732 F.

2d 170
11 Bankr.Ct.Dec. 1010, Bankr. L. Rep. P 69,761,
15 Fed. R. Evid. Serv. 216

In re Anthony R. MARTIN-TRIGONA, Debtor.

Anthony R. MARTIN-TRIGONA, Plaintiff-Appellant,
v.
Richard BELFORD, Trustee, and Daniel Meister, Trustee,
Defendants-Appellees.
No. 839, Docket 84-5003.

United States Court of Appeals,

Second Circuit.
Argued Jan. 23, 1984.
Decided March 14, 1984.

John R. Williams, New Haven, Conn., for plaintiff-appellant.

Richard M. Coan, New Haven, Conn. (Coan, Lewendon & Royston, New
Haven, Conn., of counsel), for defendant-appellee Richard Belford.
Before MESKILL, NEWMAN and PRATT, Circuit Judges.
MESKILL, Circuit Judge:

This is an appeal from an order of the United States District Court for the
District of Connecticut, Cabranes, J., holding appellant Anthony R. MartinTrigona in civil contempt for his refusal to comply with a court order requiring
him to answer questions put to him by counsel for the trustee of his estate in
bankruptcy during an examination pursuant to Bkrtcy.R. 2004 after a grant of
immunity under 18 U.S.C. Sec. 6003 (1982). Judge Cabranes ordered appellant
incarcerated until he is ready and willing to testify in full. We stayed the order
of incarceration pending the outcome of this appeal. We now vacate the stay
and affirm the order below.

BACKGROUND

Appellant is a debtor whose personal bankrupt estate presently is before Judge

Cabranes. He is no stranger to the federal courts, Martin-Trigona v. Smith, 712
F.2d 1421, 1423 & n. 1 (D.C.Cir.1983) (per curiam); Martin-Trigona v. Shiff,
702 F.2d 380, 382 & n. 1 (2d Cir.1983), having demonstrated throughout his
various proceedings a penchant for obfuscation and delay. In particular, he has
gone to great lengths in his bankruptcy matters to avoid testifying about his
assets. See, e.g., Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir.) (per
curiam), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980).

On June 23, 1983, shortly after Judge Cabranes transferred to the district court
all matters concerning appellant's estate in bankruptcy pending in the United
States Bankruptcy Court for the District of Connecticut, counsel for the trustee
sought to question appellant pursuant to Bkrtcy.R. 205.1 Appellant refused to
answer several questions, claiming his Fifth Amendment privilege against selfincrimination. The examination was continued until July 1, 1983. On that date,
appellant's prior counsel, M. Hatcher Norris, invited opposing counsel to apply
for a grant of immunity and strongly implied that appellant would testify if
immunity were forthcoming.

The United States Attorney subsequently applied for immunity under 18 U.S.C.
Sec. 6003, stating that appellant's testimony was "necessary to the public
interest." On November 3, 1983 Judge Cabranes granted the application for
immunity. Examination of appellant was continued until January 3, 1984.2

Appellant again refused to testify at the hearing held on January 3 on the basis
of the privilege against self-incrimination. Judge Cabranes ordered appellant to
answer the questions put to him by trustee Belford's counsel. Appellant refused.
As a result, Judge Cabranes held appellant in civil contempt and ordered him
incarcerated until he was prepared to testify in full. Martin-Trigona appealed
and on January 4 we granted his motion for a stay of incarceration pending the
disposition of this expedited appeal.

DISCUSSION
6

Appellant's initial argument is that the immunity statutes, 11 U.S.C. Sec. 344
(1982);3 18 U.S.C. Secs. 6001-6005 (1982),4 are inapplicable to civil
proceedings. In support of his position he cites two footnotes appearing in
Pillsbury Co. v. Conboy, --- U.S. ----, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983),
one in the majority opinion and one in the concurring opinion. The majority
opinion footnoted "[w]e need not decide whether United States Attorneys,
when designated by the Attorney General, presently have authority to

immunize the testimony of a witness in a civil proceeding when the

Government determines that the public interest would be served." Id. at ---- n.
20, 103 S.Ct. at 616 n. 20. Justice Marshall, in his concurrence, cited the
footnote and stated that the issue was an "open question." Id. at ---- n. 4, 103
S.Ct. at 621 n. 4 (Marshall, J., concurring). Appellant argues that these
statements somehow indicate that the Supreme Court doubts that the
appropriate statutes permit the granting of immunity in order to compel
testimony in non-criminal proceedings.
7

A close look at the statutes in question leaves no doubt as to their applicability

to civil proceedings in general and bankruptcy matters in particular. 11 U.S.C.
Sec. 344 explicitly incorporates the provisions of 18 U.S.C. Secs. 6001-6005
where immunity is sought "for persons required to submit to examination, to
testify, or to provide information in a case under this title...."

