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KONTOS v.
KONTOS
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UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS
DIVISION
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Docket Number
available at www.versuslaw.com
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Citation Number available
at www.versuslaw.com
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May 16, 1997
JOHN W. KONTOS, Plaintiff,
v.
CHERYL J. KONTOS, Defendant.
Attorney(s) for Plaintiff: Richard L. McOmber, HARRISON &
MOBERLY, Indianapolis, Indiana. , Attorney(s) for Defendant: John
D. Boren, BOREN & OLIVER, Martinsville, IN.
SARAH EVANS BARKER, CHIEF JUDGE, United States District Court,
Southern District of Indiana
The opinion of the court was delivered by: BARKER
ENTRY DISCUSSING GRANT OF SUMMARY
JUDGMENT
This suit began as an interpleader action brought by
Prudential Insurance Company of America ("Prudential") to determine
whether Cheryl J. Kontos or John W. Kontos is entitled to the
proceeds of a life insurance policy ("the Policy") taken out by the
decedent, Gregory Kontos. Prudential tendered the funds from that
policy to the Clerk of this Court and the parties subsequently
stipulated to Prudential's dismissal and discharge from liability
in this lawsuit. Thereafter, John W. Kontos ("Plaintiff") filed an
amended complaint for damages on the grounds that he, rather than
Cheryl J. Kontos ("Defendant"), is entitled to the proceeds of the
Policy.
Plaintiff claims that Defendant participated in the murder of
her husband and, consequently, that as a matter of equity, she
should be barred from any receipt of the Policy's proceeds and
that, as the contingent beneficiary, he should accede to the
proceeds. Defendant denies that she was in any way involved in her
husband's death. *fn1" Defendant has moved for
summary judgment, pursuant to Federal Rule of Civil Procedure 56,
on the grounds that Plaintiff has not presented enough evidence to
make out a prima facie case that Defendant was involved in her
husband's murder. The question before the Court is whether, based
on the material proffered as evidence, a jury could reasonably
conclude that Defendant was in fact involved in her husband's
death. For the reasons that follow, we find that Plaintiff has not
presented sufficient evidence of Defendant's involvement in her
husband's murder to make out a prima facie case and, consequently,
grant Defendant's motion. *fn2"
I. Statement of Facts
Gregory Kontos ("the Decedent") was a member of the United
States Army and was stationed at Ft. Sam Houston in San Antonio,
Texas. The Decedent's Policy is in the amount of $ 200,000 and
lists the Decedent's wife, Cheryl J. Kontos, as the primary
beneficiary and the Decedent's brother, John W. Kontos, as the
contingent beneficiary of the Policy.
On October 28, 1994 Gregory was murdered while visiting
Indianapolis, Indiana. Gregory's body was found in a rental car
parked in front of a strip bar in or around Lawrence, Indiana. He
had died of four gunshot wounds from a 9-millimeter semi-automatic
pistol.
Defendant denies that she was in any way involved in her
husband's murder. In her deposition, Defendant testified as to the
following: Upon arriving in Indianapolis, the Decedent stayed at
the Airport Ramada Inn. (Def.'s Depo., p. 127-28) On the evening of
October 28, Defendant went to her husband's room at the Inn and
invited him to accompany her and her sister, Cherie J. Klawun, to
dinner at a nearby Denny's Restaurant. (Id., 126-30). Defendant
drove the three of them to the Denny's Restaurant in a car that the
Decedent had rented. Id., p. 128) On their way to dinner, Defendant
and her husband had an argument. (Id., pp. 130-32) Defendant testified that, as a result of the
argument, the three of them did not eat at Denny's but instead
drove back to the Ramada Inn, where Defendant and her sister
allegedly parted company from the Decedent and drove away in
Defendant's car. (Id., pp. 131-32) Defendant testified that their
parting was the last time that she saw or spoke to her husband.
(Id., p. 131)
II. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is proper "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. Proc. 56(c). While the burden
rests squarely on the party moving for summary judgment to show
"that there is an absence of evidence to support the nonmoving
party's case," see Celotex Corp. v. Catrett, 477 U.S.
