjury or other independent crimes).

## Conclusion

The Sixth Circuit held that Morganroth’s earlier civil deposition testimony did not permanently waive his Fifth Amendment privilege in a later, separate civil deposition, and that a realistic fear of perjury or tax prosecution can support invoking the privilege. The court vacated the district court’s blanket order compelling testimony and required a question-by-question evaluation of whether specific answers would pose a real danger of self-incrimination.


In re Morganroth v. Fitzsimmons, 718 F.2d 161 (1983)