The language of 18 U.S.C. Secs. 6001-6003 explicitly applies to all civil

proceedings, including bankruptcy proceedings. Section 6003(a) states that the
appropriate district court shall issue an order compelling testimony upon
request of a duly authorized United States attorney in accordance with the
provisions of section 6003(b) "[i]n the case of any individual who has been or
may be called to testify or provide other information at any proceeding before
or ancillary to a court of the United States...." (emphasis added). Presumably
Congress understood the implications of the phrase "any proceeding before a
court of the United States." Section 6001 defines "court of the United States" to
include bankruptcy courts. This is further evidence of Congress' intent to apply
these provisions to bankruptcy proceedings. Section 6002, which provides for
use and derivative use immunity for witnesses compelled to testify, states that
the section is applicable "[w]henever a witness refuses, on the basis of his
privilege against self-incrimination, to testify or provide other information in a
proceeding before or ancillary to--(1) a court ... of the United States ...." Other
courts have applied the immunity statutes in civil proceedings. See In re Ryan,
538 F.2d 435, 437 n. 2 (D.C.Cir.1976) ("A proceeding in the Tax Court is a
proceeding before a 'court of the United States' in which the immunity statute
may be invoked."); United States v. Cappetto, 502 F.2d 1351, 1359 (7th
Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975)
(civil RICO); In re Channel, 29 B.R. 316, 318 (Bkrtcy.W.D.Ky.1983) (proper
method to obtain testimony from a debtor claiming the privilege against selfincrimination is to request the United States attorney to apply for a grant of
immunity).

Appellant's second claim is that even if he can be compelled to testify

according to 11 U.S.C. Sec. 344, the consequence of his refusing to do so

should only be a denial of his discharge, not contempt. This point is meritless.
10

"[C]ourts have inherent power to enforce compliance with their lawful orders
through civil contempt." Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct.
1531, 1535, 16 L.Ed.2d 622 (1966) (citations omitted). District courts acting as
courts of bankruptcy have a long history of issuing contempt citations for
failure to obey their lawful orders. See, e.g., Block v. Consino, 535 F.2d 1165
(9th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976)
(affirming contempt citation for failure to answer questions despite a grant of
immunity); O'Hagan v. Blythe, 354 F.2d 83, 84 (2d Cir.1965); In re
Manufacturers Trading Corp., 194 F.2d 948, 956 (6th Cir.1952); Espiefs v.
Settle, 14 B.R. 280, 286 (D.C.N.H.1981) (debtor may be held in contempt for
failing to testify despite a grant of immunity); In re Parr, 13 B.R. 1010, 1015
(D.C.E.D.N.Y.1981); 1 Collier on Bankruptcy p 2.58 (14th ed. 1974).

11

Appellant argues that 11 U.S.C. Sec. 727(a)(6)(B) (1982) 5 and the relevant
legislative history, S.Rep. No. 989, 95th Cong., 2d Sess. 44 (1978), reprinted in
1978 U.S.Code Cong. & Ad.News 5787, 5830 and H.Rep. No. 595, 95th Cong.,
1st Sess. 333 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963,
6289, indicate that the only sanction which may be imposed on a debtor who
refuses to testify despite a grant of immunity is a denial of discharge. We
disagree. The statute and the legislative history indicate that a debtor may be
denied a discharge as a result of his failure to testify only when he continues to
refuse to testify after a grant of immunity.6 It does not indicate that denial of the
debtor's discharge is the exclusive penalty for failing to testify despite
immunity.7 Furthermore, if the denial of discharge were the only penalty for
refusing to testify, then a witness other than the debtor granted immunity under
section 344 would have no incentive to testify. Obviously, this is not what
Congress intended by section 727(a)(6)(B).