317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986), the nonmoving party responding to a
properly made and supported summary judgment motion still must set
forth facts showing that there is a genuine issue of material fact
and that a reasonable jury could return a verdict in its favor. See
Wolf v. City of Fitchburg, 870 F.2d
1327, 1329 (7th Cir. 1989); Posey v. Skyline Corp., 702 F.2d
102, 105 (7th Cir.), cert. denied, 464 U.S.
960, 78 L. Ed. 2d 336, 104 S. Ct.
392 (1983). Denials contained in the pleadings or bald
allegations that an issue of fact exists is insufficient to raise a
factual issue. See Shacket v. Philko Aviation, Inc., 681 F.2d
506, 513 n.8 (7th Cir. 1982), rev'd on other grounds, 462 U.S.
406, 76 L. Ed. 2d 678, 103 S. Ct. 2476
(1983). Furthermore, a genuine issue of fact cannot
be based merely on speculation. "Speculation does not create a
genuine issue of fact; instead, it creates a false issue, the
demolition of which is a primary goal of summary judgment." Tyler
v. Runyon, 70 F.3d 458 , 469 (7th Cir.
1995) (quoting Hedberg v. Indiana Bell Tel. Co., 47 F.3d
928, 932 (7th Cir. 1995)). In order for an issue to be
"genuine," the evidence must be such that a reasonable jury could
return a verdict for the nonmoving party. Anderson, 477 U.S.
242, 248, 106 S. Ct. 2505 , 2510,
91 L. Ed. 2d 202; Scherer v. Rockwell Intern. Corp., 975 F.2d
356, 360 (7th Cir. 1992). In other words, the moving party has
the initial burden of showing the absence of a genuine issue of
fact, but once that burden has been fulfilled, the nonmoving party
has the burden of producing evidence that could support a jury
verdict in his favor. Anderson, 477 U.S. at 256, 106 S. Ct. at
2514; Scherer, 975 F.2d at 360. If doubts remain, however, as to
the existence of a material fact, then those doubts should be
resolved in favor of the nonmoving party and summary judgment
denied. See Wolf, 870 F.2d at 1330.
III. Discussion
Plaintiff offers no direct evidence of Defendant's complicity
in her husband's murder. Instead, Plaintiff contends that a
reasonable jury could infer her complicity from Defendant's
allegedly inconsistent or otherwise unbelievable statements
regarding her husband's death and from other allegedly suspicious
circumstances surrounding that death. We address these allegations
in turn. First, Plaintiff alleges that Defendant lied when she
stated that she did not know that she was the primary beneficiary
under her husband's Policy. Defendant testified that she did not
know this fact. (Def.'s Depo., p. 65) Plaintiff contends that
Defendant did know of her status as a beneficiary and that her
denial of that knowledge demonstrates her guilt. However, Plaintiff
proffers no direct evidence that Defendant, in fact, knew of her
status as a beneficiary. Instead, he contends that Defendant's
knowledge of her status can be inferred from surrounding facts:
namely, that the Decedent made Defendant the primary beneficiary of
his Policy on April 29, 1994 and that the two spoke on the
telephone for 35 minutes that same evening. It would be
unreasonable, Plaintiff contends, to suppose that during this
conversation Gregory Kontos did not tell his wife of her status as
a beneficiary. As evidence of the couple's telephone conversations,
Plaintiff includes an authenticated copy of the Decedent's
telephone billing records which show that the Decedent was called
in Wetmore, Texas, on his 800 toll-free number once on April 29,
1994 from Indianapolis, Indiana, and seven times from April 29 to
May 4, 1994 from West Newton, Indiana. See
Pl's Designation of Materials, Ex. B. Even if we accept that this
evidence demonstrates that the two spoke on the telephone the
evening of April 29, 1994 and several more times shortly
thereafter, we would be merely speculating as to the subject of
their conversation. Therefore, Plaintiff has not presented any
evidence that Defendant lied about not knowing of her status as a
beneficiary. Without any evidence that Defendant lied, a jury would
not be able to reasonably infer that she lied to cover up her
involvement in her husband's murder.
