C&M Investment Group v. Campbell

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44719

C&M INVESTMENT GROUP, LTD., and )
KARLIN HOLDINGS LIMITED ) Filed: October 9, 2018
PARTNERSHIP, )
) Karel A. Lehrman, Clerk
Plaintiffs-Respondents, )
)
v. )
)
NEIL DAVID CAMPBELL, individually, )
)
Defendant-Appellant, )
)
and )
)
PHILIP RICHARD POWERS, )
individually; POWERS INVESTMENTS )
AND MANAGEMENT, INC., S.A., a )
corporation, GUANANA GRIS, S.A., a )
corporation; PROTECCION FORESTAL )
DE TACA, S.S., a corporation; and DOES )
1 through 50 inclusive, )
)
Defendants. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
County. Hon. Robert J. Elgee, District Judge.

Judgment of contempt and imposition of sanctions, affirmed.

Neil David Campbell, Ketchum, pro se appellant.

Lawson Laski Clark & Pogue, PLLC; Erin Farrell Clark, Ketchum, for
respondents.
________________________________________________

LORELLO, Judge
Neil David Campbell appeals from the district court’s judgment of civil and criminal
contempt and sanctions. Campbell argues that the district court erred in imposing criminal

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sanctions because, although his civil and criminal contempt charges were consolidated for trial,
once he was required to testify regarding two allegations of civil contempt during the
consolidated trial, criminal sanctions could no longer be imposed. For the reasons set forth
below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
C&M Investment Group, LTD., and Karlin Holdings Limited Partnerhsip (hereinafter
C&M) filed an affidavit alleging ten counts labeled “civil contempt” based on Campbell’s failure
to produce documents for a court-ordered debtor’s examination and twenty-three counts labeled
“criminal contempt” based on Campbell’s false testimony during the debtor’s examination. 1 All
of the allegations were tried together in a bench trial.
At trial, C&M called Campbell to testify in relation to its civil contempt allegations.
Campbell objected, arguing that he had a constitutional right against compelled
self-incrimination and that I.R.C.P. 75 afforded him the same right. The district court found that
Campbell could only be called to testify regarding the civil contempt allegations but could also
“probably take the Fifth” depending on the questions asked. At the conclusion of trial, the
district court found Campbell guilty of two of the civil contempt allegations 2 and thirteen of the
criminal contempt allegations. With respect to its findings on the criminal contempt allegations,
the district court stated they were “not based in any way on Campbell’s testimony during trial
(which related only to the civil contempt counts)” and that it did not draw any adverse inferences
from Campbell’s testimony or his silence. For the civil contempt counts, the district court
ordered Campbell to serve an indeterminate jail sentence until he complied with the prior court
orders requiring production of documents or until the district court determined a continuing jail

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Labeling contempt allegations as “civil” or “criminal” can be misleading. Such labels are
more properly applied to the sanction imposed, not the allegation itself, particularly since civil
contempt sanctions can be imposed in a criminal case, and criminal contempt sanctions can be
imposed in a civil case. See Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 862-63, 55 P.3d
304, 316-17 (2002). It appears the labels “civil” and “criminal” were used in this case to reflect
the sanctions that were sought by C&M and imposed by the district court.
2
C&M dismissed the remaining eight civil contempt allegations.

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sentence would serve no purpose or Campbell no longer had the ability to comply. For the
thirteen criminal contempt counts, the district court imposed consecutive five-day jail sentences,
for a total of sixty-five days in jail. Campbell appeals.
II.
STANDARD OF REVIEW
This Court exercises free review over questions regarding the interpretation of the Idaho
Rules of Civil Procedure. Boise Mode, LLC v. Donahoe Pace & Partners Ltd., 154 Idaho 99,
103, 294 P.3d 1111, 1115 (2013). This Court also freely reviews constitutional questions.
McPherson v. McPherson, 112 Idaho 402, 404, 732 P.2d 371, 373 (Ct. App. 1987).
III.
ANALYSIS
Campbell asserts it was error for the district court to impose sixty-five days in jail as a
sanction for the thirteen counts of criminal contempt because the court did not afford Campbell
his right against self-incrimination as required by I.R.C.P. 75(i)(2)(D). Specifically, Campbell
contends that, although criminal sanctions were not imposed for all of the contempt allegations,
because he received some criminal sanctions, he had a right not to testify at all in the
proceedings. C&M argues that I.R.C.P. 75(i)(2) only applies in relation to criminal contempt
allegations and, because Campbell was only subjected to questioning regarding C&M’s civil
contempt allegations, the rule was not violated. Alternatively, C&M argues that Campbell has
failed to show prejudice because Campbell was not questioned about the criminal contempt
allegations, and Campbell was allowed to invoke his right against self-incrimination without the
district court drawing any adverse inferences from his silence. We hold that, because Campbell
was afforded the right against self-incrimination, the district court did not err in imposing
criminal sanctions.
Idaho Rule of Civil Procedure 75 governs contempt proceedings. The rule distinguishes
civil sanctions from criminal sanctions in contempt proceedings. I.R.C.P. 75(a), (d). A civil
sanction is conditional, which means the contemnor can avoid the sanction by doing the act he or
she was previously ordered to do. I.R.C.P. 75(a)(6). A criminal sanction is unconditional,
meaning the contemnor cannot avoid the sanction entirely or have the sanction cease by
complying with a prior court order. I.R.C.P. 75(a)(7). A sanction that includes both conditional

