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IN RE GRAND JURY SUBPOENAS

May 18, 1984

IN RE: Grand Jury Subpoenas Served February 27, 1984


The opinion of the court was delivered by: QUACKENBUSH

 THIS MATTER is before the court on John Doe's Motion to Quash or Modify two (2) subpoenas duces tecum which were served on him February 27, 1984. A hearing was held in Seattle, Washington on April 2, 1984 at which John Doe (hereinafter "petitioner") appeared with his counsel Robert Whaley. Special Assistant United States Attorneys Bruce Carter and Francis Burke represented the government. Subsequently, on May 14, 1984, a telephonic hearing was held in which Mr. Whaley, Mr. Burke and Mr. Carter again participated.

 One of the subpoenas was directed to Petitioner in his personal capacity and listed eight (8) categories of requested documents (Attachment A). The other subpoena named Petitioner as "Custodian of Records" for POE and required the production of twenty (20) categories of documents (Attachment B). Petitioner's objections to these subpoenas are based on fourth and fifth amendment grounds. Each of these objections will be addressed after a discussion of the relevant law.

 FIFTH AMENDMENT

 The pertinent language of the fifth amendment states that "No person . . . shall be compelled in any criminal case to be a witness against himself". Like much of the Constitution, those fifteen words have generated hundreds of thousands (if not millions) of words interpreting the meaning of that clause. Indeed, the highest court of this land has written voluminously in its attempts to establish the scope of the privilege against self-incrimination. In spite of numerous Supreme Court pronouncements (or perhaps because of it) critical questions remain unanswered and the state of the law surrounding the fifth amendment privilege -- particularly in the context of a subpoena duces tecum -- is anything but settled.

 The most recent example of this uncertainty appears in United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984). While on the one hand the Doe Court did resolve one issue in this area of the law by holding that the business records of a sole proprietorship are not privileged, id. at 1242, on the other hand, the opinion underscores the Court's divergent views as to the applicability of the fifth amendment to the contents of an individual's private papers. According to the singular statement of Justice O'Connor, "the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." Id. at 1245 (O'Connor, J., concurring). But, in sharp contrast to Justice O'Connor's interpretation of the constitutional privilege, Justice Marshall believes "that under the Fifth Amendment 'there are certain documents no person ought to be compelled to produce at the Government's request. '" Id., at 1246 (Marshall, J., joined by Brennan, J., concurring in part and dissenting in part). Understandably, due to such amphibolic guidance from the Court one judge has aptly described the role of the lower federal courts in discerning the present state of the law surrounding the fifth amendment privilege as that of a "tea leaves reader". United States v. Karp, 484 F. Supp. 157, 158 (S.D. NY 1980). With these preliminary comments, this court's discussion will now turn to the case at hand.

 The two subpoenas at issue here raise essentially three questions: (1) whether Petitioner's non-business "personal papers" are privileged; *fn1" (2) whether Petitioner may assert the "act of production" doctrine in regard to those documents he possesses as custodian for POE; *fn2" and, (3) whether the compelled act of producing any unprivileged documents would be both a "testimonial communication" and "incriminating". Each of these questions will be discussed separately.

 A. Non-Business Personal Papers : *fn3"

 As highlighted by the recent contradictory pronouncements of Justices O'Connor and Marshall, 104 S. Ct. at 1245-1246, the extent of the applicability, if any, of the fifth amendment to an individual's non-business personal papers is not clear. Although the Court has provided an analytical template to be used when a subpoena duces tecum implicates the fifth amendment, Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), what remains unresolved is whether the same analytical framework is utilized regardless of whether the documents are business or personal. *fn4" The clues to this mystery lie primarily in Fisher, and its progeny.

 Prior to Fisher v. United States, the prevailing rule was that "the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony." Bellis v. United States, 417 U.S. 85, 87, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974); see also Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886). One of the pervasive rationales for this principle was the notion that "the protection of personal privacy is a central purpose of the privilege against compelled self-incrimination." Fisher, 425 U.S. at 416-420 (Brennan, J., concurring in the judgment) (citing cases).

 The Fisher majority, however, downplayed the importance of the privacy interests, Fisher, 425 U.S. 391 at 399-401, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (cited in apparent approval in Doe, 104 S. Ct. at 1241 n.8), and instead focused on the precise words of the fifth amendment that "no person . . . shall be compelled in any criminal case to be a witness against himself ", 425 U.S. at 396 (emphasis by the Court). In so doing, the Justices concluded that the privilege against self-incrimination "applies only when the accused is compelled to make a testimonial communication that is incriminating." Id. at 408. Thus, the Court created a new framework to be used in fifth amendment cases, consisting of three factors -- compulsion, testimonial communication and incrimination.