Plaintiff next contends that Defendant lied about not knowing
that her husband was going to visit her in Indianapolis the weekend
of his murder. Plaintiff alleges that Defendant told a Lawrence
Police Detective that she had not known that her husband would
travel to Indianapolis and that his visit was a surprise to her.
Plaintiff alleges that Gregory Kontos arranged to travel to
Indianapolis on October 21, 1994 and that he and his wife spoke by
telephone eight times from October 9 to October 27. Plaintiff
further alleges that Defendant had arranged some time in advance of
her husband's arrival to be absent from work the day of his arrival
in Indianapolis. Even if we accept that the two spoke several times
prior to the Decedent's visit, we again cannot speculate as to the
content of their conversation. Plaintiff also proffers affidavits
of three persons, Barry Steckler, Janet Cook, and Kevin
Fairbrother, who testify that Gregory spoke with them and told them
that he was traveling to Indianapolis because his wife asked him to
visit her and that she was expecting him. See Pl.'s Statement of
Genuine Issues, Exs. A-C. Plaintiff, however, cannot use the
affidavits to prove that Defendant knew her husband was going to
visit her because the affidavits would constitute inadmissible
hearsay under Federal Rules of Evidence 801 and 802.
Plaintiff contends that Gregory's statements to the three
affiants constitute evidence of an existing mental condition that
is admissible under Rule 803(3). It is true that statements of a
declarant's state of mind may be admitted to show, for example,
motive, competency, ill-will or intent, or lack of intent to
defraud. See, e.g., 5 Weinstein's Federal Evidence ? 803.06[2]
(Matthew Bender, 2d ed. 1997). We cannot agree with Plaintiff that
Gregory's mental state at the time he requested leave to visit his
wife is an issue in this case. It is Defendant's state of mind,
specifically whether she knew her husband was going to visit her,
rather than her husband's, that is at issue in this case. The
authority Plaintiff cites, United States v. Brown,
160 U.S. App. D.C. 190 ,
490 F.2d 758 (D.C. 1973), and United
States v. Pheaster, 544 F.2d
353 (9th Cir. 1976), cert. denied, 429 U.S.
1099, 97 S. Ct.
1118, 51 L. Ed. 2d 546 (1977), is inapposite. In the criminal
case, Brown, the court held that where the defense presented no
claim of self-defense, suicide, accidental death, or any other
possible issue that would justify an inquiry into the victim's
state of mind, the trial court committed prejudicial error in
allowing the victim's wife to testify that he was frightened that
he would be killed by the defendant. 490 F.2d at 764-70. Therefore,
Brown provides no support for Plaintiff. Pheaster's discussion of
the state-of-mind exception, meanwhile, involves the entirely
separate issue of the Hillmon doctrine. The doctrine, which takes
its name from the Supreme Court case Mutual Life Insurance Co. v.
Hillmon, 145 U.S.
285, 12 S. Ct. 909 , 36 L. Ed. 706
(1892), provides that when the performance of a particular act by
an individual is an issue in a case, his intention (state of mind)
to perform that act may be shown. From that intention, the trier of
fact may draw the inference that the person carried out his
intention and performed the act. See generally 5 Weinstein's
Federal Evidence ? 803.07. There is no question in the instant case
that the Decedent traveled to Indianapolis to visit his wife. The
pertinent question is whether Defendant knew in advance that he was
coming. The Decedent's state of mind tells us nothing in that
regard. Therefore, we find the proffered testimony to be
inadmissible hearsay. Plaintiff does not proffer any admissible
evidence that Defendant knew that her husband was coming to visit
her. Without such evidence, we cannot infer that Defendant lied
about not knowing that her husband was coming to visit her in order
to conceal her involvement in her husband's
murder. While Defendant agreed to stipulate for purposes of the
summary judgment motion that she knew of her husband's impending
visit, we do not take Defendant to mean that she will stipulate
that she lied about not knowing that her husband was going to visit
her. As to the stipulation, no inference of culpability can be
drawn merely from Defendant's knowledge that her husband was going
to visit her.
