Petitioners Brief — United States v. Doe No. 462

Office - Supreme Court, U.S,

it ) FILED

No. mE MAR 1 1985

ALEXANDER Lt, STEVAS.

In the Supreme Court of the

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOHN DOE No. 462

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

3a

QUESTION PRESENTED

Whether the Fifth Amendment privilege against

compelled self-incrimination protects the contents of

an individual’s voluntarily prepared financial records.

(I)

TABLE OF CONTENTS

Page

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i ancmetnounseenvehusiovews 1

Constitutional provision involved ......................2....-se00+++- 2

a conmbscntmamantuessiobeeaants 2

Argument:

The Fifth Amendment privilege against compelled

self-incrimination does not protect the contents of

documents that were not prepared under govern-

Nee a ccaedunsnenanse 9

Conclusion ...... 0 8 SI oa i 25

TABLE OF AUTHORITIES

Cases:

Abel v. United States, 862 U.S. 2177 ............................ 18

Andresen V. Maryland, 427 U.S. 468 ............ 7, 8, 10, 17, 20,

23, 25

Bellis v. United States, 417 U.S. 85 .......00000-02200.... 5,17

Boyd V. United States, 116 U.S. 616 _......... 3, 4, 8, 18, 15, 16,

17, 18, 19

Entick v. Carrington, 19 Howell’s State Trials _..... 16

Fisher v. United States, 425 U.S. 391 ...........000000000..... passim

Gilbert v. California, 388 U.S. 268 ............000.00000000..... 10

Gouled v. United States, 255 U.S. 298 ...............0.00..... 18

Grand Jury Empanelled February 14, 1978, In re

ec sanlandubwdandieoss 21

Grand Jury Empanelled March 19, 1980, In re,

680 F.2d 327, rev’d and aff’d sub nom. United

States v. Doe, No. 82-786 (Feb. 28, 1984)........ 18

Holt v. United States, 218 U.S. 245 00000. 11

Kastigar v. United States, 406 U.S. 441.0000... 8, 20

Katz v. United States, 389 U.S. 847 000000000... 17

Marron V. United States, 275 U.S. 192 ........0..... 2... 18

Michigan V. Tucker, 417 U.S. 488 ............................... 7,10

Miranda Vv. Arizona, 384 U.S. 486.00... 10

(IIT)

IV

Cases—Continued : Page

Olmstead v. United States, 277 U.S. 488 -.............. 10

Schmerber V. California, 384 U.S. 757 -....................- 11

United States v. Calandra, 414 U.S. 338 .................... 18

United States v. Davis, 686 F.2d 1028, cert. denied,

BI Ci TIE as cencinsccssttcdbletiesss eine idadenidaednnsdetsbendieiies 13

United States v. Doe, No. 82-786 (Feb. 28, 1984) ....passim

United States v. Lefkowitz, 285 U.S. 452 ................ 18

United States v. Miller:

ne aedaccmaninon 17, 24

3. & Sen nosene ee ee ete 13

United States v. Nobles, 422 U.S. 225 .......00000220200.-.. 23

United States v. Wade, 388 U.S. 218 .......0..00000.....-.--- 10

Warden V. Hayden, 387 U.S. 294 _...002.. eee eee eee 17

Weeks v. United States, 232 U.S. 388-0000... meals 17

Constitution, statutes and regulations:

U.S. Const. :

Amend. I .......... wink ES Fe Nee BAAR MPN sma Dee Fy TIE 22, 23

NE ib OA daluuawds tauandecetadabuniets 16, 17, 19, 23

I i ec ee passim

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31 C.F.R.:

I nics iss vorcesanndeesnnmamasudduadons 6

I I cia soc, cateclcneeiekenteoesnscciemracets 6

I ce eee iain: 6

Miscellaneous: Page

Friendly, The Fifth Amendment Tomorrow: The

Case for Constitutional Change, 37 U. Cin. L.