 Even if the contents of non-business personal papers are found to be incriminating, a mechanical application of this Fisher test would render such material unprivileged either because the documents were not authored by the person asserting the privilege (i.e., not a "testimonial communication") or the documents were not authored under the power of governmental compulsion (i.e., not "compelled"). Because such a result obtains from a mechanical application of Fisher many courts have applied Fisher narrowly and have declined to subject an individual's private papers to a documentary summons. E.g., In Re Grand Jury Subpoena Duces Tecum, 657 F.2d 5 (2d Cir. 1981); In Re Grand Jury Proceedings (Johanson), 632 F.2d 1033 (3d Cir. 1980). However, in Doe, (involving an individual's business records) the Supreme Court, in reaffirming the necessity for "compulsion" and a "testimonial communication", noted that Fisher is not to be given an "unduly restrictive reading". 104 S. Ct. at 1242 n.9. Indeed, the Court emphasized its point by stating: "If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged." Id. at 1242 n.10 (emphasis added); accord Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469, 476-477 (3d Cir. 1979).

 Since Fisher, the Ninth Circuit has not squarely addressed the issue of whether a documentary subpoena may reach an individual's non-business personal papers. On several occasions this circuit protected an individual's business records. E.g., United States v. Helina, 549 F.2d 713 (9th Cir. 1977) (individual's business records not subject to I.R.S. summons); United States v. Cohen, 388 F.2d 464 (9th Cir. 1967) (taxpayer not required to produce accountant's work papers relating to taxpayer's business). However, the holdings of these cases apparently have been undercut by Doe. More recent Ninth Circuit cases, although involving primarily business records, have contained language intimating that perhaps this circuit will not now afford a blanket privilege to all non-business personal papers. For example, in United States v. Osborn, 561 F.2d 1334, 1338-1339 (9th Cir. 1977), the court, in denying a fifth amendment privilege to Osborn's business documents, focused on the fact that the documents were voluntarily prepared and were not testimonial declarations of Osborn since they were not prepared by him. In another case which is more on point, the court stated:

 
The Fifth Amendment privilege against self-incrimination protects an individual against forced production of personal papers and effects, at least to the extent that the act of producing the documents might serve as a basis for incriminating inferences.

 In Re Grand Jury Proceedings (Hutchinson), 633 F.2d 754, 756 (9th Cir. 1980) (Judge Fletcher) (business records of a trust held not privileged). This circuit seems to have taken the above-quoted language one step further in two cases decided one month apart in 1981. In a unanimous opinion authored by Judge Sneed the court noted:

 
The Fifth Amendment does not protect against production of corporate records held in a representative capacity, nor does it protect against production of personal papers and effects unless the act of producing them would itself serve as the basis for incriminating inferences.

 Baker v. Limber, 647 F.2d 912, 917 n.5 (9th Cir. 1981) (Emphasis added). (Most of the documents were corporate, but apparently some were personal). In, United States v. Mackey, 647 F.2d 898, 900 (9th Cir. 1981) the per curiam opinion of Judges Wright, Kennedy, and Farris phrased the rule pertaining to documentary subpoenas in these terms:

 
The compelled production of a physical object, such as a document, does not implicate the Fifth Amendment unless it is the act of production itself which is to be used as incriminating evidence.

 (Court found the documents to be corporate records, negating any privilege whatsoever).

 From the above-cited cases one could reasonably conclude that in this circuit the contents of an individual's personal papers are not privileged, and that a valid fifth amendment claim may only be asserted to avoid an incriminating effect from the individual's act of producing the private papers. While such a rule is indeed a giant step away from prior case law which stressed the individual's privacy interest, it may in fact be in step with the current trend as evidenced by Doe. Notwithstanding the pendulum's swing away from privacy interests, this court believes that in some instances privacy is still a factor and "there are certain documents no person ought to be compelled to produce at the Government's request." Doe, 104 S. Ct. at 1246 (Marshall, J., joined by Brennan, J., concurring in part and dissenting in part). Accordingly, insofar as the contents are concerned, the documents in Petitioner's possession are privileged to the extent they are (1) non-business, (2) authored by him, and (3) contain recorded thoughts so personal that their disclosure would infringe on whatever residual privacy rights remain protected by the fifth amendment. *fn5" Any of the documents listed in Attachment "A" which Petitioner believes may fit into this category should be submitted to the court for in camera review.

