Tenth Circuit Court of Appeals Denies Attempt to Withdraw Fifth
Amendment Invocation     Defendant Brian Smart was a fund
manager accused by the Securities and Exchange Commission of
operating a Ponzi scheme. During the SEC’s initial investigation
and again later in the litigation discovery process, Smart
invoked the Fifth Amendment and refused to answer the SEC’s
questions. The SEC moved for summary judgment, asking the
District Court to draw an adverse inference against Smart as a
result of his Fifth Amendment invocations. Smart moved to
withdraw his Fifth Amendment assertion, arguing that he did not
realize what the ramifications of that assertion would be. The
District Court denied Smart’s motion to withdraw, drew an
adverse inference, and awarded summary judgment to the SEC.  The
Tenth Circuit held that the District Court did not abuse its
discretion in refusing to allow Smart to withdraw his Fifth
Amendment assertion. Relying on cases from the Fifth and Second
Circuits, the Court emphasized that the dec