th LE. le Lee OR Le Fata 25

McCormick Handbook of the Law of Evidence

fee og Ge.) enn Rens ll

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-823

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOHN DOE No. 462

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

12a) is reported at 745 F.2d 834. The opinion of the

district court (Pet. App. 13a-14a) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

16a) was entered on September 24, 1984. The peti-

tion for a writ of certiorari was filed on November

21, 1984, and granted on January 21, 1985. The jur-

isdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

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. From the summer of 1983 to the present, a fed-

eral grand jury in Alexandria, Virginia, has investi-

gated a variety of narcotics, tax, and currency viola-

tions believed to have occurred from 1974 to 1985.

Respondent was and is a target of the investigation,

which has explored evidence that he and others dis-

tributed large quantities of marijuana and hashish in

the Eastern District of Virginia and elsewhere in the

United States. Internal Revenue Service agents have

assisted the investigation to determine, inter alia,

whether respondent’s participation in the narcotics

enterprise yielded unreported income. See Pet. App.

2a.

In March 1984, the grand jury caused a subpoena

to be served on respondent directing him to appear

before the grand jury on April 17, 1984, and to bring

with him a variety of documents (Pet. App. 17a-

20a). The items demanded encompass approximately

a dozen kinds of common financial records, including

records of real estate transactions, bank statements,

cancelled checks, loan agreements, brokerage account

records, and credit card receipts. The subpoena also

required respondent to furnish records of payments

made to attorneys, funds deposited with attorneys or

law firms, and records of the purchase, sale, or dis-

tribution of controlled substances, including docv-

ments naming suppliers and customers. In addition,

the subpoena demanded production of financial rec-

3

ords maintained by respondent’s businesses, including

sole proprietorships.

Respondent agreed to furnish the records of his

businesses, but he moved to quash the remainder of

the subpoena, asserting (1) that it was overbroad

and sought production of material irrelevant to the

investigation and (2) that the required production of

“personal” records violated his Fifth Amendment

privilege against self-incrimination. See C.A. App.

7-8. The government responded by offering act-

of-production immunity with respect to the records

covered by the claims of privilege. See Pet. App. la-

2a, 5a. The district court rejected respondent’s argu-

ment concerning overbreadth and irrelevance. How-

ever, the court granted the motion to quash that part

of the subpoena requiring respondent to produce “his

personal, as opposed to his business[] records” (Pet.

App. 13a). In response to the government’s argu-

ment that the contents of preexisting records are not

protected by the Fifth Amendment privilege, as inter-

preted in United States v. Doe, No. 82-786 (Feb. 28,

1984), the court stated (Pet. App. 13a n.1) that Doe

“concerned only business records.” The court ob-

served (ibid.) that “the logical extension” of Doe “is

to exempt private papers from Fifth Amendment pro-

tection.” The court acknowledged that Boyd v. United

States, 116 U.S. 616 (1886), which held that the con-

tents of “private papers” are protected by the Fifth

Amendment privilege, had been “discredited insofar

as business records are concerned” (Pet. App. 13a

n.1), but it nevertheless felt “obliged” to follow Boyd

until it was expressly overruled.

The court directed respondent to furnish for in

camera inspection a list of all documents asserted to

be personal, together with sufficient identification to

es

4

enable the court to determine whether the particular

listed document was a “personal” or a “business”

record. See Pet. App. 18a. At the same time, and at

the government’s unopposed request, the court

granted respondent formal immunity for the act of

producing the documents, pursuant to 18 U.S.C. 6002

and 6008. C.A. App. 57-58; see Pet. App. la-2a, 5a.

Following its inspection of the list respondent fur-

nished, the court concluded that the documents des-

ignated were “clearly * * * personal” and therefore

exempt from production to the grand jury (Pet. App.