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and unconditional components is considered a criminal sanction. I.R.C.P. 75(a)(7). A criminal
sanction can be imposed for any contempt. I.R.C.P. 75(a)(7). Before a court can impose a
criminal sanction, an alleged contemnor must be afforded certain rights, including the right
against self-incrimination. I.R.C.P. 75(i)(2)(D).
The sanction Campbell challenges on appeal is the aggregate sixty-five days in jail
imposed for the thirteen counts that C&M and the district court described as criminal contempt.
The sixty-five-day unconditional jail sanction is, by definition, a criminal sanction. See
I.R.C.P. 75(a)(7). Thus, in order to impose the sanction, the district court was required to afford
Campbell the right against self-incrimination prior to trial. See I.R.C.P. 75(i)(2); Camp v. East
Fork Ditch Co., Ltd., 137 Idaho 850, 864, 55 P.3d 304, 318 (2002). Although Rule 75(i)(2) does
not specifically reference the Fifth Amendment in relation to the right against self-incrimination,
we assume the right contemplated by the rule is co-extensive with the constitutional right. See
Camp, 137 Idaho at 860-61, 55 P.3d at 314-15 (noting the distinction between civil and criminal
contempt is important because of the federal constitutional rights the Supreme Court has held are
applicable in nonsummary criminal contempt proceedings). The Fifth Amendment provides that
no person “shall be compelled in any criminal case to be a witness against himself.” It is
well-settled that the right extends to civil proceedings where the answers to questions might
incriminate the individual in a future criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70, 77
(1973). A witness protected by the privilege may rightfully refuse to answer unless and until the
witness is granted immunity from the use of the compelled answers in any criminal case in which
the witness is a defendant. Minnesota v. Murphy, 465 U.S. 420, 426 (1984). If the witness is
compelled to answer without immunity, the answers are inadmissible against the witness in any
criminal prosecution. Id.
Campbell was afforded the right against self-incrimination in this case. Prior to C&M
calling Campbell as a witness, the district court ruled that, although Campbell could not be
required to answer any question in relation to the allegations for which C&M sought criminal
sanctions, C&M could ask questions regarding the allegations for which C&M sought civil
sanctions. Even as to the latter questions, Campbell could, and did, invoke his Fifth Amendment
right not to answer. Although the district court indicated at the outset that it might draw an
adverse inference from Campbell’s refusal to answer, ultimately it stated in its decision that it did

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not do so. Thus, we need not decide whether drawing an adverse inference from Campbell’s
silence was proper. The only issue before the Court is whether the district court complied with
Rule 75(i)(2)’s self-incrimination requirement such that criminal sanctions could be imposed.
Campbell cites no authority that supports the proposition that his right against
self-incrimination was denied merely because he was required to take the witness stand.
Rule 75(i)(2) does not afford an alleged contemnor a blanket right not to testify in contempt
proceedings. Rather, Rule 75(i) is retrospective in that it only limits a court’s authority to
impose criminal sanctions for contempt if certain rights were not afforded during the proceeding,
including the right against self-incrimination. When Campbell thought his answer to a question
could be incriminating, he invoked his right. On appeal, Campbell has failed to identify any
incriminating answer he was compelled to give. Even if an incriminating response was
compelled, the remedy would be that it could not be used against Campbell. The district court
expressly stated that the criminal sanctions imposed were based solely on the documentary
exhibits admitted and were not based on Campbell’s testimony. Campbell has failed to meet his
burden of showing that the district court erred in imposing the criminal sanctions.
IV.
CONCLUSION
The district court did not err in imposing criminal sanctions after finding Campbell guilty
of contempt. The district court’s judgment of contempt and imposition of sanctions is affirmed.
Costs, but not attorney fees, are awarded to respondents.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.

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