Petition — United States v. Doe

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

In the Supreme Court of the

OCTOBER TERM, 1982

UNITED STATES OF AMERICA, PETITIONER

JOHN DOE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Rex E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor ©. eral

SAMUEL A. AiITo, JR.

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Fifth Amendment privilege against

compelled self-incrimination may be properly invoked by a

sole proprietor in response to a subpoena for preexisting

business records, many of which were not prepared by him

and are of a type kept by virtually all businesses.

2. Whether a person may properly resist compliance

with a subpoena duces tecum on the ground that the act of

production would be self-incriminating, despite the govern-

ment’s offer of the functional equivalent of use immunity

with respect to the act of production.

(1)

TABLE OF CONTENTS

Page

ON ox coccvececcescsddcctescenesosoces 1

CR cinc adhd hae nbtieceesedens bcacthnes 1

Constitutional provision involved ................- 2

ae ols ees dcaedstesrachaeasae 2

Reasons for Granting the petition................. 6

ht sels obieces bavble<nnedese egndaseees 19

EN SRG 45. hs Sabvocusgescdendaunce es sdnedenens la

Mc bbicées cecdededbevutsececocunsseeses 22a

ER hsnds ccecccccnncoevetccesnsducesesens 23a

EE Unb ccvecsncccsessueesctoceveccsesaue 28a

TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 468 ......... 12, 13

Bellis v. United States, 417 U.S. 85 .......... 6, 11

Boyd v. United States, 116 U.S. “.6 ..... 4,8, 10, 15

Dreier v. United States, 221 U.S. 394 ........ 6

Fisher v. United States, 425 U.S. 391 ...... passim

Fred R. Witte Center Glass No. 3, In re, 5A4

ED sc cbiis dh peed es conguneetestioces 15

Government of Virgin Islands v. Smith, 615

Nh dd ala gnnudvescée osnkeeshesasuueh 18

Grand Jury Matter, In re, 673 F.2d 688, peti-

tion for cert. pending, No. 82-183 .......... 19

Grand Jury Proceedings, In re, (Johanson),

SEED noks ncbvasediucccceséccueeame 11

Grand Jury Proceedings, In re, (Martinez),

TE ioscstntecedcocnsbianene 4, 11, 19

Grand Jury Subpoena, In re, (Kent Oil), 6A6

ITS onde nd 000s eee seeunsecdnneenee 10

ICC v. Gould, 629 F.2d 847............ce0ee 11, 13

United States v. Abrams, 615 F.2d 541....... 10

United States v. Authement, 607 F.2d 1129 ... 19

(111)

(IV)

Cases— Continued: Page

United States v. Beattie, 541 F.2d 329...... 10, 13

United States v. Brey, 5A6 F.2d 851 ......... 10

United States v. Davis, 6386 F.2d 1028, cert.

Goenbed 466 U.B. GHB nw icc ce ccsccccss 9, 10, 13-14

United States v. Doe, 628 F.2d 694 ...... 10, 18, 19

United States v. Mannino, 685 F.2d 110...... 18

United States v. Miller, 660 F.2d 568......... 10

United States v. Plesons, 560 F.2d 890, cert.

KS eee ames 10

United States v. White, 322 U.S. 694 ........ 6

Wilson v. United States, 221 U.S. 361 ....... 6

Constitution, statute and rules:

United States Constitution, Fifth

IEEE 0:0 0.090000 0000 cbdsevtesets passim

MEE 0 ots sececvehensasadpnces 18

Fed. R. Evid.:

ED odvncshsvoctessoseuectans 18

IE nn cccteccongdsccduenbabine 18

PGE soccocessocdcvenssscbdiuag 18

In the Supreme Court of the Gnited States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

JOHN DOE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The Solicitor General, on behalf of the United States, pe

titions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-21a) is reported at 680 F.2d 327. The opinion of the dis-

trict court (App. C, infra, 23a-27a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 10, 1982. A petition for rehearing was denied on Au-

gust 10, 1982. On October 1, 1982, Justice Brennan ex-

tended the time for filing a petition for a writ of certiorari

to and including November 8, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment provides in pertinent part:

No person *** shall be compelled in any criminal

case to be a witness against himself ***.

STATEMENT

1. In the fall of 1980, a federal grand jury in Newark,

New Jersey, was investigating corruption in the awarding

of county and municipal contracts, as well as related tax vi-

olations. The investigation focused in part on the activities

of respondent John Doe! and the several companies (orga-

nized as sole proprietorships) through which he did busi-

ness with the units of local government.

In November and December 1980, the grand jury caused

five subpoenas to be served on respondent calling for the

production of numerous business records relating to his

various companies (see App. D, infra, 28a-36a). The first

two subpoenas demanded the production of the telephone

toll records of several of his companies, as well as “all rec-

ords including but not limited to bank statements, cancelled

checks, check stubs and deposit tickets, for the period Jan-

uary 1, 1977 to present” for four bank accounts held by re-

spondent or his companies (id. at 28a-3 la).

The third subpoena required respondent to produce “any

and all records as per the attached Schedule A for [one of

' Because of the ongoing grand jury inquiry, the court of appeals

granted the government's request not to disclose respondent’s name or

any details that would identify him (see App. A, infra, 2a n.1). For

this reason, we have not used respondent’s name in this brief and have

deleted his name and other potentially identifying details from the doc-

uments reproduced in the appendix.

respondent's companies} for the period January 1, 1976 to

present” (id. at 32a-33a). Schedule A listed 28 categories of

common business records (id. at 33a).?

The fourth subpoena demanded production of a similar

list of business records belonging to another company (App.

D, infra, 34a-35a). The final subpoena required respondent

to testify and produce “all bank statements and cancelled

checks for the period January 1, 1976 to present” for ac-

counts “at the Royal Bank of Canada, Georgetown, Grand

Cayman Islands” belonging to two other companies (id. at

36a).

Respondent moved to quash all five subpoenas on Fifth

Amendment grounds, and the district court granted his

motion except with respect to those documents required to

be kept by law (App. B, infra, 22a). In its opinion, the

court seemingly accepted the government's argument that

the documents’ contents were themselves not privileged

(see App. C, infra, 25a). The court wrote, however (id. at

25a-26a; emphasis in original):

[The relevant inquiry is *** whether the act of pro-

ducing the documents has communicative aspects

which warrant Fifth Amendment protection. Fisher v.

United States, 425 U.S. 391 (1976). ***

* * * * *

With few exceptions, enforcement of the subpoenas

would compel [respondent] to admit that the records

exist, that they are in his possession, and that they are

1. General 14. Finandal statements

2. General journals 15. Bank d t tickets

3. Cash rsement 16. Retained copies of

journals income tax returns

4. Cash receipts 17. Retained copies of

journals. yroll tax returns

5. Vouchers. 18. Purchase journals.

6. Paid bills. 19. Accounts payable ledgers.

7. Invoices. 20. Accounts receivable ledgers

8. Billings. 21. Stock transfer book

9. Bank Statements 22. Corporate minutes.

10. Cancelled checks 23. Corporate charter.

and check stubs. 24. Correspondence and

11. Payroll records. memoranda.

12. Contracts and 25. Bids, Bid bonds and contracts.

“ of contracts

authentic. These communications, if made under com-

pulsion of a court decree, would violate [respondent's]

Fifth Amendment rights.

The district court reached this conclusion even though

the government had represented on the record that no sub-

sequent use would be made of respondent's act of produc-

tion and had suggested that respondent be given the “func-

tional equivalent of use immunity” with respect to the act

of production (C.A. App. 56a, 7la-72a, 75a-76a; Memoran-

dum in Support of Motion for Reconsideration at 21-22).

2. The court of appeals affirmed (App. A, infra, la-2la).

The court first rejected the government's argument that a

sole proprietor, like the officer of a corporation or unincor-

porated association or a member of a partnership, should

not be permitted to assert the Fifth Amendment privilege

when served with a subpoena for the records of his business

or organization. The court so held despite its recognition

that “the Government’s position has considerable analytic

appeal” (id. at 6a), since permitting a sole proprietor to as-

sert the Fifth Amendment privilege “‘only because of the

form of business organization’” he has chosen results in

“‘an irrational hole in the constitutional system of regula-

tion of crime detection’” (id. at 6a n.3, quoting Jn re Grand

Jury Proceedings (Martinez), 626 F.2d 1051, 1056 (1st Cir.

1980) ).

The court next concluded that respondent was entitled to

resist the subpoenas at issue here on Fifth Amendment

grounds. The court stated flatly that “an individual’s busi-

ness papers, as well as his personal records, cannot be sub-

poenaed by a grand jury” (App. A, infra, 14a). The court

began by noting the rule announced in Boyd v. United

States, 116 U.S. 616, 680 (1886), that the Fifth Amendment

protects an individual against the compelled production of

his private papers (App. A, infra, 8a). The court acknowl-

edged that Fisher v. United States, 425 U.S. 391 (1976),

had “seemingly diverged from” that rule by concluding that

“the fifth amendment, rather than existing to shield certain

private writings from discovery by the Government,

‘applies only when the accused is compelled to make a testi-

monial communication that is incriminating’” (App. A,

infra, 9a, quoting Fisher, supra, 425 U.S. at 408). The

court of appeals nevertheless asserted (App. A, infra, lla

n.7) that “lower federal courts, including this Court, have

continued to recognize Boyd's protection-of-private-papers

principle.”

The court of appeals also concluded that respondent was

entitled to invoke the Fifth Amendment privilege because,

in its view, the act of producing the documents amounted to

a potentially incriminating communication (App. A, infra,

l4a-17a). The court distinguished Fisher, where a similar

argument was rejected, on the ground that there “‘{t}he

existence and location of the papers [was] a foregone con-

clusion’” (id. at l5a, quoting Fisher, supra, 425 U.S. at

410), whereas in this case there was “nothing in the record

that would indicate that the United States knows, «s « cer-

tainty, that each of the myriad documents demanded by the

five subpoenas in fact is in [respondent's] possession or sub-

ject to his control” (App. A, infra, 15a; emphasis added).

The court added that enforcement of the subpoenas

would require respondent to authenticate the documents

sought (App. A, infra, 16a). Observing that “many (al-

though certainly not all) of the subpoenaed records ***

most likely were prepared by the appellee,” the court stat-

ed (ibid.) that “[t}he record contains no explanation by the

United States as to how documents of this sort could be au-

thenticated without the appellee's explicit or implicit

participation.”

The court next held (App. A, infra, 18a-19a) that respon-

dent was entitled to rest upon a blanket assertion of the

Fifth Amendment privilege with respect to all the docu-

ments sought by the subpoenas, including those that re-

spondent had not prepared. The court relied (id. at 18a &

n.17) upon the government's statement that the contents of

the documents sought might tend to incriminate

respondent.

Finally, the court held that respondent could assert the

Fifth Amendment privilege despite the government's rep-

resentation that the act of producing the documents would

not be used against him and despite the government's

request that he be afforded the functional equivalent of use

immunity with respect to the act of production (App. A,

infra, 19a-20a).*

REASONS FOR GRANTING THE PETITION

This case presents important, unsettled, and frequently

recurring questions concerning the scope of the Fifth

Amendment privilege against compelled self-incrimination

when preexisting business records of a sole proprietorship

are sought by subpoena or equivalent process.