13a). The court noted that, “[i]ronically many of

the documents consist of checks, vouchers or [other]

documents, the original or copies of which are in the

hands of third parties. These probably could be ob-

tained from the third parties by a grand jury sub-

poena if the government knew their whereabouts”

(Pet. App. 138a-14a).’

2. The court of appeals affirmed (Pet. App. la-

12a), relying (id. at 7a) on “the long-standing hold-

ing of the Supreme Court, first enunciated in Boyd.”

The court noted that Boyd had refused to recognize

any substantial difference between the “seizure of a

man’s private books and papers” and “compelling him

to be a witness against himself.” Pet. App. 8a-9a,

quoting Boyd, 116 U.S. at 633. The court then quoted

Boyd’s statement (116 U.S. at 634-635) that “com-

pulsory production of the private books and papers of

the owner of goods sought to be forfeited in such a

suit is compelling him to be a witness against himself,

1 The district court did not, however, regard the availability

of respondent’s personal papers to third parties as constitut-

ing a waiver of respondent’s Fifth Amendment privilege (Pet.

App. 14a).

5

within the meaning of the Fifth Amendment to the

Constitution.” Pet. App. 9a.

The court of appeals observed (Pet. App. 9a) that

statements in several decisions of this Court, culmi-

nating with the decision in Bellis v. United States,

417 U.S. 85 (1974), “reaffirmed Boyd’s essential

holding.” The court then stated (Pet. App. 10a) that

“Tn]jo later decision of the Supreme Court has held to

the contrary on the point directly in issue” and that

none of this Court’s more recent decisions “has over-

ruled Boyd.” Specifically, the court believed that

“dicta” in Fisher v. United States, 425 U.S. 391

(1976), and Doe did not require a different result

because “[t]he Fisher Court took pains to distin-

guish Boyd,” while Doe “merely reiterated the well-

established premise that an individual holding the

documents of an artificial entity, whether a corpora-

tion, partnership or sole proprietorship, cannot assert

a fifth amendment privilege.” Pet. App. 10a.

The court rejected the government’s argument that

the subpoenaed documents were not personal in any

meaningful sense and were indistinguishable from the

financial records at issue in Doe. The court did not

disagree with the proposition that the records were

essentially identical to the proprietor’s records in Doe,

but it declined “to engage in a case-by-case content-

based determination of the privacy interest attendant

to a given document. The proper line, we feel, has

been drawn—whether the documents are held in an

individual or representative capacity” (Pet. App. lla

n.12).

3. On January 9, 1985, the grand jury returned a

48-count indictment charging respondent and 25 oth-

ers with various violations of the federal narcotics,

a——ee—~—~

6

firearms, tax, and currency laws (J.A. 3-64).’ Other

possible violations are still under investigation.°

2 Respondent was named in 24 counts. He was charged with

conspiracy to distribute marijuana, in violation of 21 U.S.C.

846 (Count 1) ; engaging in a continuing criminal enterprise,

“in violation of 21 U.S.C. 848 (Count 2); possession with in-

tent to distribute over 14 tons of marijuana and hashish, in

violation of 21 U.S.C. 841(a) (1) (Counts 3, 4, 5, 6, 8, 9);

conspiracy to possess and to transfer machine guns and

silencers, in violation of 18 U.S.C. 371 (Count 13) ; possession

of nine unregistered machine guns and five unregistered

silencers, in violation of 26 U.S.C. 5861(d) and 5871 (Counts

14-15) ; transfer of those same weapons, in violation of 18

U.S.C. 922(a) (5) and 26 U.S.C. 5861(e) and 5871 (Counts

16-19) ; transporting over $5,000 in cash to the Bahamas with-

out filing the required currency report, in violation of 31

C.F.R. 103.23(a), 103.25(b), 108.49, and 31 U.S.C. 5316

(Count 20) ; aiding and abetting an individual to travel inter-

state for the purpose of promoting the distribution of mari-

juana, in violation of 18 U.S.C. 1952(a) (3) (Count 23) ; filing

false corporate tax returns, in violation of 26 U.S.C. 7206 (1)

(Counts 39-41, 48) ; aiding the preparation of a false corpo-

rate tax return, in violation of 26 U.S.C. 7206(2) (Count 42) ;

obstruction of justice, in violation of 18 U.S.C. 1503 (Count

47); and subornation of perjury, in violation of 18 U.S.C.