 B. Act of Production: Partnership Records :

 As Fisher instructs, even though the contents of documents may not be privileged, the compelled act of producing the documents may implicate the fifth amendment if the act of production involves "testimonial self-incrimination". 425 U.S. at 410-411. What the Fisher Court did not reveal, inter alia, is whether the so-called "act of production" doctrine is applicable when an individual is in possession of documents as the custodian or representative of another entity -- in this case the POE partnership. The question then is whether Petitioner, as a POE partner, may refuse to surrender POE's records on the basis of the "act of production" doctrine. *fn6"

  The starting point in this analysis is the principle that "an individual cannot rely upon the privilege [fifth amendment] to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally," Bellis v. United States, 417 U.S. 85, 88, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974) (emphasis added) (partnership records not privileged). Thus, the Court has made it clear that any coincidental incrimination which flows from unprivileged subpoenaed documents does not abridge the fifth amendment rights of the person incriminated. See, e.g., Dreier v. United States, 221 U.S. 394, 55 L. Ed. 784, 31 S. Ct. 550 (1911) (subpoena requiring production of corporate books was directed to individual corporate officer); United States v. White, 322 U.S. 694, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944) (subpoena requiring production of labor union's records was directed to union officer). Nevertheless, Petitioner opines that such precedent does not foreclose his argument here because the "act of production" doctrine was not explicitly discussed. Thus, Petitioner argues that even though his fifth amendment rights are not implicated by the compelled disclosure of the contents of the POE documents, his act of producing those documents is compelled, self-incriminating testimony which, as Fisher instructs, is proscribed by the fifth amendment.

 Petitioner's position is not without some support. In In Re Katz, 623 F.2d 122, 125 (2d Cir. 1980), a grand jury subpoena duces tecum was directed to an attorney and called for all documents in his possession relating to "any company owned, operated or controlled by Benjamin Jarvil [his client]." While the court recognized the corporate documents were not privileged, it concluded the attorney could avail himself of the "act of production" doctrine. *fn7" Id. at 126. A more recent case, also from the Second Circuit is In Re Grand Jury Subpoenas Duces Tecum, 722 F.2d 981 (2d Cir. 1983). In that case the subpoena was issued to a former corporate president who retained certain company records after leaving its employ. The subpoena sought production of originals or copies of corporate books, records and documents covering a multitude of categories. The circuit court overturned the lower court and held that the "act of production" doctrine was applicable even though corporate documents were involved. Several passages from this opinion are worth quoting:

 
The district court . . . [chose] instead to accept the government's position that the Fisher act of production doctrine simply does not apply to corporate records. We believe that the district court erred in rejecting this contention out of hand solely on the ground that corporate documents were demanded by the subpoena. Under Fisher the standard is not the potential incriminating nature and contents of the documents subpoenaed but whether their mere production would itself tend to incriminate the possessor.

 Id. at 986. The court went on to add:

 
For the purpose of determining the extent to which a natural person may invoke his Fifth Amendment privilege under Fisher, the fact that the subpoenaed documents in his possession were prepared by a corporation is not directly relevant. The Fisher doctrine [act of production doctrine] simply does not turn on either content or authorship of the documents; it is the fact, and the circumstances of possession that are controlling. Couch v. United States, supra. If, as the Supreme Court indicated in Fisher, the act of production doctrine applies to one type of otherwise unprivileged document (accountant's workpapers) it can apply as well to corporate records in an individual's possession.

 Id. at 987. In other words, according to the Second Circuit, an individual should not be denied the opportunity to assert the act of production doctrine merely because an entity's document's are involved. *fn8"

 Other circuits have reached a contrary conclusion. Relying on Bellis, 417 U.S. 85, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (partner subject to subpoena of partnership records) the Tenth Circuit recently refused to apply the act of production doctrine to an attorney because he was holding the subject files "in a representative capacity for the client." In Re Grand Jury Proceedings (Vargas), 727 F.2d 941, 944-945 (10th Cir. 1984). Similarly, in rejecting an appeal for act of production protection, the Sixth Circuit held that where the individual directed to produce corporate records did not own the records but merely held them in a representative capacity, no fifth amendment act of production privilege existed. In Re Grand Jury (Butcher), 722 F.2d 294 (6th Cir. 1983).

 The Ninth Circuit has apparently not expressly ruled on the question of whether the "act of production" doctrine is applicable when an entity's records are at issue. Yet, several cases from this circuit strongly imply that when the precise issue is presented the circuit may adopt a position similar to the Sixth and Tenth Circuits. In those cases, United States v. Alderson, 646 F.2d 421 (9th Cir. 1981) (partnership records), In Re Grand Jury Proceedings (Hutchinson), supra (corporate records), United States v. Mackey, supra (corporate records), and Baker v. Limber, supra (records of a trust), the court required the production of the records of collective entities in the possession of an individual. In each case the opinion emphasizes the fact that the fifth amendment privilege is inapplicable because the individual is holding the records as a representative of the entity. United States v. Alderson, 646 F.2d at 423; In Re Grand Jury Proceedings, 633 F.2d at 756; United States v. Mackey, 647 F.2d at 900; Baker v. Limber, 647 F.2d at 917. However strong (or weak) this precedent is, when coupled with the Supreme Court's holding in Bellis v. United States, supra, the weight of authority leads this court to conclude that Petitioner may not assert the "act of production" doctrine in regard to any POE partnership records in his possession.