Documentary subpoenas ur summonses for business rec-

ords are an indispensable tool in investigations of sophisti-

cated criminal activity, including drug offenses, racketeer-

ing, and official corruption, as well as in the enforcement of

the tax laws. This Court has decided in a variety of con-

texts that most types of business-related documents may

be obtained by subpoena or summons despite the assertion

of the Fifth Amendment privilege by the custodian of the

records. Thus, it is now settled that the Fifth Amendment

privilege may not properly be asserted when the records of

a corporation (Dreier v. United States, 221 U.S. 394 (1911);

Wilson v. United States, 221 U.S. 361 (1911) ), partnership

(Bellis v. Ungited States, 417 U.S. 85 (1974)), or labor un-

ion (United States v. White, 322 U.S. 694 (1944)), are

sought, but this Court’s decisions leave unclear the status

of the records of sole proprietorships, and the courts of ap-

peals are divided on this important isste. Following the

reasoning in Fisher v. United States, supra, at least one

court of appeals has held that the Fifth Amendment does

not protect the contents of any preexisting business records

(see page 10, infra). However, other courts of appeals (see

° Following the quashing of the subpoenas at issue here, respondent

was indicted and convicted of various charges stemming from the

grand jury investigation. Execution of sentence was suspended, and

respondent was placed on probation and fined. However, the grand

jury investigation is continuing, production of the requested docu-

ments is still needed, and there remains the possibility that the con-

tents of the documents would incriminate respondent as to offenses

other than those for which he has already been convicted. Accordingly,

the case is not moot.

pages 910, infra), including the court below (App. A,

infra, 14a), have held that the contents of an individual's

business records are privileged. These courts note that this

question was not specifically decided in Fisher, where the

records in question did not belong to and had not been cre-

ated by the persons asserting the privilege. Instead of

Fisher, these courts look to the rule—announced in Boyd

v. United States, supra, and discredited in Fisher (425

U.S. at 404-409)—that the Fifth Amendment prohibits the

compulsory production of private papers.

Sole proprietorships are the mos: common form of busi-

ness organization in this country, 27d subpoenas and sum-

monses for the records of such enterprises are a Caily oc-

currence. Thus, the present confusion concerning the

applicability of the Fifth Amendment privilege to subpoe-

nas for such records is in great need of resolution by this

Court.

This Court should also resolve whether a sole proprietor

or individual may resist compliance with a subpoena duces

tecum or documentary summons on the ground that the act

of production itself would be self-incriminating, a question

left open by Fisher (see 425 U.S. at 410). And even if that

question is answered favorably to the person invoking the

privilege, the issue remains whether the availability of the

privilege can somehow survive the government’s offer of

use immunity with respect to that act. While at least one

court of appeals has held that the Fifth Amendment privi-

lege may not properly be asserted in that situation (see

page 19, infra), the court below affirmed the quashing of

subpoenas even though the government had offered the

functional equivaient of act of production immunity. Where

the act of production is considered sufficiently testimonial

and incriminating to sustain the claim of privilege, the effi-

cacy of such immunity grants to secure production of the

records is manifestly a matter of substantial importance.

1. The decision of the court of appeals poses an important

question left unresolved by this Court's decision in Fisher

v. United States, supra, i.e., whether the contents of an in-

dividua 's business records are protected by the Fifth

Amendment privilege. In Fisher, taxpayers under investi-

gation by the Internal Revenue Service retrieved papers

from their accountants and delivered them to their attor-

neys (425 U.S. at 394). None of the documents in question

was written by the taxpayers, but the documents contained

information taken from the taxpayers’ books and records

(ibid.). The Court held that the attorneys could not resist

an IRS summons on grounds of attorney-client privilege be-

cause the Fifth Amendment would not have prevented dis-

closure of the documents ‘f they had remained in the tax-

payers’ possession.

The Court began by disapproving the proposition, de

rived from Boyd v. United States, supra, that “the Fifth

Amendment prevents compelled production of documents

over objection that such production might incriminate”

(Fisher, supra, 425 U.S. at 405). The Court termed that

proposition “a rule searching for a rationale consistent with

the proscriptions of the Fifth Amendment against com-

pelling a person to give ‘testimony’ that incriminates him”

(id. at 409) and further noted (id. at 408, 410-411) that that

rule was inconsistent with decisions holding that the rec-

ords of corporations, partnerships, and unincorporated as-

sociations could be obtained by subpoena despite a claim of

Fifth Amendment privilege. The Court reasoned as follows

(id. at 409):

A subpoena served on a taxpayer requiring him to

produce an accountant’s workpapers in his possession

without doubt involves substantial compulsion. But it

does not compel oral testimony; nor would it ordinarily

compel the taxpayer to restate, repeat, or affirm the

truth of the contents of the documents sought. There-

fore, the Fifth Amendment would not be violated by

the fact alone that the papers on their face might in-

criminate the taxpayer, for the privilege protects a

person only against being incriminated by his own

compelled testimonial communications.

The Court recognized (425 U.S. at 410) that it might in

some circumstances be said that the act of producing the

documents is the equivalent of incriminating testimony—

either because it concedes “the existence of the papers de-

manded and their possession or control by the taxpayer” or

because it serves to authenticate them. However, the

Court found that in that case the act of production would

not invoive testimonial self-incrimination (id. at 410-412).

Although nearly four pages of the Court’s opinion had

been spent disapproving Boyd's interpretation of the Fifth

Amendment (425 U.S. at 405-409), the Court concluded

with the following observation (id. at 414):

Whether the Fifth Amendment would shield the tax-

payer from producing his own tax records in his pos-

session is a question not involved here; for the papers

demanded here are not his “private papers,” see Boyd

v. United States, 116 US., at 684-635.

In sum, although Fisher refrained from expressly

deciding the question presented by this case, the Court’s

reasoning extended far beyond its narrow holding. The

courts of appeals have responded to Fisher in two ways.

Some have followed Fisher's reasoning toward its logical

conclusion, while others have confined Fisher to its facts

and have “continued to recognize Boyd's protection-of-

private-papers principle” (App. A, infra, lla n.7) in all

other situations. The results have been conflicting decisions

by the courts of appeals and doctrinal incongruities termed

irrational or illogical by the very courts that have adhered

to them.

a. The courts of appeals are sharply divided concerning

the issue whether the Fifth Amendment protects the con-

tents of an individual's business records. As previously not-

ed, the court below, expressing continued allegiance to

Boyd, held (id. at 14a) “that an individual's business papers

*** cannot be subpoenaed by a grand jury.” The Fifth Cir-

cuit has taken a similar position. In United States v. Davis,

636 F.2d 1028, 1043, cert. denied, 454 U.S. 862 (1981), the

court vacated portions of an order enforcing an IRS sum-

mons, stating a rule “that any incriminating papers in the

actual or constructive possession of an individual, which he

holds in his individual capacity, rather than in a representa-

tive capacity, and which he himself wrote or which were

written under his immediate supervision, are absolutely

protected by the Boyd principle from production by sub-

poena or equivalent process, regardless of whether they

are business-related or more inherently personal in

content” (636 F.2d at 1043; footnotes omitted). The court

stated (id. at 1042) that it refused to “limit the Boyd princi-

ple to non-business records or abolish it altogether.” See

also United States v. Miller, 660 F. 2d 568, 566-567 (5th

Cir. 1981). Similarly, in J» re Grand Jury Subpoena (Kent

Oil), 646 F.2d 963, 968 (Sth Cir. 1981), the same court af-

firmed an order quashing a subpoena for a sole proprietor-

ship’s business records because “a sole proprietor’s fifth

amendment privilege against self-incrimination protects the

‘non-required’ records of the proprietorship from compelled

production in response to a grand jury subpoena directed to

the sole proprietor.” While this Court had described Boyd's

“prohibition against forcing the production of private pa-

pers” as a “rule searching for a rationale consistent with

the proscriptions of the Fifth Amendment against

compelling a person to give ‘testimony’ that incriminates

him” (Fisher, supra, 425 U.S. at 409), the Kent Oil court

stated (646 F.2d at 968; emphasis added): “|/}t is settled

that the privilege reaches the compelled production of an

individual's private books and papers in response to a sub-

poena or equivalent process, Boyd v. United States, 116

U.S. 616, 634-35 *** (1886)."4

By contrast, the First Circuit has held that the contents

of a doctor’s appointment books are not privileged because

“(tlhe line of cases culminating in Fisher have stripped the

content of business records of any Fifth Amendment pro-

tection; such protection is afforded only to the testimonial

content of the act of turning over the records under com-

pulsion” (636 F.2d at 1055; footnote omitted). See also

United States v. Doe, 628 F.2d 694 (1st Cir. 1980); United

States v. Abrams, 615 F.2d 541, 547 (1st Cir. 1980); United

States v. Bray, 5A6 F.2d 851, 855 (10th Cir. 1976).

4 In United States v. Beattie, 541 F.2d 329 (2d Cir. 1976), the court

refused enforcement of the portion of an IRS summons requiring a tax-

payer to turn over letters he had written to his accountant. The court

stated (id. at 331) that “the Fifth Amendment protects against com-

pulsory production of a paper written by an accused with respect to his

own affairs.” In United States v. Plesons, 560 F.2d 890, 891-892 (8th

Cir.), cert. denied, 434 U.S. 966 (1977), the court concluded that a doc-

tor’s medical records, including appointment books, fell “within the

historic area of protection afforded by the fifth amendment to private

documents.”

b. The same factors that produced the conflicting deci-

sions noted above led the court in the instant case to draw a

distinction—which the court itself described as “ ‘irration-

al’” (App. A, infra, 6a n.3, quoting Jn re Grand Jury Pro-

ceedings (Martinez), supra, 626 F.2d at 1056)—between

the protection afforded to the records of corporations and

partnerships, on the one hand, and sole proprietorships, on

the other (see App. A, infra, 5a-8a). The court of appeals

offered no principled defense of the distinction it drew; in-

deed, it stated (id. at 6a) that treating all business records

in the same way had “considerable analytic appeal.” How-

ever, the court felt compelled to reach the result it did be-

cause of dictum in Bellis v. United States, supra, 417 U.S.

at 87-88 (see App. A, infra, 6a-8a). That dictum, in turn,

was expressly based upon the Boyd rule.> On an earlier oc-

casion, the same court of appeals wrote (JCC v. Gould, 629

F.2d 847, 859 n.22 (3d Cir. 1980)): “[Whhile Fisher,

Andersen, Bellis, and the cases cited therein may well

presage a trend toward elimination of the fifth amendment

privilege for all business records, *** such a final break

with Boyd is not for us to make.”

This Court should grant certiorari to consider whether

there exists a justifiable basis for treating all corporate or

partnership records differently from the records of all sole

proprietorships. If, as the court below has suggested®, one

5 Bellis stated (417 U.S. at 87-88):

It has long been established, of course, that the Fifth Amend-

ment privilege against compulsory self-incrimination protects an

individual from compelled production of his personal papers and

effects as well as compelled oral testimony. In Boyd v. United

States, 116 U.S. 616 (1886), we held that “any forcible and com-

pulsory extortion of a man's own testimony or of his private pa-

pers to be used as evidence to convict him of crime” would violate

the Fifth Amendment privilege. /d., at 630; see also id., at

633-635 ***. The privilege applies to the business records of the

sole proprietor or sole practitioner as well as to personal docu-

ments containing more intimate information about the individu-

al’s private life. Boyd v. United States, supra, ***.

This interpretation of the Fifth Amendment privilege was disavowed

in Fisher (425 U.S. at 405-409).

