United States v. Fisher

GIBBONS, Circuit Judge

(concurring) :

I join in Judge Aldisert’s opinion, but add a caveat with respect to some inferences which might be drawn from it for other situations. As Professor McNaughton in his revision of 8 Wigmore on Evidence § 2263 (1961) explains there are three possible forms of disclosure to which the privilege against self-incrimination might arguably apply:

(1) self-incriminating disclosures that are testimonial (i. e., communicative or assertive) in nature;

(2) self-incriminating disclosures which, though not testimonial in the communicative or assertive sense, involve cooperative participation by a witness; or

(3) any evidence whatsoever obtained from a witness which might incriminate him, whether or not his cooperative participation is involved.

In Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886) the Court considered the application of the fourth and fifth amendments to a statute, similar to Rule 36 of the Federal Rules of Civil Procedure, authorizing the service of a notice by the government on a party in a civil suit to produce a book, invoice or paper in court, and providing that if the party failed to produce the allegations in the government’s motion “shall be taken as confessed, unless his failure or refusal to produce the same shall be explained to the satisfaction of the court.” Act of June 22, 1874, § 5, 18 Stat. 187 . The suit was for forfeiture of merchandise allegedly imported without proper payment of duties, and the paper in issue was an invoice for the merchandise. The invoice was a paper prepared by a third party, and thus contained no communication or assertion by the party to whom the notice was addressed. It was, however, owned and possessed by that party, its contents did tend to incriminate, and its production probably required cooperative participation. Justice Bradley’s opinion of the Court, a mixture of fourth and fifth amendment reasoning, held that the statute violated both amendments. Justice Miller, con *693 curring, analogized the notice to a subpoena duces tecum and urged that only the fifth and not the fourth amendment was violated. As the authorities cited in Judge Aldisert’s footnote 10 make clear, Justice Miller’s analysis rather than that of Justice Bradley, has better stood the test of time. But the fifth amendment holding in Boyd was unanimous.

It was clear in Boyd that no eviden-tiary use was to be made of the party’s possession of the invoice. The only use was the evidentiary value of the contents of the invoice for the truth of the matter asserted — value of the goods — by a third party. Thus Boyd must be read as authority for at least McNaughton’s second category. That is, Boyd interpreted the fifth amendment as prohibiting any self-incriminating disclosure involving cooperative participation. But so broad a holding has not survived. Perhaps the clearest rejection of the cooperative participation test is in Justice Brennan’s opinion in Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826, 1830 , 16 L.Ed.2d 908 (1966), where the Court declared:

“We hold that the privilege [against self-incrimination] protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, 5

and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.

Thus what seems to be left is McNaughton’s first category — self-incriminating disclosures that are testimonial in a communicative or an assertive sense. Three separate possible forms of communication may be involved with a subpoena duces tecum. One is the communication involved in the identification or authentication of the document. A second is the communication involved in acknowledging the fact of possession.' The third is the communication involved in the contents of the document. In this case, the government has not asked for and does not need testimony from Mr. Goldsmith in order to authenticate the papers. Even if they were in Goldsmith’s possession his mere production of them would not authenticate them and the government could use another witness for that purpose. Goldsmith’s production of the papers in response to a subpoena duces tecum wóuld not require any testimony on his part. Shapiro v. United States, 335 U.S. 1, 27 , 68 S.Ct. 1375 , 92 L.Ed. 1787 (1957); Wilson v. United States, 221 U.S. 361, 372 , 31 S.Ct. 538 , 55 L.Ed. 771 (1911). I make this point because Judge Aldisert’s opinion, by properly emphasizing Goldsmith’s lack of possession in this case and confining its discussion to that factual complex, might be misunderstood as suggesting that had papers belonging to the accountant been in Goldsmith’s possession they could not have been subpoenaed. Justice Bradley’s opinion in Boyd v. United States, supra, would suggest that result, but the Boyd holding to that effect has long since been repudiated. The issue is not presented in this case. Wilson v. United States, supra and United States v. White, 322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 (1944) make clear that the involuntary surrender of papers rightfully possessed, pursuant to a subpoena duces tecum, is not within the privilege. As the majority opinion makes clear, Couch v. United States, 409 U.S. 322 , 93 S.Ct. 611 , 34 L.Ed.2d 548 (1973) rejects ownership of the papers as a test. Obviously ownership does not *694 bear upon compelled communication. What remains, I suggest, is the test announced by Justice Brennan in Schmerber v. California, supra — compulsion of evidence of a testimonial or communicative nature. It would seem, then, that for fifth amendment purposes a subpeona duces tecum should be enforced even for papers owned and possessed by the witness so long as (1) the fact of his possession was not of evidentiary significance or his production was not used for that evidentiary purpose, (2) their mere production did not require his testimony, and (3) they could be authenticated through some other witness. But see United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir.), cert. denied, 279 U.S. 863 , 49 S.Ct. 479 , 73 L.Ed. 1002 (1929) holding that a custodian could be compelled to authenticate records which incriminated him. In the light of Schmerber and Couch I question whether Austin-Bagley is authoritative today. Neither the issue of mere production of papers owned by the witness nor the issue of testimonial authentication of papers in the witness’s possession is decided by this case. Nor do we ■reach the issue of production of papers containing entries made by the witness and thus reflecting his communications made at a prior time.

. A dissent suggests that the report of the blood test was ‘testimonial’ or ‘communicative,’ because the test was performed in order to obtain the testimony of others, communicating to the jury facts about petitioner’s condition. Of course, all evidence received in court is ‘testimonial’ or ‘communicative’ if these words are thus used. But the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and we use these words subject to the same limitations. A nod or head-shake is as much a ‘testimonial’ or ‘communicative’ act in this sense as are spoken words. But the terms as we use them do not apply to evidence of acts noneommunicative in nature as to the person asserting the privilege, even though, as here, such acts are compelled to obtain the testimony of others.” (Emphasis added.)