1622 (Count 48).

ee

An unrelated aspect of this case is currently before the

court of appeals. The government has appealed (No. 85-1001)

from an order of the district court disqualifying the Assistant

United States Attorney and the case agents because they inad-

vertently viewed documents protected by the attorney-client

privilege. The documents were contained in a box of papers

provided to the government by the court after the court head

supposedly removed all documents protected by the privilege.

This appeal is still pending, as are defense motions in the

district court to dismiss the indictment and disqualify the

United States Attorney’s office on account of this incident.

7

SUMMARY OF ARGUMENT

This Court’s decisions in United States v. Doe, No.

82-786 (Feb. 28, 1984), and Fisher v. United States,

425 U.S. 391, 409 (1976), make it more than clear

that the Fifth Amendment does not protect the con-

tents of records voluntarily prepared before a sub-

poena for them is issued. The Fifth Amendment’s

provision that “[n]o person * * * shall be compelled

in any criminal case to be a witness against himself”

was intended to preclude the practice of forcing sus-

pects “to admit guilt from their own lips.” Andresen

v. Maryland, 427 U.S. 463, 470 (1976), quoting

Michigan v. Tucker, 417 U.S. 433, 440 (1974). The

privilege therefore applies only when the government

compels an individual to make a self-incriminating

testimonial communication.

When an individual voluntarily prepares, collects,

or maintains documents, no compulsion is present,

and the Fifth Amendment privilege does not apply.

If the individual is subsequently served with a sub-

poena duces tecum seeking those documents, he is

compelled by the subpoena to produce them but not

“to restate, repeat, or affirm the truth of the contents

of the documents sought. Therefore, the Fifth

Amendment would not be violated by the fact alone

that the papers on their face might incriminate the

[individual], for the privilege protects a person only

against being incriminated by his own compelled tes-

timonial communications.” Fisher v. United States,

425 U.S. 391, 409 (1976). Accord, United States v.

Doe, No. 82-786 (Feb. 28, 1984), slip op. 5-7. In

short, the Fifth Amendment privilege does not shield

the contents of documents that were voluntarily pre-

pared, collected, and maintained, because the contents

of such documents are not the product of proscribed

ceca mne ee ecaaiieiaieaaieniinenediie |

&

government compulsion. This broad principle obvi-

ously applies whether or not the person upon whom

the subpoena is served is the author or owner of the

documents.

The court of appeals refused to heed the teaching

of Doe and Fisher for two invalid reasons. First, the

court relied (Pet. App. 6a-10a) on the rule derived

from Boyd v. United States, 116 U.S. 616 (1886),

that private books and papers may not be subpoenaed.

The court of appeals noted (Pet. App. 10a) that Boyd

has never been expressly overruled and that its teach-

ing served to protect personal privacy (Pet. App.

lla). Fisher and Doe leave no doubt, however, that

Boyd’s interpretation of the privilege is no longer

good law. Furthermore, the view that the Fifth

Amendment privilege provides a generalized protec-

tion for personal privacy is incompatible with deci-

sions of this Court holding that testimony can be com-

pelled pursuant to a grant of immunity (Kastigar v.

United States, 406 U.S. 441 (1972)), and that pri-

vate records may be taken in a search (Andresen v.

Maryland, supra).

Second, the court of appeals interpreted Doe as ap-

plying only to documents held by “an artificial entity,

whether a corporation, partnership, or sole proprietor-

ship” (Pet. App. 10a) and not to records held by an

individual. Doe, however, drew no such distinction.