12

Since the civil contempt order was proper, incarceration was an appropriate
remedy. 28 U.S.C. Sec. 1826(a) (1976) provides in pertinent part that:

13
Whenever
a witness in any proceeding before or ancillary to any court ... of the
United States refuses without just cause shown to comply with an order of the court
to testify or provide other information ... the court, upon such refusal ... may
summarily order his confinement at a suitable place until such time as the witness is
willing to give such testimony or provide such information.
14

(emphasis added). The use of the word "any" indicates that Congress intended
this section to apply to bankruptcy proceedings. Even without the statute, a
court may coerce a recalcitrant witness to testify through incarceration. Uphaus

v. Wyman, 360 U.S. 72, 81, 79 S.Ct. 1040, 1046, 3 L.Ed.2d 1090 (1959); In re
Grand Jury Investigation (Braun), 600 F.2d 420, 422 (3d Cir.1979)
("Embedded in Anglo-American law is the inherent power of the judiciary to
coerce obedience to its orders by summarily holding a recalcitrant person--such
as an immunized witness who refuses to testify at a grand jury proceeding or at
a trial--in civil contempt, and then imprisoning him until he complies.").
15

Appellant concludes his appeal by claiming that 11 U.S.C. Sec. 344 is

unconstitutional when used to compel a voluntary debtor to testify against
himself, upon pain of contempt and incarceration, in a bankruptcy proceeding
in which the government has no stake in the outcome. He maintains that he has
a right to privacy created by the First, Fourth, Fifth and Ninth Amendments
which is violated by court compelled self-incrimination in such circumstances.
He claims that it is unconstitutional to incarcerate him solely for the benefit of
his creditors. We reject these contentions.

16

It is fundamental that an individual may be compelled to testify about all

relevant matters before a court of law. See, e.g., Kastigar v. United States, 406
U.S. 441, 443-44, 92 S.Ct. 1653, 1655-56, 32 L.Ed.2d 212 (1972); Shillitani v.
United States, 384 U.S. at 370, 86 S.Ct. at 1535; Murphy v. Waterfront
Commission, 378 U.S. 52, 93-94, 84 S.Ct. 1594, 1610, 1611, 12 L.Ed.2d 678
(1964) (White, J., concurring); Ullmann v. United States, 350 U.S. 422, 439 n.
15, 76 S.Ct. 497, 507 n. 15, 100 L.Ed. 511 (1956) ("it is every man's duty to
give testimony before a duly constituted tribunal unless he invokes some valid
legal exemption in withholding it"). An exception to this general rule is the
constitutional privilege against self-incrimination. The primary purpose of the
self-incrimination privilege is to avoid confronting the witness with the "cruel
trilemma" of self-accusation, perjury or contempt. Murphy v. Waterfront
Commission, 378 U.S. at 55, 84 S.Ct. at 1596. See Michigan v. Tucker, 417
U.S. 433, 439-41, 94 S.Ct. 2357, 2361-62, 41 L.Ed.2d 182 (1974); Quinn v.
United States, 349 U.S. 155, 161-62, 75 S.Ct. 668, 672-73, 99 L.Ed. 964
(1955). Once the witness receives constitutionally adequate immunity, the
"cruel trilemma" is broken. See Kastigar v. United States, 406 U.S. at 448, 92
S.Ct. at 1658 (citing Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100
L.Ed. 511 (1956), and Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed.
819 (1896)); Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed. 652
(1906) ("if the criminality has already been taken away, the Amendment ceases
to apply").

17

In Kastigar, the Supreme Court held that use and derivative use immunity as
provided by 18 U.S.C. Sec. 6002 is coextensive with the Fifth Amendment
privilege against self-incrimination and thus the statute is constitutional. 406

U.S. at 453, 92 S.Ct. at 1661. Consequently, a witness who is granted immunity

under this provision can be compelled to testify.
18

Appellant argues that Kastigar should not apply to a voluntary debtor in a

bankruptcy proceeding. He claims that his privacy interests are paramount
where the government does not have a direct interest in the outcome. He
appears to maintain that, at a minimum, he should be accorded full
transactional immunity as the constitutional price for his testimony. The law is
to the contrary. See Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 ("The privilege
has never been construed to mean that one who invokes it cannot subsequently
be prosecuted.") (emphasis added); Burrell v. Montana, 194 U.S. 572, 577-78,
24 S.Ct. 787, 788-89, 48 L.Ed. 1122 (1904) (rejecting the argument that the
debtor was entitled to transactional immunity for his voluntary testimony).