® See App. A, infra, lla-12a; /» re Grand Jury Proceedings (Johan-

son), 632 F.2d 1033 (3d Cir. 1980).

of the principal purposes of the Fifth Amendment privilege

is to preserve a zone of personal privacy, it appears anoma-

ious to hold that a corporation or partnership, no matter

how small or personal, enjoys no Fifth Amendment rights,

while a sole proprietorship, no matter how large and imper-

sonal, may be shielded from producing business records. On

the other hand, if the Fifth Amendment privilege “protects

a person only against being incriminated by his own com-

pelled testimonial communications” (Fisher, supra, 425

U.S. at 409), there is similarly little if any basis for treating

sole proprietorships differently from corporations and part-

nerships. When a subpoena is issued for preexisting busi-

ness records, there is no more testimonial compulsion on

the sole proprietor than there is on the corporate officer or

partner. Similarly, the existence, possession, and control of

certain common types of business records are no more at is-

sue when they are subpoenaed from a sole proprietorship

than when the subpoena is served upon a corporation or

partnership. See Fisher, supra, 425 U.S. at 411-412.

The difference between a corporation and a sole proprie-

torships is often nothing more than a legal formality and

does not reflect the size, structure, activities, or longevity

of the business. In recent years, for example, thousands of

physicians, lawyers, dentists, and other professionals have

incorporated, principally for tax purposes. It would be

anomalous indeed if the contents of the records maintained

by such persons enjoyed no Fifth Amendment protection,

while those of their colleagues who continued to practice as

sole proprietors remained fully protected. Similarly, there

is no reason why the decision to take on a partner should

have such a profound effect for Fifth Amendment purposes.

c. A similar anomaly has developed with respect to the

protection afforded to the contents of a sole proprietor’s

business records when seized, on the one hand, and when

sought by subpoena or summons, on the other. Willi Fish-

er’s application with respect to the seizure of documents

was clarified in Andre en v. Maryland, 427 U.S. 463

(1976), which held that the seizure of business records and

their introduction into evidence at trial does not violate the

Fifth Amendment. Rejecting the contention that the

contents of such records are protected by the privilege, the

Court stated succinctly (id. at 473):

[Pjetitioner was not asked to say or to do anything.

The records seized contained statements that petition-

er had voluntarily committed to writing.

The Court then explained (ibid.) that petitioner had neither

turned over nor authenticated the records and thus had not

been com elled to incriminate himself by performing either

of those a:ts.

Andresen plainly stands for the proposition that the con-

tents of preexisting business records are not privileged—as

Justice Brennan expressly acknowledged in dissent (see 427

U.S. at 486). It would seem to follow, therefore, that such

records may be obtained by subpoena or summons unless

the act of production itself constitutes testimonial self-

incrimination. Nevertheless, as previously noted, in the ab-

sence of specific direction to the contrary from this Court,

several courts of appeals continue to hold that the contents

of such records are privileged when requested by subpoena

or summons. The same courts apply Andresen to seized

documents and thus implicitly hold that the protection af-

forded to a sole proprietorship’s business records differs de-

pending upon the method by which they are sought or ob-

tained.’

The Fifth Circuit recognized the absurdity of such re-

sults—while at the same time sanctioning them. Writing

for the court, Judge Wisdom observed (United States v.

7In ICC v. Gould, supra, 629 F.2d at 859, for instance, the Third

Circuit concluded:

[Ujnder Bellis the fifth amendment may be asserted by a sole

proprieter to shield the business records of his sole proprietor-

ship ***. By contrast, the Supreme Court has held, in Andresen

v. Maryland, 427 U.S. 463 *** (1976), that the fifth amendment

affords no protection whatsoever against the search and seizure

of business records.

See also United States v. Davis, supra, 636 F.2d at 1042; compare

United States v. Mannino, 635 F.2d 110, 115-116 (2d Cir. 1980) (con-

tents of seized notebook not privileged), with United States v. Beattie,

541 F.2d 329 (2d Cir. 1976) (contents of taxpayer's letters may not be

obtained by IRS summons).

Davis, supra, 636 F.2d at 1042): “It is difficult to find a iog-

ical reason for applying the Boyd principle to suopoenaed

documents and not documents taken in a search, as in

Andresen.” But after citing prior Fifth Circuit opinions, he

concluded (ibid.): “However illogically, these cases by im-

plication limit Andresen to documents taken in a search.”

Not only is the different treatment given seized and sub-

penaed documents illogical, but it will have an untoward

impact upon privacy. The likely effect of the disparate

treatment will be to encourage the use of search warrants

to obtain documents and discourage the use of subpoenas,

even though the latter are plainly far less intrusive.

d. As noted, the court below and several other courts of

appeals have sought to distinguish Fisher, where the pa-

pers in question were not written or owned by those as-

serting the privilege, from the much more common situa-

tion presented here. However, those distinctions are

plainly invalid and have the effect of draining Fisher of

much of its precedential significance.

The court below relied on two alleged factual «. fferences

between this case and Fisher: authorship and ownership of

the records. Fisher leaves no doubt, however, that a per-

son may not resist a subpoena or summons on Fifth Amend-

ment grounds simply because he prepared, wrote, or owns

the incriminating papers sought. The Court there stated

(425 U.S. at 410; emphasis added): “The taxpayer cannot

avoid compliance with the subpoena merely by asserting

that the item of evidence which he is required to produce

contains incriminating writing, whether his own or that of

someone else.” The Court added (id. at 410 n.11): “The fact

that the documents may have been written by the person

asserting the privilege is insufficient to trigger the

privilege.”

Moreover, it is apparent that many of the documents

sought by the subpoenas in this case—including telephone

toll records, bank statements, and bank deposit tick-

ets— were prepared by persons other than respondent. The

court of appeals itself conceded (App. A, infra, 16a) that

“certainly not all *** of the subpoenaed records *** were

prepared by [respondent].”

As for ownership, while the Fisher Court assumed that

the taxpayers did not have title to the accountants’ work-

papers, the taxpayers undoubtedly paid to have those pa-

pers prepared, and they readily obtained possession of the

papers from their accountants after learning of the IRS in-

vestigation. Thus, if ownership of the papers was the deter-

minative fact in Fisher, the result in that case would have

been different if the taxpayers had purchased the papers

from their accountants for nominal consideration or if the

accountants had relinquished possession with donative in-

tent. We do not believe that the decision in Fisher was

based upon any such fine distinctions of state property law.

As the Ninth Circuit stated in rejecting a similar interpre-

tation of Fisher (In re Fred R. Witte Center Glass No. 3,

544 F.2d 1026, 1028 (1976) (emphasis in original) ):

We read Fisher as resting on a broader principle. It

permits compulsion by way of a summons or subpoena

to produce documents when their production does not

“ordinarily compel the taxpayer to restate, repeat or

affirm the truth of the content of the documents

sought.” Mere ownership of an accountant’s work pa-

pers does not convert the production of such papers

into an affirmation of the truth of their contents.

The effect and clear intent of the court of appeals’ deci-

sion is to make Fisher a very narrow exception to Boyd’s

“pronibition against forcing he production of private pa-

pers” (Fisher, supra, 425 U.S. at 409). In Fisher, this

Court disapproved that rule (ibid.), but the court below

candidly stated that it “continued to recognize Boyd’s

protection-of-private-papers principle” (App. A, infra, lla

n.7). Under its approach, the Boyd rule remains fully in ef-

fect, except presumably in cases involving the same pecul-

iar factual situation as Fisher, i.e., where the papers

sought were not written or prepared and are not owned by

the person upon whom the subpoena is served. That situa-

tion will naturally arise infrequently and can be easily

avoided simply by transferring title to the documents. In

our view, if Fisher is to be restricted in this fashion and

Boyd is to be resuscitated, that task should be performed

by this Court rather than the lower federal courts.

e. Fisher is aiso undermined by the portion of the court

of appeals’ decision holding that the act of producing any of

the documents sought by the subpoenas in this case would

amount to incriminating testimonial communication. Fisher

acknowledged (425 U.S. at 410-411) that the act of produc-

ing documents might be considered testimonial, first, if it

“tacitly concedes the existence of the papers demanded and

their possession or control” by the person upon whom the

subpoena or summons is served and, second, if the docu-

ments are thereby authenticated. However, Fisher makes

it clear that under circumstances such as those in the pres-

ent case the act of producing at least some of the documents

demanded by the subpoenas would not constitute testimoni-

al self-incrimination.

Here, as in Fisher, “ijt is doubtful that implicitly admit-

ting the existence and possession of the papers rises to the

level of testimony within the protection of the Fifth

Amendment” (425 U.S. at 411). After noting (ibid.) that

the papers in Fisher were “the kind usually prepared by an

accountant working on the tax returns of his client,” the

Court concluded:

Surely the Government is in no way relying on the

“truthtelling” of the taxpayer to prove the existence of

or his access to the documents. *** The existence and

location of the papers are a foregone conclusion and

the taxpayer adds little or nothing to the sum total of

the Government’s information by conceding that he in

fact has the papers.

This reasoning applies equally to many of the documents

sought by the subpoenas in this case, such as general ledg-

ers, vouchers, paid bills, invoices, and telephone toll -ec-

ords. Such documents are kept by virtually every business,

from the smallest family concern to the largest conglomer-

ate, and therefore conceding their existence, possession,

and control “adds little or nothing to the sum total of the

Government’s information” (425 U.S. at 411

The court of appeals attempted to distinguish Fisher on

the ground that in this case there was “nothing in the rec-

ord that would indicate that the United States knows, as a

certainty, that each of the myriad documents demanded by

the five subpoenas in fact is in [respondent's] possession or

subject to his control” (App. A, infra, 15a; emphasis

added). However, the government seldom if ever knows as

a certainty that subpoenaed documents exist and are sub-

ject to a witness's control. Even if the government has in-

controvertible evidence that the witness had possession and

control of the documents in the very recent past, the possi-

bility will always exist that the deeuments were subse-

quently moved or destroyed. Accordingly, the decision be-

low limits Fisher to an extremely narrow, if not virtually

nonexistent, class of cases.

The court of appeals also contended that enforcement of

the subpoenas in this case would require respondent to au-

thenticate the documents sought, whereas in Fisher the

taxpayers could not have authenticated the accountants’

workpapers. The court of appeals wrote (App. A, infra,

l6a): “Here *** many (although certainly not al!) of the

subpoenaed records *** most likely were prepared by [re

spondent}.” But if respondent did not prepare and could not

authenticate all the documents sought, why were the sub-

poenas quashed in their entirety? Moreover, the govern-

ment represented that it would not rely upon respondent

for authentication of the documents and proposed several

workable methods of implementing that promise—e.g., re-

spondent’s attorneys could hand over the documents or re-

spondent could be immunized with respect to the act of pro-

duction (see page 18, infra).

The court of appeals observed in this connection (App. A,

infra, 16a) that “(tlhe record contains no explanation by

the United States as to how documents [prepared by re-

spondent} could be authenticated without [respondent’s]} ex-

plicit or implicit participation.” This is odd reasoning in-

deed: respondent may resist production of the documents

on grounds of self-incrimination because the government

may be unable to use those documents against him at any

subsequent trial. Obviously the government could not tell

specifically how, or if, many of the documents could be au-

thenticated until they were turned over, but as the court of

appeals must have recognized, many possible alternative

methods of authentication are apparent.®

* For example, a letter written by respondent could be authenti-

cated by a handwriting expert, by any other person familiar with his

handwriting, or by the trier of fact if furnished with a specimen of re-

2. Finally, this Court should grant certiorari to resolve

whether a witness may resist compliance with a subpoena

duces tecum on the ground that the act of production would

be self-incriminating, despite the government's binding as-

surance that no use would be made of the act of production.

In this case, the government agreed not to use respon-

dent's act of production against him in any way (see C.A.

App. 55a-56a, 106a-108a; Memorandum in Support of Mo-

tion for Reconsideration at 22), and the government offered

several suggestions for implementing that proposal. The

government suggested that respondent turn over the docu-

ments to a third party, such as the district court or his own

attorney (see C.A. App. 56a, 7la-72a, 75a-76a; see also

United States v. Doe, 623 F.2d 694, 696 (1st Cir. 1980).