Moreover, a sole proprietorship is not an artificial

entity. A sole proprietorship has no legal existence

apart from its owner; it is simply a term used to de-

scribe a business conducted by a person in his per-

sonal capacity rather than through a corporation or

partnership. Thus, there is no meaningful distinction

between the sole proprietorship records sought in Doe

and the “personal” business and financial records

that are in dispute here.

9

While it is our submission that the Fifth Amend-

ment does not protect the contents of any papers

created without government compulsion, a zone of

privacy rationale would not in any event support

recognition of the privilege in a case like this. The

subpoena called only for common types of business or

financial records, such as sales contracts, financial

statements, and deeds. It did not seek records like

diaries or personal letters that touch upon the more

intimate aspects of an individual’s life.

ARGUMENT

THE FIFTH AMENDMENT PRIVILEGE AGAINST

COMPELLED SELF-INCRIMINATION DOES NOT

PROTECT THE CONTENTS OF DOCUMENTS THAT

WERE NOT PREPARED UNDER GOVERNMENT

COMPULSION

The court of appeals in this case held that the

Fifth Amendment privilege protects the contents of

voluntarily prepared business and financial records.

This view of the privilege is clearly wrong and has

been emphatically rejected by this Court.*

A. The Fifth Amendment provides that ‘[n]o per-

son * * * shall be compelled in any criminal case to

4 This case is not moot despite respondent’s indictment (see

pages 5-6 & note 2, swpra). The grand jury did not charge

respondent with any violations pertaining to his personal tax

liability. In connection with that continuing investigation, the

grand jury still wishes to examine the records that were sub-

poenaed in March 1984 and that are at issue here. The gov-

ernment may also wish to issue a trial subpoena for the

same documents if the trial of the pending charges is

delayed until after the decision in the instant case or if, be-

cause of mistrial or reversal on appeal, the charges are re-

tried at some later date.

10

be a witness against himself.” As the Court often

has noted, the development of this protection was in

part a response to certain historical practices, such as

ecclesiastical inquisitions and the proceedings of the

Star Chamber, “ ‘which placed a premium on com-

pelling subjects of the investigation to admit guilt

from their own lips.’” Andresen v. Maryland, 427

U.S. 463, 470 (1976), quoting Michigan v. Tucker,

417 U.S. 483, 440 (1974). This constitutional pro-

hibition “demands that the government seeking to

punish an individual produce the evidence against

him by its own independent labors, rather than by

the cruel, simple expedient of compelling it from his

own mouth.” Miranda v. Arizona, 384 U.S. 4386, 460

(1966).

Consistent with the language and history of the

Fifth Amendment, this Court has repeatedly indi-

cated that the privilege against self-incrimination ap-

plies only when the accused is compelled to make an

incriminating statement. See, e.g., United States v.

Doe, No. 82-786 (Feb. 28, 1984), slip op. 5; Andre-

sen, 427 U.S. at 477; Fisher v. United States, 425

U.S. 391, 399 (1976); Olmstead v. United States,

277 U.S. 488, 462 (1928). “[U]nless incriminating

testimony is ‘compelled,’ any invasion of privacy is

outside the scope of the Fifth Amendment’s protec-

tion.” Andresen, 427 U.S. at 477.

This Court has also consistently hela that the privi-

lege applies only when the accused is forced to make

a testimonial communication and not when he is com-

pelled to become the source of “real or physical” evi-

dence. See Gilbert v. California, 388 U.S. 263, 265-

267 (1967); United States v. Wade, 388 U.S. 218,

222-223 (1967); Schmerber v. California, 384 U.S.

11

757, 764 (1966) ; Holt v. United States, 218 U.S. 245

(1910).