Plaintiff next contends that Defendant's culpability is
evidenced by the fact that she had access to a 9-millimeter pistol
and that the Decedent was murdered with a 9-millimeter pistol.
Defendant testified that her sister, Cherie J. Klawun, once owned a
9-millimeter firearm, but sold the firearm in 1991 or 1992 to David
Rosebrock. (Def.'s Depo., pp. 168-70) Defendant's counsel forwarded
to Plaintiff's counsel a copy of a bill of sale for a 9-millimeter
gun dated January 27, 1992 that lists Cherie J. Klawun as seller
and David Rosebrock as purchaser. (Pl.'s Designation of Materials,
Ex. D) Plaintiff seeks to undermine Defendant's denial that she had
access to her sister's gun by proffering evidence that Defendant's
sister allegedly pulled out and pointed a 9-millimeter
semi-automatic pistol at an Indiana State police officer during an
undercover narcotics operation on March 18, 1992. See Declaration
of Steven D. Holland, P 6. This line of proof is too tenuous to
implicate Defendant in her husband's murder. Cherie may have indeed
sold one 9-millimeter gun on January 27, 1992 and yet pointed a
second 9-millimeter gun at a police officer on March 18, 1992.
Moreover, evidence that Defendant's sister possessed a 9-millimeter
pistol in 1992, or even in 1994, does not constitute evidence that
the sister's gun was used to kill the Decedent or that Defendant
was in any way involved in her husband's murder.
Plaintiff next seeks to create evidence of complicity from
Defendant's subsequent modification of her deposition testimony. At
her deposition, Defendant initially stated that she had not been in
the area of Lawrence, Indiana, during the weekend her husband was
killed. (Def.'s Depo., p. 138) Later Defendant corrected her
response to the following answer: "We stopped at Babes East, for
the second time and no other clubs at Pendleton Pike." (Id.,
Correction Form, p. 2) Plaintiff characterizes Defendant's
correction of her testimony as a "recantation" and contends that
Defendant's testimony places her "at or near the location where
Gregory Kontos's body was discovered." (Pl.'s Supp. Resp., pp. 5-6)
The Court does not understand Defendant's change in testimony to
place Defendant at the strip bar where her husband's body was found
the night that he was murdered. Consequently, Defendant's testimony
does not by itself prove that Defendant was "at or near" the
location where her husband's body was found. The fact that
Defendant admits to having been in Lawrence, Indiana, does not
evidence that she was more likely than not involved in his
murder.
Plaintiff also seeks to implicate Defendant by suggesting
that there is evidence that she drove Defendant's car farther than
merely from the Ramada Inn to the Denny's Restaurant and back
again. In support of his allegation, Plaintiff alleges that the
odometer on the rental car showed that the car had been driven 84
miles since the Decedent picked it up at the rental site, that the
round-trip driving distance from the Airport Ramada Inn to the
Denny's Restaurant was only 2.8 miles, and that the driving
distance to the location where the Decedent's body and car were
found from the Ramada Inn was 22.3 miles, leaving approximately 56
miles of driving unaccounted for. Plaintiff further alleges that
the Decedent did not know his way around Indianapolis and did not
even have a road map of the city in the rental car. Plaintiff
contends that from these facts it is reasonable to infer that
Defendant did not drive the rental car for the miles unaccounted
for and that, as a resident of Indianapolis, Defendant was the one
who more likely drove the car. This is mere speculation, however.
Plaintiff does not proffer any actual evidence that Plaintiff drove
her husband's rental car to any place other than to where she
testified she drove it. Without such actual evidence (direct or
circumstantial), we cannot conclude that Defendant lied about her
actions the evening her husband was murdered or further infer that
she lied because she is guilty of his murder.
Finally, Plaintiff proffers as
evidence against Defendant the fact that when Plaintiff's counsel
attempted to depose Defendant's sister, Cherie J. Klawun; Klawun
asserted her right to remain silent. (Klawun Depo.) Plaintiff
correctly observes that a defendant's assertion of her right
against self-incrimination does not prohibit a trier of fact in a
civil case from drawing adverse inferences from the witness's
refusal to testify. See Baxter v. Palmigiano, 425 U.S.