The government also suggested that the court could grant

respondent “the functional equivalent of use immunity”

with respect to the act of production (Memorandum in Sup-

port of Motion for Reconsideration at 22).%

The court of appeals held that the government's agree-

ment not to use respondent's act of production against him

provided no basis for overcoming his Fifth Amendment

privilege because a formal request for statutory immunity

had not been made (App A, infra, 19a)."° However, the

court's reasoning was clearly unsound. The court suggested

that a judicial grant of use immunity with respect to the act

or production would “ ‘intrude into an area which should be

more appropriately left to prosecutorial discretion’” (id. at

spondent’s handwriting as a basis for comparison. Fed. R. Evid.

901(b)(2) and (3). A general ledger prepared by respondent could be

authenticated by an employee who saw respondent prepare it or regu-

larly used the ledger as part of his work. Fed. R. Evid. 901(b)(1).

* The government did not make a formal request that respondent be

granted statutory immunity (see 18 U.S.C. 6001-6008) because respon-

dent was permitted to rest upon a blanket assertion of the Fifth

Amendment privilege with respect to all documents listed in the sub-

poenas rather than showing that the act of producing particular docu-

ments or categories of documents would amount to testimonial

self-incrimination.

Ironically, the Third Circuit has held that in some circumstances a

district court may immunize defense witnesses without the govern-

ment’s consent. Government of Virgin Islands v. Smith, 615 F.2d 964

(1980).

20a, quoting Jn re Grand Jury Matter, 673 F.2d 688,

695-696 (3d Cir. 1982) (concurring opinion), petition for

cert. pending, No. 82-183. We agree that the prerogatives

of the executive branch would be improperly abridged if a

court conferred testimonial immunity without the govern-

ment’s consent but we fail to see how prosecutorial discre-

tion can be abridged if the prosecution’s own immunity re-

quest is granted.

Since the documents sought by the subpoenas in this case

were created voluntarily and not as the result of govern-

ment compulsion, it must follow that conferring use immu-

nity with respect to the act of production removed any pos-

sible basis for resisting the subpoenas on Fifth Amendment

grounds. See United States v. Doe, 628 F.2d 694 (1st Cir.

1980) (statutory immunity with respect to act of produc-

tion); J» re Grand Jury Proceedings (Martinez), 626 F.2d

1051 (1st Cir. 1980) (statutory immunity); United States v.

Davis, supra, 686 F.2d at 1041 (footnote omitted) (sug-

gesting that “it should not be a ground for refusing to pro-

duce the documents as long as the fact of compliance with

the summons is not introduced into evidence at the incrimi-

nated party's trial”); United States v. Authement, 607 F.2d

1129, 1132 (Sth Cir. 1979). The decision below, which af-

firmed the quashing of subpoenas on Fifth Amendment

grounds despite an offer of such immunity, was accordingly

in error.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

NOVEMBER 1982

APPENDIX A

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 81-1782

IN THE MATTER OF:

GRAND JURY EMPANELLED MARCH 19, 1980

UNITED STATES OF AMERICA, APPELLANT

ON APPEAL FROM THE UNITED STATES District CoURT

FOR THE DISTRICT OF NEW JERSEY

C.A. No. 80-0058

Argued February 17, 1982

Before: ADAMS AND SLOVITER, Circuit Judges,

AND VANARTSDALEN, District Judge *

(Filed June 10, 1982)

OPINION OF THE COURT

ADAMS, Circuit Judge.

The United States appeals from a district court order

quashing, subject to a limited exception, a number of grand

jury subpoenas duces tecum. The widesweeping subpoenas,

* Honorable Donald W. VanArtsdalen, United States District Court

for the Eastern District of Pennsylvania, sitting by designation.

if enforced, would require a sole proprietor, who is a target

of the grand jury’s investigation, to produce a host of rec-

ords allegedly pertaining to his business and in his posses-

sion and control. Aside from those records required to be

kept by law, the district judge, citing the protection against

self-incrimination afforded by the fifth amendment, de

clined to direct that the requested documents be made

available to the grand jury. We affirm.

This appeal arises out of an investigation by a federal

grand jury in New Jersey into corruption relating to the

awarding of county and municipal contracts. A portion of

the investigation focused on the appellee,' who, according

to the United States, operated as a sole proprietor several

companies that did business with various units of local gov-

ernment. In November and December 1980, the appellee

received five separate subpoenas duces tecum, which com-

manded him to appear before the grand jury and produce

certain documents. Specifically, the appellee was directed

to provide the jurors with numerous records relating to two

of appellee’s companies, including ledgers, journals, work-

papers, vouchers, bank statements, contracts, corporate

' At oral argument, it was requested that because of the ongoing na-

ture of the grand jury inquiry, the Court not disclose either the name

of the appellee or any identifying details relating to the investigation.

Hence, throughout this opinion, the person against whom the grand

jury subpoenas were directed wil! be referred to as “the appellee.”

minutes, etc.,? “all records, including but not limited to

bank statements, cancelled checks, check stubs and deposit

tickets” connected with specified bank accounts of the

2 For example, the grand jury subpoena of December 19, 1980, di-

rected “{ajny authorized Officer or Representative” of one of the ap-

pellee’s companies to “testify before the Grand Jury and bring with

you any and all books, records and documents as per the attached

Schedule A for the period January 1, 1976 to present.” The items re-

quested under Schedule A of the subpoena are:

General ledgers.

2. General journals.

— Ee

Cash disbursement

journals.

. Cash receipts journals.

Vouchers.

. Paid bills.

. Invoices.

. Billings.

. Bank Statements.

. Cancelled checks and

check stubs.

. Payroll records.

. Contracts and copies of

contracts.

. Subcontracting agree-

ments and purchase

orders.

M4.

15.

16.

Financial statements.

Bank deposit tickets.

Retained copies of

income tax returns.

. Retained copies of payroll

tax returns.

. Purchase journals.

. Accounts payable ledgers.

. Accounts receivable

ledgers.

. Stock transfer book.

. Corporate minutes.

. Corporate charter.

Correspondence and

memoranda.

. Bids, Bid bonds and

contracts.

appellee or his companies; and the telephone toll records of

certain businesses. The appellee moved to quash the sub-

poenas on fifth amendment grounds.

The district judge conducted two hearings before ruling

on the appellee’s motion. Counsel for the United States

conceded, for purposes of the argument, that “all the corpo-

rations described in the subpenas are sole proprietorships,”

and that the subpoenaed records “are in [the appellee's]

hands.” Additionally, the Government admitted that the

documents it sought to obtain “will or may incriminate” the

appellee. See note 17 infra.

In an opinion and order dated February 4, 1981, the dis-

trict court granted substantially all the relief sought by the

appellee. The court reasoned that, “[{ajlthough the Fifth

Amendment does not protect the records of corporations,

unincorporated associations or partnerships, a sole proprie-

tor can invoke the privilege to his benefit.” The court then

determined that the fifth amendment right of the appellee

would be infringed were he forced to turn over the various

subpoenaed documents, inasmuch as the appellee thereby

would be compelled to make an incriminating testimonial

communication. In this connection, the district judge ob-

served that “the [mere] act of producing the documents has

communicative aspects which warrant Fifth Amendment

protection. ... [E)jnforcement of the subpoenas would com-

pel [the appellee} to admit that the records exist, that they

are in his possession, and that they are authentic.” The

court accordingly granted the appellee’s motion to quash,

except as the motion related to those subpoenaed items,

such as tax returns and W-2 statements, that are required

by law to be kept or to be disclosed to a public agency.

After its motion for reconsideration was denied, the

United States filed a timely appeal. We have jurisdiction

under 18 U.S.C. § 3731, which has been held to authorize

an appeal by the Government from a district court order

quashing a grand jury subpoena duces tecum. See Jn re

Grand Jury Empanelled (Colucci), 597 F.2d 851, 854-58

(3d Cir. 1979).

We proceed to analyze the scope of protection under the

fifth amendment available to a sole proprietor whose rec-

ords and papers have been subpoenaed by a grand jury.

Our inquiry in this regard is fourfold: (A) Can the fifth

amendment privilege be invoked by a sole proprietor in re-

sponse to a subpoena for his business-related records? (B)

If so, under the particular circumstances of this case, would

compelled production of the subpoenaed documents amount

to an incriminating testimonial communication, thereby

entitling the appellee to take refuge in the protection af-

forded by the amendment? (C) Did, as the United States

contends, the appellee fail to qualify for that protection by

proffering an overly-broad motion to quash? (D) And, even

if the appellee prevails with respect to the previous ques-

tions, can the Government nonetheless compel production

of the requested records by suggesting that the act of their

surrender be “immunized”?

As has often been noted, the constitutional privilege

against self-incrimination is “essentially @ personal one,

applying only to natural individuals,” United States v.

White, 322 U.S. 694, 698 (1944) (emphasis added). The priv-

ilege, consequently, cannot be asserted by a collective

group, such as a corporation or a union, or by a representa-

tive, employee, or agent of a collective group. Employing

this principle, the Supreme Court has refused to recognize

a claim of fifth amendment protection with respect to indi-

vidually held records of corporations. Wilson v. United

States, 221 U.S. 361 (1911); labor unions, United States v.

White, supra: organizations. McPhaul v. United States,

364 U.S. 372 (1960); political parties, Rogers v. United

States. 340 U.S 367 (1951); and partnerships, Bellis v.

United States. 417 U.S. 85 (1974). “{Ajn individual cannot

rely upon the privilege to avoid producing the records of a

collective entity which are in his possession in a representa-

tive capacity, even if these records might incriminate him

personally,” Bellis, supra. 417 U.S. at 88.

From this, the United States urges that the appellee

should be obligated to turn over the documents requested

here, however incriminating, for the same reasons that an

individual in possession of corporate or partnership records

is required to comply with a grand jury subpoena. The Gov-

ernment maintains that “it would be anomalous to hold that

a corporation or partnership, no matter how small or per-

sonal, enjoys no fifth amendment rights, while a sole pro-

prietorship, no matter how large and impersonal, is

shielded from producing business records.” Brief for Appel-

lant at 13.

Although the Government's position has considerable an-

alytic appeal,’ it is clear that, under the present state of

the law, the fifth amendment may be invoked by a sole pro-

prietor regardless of the magnitude of his business. In Bel-

lis, supra, the Supreme Court made it clear that, in eval-

uating a fifth amendment claim, the critical factor was not

the size of the organization he records of which were being

subpoenaed, but rather the nat: of the capacity—either

personal or representational—with respect to which the

privilege was claimed. The Bel/is Court drew “a bright line

between organizations which have ‘a recognizable juridical

existence apart from [their] members,’” such as corpora-

tions or partnerships, and “those which do not,” such as

sole proprietorships. Jn re Grand Jury Empanelled

(Colucci), supra, 597 F.2d at 859 (quoting Jn re Grand

Jury Investigation, 483 F.2d 961, 962 (3d Cir. 1973), affd,

3 As the Court o. Appeals for the First Circuit recently observed, if

“lojnly the personal self-created business records in the possession of a

sole proprietor or practitioner ... enjoy a privilege against subpoena,”

and “only because of the form of business organization chosen by their

creator,” such a rule would create “an irrational hole in the constitu-

tional system of regulation of crime detection and would provide the

individual with a remedy far exceeding the scope of his constitutional

privilege.” J» re Grand Jury Proceedings (Martinez), 626 F.2d 1051,

1056 (ist Cir. 1980). The court proceeded to recommend that prosecu-

tors make use of various immunity statutes, in order to “[hJarmoniz/e]

the government's right of lawful access to the contents of personal

business records with the possessor’s right not to have the testimonial

implications of his submission used against him.” /d.; see Part II (D) of

this opinion, infra.