It follows from these principles that the Fifth

Amendment does not protect an individual against

governmental use of incriminating documents volun-

tarily prepared by him, and that a subpoena for such

documents may not be resisted solely because of the

self-incriminatory potential of their contents. Al-

though the act of turning over a document pursuant

to subpoena is most assuredly compelled, it involves

no testimony about the contents of the document, but

merely their physical delivery. And to the extent that

the document itself is testimonial in nature, the Fifth

Amendment is inapplicable because the creation of

the document did not spring from the compulsion of

the subpoena. As one leading authority has stated

(McCormicks Handbook of the Law of Evidence

§ 128, at 269 (E. Cleary 2d ed. 1972)), preparation

of such documents

may or may not have been testimonial, depend-

ing upon whether [the author] intended that the

transcription serve the function of communicat-

ing his thoughts to another individual, but in any

event authorizing the use of such transcriptions

would not encourage police to exert the types of

coercion that the privilege historically protected

against, because by definition these transcrip-

tions would have been made before the opportu-

nity for coercion existed.

B. Any doubt that the contents of preexisting busi-

ness or financial documents are not privileged under

the Fifth Amendment was dispelled by this Court’s

decisions in Fisher and Doe. In Fisher, taxpayers

under investigation by the Internal Revenue Service

retrieved papers from their accountants and delivered

them to their attorneys (425 U.S. at 394). None of

12

the documents was prepared 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 the ground of attorney-client privilege because the

Fifth Amendment would not have prevented com-

pelled disclosure of the documents if they had re-

mained in the possession of the taxpayers themselves.

The Court explained (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 testi-

mony; nor would it ordinarily compel the tax-

payer to restate, repeat, or affirm the truth of the

contents of the documents sought. Therefore, the

Fifth Amendment would not be violated by the

fact alone that the papers on their face might

incriminate the taxpayer, for the privilege pro-

tects a person only against being incriminated

by his own compelled testimonial communications.

The Court went on to stress that the Fifth Amend-

ment does not protect any privacy interest in the

contents of voluntarily prepared documents even

when the documents have been written by the person

asserting the privilege (425 U.S. at 410 n.11).

Rather, the Court observed, the privilege applies only

when the accused is compelled to make a testimonial

communication that is incriminating (id. at 399,

408), and therefore “unless the Government has com-

pelled the subpoenaed person to write the document

* * * the fact that it was written by him is not con-

trolling with respect to the Fifth Amendment issue”’

(id. at 410 n.11). The Court reserved the possibility,

however, that in some circumstances the compelled

13

act of producing a document pursuant to subpoena

might be considered the equivalent of incriminating

testimony—either because the act concedes “the ex-

istence of the papers demanded and their possession

or control by the taxpayer” or because it serves to

authenticate them. Jd. at 410.

Fisher’s explication of the Fifth Amendment privi-

lege made perfectly clear that while the act of pro-

ducing a document might in some circumstances be

tantamount to “testimony” within the protection of

the privilege, a person cannot avoid compliance with

a documentary subpoena based solely upon the con-

tents of a document that was not prepared under gov-

ernment compulsion. However, while Fisher’s rea-

soning had implications extending far beyond the par-

ticular situation in that case, the Court concluded its

opinion by stating (425 U.S. at 414):

Whether the Fifth Amendment would shield

the taxpayer from producing his own tax records

in his possession is a question not involved here;

for the papers demanded here are not his “pri-

vate papers,” see Boyd v. United States, 116

U.S. at 634-635.

Seizing on this passage, several lower courts held

in the wake of Fisher that the Fifth Amendment

privilege shielded the contents of voluntarily pre-

pared records under a “protection-of-private-papers

principle” derived from Boyd. In re Grand Jury Em-

panelled March 19, 1980, 680 F.2d 327, 332-333 n.7

(3d Cir. 1982), rev’d in part and aff’d in part sub

nom. United States v Doe, No. 82-786 (Feb. 28,

1984) ; see also United States v. Miller, 660 F.2d 563,

566-567 (5th Cir. 1981) ; United States v. Davis, 636

F.2d 1028, 1043 (5th Cir.), cert. denied, 454 U.S.

