John Sabouri v. Stewart M. Hunter

Oklahoma City, Oklahoma civil litigation lawyers represented parties in a conversion case.





Finding that the issuance of the stay order was, to a large measure, based on the plaintiff's inability to conduct discovery, due to Mr. Sabouri's exercise of his Fifth Amendment right against self-incrimination, and further finding that because of a prejudgment attachment motion filed, the State order had a chilling effect upon the Petitioner's exercise of his constitutional right to remain silent, we issue a Writ of Prohibition, prohibiting the trial court from further staying the taking of testimonial evidence by the Petitioner.



ORIGINAL JURISDICTION ASSUMED AND WRIT OF PROHIBITION ISSUED.





These corporate plaintiffs brought a conversion action against Mr. Sabouri, alleging that while an officer and agent of said corporate companies he converted almost $900,000.00 from them. Shortly after filing their petition, the plaintiffs below took numerous depositions, including that of Mr. Sabouri. However, Mr. Sabouri continually refused to answer any questions involving the allegations in the petition, by virtue of his Fifth Amendment right against self-incrimination.







Mr. Sabouri's position is that the trial court, in refusing to allow him to depose the parties necessary to defend against a prejudgment attachment, has deprived him of the guarantees against self-incrimination afforded him by both the Fifth and Fourteenth Amendment to the United States Constitution, as the stay against his proceeding with discovery is based upon his exercising his right against self-incrimination. Although the trial court may merely have been seeking to balance the equities that is, see that discovery was not one-sided, Mr. Sabouri argues that the effect of the trial court's action is to make the exercise of his Fifth and Fourteenth Amendment right costly, since he is put in a position which requires his taking of depositions in order to protect his property, but may not proceed with the taking of those depositions because of this exercise of the right against self-incrimination. He is thus forced to choose, he concludes, between incriminating himself and saving his property.





We would agree with Petitioner that the trial court's action has made his exercise of the privileges guaranteed by both the Fifth and Fourteenth Amendment costly. Accordingly, we must hold that the trial court's action is repugnant to the Constitution and an exercise of excessive power which justifies the issuance of a Writ of Prohibition.





In Spevack v. Klein, 2 Mr. Justice Douglas, in a majority opinion, stated:



"In this context 'penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly'. Id, at 614, 85 S.Ct. at 1233, 14 L.Ed.2d at 109. We held in that case that the Fifth Amendment, operating through the Fourteenth, 'forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' Id, at 615, 85 S.Ct. at 1233, 14 L.Ed.2d at 110. What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634-635, 6 S.Ct. 524, 29 L.Ed. 746, 752, . . . "...







In the case at hand, Mr. Sabouri is indeed being penalized for the exercise of his constitutional privilege. Because he chooses to remain silent, the trial court has prohibited him from obtaining information needed to protect his property from a prejudgment attachment. Thus, the price the Petitioner must pay for choosing to remain silent is the risk of losing his worldly possessions. To say such does not make the exercise of his right against self-incrimination costly would be a mockery.