## Facts

- The United States brought a civil in rem seizure/condemnation action under the Federal Food, Drug, and Cosmetic Act (FDCA) against two products manufactured by Detroit Vital Foods, Inc.
- During the civil action, the government served FDA-prepared interrogatories on the corporation.
- Around the same time, the FDA notified the corporation and two officers, William Kordel and another officer, that the agency contemplated criminal proceedings based on the same underlying transactions.
- The corporation moved to stay the civil matter or extend time to answer interrogatories until the criminal matter concluded; the district court denied relief for lack of shown prejudice.
- The corporation answered interrogatories through one officer; no individual asserted the Fifth Amendment privilege against self-incrimination in seeking a stay or in responding to discovery.
- The corporation and both officers were later criminally prosecuted and convicted under the FDCA, and the prosecution relied in part on information obtained through the civil interrogatories.

## Issues

1. Whether use in a criminal prosecution of information obtained through civil interrogatories rendered the interrogatory answers “involuntary” in violation of the Fifth Amendment where no individual asserted the privilege.
2. Whether proceeding with civil interrogatories while contemplating a related criminal prosecution violated due process or otherwise warranted relief under the Court’s supervisory authority.

## Decision

- The Supreme Court reversed the court of appeals and remanded.
- The Court held the court of appeals erred in concluding the interrogatory answers were involuntary for Fifth Amendment purposes.
- The answering officer could have asserted his personal Fifth Amendment privilege in the civil proceeding and, having failed to do so, could not later claim compelled self-incrimination.
- Kordel, who did not answer interrogatories and did not assert the privilege, could not establish compulsory self-incrimination on this record.
- The respondents did not show that the government used the civil action as a mere pretext to obtain criminal evidence, misled them about the proceedings, or otherwise engaged in conduct amounting to a due process violation warranting supervisory intervention.

## Legal Principles

- Individuals may invoke the Fifth Amendment privilege against self-incrimination in civil proceedings when answers may tend to incriminate them.
- Failure to timely assert the Fifth Amendment privilege generally defeats a later claim that testimony or discovery responses were compelled.
- The government may pursue parallel civil and criminal proceedings arising from the same facts and may use information obtained in the civil matter in the criminal case, absent unfairness such as deception, pretextual civil process used solely to gather criminal evidence, or other conduct that violates due process.

## Conclusion

The Court upheld the use of civil discovery obtained during an FDCA civil enforcement action in a related criminal prosecution where the individuals did not assert the Fifth Amendment privilege and the record did not show abusive or deceptive government use of the civil process.


United States v. Kordel, 397 U.S. 1 (1970)