Bellis, supra). While extending the Wi/son line of cases to

a partnership, on the ground that a pa. »>rship constituted

an “organized, institutional activity,” 417 U.S. at 92, the

Justices explicitly declined to conclude that the same would

be true with respect to sole proprietorships:

It has long been established, of course, that the Fifth

Amendment privilege against compulsory self-incrim-

ination protects an individual from compelled produc-

tion of his personal papers and effects as well as

compelled oral testimony ... The privilege applies to

the business records of the sole proprietor or sole prac-

titioner as well as to personal documents containing

more intimate information about the individual's pri-

vate life.

Id. at 87-88 (emphasis added).

In a straightforward application of Bellis, this Court re-

jected a previous effort on the part of the United States to

construe the fifth amendment so as to distinguish between,

for example, a small, family-operated sole proprietorship,

and a large, corporate-like solely owned entity. Judge

Garth, writing for the Court, noted that the decisional law

clearly did not support such a distinction:

An individual who holds records in a representative ca-

pacity for a collective entity (e.g. a corporation, union

or partnership) may not assert a Fifth Amendment

privilege when he is compelled to produce those rec-

ords. On the other hand, a sole proprietorship has no

legal existence apart from its owner, and such records

may be protected from disclosure by the Fifth

Amendment.

In re Grand Jury Empanelled (Colucci), supra. 597 F.2d

at 859. See also In re Grand Jury Subpoena (Kent). 646

F.2d 968, 968 (5th Cir. 1981) (“[t}he fifth amendment pro-

tection applicable to a sole proprietor’s business records is

the same as the protection applicable to the records of an

individual”).

As the United States concedes, the appellee operates a

number of sole proprietorships. Following Bellis and In re

Grand Jury Empanelled (Colucci), therefore, we conclude

that the case law dealing with documents held by repre-

sentatives of a collective group does not defeat the appel-

lee’s claim of privilege under the fifth amendment. 597 F.2d

at 859. Accordingly, we proceed to consider whether that

claim should be honored, in view of the particular drcum-

stances of this case.

Before Fisher v. United States, 425 U.S. 391 (1976), the

prevailing rule was that “the Fifth Amendment privilege

against compulsory self-incrimination protects an individual

from compelled production of his personal papers and ef-

fects as well as compelled oral testimony,” Bellis, supra,

417 U.S. at 87. This principle, which had its genesis in the

English tradition,4 was endowed with constitutional status

nearly a century ago, when the Supreme Court held that

“any forcible and compulsory extortion of a man’s own tes-

timony or of his private papers to be used as evidence to

convict him of crime” violated the fifth amendment. Boyd

v. United States, 116 U.S. 616, 630 (1886). “Papers are [the

owner's]... dearest property,” the Court reasoned; forcing

their production “would be subversive of all the comforts of

society,” Jd. at 627-28.

Prior to Fisher, an unbroken line of cases repeated the

axiom that an individual's private papers were protected

from compelled disclosure by the fifth amendment. See

Fisher, supra, 425 U.S. at 419-20 (Brennan, J., concurring

in the judgment) (citing cases). Among the more prevalent

rationales for this principle was the notion that “the protec-

tion of personal privacy is a central purpose of the privilege

against compelled self-incrimination,” and that personal

privacy, properly understood, extended to the private writ-

ten word as well as to the private unspoken thought; after

all, under a contrary rule, “|t}he ability to think private

thoughts, facilitated as it is by pen and paper, and the abili-

ty to preserve intimate memories would be curtailed

through fear that those thoughts or the events of those

* See the cases and authorities cited by Judge Hunter in J re Grand

Jury Proceedings (Johanson), 632 F.2d 1033, 1043-44 (3d Cir. 1980).

memories would become the subjects of criminal sanctions

however invalidly imposed.” /d. at 416, 420 (Brennan, J.,

concurring in the judgment).

In Fisher, the majority seemingly diverged from these

precedents. Justice White, writing for himself and five

other Justices, noted that “[sJeveral of Boyd’s express or

implicit declarations have not stood the test of time,” as-

serted that “[t}he pronouncement in Boyd that a person

may not be forced to produce his private papers” had been

repeated in sub-equent decisions as mere “dictum,” and

concluded that “the prohibition against forcing the produc-

tion of private papers has long been a rule searching for a

rationale consistent with the proscriptions of the Fifth

Amendment against compelling a person to give ‘testimony’

that incriminates him.” 425 U.S. at 407-09. By focusing on

the precise words of the amendment—viz, that “|nJo per-

son ... shall be compelled in any criminal case to be a

witness against himself,” id. at 396 (emphasis by the

Court)—the Justices arrived at a three-factor restatement

of the applicability of the privilege against self-incrimina-

tion: the fifth amendment, rather than existing to shield

certain private writings from discovery by the Govern-

ment, “applies only when the accused is compelled to make

a testimonial communication that is incriminating,” id. at

408. In effect, the focus of the Court had shifted from pri-

vacy to the process of compulsion. See Note, The Rights of

Criminal Defendants and the Subpoena Duces Tecum: The

Aftermath of Fisher v. United States, 95 Harv. L. Rev.

683, 683 (1982).

Applying the new test to the facts of the Fisher case, the

Court concluded that requiring a defendant-taxpayer to

produce an accountant’s workpapers in the taxpayer's pos-

session® would act violate the fifth amendment, regardless

5 Actually, the workpapers were not in the taxpayer's possession,

but rather in the hands of his attorney, to whom the subpoena had

been directed. The Court considered the status of the records in the

taxpayer's hands, however, inasmuch as “{s ince |the| taxpayer trans-

ferred possession of the documents in question from himself to his at-

torney, in order to obtain legal assistance ... the papers, if unobtain-

able by summons from the client, are unobtainable by summons

directed to the attorney by reason of the attorney-client privilege.”

425 U.S. at 405.

10a

of how incriminating those papers might be to the taxpay-

er, because “the privilege protects a person only against

being incriminated by his own compelled testimonial com-

munications. ,” 425 U.S. at 409. In Fisher, the accountant’s

workpapers did not belong to the taxpayer, were not pre-

pared by him, and contained no testimonial declaration by

him; for that matter, inasmuch as their preparation was

“wholly voluntary,” the records “cannot be said to contain

compelled testimonial evidence, either of the taxpayers or

of anyone else.” Jd. at 409-10.

The Court in Fisher recognized, however, that there

were two situations where “[t}he act of producing evidence

in response to a subpoena” could be said to have “communi-

cative aspects of its own, wholly aside from the contents of

the papers produced.” 425 U.S. at 410-13. First, the act of

producing documents in some instances might amount to an

admission of the existence of such documents and their pos-

session or control by the taxpayer. Second, the act of pro-

duction might resemble the act of testimonial self-incrim-

ination if responding to a subpoena would in some sense

“authenticate” the documents produced. See United States

v. Beattie, 522 F.2d 267, 270 (2d Cir. 1975) (Friendly, J.)

(“{a] subpoena demanding that an accused produce his own

records is ... the equivalent of requiring him to take the

stand and admit their genuineness”). Because neither of

these situations was present in Fisher,* however, the

Court reiterated its conclusion that the fifth amendment

®*In Fisher, there was no fear that compliance with the subpoena

might provide the Government with the taxpayer's useful admission

that he was aware and in possession of the requested documents. The

Government knew that the accountant’s workpapers existed and knew

where they were located; therefore, the question was not one “of testi-

mony but of surrender.” Moreover, inasmuch as it is not illegal to seek

accounting advice, the taxpayer's mere possession of these papers did

not of its own aceord pose “any realistic threat of incrimination to the

taxpayer.” 425 U.S. at 411-12. The problem of implicit authentication

also was not present in Fisher: because the taxpayer, under the rele

vant rule of evidence, was not competent to authenticate the account-

ant’s workpapers, his mere production of those papers “express|es]

nothing more than the taxpayer's belief that the papers are those de-

scribed in the subpoena.” 425 U.S. at 413.

lla

did not prevent the Government from obtaining, through

subpoena, an accountant’s workpapers in the possession of

a taxpayer or his attorney.’

Fortified with this precedential perspective, we turn toa

consideration of the dispute at bar. There can be little

doubt that, had the grand jury subpoenas at issue here

been directed to the appellee’s personal papers, his asser-

tion of the fifth amendment would be in order. To be sure,

the Supreme Court in Fisher explicitly left open the Boyd

question, viz, “{wlhether the Fifth Amendment would

shield the taxpayer from producing his own tax records [as

opposed to an accountant’s workpapers] in his possession.”

425 U.S. at 414 (emphasis added). But this Court, in

accord with the Second Circuit,’ already has concluded that

7 In the aftermath of Fisher and Andresen v. Mary'tand, 427 U.S.

463 (1976) (holding that the seizure of papers, either public or private,

pursuant to a valid search warrant, does not violate the fifth amend-

ment, inasmuch as their possessor was not compelled “to aid in the dis-

covery, production, or authentication of incriminating evidence,” id. at

474), a number of commentators assumed that the Court had sounded

the death-knell for the Boyd private-papers rule. See, e.g., C. White-

bread, Criminal Procedure: An Analysis of Constitutional Cases and

Concepts 279-80 (1980) (“By ahering to a narrow concept of what con-

stitutes compulsion, instead of to the policies underlying the right, the

Supreme Court has stripped the protection of the privilege from books

and papers, the written counterpart of the “inviolable human personal-

ity’”); Gerstein. The Demise of Boyd: Self-Incrimination and Private

Papers in the Burger Court, 27 U.C.L.A. L. Rev. 343 (1979); Note,

Formalism, Legal Realism, and Constitutionally Protected Privacy

Under the Fourth and Fifth Amendments, 9 Harv. L. Rev. 945

(1977). In fact, however, as discussed in the text infra, the Court de-

clined to decide the “private papers” issue of Boyd. Moreover, lower

federal courts, including this Court, have continued to recognize

Boyd's protection-of-private-papers principle. See Jn re Grand Jury

Proceedings (Johanson), 632 F.2d 1033, 1044 n. 23 (3d Cir. 1980) (“Al-

though some commentators have predicted the demise of this fifth

amendment right, ... we explicitly reject this prophecy”); Note, The

Rights of Criminal Defendants and the Subpoena Duces Tecum: The

Aftermath of Fishery, United States, 95 Harv. L. Rev. 683, 692-94

(1982).

* See In re Grand Jury Subpoena Duces Tecum (April 23, 1981), 557

F.2d 5, 8 n.1 (2d Cir. 1981), decision on remand. 522 F. Supp. 977, 979

(S.D.N.Y. 1981); United States v. Beattie, 541 F.2d 329, 331 (2nd Cir.

1976).

l2a

the fifth amendment privilege applies, even after Fisher, to

an individual's production of his private papers in response

to a subpoena. In J» re Grand Jury Proceedings (Johan-

son), 682 F.2d 1083 (3d Cir. 1980), relying primarily on

Boyd and its progeny, we concluded—or, more accurately,

reaffirmed our conclusion in light of Fisher—that one of

the purposes of the fifth amendment was to ensure an indi-

vidual’s right “to a private enclave where he may lead a pri-

vate life” (quoting Murphy v. Waterfront Commission, 378

U.S. 52 (1964) ).° Noting that no case as of yet had held that

the fifth amendment did not protect an individual’s personal

papers from compelled production, Judge Hunter observed

that the “failure to continue to preserve this right, which

we believe basic, would be a step backward in what has

been a long and bitterly contested battle to accord rights to

persons who stand accused of crime.” 682 F.2d at 1044 & n.