862 (1981). We therefore petitioned for certiorari in

14

Doe to resolve the question “whether the Fifth

Amendment protects the contents of an individual’s

business records” (Pet. at 9, United States v. Doe,

supra).

The Court granted review and unambiguously an-

swered that question, holding that the contents of

such records are not protected. The Court wrote

(United States v. Doe, slip op. 5-7; footnotes

omitted) :

The Court in Fisher expressly declined to reach

the question whether the Fifth Amendment priv-

ilege protects the contents of an individual’s tax

records in his possession. The rationale under-

lying our holding in that case is, however, per-

suasive here. As we noted in Fisher, the Fifth

Amendment protects the person asserting the

privilege only from compelled self-incrimination.

425 U.S., at 396. Where the preparation of busi-

ness records is voluntary, no compulsion is

present.

* * * * *

Respondent does not contend that he prepared

the documents involuntarily or that the sub-

poena would force him to restate, repeat, or

affirm the truth of their contents. The fact that

the records are in respondent’s possession is ir-

relevant to the determination of whether the cre-

ation of the records was compelled. We there-

fore hold that the contents of those records are

not privileged.

Justice O’Connor filed a separate concurring opinion

“to make explicit what [was] implicit in the

[Court’s] opinion: that the Fifth Amendment pro-

vides absolutely no protection for the contents of pri-

vate papers of any kind.” See United States v. Doe,

supra,

eT |

15

Although three members of the Court dissented in

part, none suggested that the contents of voluntarily

prepared business records enjoy any Fifth Amend-

ment protection. In fact, Justice Marshall, joined by

Justice Brennan, pointedly noted (Doe, slip op. 2;

footnotes omitted) that “the documents at stake here

are business records which implicate a lesser degree

of concern for privacy interests than, for example,

personal diaries.”

C. One of the reasons given by the court of ap-

peals for refusing to follow the teaching of Fisher

and Doe was that, because this Court has never ex-

pressly overruled Boyd, it was free to follow Boyd’s

conflicting interpretation of the Fifth Amendment

privilege (see Pet. App. 6a-10a). But while this

Court has not overruled Boyd in so many words,

there can be no doubt that Boyd’s interpretation of

the Fifth Amendment is erroneous and should not be

followed.°

1. As this Court has pointed out (Fisher, 425 U.S.

at 408-409), Boyd was built upon legal foundations

that have long since been obliterated. In Boyd, a

partnership was believed to have fraudulently evaded

paying the tariff on imported plate glass. The pen-

alty for this. offense was forfeiture of the imported

goods, and therefore the government seized the glass

and instituted forfeiture proceedings. Pursuant to

statute, the district court ordered production of in-

voices that the government alleged would establish

fraudulent nonpayment of duties. This same statute

5In view of the persistent adherence to Boyd by some of

the lower courts, even though Boyd’s interpretation of the

Fifth Amendment privilege has been thoroughly discredited,

the express overruling of Boyd would be appropriate and

beneficial.

16

provided that failure to comply with such an order

would be treated as an admission of the government’s

allegations. The partners complied under protest,

and judgment of forfeiture was entered. 116 U.S. at

617-618.

This Court reversed, holding that the order and

statute violated the Fourth and Fifth Amendments.

The opinion began by stating that the order requir-

ing production of the invoices constituted a search

and seizure within the meaning of the Fourth Amend-

ment “because it is a material ingredient, and effects

the sole object and purpose of search and seizure”

(116 U.S. at 622). Turning to the question whether

this search and seizure was “unreasonable,” the opin-

ion looked to the common law to determine whether a

search for the invoices would have constituted a tres-

pass (7d. at 622-633). Relying principally upon the

English case of Entick v. Carrington, 19 Howell’s

State Trials 1029 [C.P. 1765], it concluded that a

search and seizure were unreasonable unless the gov-

ernment’s title to the items seized was superior to

that of the person from whom they were taken. Thus,

the government could search for and seize stolen

property, since the possessor did not have title (116

U.S. at 624). Likewise, the government could search

for and seize goods on which duty was owed, because

“the government has an interest in them for the pay-

ment of the duties thereon” (ibid.). But the govern-

ment could not search for and seize mere evidence be-

cause property law did not give the government title

to such items (id. at 624-633).