 C. Act of Production: Non-Partnership Records.

 Even though the "act of production" doctrine is not applicable to any POE documents, it may apply to any records which Petitioner holds in a non-representative capacity if the compelled act of producing the requested documents would be a self-incriminating testimonial communication. Doe, 104 S. Ct. at 1242; Fisher, 425 U.S. at 411. Petitioner contends that his production of the non-partnership records would indeed be both "testimonial" and "incriminating" because in responding to the subpoena he would be authenticating the documents, admitting their existence and conceding his possession of them, which, as the Court stated in Fisher and reaffirmed in Doe, are factors that may implicate the fifth amendment.

 In Fisher the Court identified the "implicit authentication" problem as being the "prevailing justification for the Fifth Amendment's application to documentary subpoenas", 425 U.S. at 412. The Court also recognized that "compliance with a subpoena tacitly concedes the existence of the papers demanded and the possession or control by the [person holding the documents]." Id. at 410. As to whether the tacit averments of existence and possession are "testimonial" and "incriminating" depends on the "facts and circumstances of particular cases." Id. at 410.

  Some courts have interpreted Fisher as standing for the proposition that in regard to "production of evidence other than oral testimony . . . the Fifth Amendment privilege . . . is very weak". E.g., In Re Grand Jury Proceedings (Vargas), 727 F.2d 941, 943 (10th Cir. 1984). Other courts, not treating Fisher's "act of production" doctrine so lightly, have upheld an individual's claim of fifth amendment privilege as to the act of producing subpoenaed documents. E.g., In Re Grand Jury Subpoenas Duces Tecum, 722 F.2d 981, 987 (2d Cir. 1983) (remand for determination whether act of production might have self-incriminatory effect); United States v. Fox, 721 F.2d 32 (2d Cir. 1983) (act of production held to be "testimonial communication", remanded for determination of whether it would be "self-incriminatory"); United States v. Porter, 711 F.2d 1397, 1402 (7th Cir. 1983)- (implicit authentication held to be "testimonial communication"). The Ninth Circuit, although it has not as yet written extensively on the application of the "act of production" doctrine, has held that compelled production of subpoenaed documents would violate the fifth amendment if the act of producing the documents would authenticate them and incriminate the person subpoenaed. F.T.C. v. H.N. Singer, Inc., 668 F.2d 1107, 1114 (9th Cir. 1982).

 The Supreme Court's recent opinion in Doe, seems to have removed any doubt as to the legal efficacy of the "act of production" doctrine. In refusing to overturn the lower court's finding that the act of producing the documents would involve testimonial self-incrimination, the Court again, as it had done in Fisher, and Andersen v. Maryland, 427 U.S. 463, 474, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976), expressed its concern with the authentication and tacit admission (existence and possession) problems posed by the compelled production of documents: *fn9"

 
The Government concedes that the act of producing the subpoenaed documents might have had some testimonial aspects, but it argues that any incrimination would be so trivial that the Fifth Amendment is not implicated. The Government finds support for this argument in Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968). In Marchetti, the Court stated that a party who wishes to claim the Fifth Amendment privilege must be "confronted by substantial and 'real', and not merely trifling or imaginary, hazards of incrimination." Id., at 53, 88 S. Ct. at 705; see United States v. Apfelbaum, 445 U.S. 115, 128, 100 S. Ct. 948, 956, 63 L. Ed. 2d 250 (1980). On the basis of the findings made in this case we think it clear that the risk of incrimination was "substantial and real" and not "trifling or imaginary." Respondent did not concede in the District Court that the records listed in the subpoena actually existed or were in his possession. Respondent argued that by producing the records, he would tacitly admit their existence and his possession. Respondent also pointed out that if the Government obtained the documents from another source, it would have to authenticate them before they would be admissible at trial. See Fed.R.Evid. 901. By producing the documents, respondent would relieve the Government of the need for authentication. These allegations were sufficient to establish a valid claim of the privilege against self-incrimination. This is not to say that the Government was foreclosed from rebutting respondent's claim by producing evidence that possession, existence, and authentication were a "foregone conclusion." Fisher, 425 U.S. at 411, 96 S. Ct. at 1581. In this case, however, the Government failed to make such a showing.

 Doe, 104 S. Ct. at 1243, n.13 (emphasis added).


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