Keawsri v. Ramen-ya Inc.

Background

Criminal counsel for Miho Maki filed a motion concerning Maki’s possible invocation of the Fifth Amendment during the August 18, 2023 hearing on the plaintiffs’ motion to enforce. The plaintiffs argued that Maki had to invoke the privilege herself, could do so only in her personal capacity and only when facing a substantial and real danger of self-incrimination, and had waived the privilege by voluntarily filing for bankruptcy protection and testifying at a creditors’ meeting before the Bankruptcy Court. The plaintiffs also argued that the court could draw negative inferences from Maki’s refusal to answer questions.

Court’s ruling about the hearing

The court permitted the Trustee’s counsel to question Maki at the hearing. The court stated that, if Maki invokes the Fifth Amendment, she must do so herself in response to each question; she may invoke it only in her personal capacity; and she may invoke it only in response to a question that would present a real risk of prosecution. The court also stated that it may draw adverse inferences concerning any question Maki answers by invoking the Fifth Amendment.

Waiver issue

The court did not decide whether Maki had forfeited or waived her Fifth Amendment rights through her bankruptcy filing or testimony at the creditors’ meeting. It stated that this determination was best made after Maki had been questioned and after the court knew which questions she intended to answer by invoking the privilege. The court noted that Maki might have waived the privilege as to some subjects.

Disposition

The order sets the conditions for questioning Maki at the August 18 hearing and postpones the waiver or forfeiture determination until after that questioning. The opinion does not state that the motion was granted or denied.