23. Accordingly, the Court declined to enforce a subpoena

that sought to obtain an individual's private pocket diaries.

In ve Grand Jury Proceedings (Johanson), then, at least

until overruled by an in bane Court, forecloses considera-

tion of whether the appellee's private papers are subject to

subpoena by a grand jury.

It would appear from the face of the subpoenas that near-

ly all of the apellee’s records demanded by the Government

are of a business, as opposed to a personal, nature, al-

though the district cour. as made no finding on this score.

The United State: argues that, whatever the protection af-

forded by the courts to personal documents, the business

records of a sole proprietorship should not be immune from

compelled production for purposes of a criminal investiga-

tion. The Government stresses that no showing has been

made that any of the documents subpoenaed here were pre-

pared oy the appellee, and contends that the items re-

quested are of the type obtained, pursuant to subpoena,

* But see Note, The Rights of Criminal Defendants and the Subpoe-

na Duces Tecum: The Aftermath of Fisher v. United States, supra

note 7, at 629-94 (criticizing J» re Grand Jury Proceedings (Johanson)

as “inconsistent with Fisker,” inasmuch as “the change in fifth amend-

ment jurisprudence seems to leave no room for an exception based on a

privacy rationale’).

i3a

from corporations and partnerships. See United States v.

Osborn, 561 F.2d 1334, 1338-39 (9th Cir. 1977) (holding that

the compelled production of certain of an individual's

business documents “involves no testimonial self-

incrimination”).

Our recent decision in 7CC v. Gould, 629 F.2d 847 (3rd

Cir. 1980), cert. denied, 449 U.S. 1077 (1981, however,

would appear to blunt this angle of attack, at least in this

Circuit. Although Gou/d is not strictly analogous," the

Court there squarely considered the applicability of the

fifth amendment privilege with respect to the business rec-

ords of a sole proprietor. Judge Garth, speaking for the

Court, began by quoting Bel//is to the effect that “(the

privilege applies to the business records of the sole proprie-

tor or sole practitioner as well as to [his] personal docu-

ments.” 629 F.2d at 858 (quoting Bellis, supra, 417 U.S. at

87-88). While recognizing that this “sweeping” Bellis-

derived-from-Boyd rule may have been undercut by Fish-

er, the opinion nonetheless concluded that the rule still was

good law:

{Whhere the records are not those of a collective en-

tity, and are not held in a representative capacity, but

are rather records of an individual proprietorship not

separate or distinct from the sole proprietor, ... nei-

ther Bellis nor any case to date holds that such rec-

ords are without the individual proprietor’s fifth

amendment privilege.

629 F.2d at 859 (footnote omitted). The Court took pains to

note that “Fisher, ... Bellis, and the cases cited therein

may well presage a trend toward elimination of the fifth

amendment privilege for all business records, even when

the proprietor is required to produce and thus implicitly au-

thenticate them.” Nevertheless, Gould declared, “such a fi-

nal break with Boyd is not for us to make. As we read the

dures. Nonetheless, in that part of the opinion with which we are con-

cerned, the Court assumed that the ICC could proceed only to the ex-

tent permitted by the fifth amendment. !t was necessary, therefore,

for the Court to consider the protection afforded by that amendment to

a sole proprietor’s business records.

l4a

Supreme Court's most recent pronouncements, the fifth

amendment still affords |a sole proprietor| ... the same

protection for |the proprietorship's| business papers as he

claims for his own personal papers.” Id. at 859 n.22 (em-

phasis added). See also ln re Grand Jury Subpoena (Kent),

646 F.2d 963, 968 (5th Cir. 1981); J» re Oswalt, 607 F.2d

645, 647-48 (Sth Cir. 1979). Gould, then, stands for the

proposition that an individual's business papers, as well as

his personal records, cannot be subpoenaed by a grand

jury."

Furthei:aore, even if Johanson and Gould were con-

strued more narrowly than we have read them, compelling

the appellee, under the circumstances of this case, to re-

spond to the grand jury's subpoenas would bring about an

impermissible incriminating “testimorial communication,”

as that concept is defined and employed in Fisher. To be

sure, the documents requested here, like those sought in

Fisher, were voluntarily pcepared, and therefore “cannot

be said to contain compelled testimonial evidence” in and of

themselves. See Fisher, supra, 425 U.S. at 40910. But the

Supreme Court in Fisher went (o great lengths to demon-

strate that, in certain situations, the very act of producing

subpoenaed records might amount to an incriminating dec-

laration. See id. at 410-13; see a/so id. at 430-34 (Marshall,

J., concurring in the judgment). And such a situation, we

believe, is present in the dispute at bar.

In Fisher, the Supreme Court stressed that the account-

ant’s workpapers in the taxpayer's possession did not be-

"' We recognize that language in /» re Grand Jury Empanelled

(Colucci), 597 F.2d 851, 862 (2d Cir. 1979)— which, it should be real-

ized, predated Gou/d—can be read to limit the availability of the fifth

amendment privilege with respect to business records. The holding in

that case, however—that the business records of a sole proprietor in

the possession of another person can be subpoenaed by a grand

jury—is entirely consistent with the result we reach today. The docu-

ments sought by the grand jury here, unlike those demanded in

Colucci, are in the possession of the appellee; and, clearly, “{i}t is the

holder of the papers, rather than the owner, who is subjected to gov-

ernmental compulsion by a swhpoena duces tecum, and therefore only

the holder of the papers may assert that the subpoena violates his

right under the Fifth Amendment.” 597 F.2d at 862.

15a

long to the taxpayer, were not prepared by him, and did

not contain his testimonial declaration. Obviously, such can-

not be said about the documents in the present controver-

sy, inasmuch as the papers the appellee seeks to protect

belong to him and in all likelihood contain (possibly incrim-

inating) declarations by him. More to the point, however, is

the district court's observation that forcing the appellee to

produce this papers under the circumstances present here

would give rise to “communicative aspects of its own”

(quoting Fisher, 423 U.S. at 410). The mere act of

producing the documents may be considered a communica-

tion having testimonial significance as “an admission that

the subpoenaed records exist” (quoting Jn re Grand Jury

Empanelled (Colucci), supra, 597 F.2d at 861), or as a “be-

lief that the papers are those described in the subpoena”

(quoting Fisher, 425 U.S. at 410). In Fisher, “(tjhe exist-

ence and location of the papers | was] a foregone conclusion

and the taxpayer addjed] little or nothing to the sum total

of the Government's information by conceding that he in

fact ha|d| the papers.” 425 U.S. at 411; see also United

States v. Praetorius, 622 F.2d 1054, 1062-63 (2d Cir. 1979),

cert. denied, 449 U.S. 860 (1980) (ordering production of

document because its existence and location were known by

the Government). In the matter sub judice, however, we

find nothing in the record that would indicate that the

United States knows, as a certainty, that each of the myri-

ad documents demanded by the five subpoenas in fact is in

the appellee's possession or subject to his control. The most

plausible inference to be drawn from the broad-sweeping

subpoenas is that the Government, unable to prove that the

subpoenaed documents exist—or that the appellee even is

somehow connected to the business entities under investiga-

tion'*—is attempting to compensate for its lack of knowl-

'2 At oral argument, counsel for the appellee asserted that the Gov-

ernment hitherto has been unable to establish a connection between

the appellee and the businesses with respect to which documents were

sought by the grand jury. To the extent, then, that ordering the appel-

lee to comply with the subpoenas would furnish the United States with

a “missing link” in its evidentiary chain—i.e., information that the ap-

pellee in fact operates the businesses and holds the bank accounts un-

der review—a further incriminating testimonial communication would

arise.

l6a

edge by requiring the appellee to become, in effect, the pri-

mary information against himself. See Note, The Rights of

Criminal Defendants and the Subpoena Duces Tecum: The

Aftermath of Fisher v. United States, supra, at 685 n.23

(“a subpoena duces tecum is the only alternative when au-

thorities are unsure of the existence or the location of evi-

dence”). As we read Fisher, however, this the fifth amend-

ment does not permit the Government to do.

Moreover, disclosure would contravene the concern evi-

denced in Fisher that persons not be compelled to authenti-

cate self-incriminating documents. In Fisher, the Court

noted that the accountant’s workpapers could be authenti-

cated only by the accountant; thus, “[t}he documents would

not be admissible in evidence against the taxpayer without

authenticating testimony” in any event, Fisher, 425 U.S. at

413. Here, however, many (although certainly not all) of

the subpoenaed records—such as, for example, the ledgers,

journals, contracts, correspondence, and memoranda—

most likely were prepared by the appellee. The record con-

tains no explanation by the United States as to how docu-

ments of this sort could be authenticated without the appel-

lee’s explicit or implicit participation."* As the district

court observed in this connection,

the government can give no assurances that the act of

turning over the documents will not constitute incrim-

inating admissions against [the appellee] either before

the grand jury or at a subsequent trial, if he is in-

dicted. The government argues that the existence,

ion and authenticity of the documents can be

proved without [the appellee's} testimonial communi-

cation, but it cannot satisfy this court as to how that

representation can be implemented to protect [the ap-

pellee] in subsequent proceedings.

9 See In re Grand Jury Proceedings (Martinez), 626 F.2d 1051, 1055

(ist Cir. 1980) (“In many cases ... the authentication of the document,

which may be proven by an official's testimony that he received them

from the individual who prepared and possessed them, will provide a

necessary link to incriminating evidence contained in the documents”):

United States v. Plesons, 560 F.2d 890, 892-3 (8th Cir. 1977) (inerim-

inating documents that could have been protected, had fifth amend-

ment privilege properly been asserted, were introduced at tria! and

identified as records seized from the defendant).

17a

Appendix at 98 (footnote omitted). Under these crceum-

stances, we are unable to say, as did the Court in Fisher,

that responding to the subpoenas “would not appear to rep-

resent a substantial threat of self-incrimination.” 425 U.S.

at 413.

Accordingly, we hold, therefore, that enforcement of

these subpoenas would result in a compelled testimonial

communication, an outcome neither compatible with the

fifth amendment nor consonant with Fisher.* Our decision

in no way impinges on the legitimate investigatory activi-

ties of law enforcement officials. For example, many of the

records sought from the appellee in this case no doubt could

he obtained by the Government from other sources. Simi-

larly, the appellee would have no right to invoke the fifth

amendment if the documents involved were not in his actual

or constructive possessi n. Couch v. Unite! States, 409

U.S. 322 (1973). Nor could he complain if the documents

had been prepared by or obtained from a third party, Fish-

er, or if they were seized from his office by investigators

bearing valid warrants, Andresen v. Maryland, 427 U.S.

463 (1976). In this case, however, the Government in effect

asks the appellee himself to provide it with any and all doc-

uments in his possession that might incriminate himself. It

is precisely this sort of expedition that the fifth amendment

traditionally has been interpreted to prevent.'®

4 J» re Grand Jury Empanelled (Markowitz), 603 F.2d 469 (3d Cir.

1979), relied upon by the United States, is not to the contrary. That

case, following and applying the rule of Fisher, found no testimonial

communication where an individual was compelled to turn over poten-

tially incriminating business documents which he allegedly held in his

capacity as an attorney for certain clients. :¢. at 477. The situation in

Markowitz, therefore, bears more resemblance to those in Bellis

‘where partnership records were deemed to be held in a representa-

tional capacity) and in Fisher (where Uie taxpayer attempted to pro-

tect records that he had not prepared and of which he had not retained

possession) than it does to the matter under consideration here (inas-

much as the appellee's assertion of the fifth amendment is made in a

personal, as opposed to a representational, capacity, and is made with

respect to documents allegedly ‘i: his possesion and control).

