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declining to "hinder the trial of this matter based upon a sluggish and nebulous criminal proceeding"
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CASE NO.: 05-61477-CIV-COOKE/BROWN.
February 23, 2007
ORDER DENYING DEFENDANT PERRY'S RENEWED MOTION TO STAY PROCEEDINGS
THIS CAUSE is before the Court upon Defendant Perry's Renewed Motion to Stay Proceedings (DE 183), filed February 21, 2007. The Court having reviewed the Motion and being otherwise fully advised finds that the Motion should be denied.
A federal district court has broad discretion in granting or denying a stay and its decision will not be disturbed absent an abuse of discretion. See Landis v. North American Co., 299 U.S. 248, 254-55 (1936); Afro-Lecon, Inc. v. United States, 820 F.2d 1198 (Fed. Cir. 1987). A stay of discovery and/or the entire trial is but one of many options a court may consider when a party or witness invokes his Fifth Amendment right against compelled self-incrimination. See S.E.C. v. Dresser Industries, Inc., 628 F.2d 1368, 1375-76 (D.C. Cir. 1980) (en banc), cert. denied, 449 U.S. 993 (1980). However, "[t]he Constitution does not require a stay of civil proceedings pending the outcome of related criminal proceedings." Shell Oil Co. v. Altina Associates, Inc., 866 F.Supp. 536, 540 (M.D.Fla. 1994). "Forcing an individual to risk non-criminal disadvantage by remaining silent for fear of self incrimination in a parallel criminal proceeding does not rise to the level of an unconstitutional infringement." Id. Furthermore, it is well established in this Circuit that "a court must stay a civil proceeding pending resolution of a related criminal prosecution only when `special circumstances' so require in the `interests of justice.'" United States v. Lot 5, Fox Grove, Alachua County, Florida, 23 F.3d 359, 364 (11th Cir. 1994) (citing U.S. v. Kordel, 397 U.S. 1, 12 n. 27 (1970)). Thus, a district court may deny a stay so long as the privilege's invocation does not compel an automatic entry of summary or adverse judgment. Id. Additionally, a blanket assertion of the privilege against compulsory self incrimination is an inadequate basis for the issuance of a stay. Lot 5, Fox Grove, 23 F.3d at 364.
In the case at bar, the alleged shooting incident occurred on November 3, 2004, approximately two years ago. However, the Florida State Attorney's Office has yet to make a decision as to whether Defendant Perry will be charged with any criminal violations. This two year delay in making a determination as to whether criminal charges should be brought against Perry is especially disconcerting in light of the fact that under Florida law the State Attorney may charge Perry by direct information and thereby eliminate the need to convene a grand jury in this matter. See Fla. R. Crim. P. Rule 3.140. As a result, the prolonged two year delay of the potential criminal matter confounds this Court. Furthermore, it is unclear as to when if ever the nebulous criminal matter will proceed. Consequently, if this Court stayed the present matter pending the resolution of the potential criminal charges the resulting stay would likely be inequitable and improper as it would be of indefinite duration.See Ortega Trujillo v. Conover Co. Communications, Inc., 221 F.3d 1262, 1264-65 (11th Cir. 2000). This Court will not hinder the trial of this matter based upon a sluggish and nebulous criminal proceeding in which Perry has yet to even be indicted or otherwise charged with any criminal violations. Moreover, Defendant Perry's invocation of the Fifth Amendment privilege will not result in an automatic entry of summary or adverse judgment as Gomez will still be required to show, by a preponderance of the evidence, that the shooting in question violated Florida law and Gomez's Fourth Amendment rights. Furthermore, Defendant Perry is free to preserve his Fifth Amendment privilege while presenting evidence which does not undermine that privilege. Therefore, the Court will not stay the trial of this matter. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant Perry's Renewed Motion to Stay Proceedings (DE 183) is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida.