# In Re Grand Jury Proceedings. Appeal of William A. Ranauro > Court of Appeals for the First Circuit · March 23, 1987 · 814 F.2d 791 URL: https://www.frixlaw.com/law-library/cases/9475960 ## Case - **Full name:** In Re GRAND JURY PROCEEDINGS. Appeal of William A. RANAURO - **Court:** Court of Appeals for the First Circuit - **Decided:** March 23, 1987 - **Citations:** 814 F.2d 791; 87 A.L.R. Fed. 661; 1987 U.S. App. LEXIS 3641 - **Precedential status:** Published - **Opinion:** Dissent by Breyer - **Judges:** Coffin, Bownes, Breyer - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475960 ## How later opinions describe it (automated extraction) - finding no fifth amendment protection attached to the compelled consent procedure ## Opinion text *797 BREYER, Circuit Judge (dissenting). I agree with the majority that, under controlling Supreme Court precedent, the Fifth Amendment’s privilege against self-incrimination “applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408 , 96 S.Ct. 1569, 1580 , 48 L.Ed.2d 39 (1976) (emphasis in original). I also agree that “compelled incriminating acts or statements” are testimonial only if they “communicate some assertion” (including an “assurance” or “admission”). Ante at 793. After all, the Supreme Court has written that a fundamental purpose of the privilege is to avoid “subjecting] those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt,” Murphy v. Waterfront Commission, 378 U.S. 52, 55 , 84 S.Ct. 1594, 1596 , 12 L.Ed.2d 678 (1964) — and, one can commit “peijury” only with respect to an assertion. I do not agree, however, with the majority’s conclusion that the court order before us compels any such testimonial assertion. The court has ordered Ranauro to sign a form that says, in substance, “I consent to the release of records in my name, if they exist.” Ranauro’s signature will lead to the release of bank records if they exist, but he does not assert in signing the form that they do exist. He could not lie or commit peijury either by signing or by not signing the form. He has not been asked a question to which he could respond with either the truth or a lie. Ranauro’s position is similar to that of a suspect compelled to stand in a lineup, to give a handwriting or blood sample, to speak lines, or to put on clothing. See Gilbert v. California, 388 U.S. 263, 266-67 , 87 S.Ct. 1951, 1953 , 18 L.Ed.2d 1178 (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218, 222-23 , 87 S.Ct. 1926, 1929-30 , 18 L.Ed.2d 1149 (1967) (lineup and voice exemplar); Schmerber v. California, 384 U.S. 757, 763-65 , 86 S.Ct., 1826, 1831-1832 , 16 L.Ed.2d 908 (1966) (blood test); Holt v. United States, 218 U.S. 245, 252-53 , 31 S.Ct. 2, 6 , 54 L.Ed. 1021 (1910) (donning clothing). In each of these instances a person is compelled to provide possibly incriminating evidence, but is not asked to make a (potentially false) assertion. These cases are unlike those in which a witness is compelled to produce records that the government believes are in his possession. In such cases, the government in essence asks, “Do you have these records?” If the witness in fact possesses the records, he has the option either to produce them and assert (truthfully) that he has them or to assert (falsely) that he does not have them. Thus, the Supreme Court has held that the production of documents may be a privileged testimonial act. See United States v. Doe, 465 U.S. 605, 613-14 , 104 S.Ct. 1237, 1242-43 , 79 L.Ed.2d 552 (1984) (holding that the act of producing subpoenaed documents, if that act is incriminating, is privileged and cannot be compelled without a grant of use immunity). But cf. Fisher v. United States, 425 U.S. at 411 , 96 S.Ct. at 1581 (holding that because the existence and location of subpoenaed documents are a “foregone conclusion,” their production, although testimonial, is not incriminating and is hence not privileged). In order to find an incriminating assertion here, the majority suggests that Ranauro has “assert[ed] ... consent.” Ante at 793. It then imagines what strikes me as a farfetched scenario: that Ranauro’s signature on the consent form leads to the release of the records; that the government later has trouble identifying the records as Ranauro’s; and that the government then seeks to use the production of the records in response to the consent form to prove a connection between the records and Ranauro. Even if one assumes such a scenario, however, the Fifth Amendment privilege does not apply, because the inference that the records belong to Ranauro would not depend upon the jury’s belief in the truth of Ranauro’s “assertion” of consent. Rather, the inference would depend upon the non-assertive fact that Ranauro placed his signature at the bottom of a consent form. Whether Ranauro did so voluntarily or involuntarily, while wishing to release the documents or not wishing to release them, while thinking that he really was consenting or not, is all *798 no more relevant than whether a suspect believes the truth of the words he speaks for purposes of voice identification. In fact, the inference a jury might draw here is rather like the one it might draw on hearing that a key taken from an arrested suspect opened a safe deposit box containing contraband. The inference simply does not depend on the truth of any assertion Ranauro has made. The majority is wrong in stating that Ranauro has “assert[ed] ... consent.” Ranauro does not “assert” consent (nor does he “admit” consent or “assure” consent); rather, he performs a verbal act: he grants consent. (When I say, “I promise to pay tomorrow,” I do not assert a promise, I simply promise.) This ‘linguistic’ point is important because a grant of consent is not the kind of thing that can be true or false (any more than a promise can be true or false — although it can be sincere or insincere); it is not a proper subject matter of a perjury proceeding. This distinction, in turn, is important because it is the distinction the Supreme Court seems to be making in permitting assertion of the privilege in cases such as Doe (subpoenaed documents) but denying it in cases such as Gilbert (handwriting sample). See supra at 797. Ranauro’s grant of consent falls outside the privilege applicable to testimonial communications. Let me add that I do not mean to say that the Fifth Amendment can apply only when indictable “perjury” is at issue. Rather, I note simply that legal penury and the Fifth Amendment have one thing in common: both deal with assertions — the kind of communication that could, in principle, be false. It is the absence of a relevant assertion here that leads me to think that Ranauro’s signature on the consent form is not ‘testimonial’ and is hence outside the Fifth Amendment. The majority also refers to our “supervisory powers.” In my view, its argument that we should exercise our supervisory powers to bar the government from using the consent form to demonstrate a connection between Ranauro and the documents is a strong one. See In re N.D.N.Y. Grand Jury Subpoena # 86-0351-S, 811 F.2d 114, 117 (2d Cir.1987) (exercising court’s supervisory power over the district court to preclude the use of this sort of consent directive). Even if Ranauro’s signature on the form is nontestimonial, the use to which the government (in the hypothetical scenario) might put the compelled signature is a seriously incriminating one. The government does not claim that it needs the signature to help identify those records once they are released, and it has not sought the signature for that purpose. This court may justifiably prevent the government from compelling the production of incriminating evidence for which the government has shown no need. The proper remedy, however, would be a court order barring the government from using the consent form at trial to show a connection between Ranauro and the documents. It would not be a requirement that the government provide Ranauro with a “use immunity” of somewhat uncertain scope. Accordingly, I dissent from the opinion insofar as it finds a violation of the Constitution, but not otherwise. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475960. Public record. Not legal advice.