explaining that a “long line of cases has established that an individual cannot rely upon the [Fifth Amendment] privilege 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”
How later courts described this case
- explaining that a “long line of cases has established that an individual cannot rely upon the [Fifth Amendment] privilege 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”
- recognizing that "[t]he privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life”
- recognizing that Supreme Court decisions make “clear that the dissolution of a corporation does not give the custodian of the corporate records any greater claim to the Fifth Amendment privilege”
- observing that because an artificial entity can act only through its officers and agents, allowing an individual to assert a personal Fifth Amendment privilege to resist producing entity records would undermine the rule that the entity itself has no privilege and would frustrate legitimate governmental regulation
Written by the judges who cited it.
Distinguished
Distinguished by Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66 (1982)
The holding in Bellis v United States (417 US 85) is inapposite here as Dr. Rosen prepared the tape in a personal capacity, not as the representative of some legally cognizable, independent entity.
The opinion
Mr. Justice Douglas,
dissenting.
Beilis, the petitioner, was formerly one of three partners in a small law firm; the partnership was dissolved, and Beilis currently has lawful possession of the firm’s records. The grand jury has subpoenaed those records apparently for the purpose of a tax investigation directed against Beilis personally. * He refused to comply, claiming his Fifth Amendment privilege against self-incrimination, but the Court today holds that privilege not available to Beilis. I think the case is clearly controlled by Boyd v. United States, 116 U. S. 616 , and thus I dissent.
*102 In Boyd the Court held that the Fifth Amendment privilege extends to the production of papers personally-held as well as to the compulsion of testimony. “[W]e have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” 116 U. S., at 633 . In purporting to distinguish this case from Boyd , the Court relies on United States v. White, 322 U. S. 694 , involving a subpoena directed to a union, not to any individual, for the production of official union documents. White in turn relied on cases holding that the privilege against self-incrimination is a personal one, which can be claimed only by natural persons, and not by corporations. Id., at 699 , citing Hale v. Henkel, 201 U. S. 43 ; Wilson v. United States, 221 U. S. 361 ; Essgee Co. v. United States, 262 U. S. 151 . “[T]he papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.” White, supra, at 699 .
In extending these corporation cases to the union papers involved in White , we stressed that the test is not a mechanical one, but “whether one can fairly say under all the circumstances that a particular type of organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only.” Id., at 701 . In finding that the union was such an impersonal organization, the court pointed out that the union’s existence is not dependent upon the life of any member, that it separately owns property apart from any of its members or officers, that its treasury exists apart from the personal funds of its members, and *103 that without special authorization no member can bind the union. Id., at 701-702 . None of these factors is present here in this small three-man law firm. Pennsylvania, as have most States, has adopted the Uniform Partnership Act, Pa. Stat. Ann., Tit. 59, § 1. This partnership would dissolve automatically upon the death of any member, § 93, and any partner can bind the entire partnership in the conduct of its affairs, § 31. No new member can join without unanimous consent of the partners, §51 (g). In Pennsylvania as in many States a partnership can hold and sell property in its own name, Pa. Stat. Ann., Tit. 15, § 12773; Pa. Stat. Ann., Tit. 59, § 13, but each partner individually is a co-owner of that property, § 72, and in many substantive legal respects the ownership by the partnership is different in kind from ordinary ownership of property. Any legal liabilities arising from property owned by the partnership, of course, extend to the partners individually if the common partnership assets are exhausted, § 37.
I would treat a partnership as Boyd treated it. This partnership is as different from a labor union or the run of corporations as black is from white. By the Court’s opinion a man and wife who form a law partnership or medical partnership or dental partnership are treated as some kind of new “entity” so as to expand the power of government into an area from which the Fifth Amendment excludes it. The nature of a partnership is not even a federal question; it turns on its creator, the State. Pennsylvania tells us by its Supreme Court that a Pennsylvania partnership “is treated as an aggregate of individuals and not as a separate entity.” Tax Review Board v. Shapiro Co., 409 Pa. 253, 260 , 185 A. 2d 529 , 533. For federal income tax purposes the partnership pays no tax, it is merely the conduit through which income passes *104 to the taxpaying partners. Internal Revenue Code §§ 701, 702, 26 U. S. C. §§ 701 , 702.
The majority refers to large law firms or brokerage houses as examples of partnerships which take on the characteristics of independent entities in the manner of corporations. None that I know could properly be considered an organization with “a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents,” White, supra, at 701 . That certainly is not the case presented here. At times the law may treat unlikes as if they were alike; but it surpasses understanding when a two- or three-man partnership is treated the same as members or officers of a giant corporation or a giant union. See United States v. Cogan, 257 F. Supp. 170 (SDNY 1966) (Frankel, J.). This small three-man firm had no real existence apart from the three individual attorneys.
All this only goes to demonstrate that Beilis was not holding the records involved here as a representative of some separate, impersonal entity with no rights under the Fifth Amendment. The records he holds are his own, in both a legal and a practical sense. Nor could the grand jury investigation result in any finding of tax liability by the partnership as a separate entity, for the partnership has no tax obligations other than the filing of informational forms that aid in determining the liabilities of the individual partners. It was only Beilis individually, or his two former partners, against whom the investigation could have been directed. If Beilis had been conducting a solo practice, his claim of privilege could not be overridden, as the Government here necessarily conceded. I am unable to perceive why he should be held to have forfeited that constitutional right by joining with two others in a partnership.
*105 Indeed, the significance of the distinction is so obscure that the Court did not even see fit to notice it in Boyd itself, where in fact the subpoena was directed at a partnership and not an individual. As the Government here concedes, Brief for United States 14 n. 10, both parties and the Court assumed in Boyd that the partnership documents there sought were personal property.
“This command of the Fifth Amendment . . . registers an important advance in the development of our liberty — 'one of the great landmarks in man’s struggle to make himself civilized.’ Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit.” Ullmann v. United States, 350 U. S. 422, 426 . But it is the niggardly view which prevails today, with the Court effectively overruling Boyd in holding that the Government can compel an individual to produce his private records to aid a Government investigation of him. That is a view I cannot join.
See App. 24; Tr. of Oral Arg. 8.