'® Nothing in the above diceussion should be taken to cast doubt

upon the distnet court's holaing—which we affirm-—that these sub-

poenaed documents in the appellee's possession which are required e-

18a

Rather than identifying specific documents the produc-

tion of wh! h might prove to be incriminating, the appellee

interposed a fifth amendment objection with respect to all

of the documents subpoenaed by the grant jury. In Gould,

supra, we observed that “a blanket citation of the privilege

against self-incrimination will not suffice as a valid claim of

the privilege.” 629 F.2d at 861. The United States contends

that the appellee's “blanket” assertion of any fifth amend-

ment rights he might have violates the rule announced in

Gould. **®

There are a number of appropriate responses to the Gov-

ernment’s position. Gou/d was a civil case, and the authori-

ties cited therein for the above-quoted proposition also

were civil cases. See, ¢e.g., National Life Insurance Co. v.

Hartford Accident & Indemnity Co., 615 F.2d 595, 596 (3d

Cir. 1980) (“a witness in a civi/ proceeding may not invoke

a blanket fifth amendment privilege”) (emphasis added). In

the criminal context, however, “the proponent of a fifth

amendment privilege is required “to move forward only to

the limited extent requisite’ to show that the privilege is

properly claimed.” Jn re Grand Jury Empanelled (Marko-

witz), 603 F.2d 469, 477 (3d Cir. 1979) (quoting Jn re

United States v. Hoffman Can Corp., 373 F.2d 622, (3d

Cir. 1967)). More important, the Government already has

conceded that all of the papers it seeks are potentially

incriminating.'? Additionally, the appellee contends, and

produced for the grand jury's inspection. S:« Shapiro v. United

States, 335 U.S. 1, 3311948), J» re Grand Jury Proceedings (McCoy),

601 F.2d 162, 168-71 (Sth Cir. 1979). Indeed, the appellee does not

even contest this paint.

by the appellee We suggest that future appellate review of questions

relating tc the possible overbreadth of motions to quash would be

greatly assisted if such requests were preserved in written form.

7? See of proceeding (Jan. 12, 1981), Appendix at 20

THE COURT: Do you also concede that the documents which you

seek wil] or may incriminate |the appellee!’

MR. ULWICK (for the Unived States): Yes, your donor.

19a

correctly we believe, that even if he originally did advance

a blanket objection, in any event that problem no longer re-

mains, inasmuch as the district court compelled the produc-

tion of all records required to be kept by law, thereby

reducing the contested documents to those business records

kept privately by the appellee and alleged by the Govern-

ment to be incriminating. In sum, it is our view that, in the

context of the present dispute, the appellee did not improp-

erly assert his fifth amendment rights. '*

Finally, the United States argues that the district court

erred in not compelling the appellee to produce the subpoe-

naed documents subject to “the functional equivalent of use

immunity with respect to the act of production.” Under this

arrangement, presumably the appellee would turn over the

requested records to the Government, which in turn would

be obligated not to use the appellee’s act of production

against him in any way.

We are unpersuaded by the Government’s proposition.

As the appellee stresses, although the Government, on a

number of occasions, suggested to the district court that

there were means by which the appellee’s act of production

could be immunized, no procedure ever was agreed upon

and no formal immunization offer under 18 U.S.C. § 6002

or § 6003 was advanced. Given this failure on the part of

the Government to identify with particularity the immunity

4 Although the point may be obvious, we note that this appeal does

not involve the question of the appropriate showing required of an in-

dividual who invoxes the fifth amendment in response to a court order

directing the production of documents, thereby risking the possibility

of that person’s citation for civil contempt. See. e.g., United States v.

Rylander, 656 F.2d 1313, 1318-20 (9th Cir. 1981). cert. granted, 50

U.S.L.W. 3858 (U.S. Apr. 26, 1982).

20a

proposal it envisioned,’ we cannot say that the district

court erred in rejecting this approach, especially in view of

the court’s finding that “the government can give no assur-

ances that the act of turning over the documents will not

constitute incriminating admissions against [the appellee]

either before the grand jury or at a subsequent trial.” Ap-

pendix at 98; see United States v. Garcia, 544 F.2d 681, 685

n. 4 (3d Cir. 1976).

Because “no party requested the district court to award

such immunity,” and in view of the Court’s traditional re-

luctance “to intrude into an area which should be more ap-

propriately left to prosecutorial discretion,” see In re

Grand Jury Matter, 673 F.2d 688, 695-96 (3d Cir. 1982)

(Sloviter, J., concurring),.we decline to reach the more

general question whether an award of use immunity by the

Government, designed to override an individual's fifth

amendment privilege with respect to potentially incriminat-

ing documents in his possession, is permissible under the

Constitution.?°

'® Even on this appeal, the United States has described only vaguely

the contours of any such immunity arrangement. In its brief, the ap-

pellant argues that the possibility.

the grand jury would draw adverse inferences from (the appel-

lee’s| act of production ...cou/d be eliminated ... by requring

[the appellee] to turn over the documents to the district court, to

the prosecutor, a federai agent, or his own attorney ... A/ferna-

tively, the grand jury cou/d be instructed by the court or by the

prosecutor to draw no inferences from the act of production.

Brief for Appellant at 16-17 (emphasis added).

2° See In re Grand Jury Proceedings (Martinez), 626 F.2d 1051,

1056-59 (Ist Cir. 1980) (remanding to allow prosecution opportunity to

immunize authentication implicit in the act of production of docu-

ments); see also Note, supra note 9, at 688-92 (commenting favorably

on the First Circuit's immunity approach). It could be argued, howev-

er, that the immunity arrangement emphasizes only the authentication

concern identified in Fish, while misprizing the concern that on occa-

sion the act of production itself could constitute a testimonial communi-

cation. Justice Marshall elaborated upon this point in his Fisher

concurrence:

The Court's theory will also limit the prosecution's ability to use

documents secured through a grant of immunity. If authentica-

tion that the document produced is the document demanded were

the only testimony inherent in production, immunity would be a

2la

For the foregoing reasons, the order of the district court

will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

useful tool for obtaining written evidence ... The Court's recog-

nition that the act of production also involves testimony about

the existence and possession of the subpoenaed documents man-

dates a different result. Under the Court's theory, if the docu-

ment is to be obtained the immunity grant must extend to the

testimony that the document is presently in existence. Such a

grant will effectively shield the contents of the document.

Fisher, supra, 425 U.S. at 433-34 (Marshall, J., concurring in the

judgment).

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1782

IN THE MATTER OF: GRAND JURY EMPANELLED

MARCH 19, 1980

UNITED STATES OF AMERICA, APPELLANT

SUR PETITION FOR REHEARING

EN BANC

Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS,

HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER,

and BECKER, Circuit Judges, and VAN ARTSDALEN,

District Judge *

The petition for rehearing filed by Appellant in the above

entitled case having been submitted to the judges who par-

ticipated in the decision of this court and to all the other

available circuit judges of the circuit in regular active serv-

ice, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges of

the circuit in regular active service not having voted for re-

hearing by the court in banc, the petition for rehearing is

denied.

Judge Gibbons dissents from the denial.

By the Court,

/s/ ARLIN M. ADAMS

Circuit Judge

Dated: Aug. 10, 1982

-*Hon. Donald W. VanArtsdalen, United States District Court for

the Eastern District of Pennsyivania, sitting by designation.

23a

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Miscellaneous No. 80-538

| Original filed February 4, 1981)

IN THE MATTER OF THE

GRAND JURY EMPANELLED

MARCH 19, 1980

SAROKIN, District Judge

Appearances:

WILLIAM W. ROBERTSON, United States Attorney

By JAMES P. ULwick, Assistant United States Attorney

970 Broad Street

Newark, New Jersey 07102

CHECKI AND POLITAN, Es@s.

Attorneys for [John Doe}

By GLENN T. LEONARD, Esq.

37 Park Avenue

Lyndhurst, New Jersey

The court has been called upon to determine the extent

to which the Fifth Amendment allows the target of a grand

jury investigation to resist the production of business rec-

ords sought by the grand jury by a subpoena duces tecum.

The issue arises upon the motion of the target [John Doe] to

quash five subpoenas directing him to turn over documents

and records relating to the operation of several businesses

of which he is the sole proprietor. For the reasons stated

below, the motion is granted in part and denied in part.

I. BACKGROUND

In the fall of 1980, a United States Grand Jury began an

investigation into alleged fraudulent activity relating to the

submission of bids, bid bonds, and price quotes by various

24a

companies to Hudson County and municipal entities of

Hudson County. In addition, the grand jury is delving into

the awarding of bids and contracts by Hudson County and

the municipalities to these companies, and the alleged di-

version of income by these companies to circumvent the In-

ternal Revenue laws. The investigation to date has cen-

tered around the involvement of Mr. [Doe] and of his

several companies which do business with these municipal

entities. Each of the companies involved is a sole proprie-

torship owned by Mr. [Doe].

On November 19, 1980, the grand jury issued two sub-

poenas to Mr. |Dce} requiring production of (1) the tele

phone toll records of several companies of which he is a

principal, and (2) “all records including but not limited to

bank statements, cancelled checks, check stubs and deposit

tickets, for the period January 1, 1977 to present” for four

accounts held by Mr. |Doe} or his companies.

On November 25, 1980, the grand jury issued a subpoena

to Mr. [Doe] calling for production of “any and all records

as per the attached Schedule A for [a named company] for

the period January 1, 1976 to present.” Schedule A lists

twenty-eight items, including such documents as general

ledgers, general journals, paid bills, invoices; payroll rec-

ords, contracts and copies of contracts (including all retain-

er agreements), tax returns, safe deposit box records, all

W-2 forms for each partner, associate and employee and

workpapers. Another subpoena was issued on December

19, 1980, seeking access to a laundry list of documents

relating to [a named company).

Finally, on December 29, 1980, the grand jury directed

[Doe] to produce “any and all bank statements and can-

celled checks for the period January 1, 1976 to present” for

accounts of his companies maintained at an off-shore bank.

Mr. [Doe] is resisting production of these documents and

has filed the instant application to quash the five subpoe-

nas, .elying upon his Fifth Amendment right against self-

incrimination.!

' Mr. [Doe] does not rely upon the Fourth Amendment in resisting

the subpoenas. Cf. United States v. Miller, 425 U.S. 435 (1976) (no le-

gitimate expectation of privacy in bank statements or in negotiable in-

struments used in commercial transactions).

is"

I]. DISCUSSION.

The Fifth Amendment provides that “No person shall be

compelled in any criminal case to be a witness against him-

self.” Although the Fifth Amendment does not protect the

records of corporations, unincorporated associations or

partnerships, a sole proprietor can invoke the privilege to

his benefit. Bellis v. United States, 417 U.S. 85, 87-88

(1974); 7.C.C. v. Gould, 629 F.2d 847, 859 n.22 (3d Cir.

1980); In Re Grand Jury Empanelled (Colucci), 597 F.2d

851, 859 (3d Cir. 1979); United States v. Doe, 628 F.2d 694,

695 (Ist Cir. 1980); Jn Re Grand Jury Proceedings, 601

F.2d 162, 166 (5th Cir. 1979). Because the documents and

records pertain to businesses owned by Mr. [Doe] as sole

proprietor, the court must determine whether the Fifth

Amendment rights of Mr. [Doe] would be infringed by en-

forcement of the grand jury subpoenas.

The Fifth Amendment is implicated in a claim of privilege

relating to the production of business records enly when an

individual “is compelled to make a testimonial communica-

tion that is incriminating.” Fisher v. United States, 425

U.S. 391, 408 (1976). Therefore, before a district court may

quash a subpoena directing the production of documents or

records, it

“must be satisfied that three requirements have been

met: (1) compulsion of a (2) testimonial communica-

tion that is (3).incriminating.