308, 318, 96 S. Ct. 1551 , 1558, 47
L. Ed. 2d 810 (1976) ("the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to
testify in response to probative evidence offered against them: the
Amendment 'does not preclude the inference where the privilege is
claimed by a party to a civil cause '") (quoting 8 J. Wigmore,
Evidence 439 (McNaughton rev. 1961)) (emphasis in the original);
Matter of Maurice, 73 F.3d 124 , 126
(7th Cir. 1995). Cf. Daniels v. Pipefitters' Ass'n Local Union No.
597, 983 F.2d
800, 802 (7th Cir. 1993) ("We agree that the inference against
a witness that may be drawn from the invocation of the Fifth
Amendment is permissive"). In this case, we are not confronted with
a party's refusal to testify: Defendant allowed herself to be
deposed. Instead, it is a nonparty witness with whose refusal to
testify we are confronted. Several circuit courts have held that in
certain circumstances a nonparty witness's invocation of her right
not to testify is admissible and an adverse inference against a
party may be drawn from the nonparty's witness's refusal to
testify. Recently, in LiButti v. United States, 107 F.3d
110 (2nd Cir. 1997), the Second Circuit engaged in a thorough
review of case law on this issue and, finding its own precedent,
see Brink's Inc. v. City of New York, 717 F.2d
700 (2nd Cir. 1983), in conformity with authority from other
circuits, see RAD Servs., Inc. v. Aetna Casualty and Sur. Co.,
808
F.2d 271 (3rd Cir. 1986); Federal Deposit Ins. Corp. v.
Fidelity & Deposit Co. of Maryland, 45 F.3d
969 (5th Cir. 1995); Cerro Gordo Charity v. Fireman's Fund Am.
Life Ins. Co., 819 F.2d
1471 (8th Cir. 1987); Rosebud Sioux Tribe v. A & P Steel,
Inc., 733 F.2d
509 (8th Cir.), cert. denied, 469 U.S.
1072, 83 L. Ed. 2d 506, 105 S. Ct.
565 (1984), held that the question of whether to admit such
evidence and whether to allow the concomitant adverse inference
must be decided on a case-by-case basis rather than according to
any bright-line rule. The LiButti court noted that "the overarching
concern is fundamentally whether the adverse inference is
trustworthy under all of the circumstances and will advance the
search for the truth." LiButti, 107 F.3d at 124.
We do not believe it proper to draw an adverse inference from
Klawun's refusal to testify against Defendant. The instant case
does not share with the above cases the factual circumstances upon
which the courts based their determination that the adverse
inferencesb were trustworthy. For example, in Brink's and in RAD
Services the nonparty witnesses were former or current employees of
the party against whom their refusal to testify would be imputed.
In Brink's the plaintiff contracted with New York City to collect
coins from city parking meters. Several Brink's employees were
subsequently convicted of stealing parking meter revenues. The City
thereupon canceled the Brink's contract. Brink's sued for damages,
and the City counterclaimed for breach of contract and negligence.
Brink's then filed a third-party complaint against twelve of its
current and former employees and their supervisor. The court denied
Brink's preliminary motion to preclude the City from questioning
the third-party defendants, and at trial the third-party defendants
declined to answer any questions. The jury awarded the City
compensatory and punitive damages. The Second Circuit affirmed the
judgment, agreeing with one commentator's assessment that claims of
privilege made while an employee is still working for a defendant
can be adopted as a vicarious statement of the defendant employer
if the question that triggered the claim related to the employee's
work. Brink's, 717 F.2d at 710 (citing Heidt, The Conjuror's
Circle: The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J.
1062, 1087-88, 1107-35 (1982)). The court also agreed with the
commentator that the fact that the invoker of a privilege no longer
is an employee of the defendant does not make his refusal to
testify any less a vicarious admission of his former employer.
Id.