19

There is no doubt that the Fifth Amendment privilege extends to bankruptcy

proceedings. McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158
(1924). However, this Court has previously determined that use and derivative
use immunity are constitutionally coextensive with the privilege in a
bankruptcy hearing. In United States v. Moss, 562 F.2d 155, 163 (2d Cir.1977),
cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978), we construed
11 U.S.C. Sec. 25(a) (repealed 1979), under which a bankrupt could be
compelled to testify against himself. The bankrupt was granted automatic use
and derivative use immunity for his testimony. 1A Collier on Bankruptcy p
7.21 (14th ed. 1978). We cited Kastigar and 18 U.S.C. Sec. 6002 and found that
use and derivative use immunity is coextensive with the constitutional privilege
against self-incrimination in the bankruptcy setting. 562 F.2d at 163. Other
courts have reached the same conclusion. In re Beery, 680 F.2d 705, 719-20
(10th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 449, 74 L.Ed.2d 604
(1982); United States v. Weiner, 578 F.2d 757, 774 n. 15 (9th Cir.), cert.
denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); In re North
American Investment Co., 559 F.2d 464, 465-66 (7th Cir.1977) (per curiam);
Block v. Consino, 535 F.2d 1165, 1167-68 (9th Cir.), cert. denied, 429 U.S.
861, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976); Goldberg v. Weiner, 480 F.2d 1067,
1070-71 (9th Cir.1973) (per curiam); United States v. Seiffert, 463 F.2d 1089,
1091-92 (5th Cir.1972); Espiefs v. Settle, 14 B.R. 280, 285-86 (D.C.N.H.1981).

20

Appellant argues that Moss is distinguishable in that under prior bankruptcy

law immunity was automatically granted whereas under present law the United
States attorney must request immunity. This distinction is without significance.
As Kastigar indicates, the crucial inquiry is whether the protection accorded to
the witness is coextensive with the Fifth Amendment's requirements. The
method of acquiring immunity is unimportant for our purposes. See Block v.

Consino, 535 F.2d at 1168 ("any statute which fairly provides use and
derivative use immunity is sufficient under the Fifth Amendment"). Because
the scope of immunity offered a debtor under the former and present
bankruptcy laws has not changed and because the Supreme Court upheld the
constitutionality of 18 U.S.C. Sec. 6002 in Kastigar, there is no reason to
question the continued validity of Moss.
21

Appellant takes the position that his incarceration is unconstitutional because it

is solely for the benefit of his creditors. See generally Grimes v. Miller, 429
F.Supp. 1350, 1356 (M.D.N.C.) ("[T]here can be no justification in the first
place for civil commitment of a debtor to prison unless their [sic] is some
reasonable apprehension and belief that failure to do so will defeat recovery of
the debt."), aff'd mem., 434 U.S. 978, 98 S.Ct. 600, 54 L.Ed.2d 473 (1977);
Abbit v. Bernier, 387 F.Supp. 57, 60-62 (D.Conn.1974) (declaring Connecticut
statute permitting body execution of debtors to be unconstitutional). Appellant
misunderstands his predicament. He is not being incarcerated for the benefit of
his creditors, but rather for his contemptuous conduct in refusing to comply
with a lawful court order. Thus, appellant is being incarcerated solely to protect
the force of a lawful court order.

22

Moreover, appellant's argument that he cannot be compelled to testify since the

government has no stake in his testimony ignores the court's and society's
interest in having him testify in full about his assets. In settling disputes a court
searches for truth. Witnesses are compelled to testify in order to satisfy this
goal. Appellant maintains that he should be the final arbiter of the necessity of
his testimony. He claims that his privacy interests surpass the interests of the
court and the public in finding truth. His ipse dixit position mocks the court's
role as a truthseeker.

23

Here, the court has a significant interest in obtaining appellant's testimony, as

does trustee Belford, because he is "entitled to a full and fair examination of the
[debtor] ...." In re Johnson, 18 F.2d 965, 965 (E.D.N.Y.1926).8 Therefore,
appellant must testify or be prepared to face the coercive methods lawfully
available to the court to compel his testimony.

24

The stay of incarceration is ordered to be vacated upon the issuance of the

mandate; the order below is affirmed. The mandate shall issue five days from
the date of this decision, in order to permit a brief interval for application to the
Supreme Court for a further stay.

This rule is presently embodied in Bkrtcy.R. 2004 (effective August 1, 1983)

1
2

This rule is presently embodied in Bkrtcy.R. 2004 (effective August 1, 1983)

Examination of appellant was scheduled for December 13, 1983. Before
examination began on that day, Judge Cabranes summarily held appellant in
criminal contempt, which was the subject of another appeal. United States v.
Martin-Trigona, No. 83-1444, motion to remand for reconsideration granted
(Dec. 30, 1983)
11 U.S.C. Sec. 344 provides that:
Immunity for persons required to submit to examination, to testify, or to
provide information in a case under this title may be granted under part V
[sections 6001-6005] of title 18.

