June 12, 2008 — After citing his Fifth Amendment right against self-incrimination and refusing to answer any questions during and since a January deposition with creditors, Jeffrey Prosser will soon be questioned under oath by his creditors again, this time unable to refuse.
Prosser's V.I. holding companies, Innovative Communications and Emerging Communications, owners of the Vitelco phone and Innovative cable television companies, filed for bankruptcy in August 2006. Prosser is personally in involuntary Chapter 7 bankruptcy proceedings.
On the advice of his criminal attorney, Lawrence Schoenbach, Prosser refused any and all questions Jan. 25 during an information-gathering exercise called a 341 hearing, after the section of U.S. bankruptcy law mandating it, giving Prosser's and ICC's creditors an opportunity to question Prosser under oath about his and his company's finances. (See "Prosser Pleads the Fifth Countless Times in Bankruptcy Hearing.")
Since then, Prosser's wife, Dawn, and their four grown children have also cited the Fifth Amendment and refused to answer questions.
A person can usually only cite the Fifth Amendment to refuse to answer questions in a criminal court, not bankruptcy court, attorneys for Prosser's creditors have said. But if a person has reason to believe he might be subject to some criminal prosecution, he may refuse to answer questions in other courts connected to the possible prosecution, Schoenbach has argued.
In January Schoenbach advised Prosser not to answer any questions because of case law suggesting that if Prosser answered any questions at all, he might forfeit his right to cite the Fifth Amendment in the future. On Thursday, during the fourth day of bankruptcy hearings on St. Thomas, Schoenbach more narrowly defined the topics on which Prosser would plead the Fifth, telling the court and the attorneys for Prosser's creditors that only questions touching on Prosser's former ownership and management of the V.I. Community Bank would be out of bounds. (See "FDIC Looks Into V.I. Community Bank.")
Prosser was in the witness box testifying under oath when Schoenbach told the court of his revised, narrower area of concern. Ironically, giving Prosser's questioners more room to ask questions got Prosser out of the witness box. The many attorneys for Prosser's creditors and court-appointed trustees in charge of his former companies and personal estate each asked U.S. Bankruptcy Judge Judith Fitzgerald to allow them to question Prosser again, as well as his wife and potentially his children, before proceeding further.
This week's hearings were called to determine whether Prosser's houses and other property normally exempt from seizure under bankruptcy law should lose that exemption, and to begin looking into whether some property of Prosser's wife and children should be turned over to the bankrupt estate. These questions remain unanswered for now, and more hearings on the subject are scheduled in U.S. Bankruptcy Court on St. Thomas the week of Aug. 25.
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