In RAD Services a company sued its
insurer to recover costs incurred in disposing of hazardous waste
materials. The insurer disavowed coverage on the grounds that the
company allegedly violated the law by intentionally dumping the
hazardous materials in question. At trial the insurer read to the
jury deposition transcripts of a RAD official and a managing
employee, in which the deponents invoked their Fifth Amendment
rights. The court instructed the jury that it could, but need not,
infer that the witnesses would have answered the insurer's
questions adversely to RAD. The jury found for the insurer, and the
Third Circuit affirmed.
Nothing forbids imputing to a
corporation the silence of its personnel. On the one hand,
Fed.R.Evid. 801(d)(2)(D) excepts from the hearsay rule a statement
offered against a corporate party and made by its "agent or servant
concerning a matter within the scope of his agency or employment .
. . during the existence of the relationship . . .." The bases for
admitting these vicarious admissions against the corporation also
justify informing the factfinder when the corporation's agent
invokes the Fifth Amendment privilege.
RAD Servs., 808 F.2d at 275.
In Fidelity & Deposit Company the Fifth Circuit also
concluded that an employee's silence may be imputed against his or
her employer, though the court did not engage in much analysis. In
that case a bank filed suit against a surety under an employee
fidelity bond alleging that the bank's chief lending officer
engaged in dishonest and fraudulent activity that resulted in the
bank's extending several bad loans. After the bank was closed, the
FDIC was appointed the bank's receiver and succeeded as plaintiff
in the action. On appeal from a judgment adverse to the surety, the
Fifth Circuit held that evidence of nonparties' invocation of their
Fifth Amendment rights was properly admitted. The court noted that
other circuits had not precluded a party from having a witness
assert his privilege in front of the jury merely because the
witness no longer served the party in an "official capacity."
Fidelity & Deposit Co., 45 F.3d at 978. *fn3" In contrast to Brink's, RAD
Services, and Fidelity & Deposit Company, the present case does
not involve an employment relationship and the reasons that courts
have articulated for allowing an adverse inference to be imputed
against a witness's employer simply have no place in our analysis.
Unlike a claim of privilege by a current or former employee,
Klawun's invocation of her right to remain silent cannot be
considered a vicarious statement of her sister, Defendant.
Plaintiff has not alleged that there is any agency relationship
between the two that would make the above case law at all
applicable to this case..
The other circuit court cases that have allowed the
imputation of an adverse inference from a nonparty witness's
refusal to testify, LiButti and Cerro Gordo Charity, are
distinguishable from the instant case in that the courts in these
cases found that the nonparty witness and the party against whom an
inference would be drawn had allied interests. In other words, the
court found that the nonparty witness's own interests would be just
as negatively affected by an adverse inference as the party's. In
LiButti the daughter of a delinquent taxpayer brought a wrongful
levy action against the government after the government placed a
tax levy on a race horse that it contended was the property not of
the daughter but instead of the delinquent taxpayer's commercial
stables. The trial court entered judgment in
favor of the daughter after a bench trial during which it refused
to draw an adverse inference from the father's invocation of his
Fifth Amendment right. The Second Circuit vacated the judgment,
noting that "Robert and Edith had precisely the same interest
against the drawing of adverse inferences from Robert's invocation
of the Fifth Amendment: their collective desire that Devil His Due
and all of Lion Crest's assets be deemed in Edith's ownership so
that they would be insulated from levy by the government. If Robert
truly believed that he neither owned Lion Crest and/or Devil His
Due nor contributed the funds to acquire the horse, he simply could
have answered the questions posed to him about those matters in the
negative." LiButti, 107 F.3d at 124.
In Cerro Gordo Charity, the case most redolent of the instant
one, a charitable trust created by an insured's half-brother
brought an action to recover proceeds from life insurance policies
after the insured was murdered. The charity was the beneficiary of
several accidental death and dismemberment insurance policies taken
out on the insured's life. The insurers denied payment on the
ground that the policies were obtained as a result of a fraudulent
scheme by the insured's brother to have his sister murdered in
order to collect the insurance proceeds. The trial court allowed
the insurers to call the brother to the stand even though he had
made it known that he would invoke his right to remain silent. The
jury returned a special verdict, finding that the brother had
intentionally killed his sister to obtain the insurance proceeds.