18 U.S.C. Sec. 6001 states in pertinent part:

As used in this part-(4) "court of the United States" means any of the following courts: ... a United
States district court ... a United States bankruptcy court ....
18 U.S.C. Sec. 6002 states in pertinent part:
Whenever a witness refuses, on the basis of his privilege against selfincrimination, to testify or provide other information in a proceeding before or
ancillary to-(1) a court or grand jury of the United States,
....
and the person presiding over the proceeding communicates to the witness an
order issued under this part, the witness may not refuse to comply with the
order on the basis of his privilege against self-incrimination; but no testimony
or other information compelled under the order (or any information directly or
indirectly derived from such testimony or other information) may be used
against the witness in any criminal case, except a prosecution for perjury,
giving a false statement, or otherwise failing to comply with the order.
18 U.S.C. Sec. 6003 states:
(a) In the case of any individual who has been or may be called to testify or
provide other information at any proceeding before or ancillary to a court of the
United States or a grand jury of the United States, the United States district
court for the judicial district in which the proceeding is or may be held shall

issue, in accordance with subsection (b) of this section, upon the request of the
United States attorney for such district, an order requiring such individual to
give testimony or provide other information which he refuses to give or provide
on the basis of his privilege against self-incrimination, such order to become
effective as provided in section 6002 of this part.
(b) A United States attorney may, with the approval of the Attorney General,
the Deputy Attorney General, or any designated Assistant Attorney General,
request an order under subsection (a) of this section when in his judgment-(1) the testimony or other information from such individual may be necessary
to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other
information on the basis of his privilege against self-incrimination.
18 U.S.C. Secs. 6004-6005 are not implicated in the instant dispute.
5

11 U.S.C. Sec. 727(a)(6)(B) provides in pertinent part:

(a) The court shall grant the debtor a discharge, unless-....
(6) the debtor has refused, in the case-....
(B) on the ground of privilege against self-incrimination, to respond to a
material question approved by the court or to testify, after the debtor has been
granted immunity with respect to the matter concerning which such privilege
was invoked ....

Prior to the enactment of the 1978 bankruptcy code, a debtor was granted
automatic use and derivative use immunity for his testimony with one
exception. 1A Collier on Bankruptcy p 7.21 (14th ed. 1978). The sanction for
refusing to testify was an automatic denial of discharge. Id. p 7.21. 11 U.S.C.
Sec. 344, by incorporating 18 U.S.C. Secs. 6001-6005, eliminated the provision
for automatic immunity and preconditioned immunity upon a request by the
United States attorney. Section 727(a)(6)(B) ensures that a debtor who refuses
to testify on the basis of the privilege against self-incrimination where
immunity has not been granted will not be penalized through a denial of
discharge. Conversely, a debtor who has been granted immunity must testify or
be denied his discharge

The only item in the legislative history that even arguably supports the claim
that denial of discharge is the exclusive remedy for an immunized debtor's
failure to testify is the following sentence in the House Report: "Under section
727(a)(6) ... a debtor is only denied a discharge if he refuses to testify after
having been granted immunity." H.Rep. No. 595, 95th Cong., 1st Sess. 332-33
(1977): reprinted in 1978 U.S.Code Cong. & Ad.News 6289. We think it plain
that this sentence reveals the not uncommon faulty sentence structure of failing
to place the adverb "only" immediately adjacent to the words that it modifies.
In contrasting the new statute with the prior practice whereby a debtor could be
denied discharge for refusing to testify, even when claiming the privilege
against self-incrimination, the House Report sought to make clear the modest
change under the new statute that discharge could be denied to a debtor "only ...
if he refuses to testify after having been granted immunity." Id. To read "only"
as modifying "denied a discharge" and thereby making non-discharge the
exclusive sanction for refusing to testify would result in a drastic change from
prior law that is nowhere suggested in the statute or its legislative history

Appellant's claim that he cannot be compelled to testify where his testimony

will expose him to public disgrace or infamy is frivolous. That a grant of
immunity may not protect a witness from personal disgrace resulting from his
compelled testimony does not make the immunity constitutionally inadequate.
Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 264, 5 L.Ed.2d 249
(1960); Smith v. United States, 337 U.S. 137, 147, 69 S.Ct. 1000, 1005, 93
L.Ed. 1264 (1949); Brown v. Walker, 161 U.S. at 605, 16 S.Ct. at 650