In Re Grand Jury Empanelled (Colucci), 597 F.2d 851,

860 (3d Cir. 1979) (empha is in original). Because the sub-

poena supplies the compulsion and it is conceded by the

government that the material sought is or may be incrim-

inating, the focus in this case is on the second require-

ment—that there be a testimonial communication.

In so focusing, the relevant inquiry is not whether the

subpoenaed documents on their face reveal incriminating

communications, but whether the act of producing the doc-

uments has communicative aspects which warrant Fifth

Amendment protection. Fisher v. United States, 425 U.S.

391 (1976). In yielding to the command of the subpoena,

Mr.{Doe} may be required to make any one of several com-

munications. The mere act of producing the documents may

26a

be considered “a communication of testimonial significance

as an admission that the subpoenaed records exist and that

they are authentic.”” Jn Re Grand Jury Empanelled

(Colucci), 597 F.2d 851, 861 (3d Cir. 1979); Andresen v.

Maryland, 427 U.S. 463, 475 (1976) (“the Fifth Amendment

may protect an individual from complying with a subpoena

for the production of his personal records in his possession

because the very act of production may constitute a com-

pulsory authentication of incriminating information.”). In

addition, the act of production may indicate a belief that the

papers produced are those described in the subpoena. Fish-

er, 425 U.S. at 410.

With few exceptions, enforcement of the subpoenas

would compel Mr. {Doe} to admit that the records exist,

that they are in his possession, and that they are authentic.

These communications, if made under compulsion of a court

decree, would violate Mr. | Doe's} Fifth Amendment rights.

The government insists, however, that it has no need for

the testimony of Mr. |Doe] to prove the possession, exist-

ence or authenticity of the documents, and that his Fifth

Amendment rights are therefore not involved. If the act of

production is testimonial, it does not cease to be so because

of independent proof of the communications contained

therein. Mr. {Doe's} constitutional rights should not rise or

fall with the strength of the government's case. Moreover,

the government can give no assurances that the act of

turning over the documents will not constitute incriminat-

ing admissions against Mr. [Doe] either before the grand

jury or at a subsequent trial, if he is indicted.? The govern-

ment argues that the existence, possession and authenticity

of the documents can be proved without Mr. [Doe's] testi-

monial communication, but it cannot satisfy this court as to

how that representation can be implemented to protect the

witness in subsequent proceedings. Because the court con-

cludes that use of this testimony against Mr. [Doe] for any

? The government's position is that although Mr. |Doe’s| testimony

would not be needed in proving authentication, existence or possession

of said documents, the communications nevertheless would be a proper

subject of cross-examination at trial, if Mr. |Doe} decided to testify in

his own behalf.

27a

purpose would infringe his right against self-incrimination,

the motion to quash the subpoena is, for the most part,

granted.

There are a number of items requested by the grand jury

for which the Fifth Amendment does not offer protection.

Records and documents which are required by law to be

kept, or to be disclosed to a public agency, are outside the

scope of constitutional protection. J» Re Grand Jury Pro-

ceedings, 601 F.2d 162, 168 (5th Cir. 1979). Therefore, inso-

far as the subpoenas demand the production of documents

falling into this category, e.g. tax returns and W-2 state

ments, Mr. [Doe] must comply. The motion to quash in all

other respects is granted.

/s/ tl. Lee Sarokin

H. LEE SAROKIN

United States District Judge

Date: February 4, 1981

28a

APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

to [John Doe}

You are hereby commanded to appear in the United

States District Court for the District of New Jersey at

Room 730, Federal Building, 970 Broad St., in the city of

Newark on the 3rd day of December 1980 at 10:00 o'clock

A.M. to testify before the Grand Jury and bring with you!

any and all telephone toll records for [five named

companies] for the period January 1, 1977 to present.

This subpoena is issued on application of the United

States.

William W. Robertson

United States Attorney

BY: Michaet B. HimMMeL

Assistant U.S. Attorney

970 Broad St., Newark, N.J. 07102

(201) 645-6556

November 19, 1980

ANGELO W. Locascio

Clerk.

By /s/ JEAN CHERUBINI

Deputy Clerk

‘Strike the words “and bring with you” unless the subpoena is to re-

quire the procuction of documents or tangible things, in which case the

documents and things should be designated in the blank space provided

for that purpose.

RETURN |OMITTED)

29a

Dear Witness:

The attached is a subpoena for your appearance before

the Federal Grand Jury in Newark, New Jersey, which is

investigating alleged violations of Title 18, United States

Code, and Title 26, United States Code.

You have been subpoenaed as a witness in the belief that

you may have information which will aid the Grand Jury in

its investigation. Department of Justice policy requires that

all witnesses be advised of the following:

You may refuse to answer any question if a truthful

answer to the question would tend to incriminate you.

Anything that you do say may be used against you by

the Grand Jury or in a subsequent legal proceeding.

If you have retained counsel, the Grand Jury will per-

mit you a reasonable opportunity to step outside the

Grand Jury room to consult with counsel if you do

desire.

If you have any questions, please do not hesitate to

contact Michael B. Himmel, AUSA at 645-6556.

30a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

to |John Doe}

You are hereby commanded to appear in the United

States District Court for the District of New Jersey at

Newark, N.J. Federal Building, 970 Broad Street, Rm. 730

in the city of Newark on the 3rd day of December 1980 at

10:00 o'clock A.M. to testify before the Grand Jury and

bring with you! any and all records including but not limit-

ed to bank statements, cancelled checks, check stubs and

deposit tickets, for the period January 1, 1977 to present

for the accounts listed on the attached Schedule A.

This subpoena is issued on application of the United

States.

WILLIAM W. ROBERTSON

United States Attorney

BY: MicHAeL B. HIMMEL

Assistant U.S. Attorney

970 Broad St., Newark, N.J. 07102

(202) 645-6554

Novemmber 19, 1980.

ANGELO W. Locascio

Clerk.

/s/ JEAN CHERUBINI

Deputy Clerk.

! Strike the words “and bring with you” unless the subpoena is to re-

quire the production of documents or tangible things, in which case the

documents and things should be designated in the blank space provided

for that purpose.

RETURN (OMITTED)

3la

SCHEDULE A

. Banco De Santander-Puerto Rico

Account #{[* * * * *]

Entitled [a named company]

c/o Mrs. [John Doe] and/or [John Doe] P.O. Box

(allan *

Mayaguez, Puerto Rico 00708

. Royal Bank of Canada-Puerto Rico

Account @(* * * * *and* * * * *]

Entitled [a named company}

P.O. Box [* * * * *], Mayaguez, Puerto Rico 00708

. Banco De San Juan-Puerto Rico

Account #[{* * * * *]

Entitled [a named company},

{* * * * *), Hato Pey, Puerto Rico 00918

. Banco De Santander-New York, New York

Account #[* * * * *]

{Same Warning as on page 29a, supra}

32a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

to [John Doe}

You are hereby commanded to appear in the United

States District Court for the District of New Jersey at Fed-

eral Building, 970 Broad St., Room 730 in the city of

Newark on the 17th day of December 1980 at 10:00 o'clock

A.M. to testify before the Grand Jury and bring with you!

any and all records as per the attached Schedule A for [a

named company] for the period January 1, 1976 to present.

This subpoena is issued on application of the United

States

WILLIAM W. ROBERTSON,

United States Attorney

By: MICHAEL B. HIMMEL,

Assistant U.S, Attorney

970 Broad St., Newark, NJ

201/645-6556

DATE NOVEMBER 25, 1980

ANGELO W. Locascto

Clerk.

By JEAN CHERUBINI

Deputy Clerk

Strike the words “and bring with you” unless the subpoena is to re-

quire the production of documents or tangible things, in which case the

documents and things should be designated in the blank space provided

for that purpose.

RETURN (OMITTED)

BSE SSS

33a

SCHEDULE “A”

General! ledgers

General journals

Cash disbursement journals

Petty cash books and vouchers

Purchase journals

Vouchers

Paid bills

Invoices

Cash receipts journal

Billings

. Bank statements

Cancelled checks and check stubs

. Payroll records

. Contracts and copies of contracts, including all retainer

agreements

. Financial Statements

Bank deposit tickets

Retained copies of partnership income tax returns

. Retained copies of payroll tax returns

Accounts payable ledger

Telephone company statement of calls and telegrams,

and all telephone toll slips.

Records of ali escrow, trust or fiduciary accounts main-

tained on behalf of clients

Safe deposit box records

Records all purchases and sale of all stocks and bonds.

A complete list of all partners, associates and employ-

ees, together with their home addresses.

All W-2 forms of each partner, associate and employee

Workpapers.

Copies of Tax Returns

34a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

To [a named company]

Attn: Any authorized Officer or Representative

You are hereby commanded to appear in the United

States Court for the District of New Jersey at Federal

Building, 970 Broad Street—Rm. 730 in the city of Newark

on the 12th day of January 1981 at 10:00 o’clock A.M. to

testify before the Grand Jury and being with you! any and

all books, records and documents as per the attached

Schedule A for the period January 1, 1976 to present.

This subpoena is issued on application of the United

States.

WILLIAM W. ROBERTSON

United States Attorney

By: MICHAEL B. HIMMEL

Assistant U.S. Attorney

970 Broad St., Newark, N.J. 07102

(201) 645-6556

ANGELO W. LOCASCIO

Clerk

By /s/JEAN CHERUBINI

Deputy Clerk

Date: DECEMBER 19, 1980

'Strike the words “and bring with you” unless the subpoena is to re-

quire the production of documents or tangible things in which case the

document and things should be designated in the blank space provided

for that purpose.

RETURN (OMITTED)

Fe et 44 4-4-4

SP LSRPNAASMP KN RK SOHC MNAN WN»

35a

SCHEDULE “A”

Generai ledgers.

Ge «al journals.

Cash disbursement journals.

Cash receipts journals.

Vouchers.

Paid bills.

Invoices.

Billings.

Bank Statements.

Cancelled checks and check stubs.

Payroll records.

. Contracts and copies of contracts.

. Subcontracting agreements and purchase orders.

. Financial statements.

Bank deposit tickets.

Retained copies of income tax returns.

Retained copies of payroll tax returns.

Purchase journals.

Accounts payable ledgers.

Accounts receivable ledgers.

. Stock transfer book.

Corporate minutes.

Corporate charter.

Correspondence and memoranda.

Bids, Bid Bonds and contracts.

36a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

to [John Doe}

You are hereby commanded to appear in the United

States District Court for the District of New Jersey at Fed-

eral Building, 970 Broad Street—Rm. 730 in the city of

Newark on the 7th day of January 1981 at 10:00 o'clock

A.M. to testify before the Grand lury and bring with you!

any and all bank statements and cancelled checks for the

period January 1, 1976 to present for the accounts of [two

named companies} at the Royal Bank of Canada,

Georgetown, Grand Cayman Islands.

This subpoena is issued on application of the United

States.

WILLIAM W. ROBERTSON

United States Attorney

®y: MICHAEL B. HIMMEL

Assistant U.S. Attorney

970 Broad St., New York, N.J. 07102

(201) 645-6556

ANGELO W. Locascto

Clerk

By /s/ JEAN CHERUBINI _

Deputy Clerk

Date: DECEMBER 29, 1980

‘Strike the words “and bring with you” unless the subpoena is to re-

quire the production of documents or tangible things, in which case the

documents and things should be designated in the blank space provided

for that purpose.

RETURN (OMITTED)

[Same warning as on page 32a, supra]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.