The Eighth Circuit held that a negative inference against the
charitable trust could be drawn from the brother's refusal to
testify because there was evidence that the brother and the
charitable trust had the same interests.
There is reason to believe that
Richards [the half-brother] still retains some loyalty to Cerro
Gordo. These suits were brought in the name of Cerro Gordo when
Richards was still a controlling member of the charity. Although it
is true that Richards is not presently listed as a director or
voting member of the charity, there is some question whether he
retained some control over the charity and whether his resignation
as a voting member after these suits were filed was not purely a
matter of litigation strategy.
Cerro Gordo Charity, 819 F.2d at 1481-82. In both LiButti and
Cerro Gordo Charity, then, the courts determined that there was an
identity of interests that made the adverse inference trustworthy.
We do not have the same identity of interests in the present case.
Klawun is not named as a beneficiary of the Decedent's Policy. She
does not necessarily have the same interest as her sister in her
sister's accession to the proceeds of the Policy. For reasons
unknown to the Court, Defendant's sister may wish to undermine
Defendant's right to the proceeds. Or the sister may have reason to
invoke her privilege against self-incrimination while Defendant has
none. This possibility is suggested by the fact that Defendant
allowed herself to be deposed. It could be entirely possible that,
while Klawun played a role in the murder of Defendant's husband,
Defendant had no knowledge of the murder and played no part in it.
In this case, drawing an adverse inference from Klawun's refusal to
testify would not aid the search for truth, but in fact would
hinder that search. We cannot say that there is a sufficient basis
to conclude that an adverse inference would be trustworthy.
Therefore, we find that Klawun's refusal to testify is not
admissible against Defendant.
Even if Klawun's refusal to testify were admissible, we do
not think that the resulting adverse inference would be a
sufficient basis upon which a reasonable jury could conclude that
Defendant was involved in her husband's murder. Before an adverse
inference may be drawn from a party's refusal to testify in a civil
case, there must be independent corroborative evidence to support
the negative inference beyond the invocation of the privilege. See
Baxter, 425 U.S. at 318, 96 S. Ct. at 1558 ("the Fifth Amendment
does not forbid adverse inferences against parties . . . when they
refuse to testify in response to probative evidence offered against
them ") (emphasis added); LaSalle Bank Lake View v. Seguban,
54 F.3d 387 , 390 (7th Cir. 1995);
United States v. Stelmokas,
100 F.3d
302, 311 (3rd Cir. 1996); United States v. Incorporated Village
of Island Park, 888 F. Supp. 419 , 445
(E.D.N.Y. 1995) (the government may rely on a defendant's assertion
of his privilege against self-incrimination to show intent only if
that inference is supported by independent evidence); United States
v. Private Sanitation Industry Ass'n, 899 F. Supp.
974 , 982 (E.D.N.Y. 1994) ("liability should not be
imposed based solely upon the adverse inference"), aff'd, 47 F.3d
1158 (2nd Cir.), cert. denied sub. nom., Ferrante v. United
States, 133 L. Ed. 2d 15, 116 S. Ct. 50
(1995). As the Seventh Circuit stated in LaSalle
Bank Lake View v. Seguban :
Thus, although "the Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they
refuse to testify in response to probative evidence offered against
them," an analysis of that evidence is nonetheless required.
Silence is a relevant factor to be considered in light of the
proffered evidence, but the direct inference of guilt from silence
is forbidden.
Seguban, 54 F.3d at 390 (quoting Baxter, 425 U.S. at 318, 96
S. Ct. at 1558). Consequently, "although inferences based on the
assertion of the privilege are permissible, the entry of judgment
based only on the invocation of the privilege and 'without regard
to other evidence' exceeds constitutional bounds." Seguban, 54 F.3d
at 391 (quoting Baxter, 425 U.S. at 318, 96 S. Ct. at 1558). While
Seguban involved the invocation of the right to remain silent by
parties and not by nonparty witnesses, we cannot say that its
holding is inapplicable to the instant case. Therefore, even if
Klawun's refusal to testify were admissible evidence, that evidence
alone would not establish a prima facie case that Defendant was
involved in the murder of her husband.
IV. Conclusion
In this case, Plaintiff proffers no actual evidence that
Defendant was involved in the murder of her former husband.
Instead, Plaintiff asks the court to substitute speculation for
evidence. However, as noted above, speculation does not create a
genuine issue of fact. See Tyler v. Runyon, supra. Consequently,
Plaintiff has failed to demonstrate that there is any genuine issue
of material fact to be resolved by a jury or that judgment should
not be entered in favor of Defendant as a matter of law. Therefore,
the Court grants summary judgment in favor of Defendant Cheryl J.
Kontos and against Plaintiff John W. Kontos. The parties are to
bear their own costs.
It is so ORDERED this 16th day of May 1997.
SARAH EVANS BARKER, CHIEF JUDGE
United States District Court
Southern District of Indiana
JUDGMENT
In accord with its Entry of this date in the above-captioned
matter, the Court enters judgment in favor of Defendant Cheryl J.
Kontos and against Plaintiff John W. Kontos. The parties are to
bear their own costs.
It is so ORDERED this 16th day of May 1997.
SARAH EVANS BARKER, CHIEF JUDGE
United States District Court
Southern District of Indiana
Opinion Footnotes
*fn1 Plaintiff has made no
mention as to whether the State engaged in a criminal investigation
and/or prosecution of Defendant in connection with her husband's
murder; we assume neither has occurred. While not controlling in a
civil case, a pending criminal indictment or conviction of
Defendant would nonetheless change the landscape of this case
significantly.
*fn2 The Court also denies as
moot Plaintiff's April 23, 1997 Motion to File Supplemental
Authority and Defendant's February 18, 1997 Motion to Strike.
*fn3 The Eighth Circuit's holding
in Rosebud Sioux Tribe is consistent with that of Brink's, RAD
Services, and Fidelity & Deposit Company, though the court
appears to have been primarily concerned with preventing one party
from using the witness's right against self-incrimination as a
tactical advantage, which concern is not present in the instant
case. The Eighth Circuit reversed a judgment for the defendant in a
breach of contract suit after the trial court refused to allow the
Tribe to call as a witness an official whom the Tribe believed was
colluding with the defendant. Instead the court allowed both
parties to read from the official's deposition testimony which
supported the defendant. The Eight Circuit held among other things
that the trial court should have permitted the Tribe to call the
chairman despite his stated intention to remain silent on the
grounds that the deponent was effectively a witness for the
defendant. "Once the deposition was allowed into evidence, it was
necessary to allow the Tribe to call [the official] as a witness in
order to offset the unfair advantage A&P gained by being
allowed to use the deposition." Rosebud Sioux Tribe, 733 F.2d at
522.
19970516
© 1992-2004 VersusLaw Inc.
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March 29th, 2011 @ 10:11 am
MUST.
HAVE.
NOW.
March 29th, 2011 @ 11:12 am
I loved Dreadnought and can’t wait for this one! Sounds like a great story.
March 29th, 2011 @ 11:21 am
Another beautiful cover … and, of course, already pre-ordered Ganymede as soon as the option became available.
Now, it’s time for my 30-minute lunchtime walk (reading Bloodshot all the way).
March 29th, 2011 @ 2:11 pm
I’ve enjoyed all of the CC books so far. Very excited about Ganymede.
March 29th, 2011 @ 2:13 pm
For what it’s worth, Amazon is using this artwork.
March 29th, 2011 @ 2:25 pm
Thanks everyone! And yeah, it looks like this is up as “official” on the Facebook page for the series (which is run by some nice folks at Tor).
March 29th, 2011 @ 2:29 pm
sooooo pretty. *want*
March 29th, 2011 @ 4:37 pm
Purrrr. Lots of brass. This is very good.
March 29th, 2011 @ 9:12 pm
Love your steampunk–thrilled to see a new installment!
March 30th, 2011 @ 10:31 am
Fabulous! I grew up in New Orleans–well, in Metairie, just to the west–and I’d been wondering what was happening there in the Clockwork Century. Airships, submarines, and creole cooking, yum.
March 31st, 2011 @ 12:06 am
You have to love them. they are awesome.