Having concluded that the order compelling pro-

duction of the invoices had violated the Fourth

Amendment, the Court still faced the question

17

whether their admission in the forfeiture proceeding

had been erroneous, since the exclusionary rule for

Fourth Amendment violations would not be adopted

until 31 years later in Weeks v. United States, 282

U.S. 883 (1914). Noting (116 U.S. at 633) “the in-

timate relation[ship] between” the Fourth and Fifth

Amendments, the Court held that the admission into

evidence of books and papers obtained in violation of

the Fourth Amendment constituted a violation of the

Fifth Amendment. It stated (116 U.S. at 633):

“TW Je have been unable to perceive that the seizure

of a man’s private books and papers to be used in

evidence against him is substantially different from

compelling him to be a witness against himself.”

What is perhaps most remarkable about Boyd is

how little of its reasoning has stood the test of time.

Today it is well established (a) that a partnership

such as the Boyd firm may not resist production of

its records on Fifth Amendment grounds (Bellis v.

United States, 417 U.S. 85 (1974)); (b) that an

order compelling production of invoices is not a

search or seizure because there can be no reasonable

expectation of privacy in such documents, which are

knowingly exposed to the public (see United States v.

Miller, 425 U.S. 435, 440-443 (1976) ; Katz v. United

States, 389 U.S. 347, 351-352 (1967)); (c) that,

even assuming such an order constituted a search and

seizure, the Fourth Amendment permits the seizure

of “mere evidence” (Warden v. Hayden, 387 U.S. 294

(1967)); (d) that, again assuming that such an

order was a search and seizure, the Fifth Amend-

ment was not violated because no testimonial commu-

nication was compelled (Andresen v. Maryland,

supra); and (e) that the introduction of evidence

obtained in violation of the Fourth Amendment does

es

18

not violate the Fifth Amendment (see, e.g., United

States v. Calandra, 414 U.S. 388, 848 (1974)).

Moreover, the view that Boyd provided special pro-

tection for private papers, as opposed to other “mere

evidence,” is not even supported by Boyd’s reasoning.

Boyd did not rest upon the special status of books and

records but upon the fact that the government did

not have superior title to and consequently could not

seize mere evidence. As the Court stated in Gouled

v. United States, 255 U.S. 298, 309 (1921) (empha-

sis added), which reaffirmed Boyd and applied it to

a traditional search and seizure conducted pursuant

to a facially valid warrant:

There is no special sanctity in papers, as dis-

tinguished from other forms of property, to ren-

der them immune from search and seizure, if

only they fall within the scope of the principles

of the cases in which other property may be

seized, and if they be adequately described in the

affidavit and warrant. Stolen or forged papers

have been so seized, * * * and lottery tickets, un-

der a statute prohibiting their possession with

intent to sell them * * * and we cannot doubt

that contracts may be so used as instruments

or agencies for perpetrating frauds upon the

Government as to give the public an interest in

them which would justify the search for and

seizure of them, under a properly issued search

warrant, for the purpose of preventing further

frauds.

During the era when Boyd held sway, seizuyves.of in-

criminating papers were consistently upheld in cases

such as Marron v. United States, 275 U.S. 192

(1927); United States v. Lefkowitz, 285 U.S. 452,

465-466 (1932); and Abel v. United States, 362 U.S.

217, 238 (1960), subject only to the then-prevailing

19

requirement that the papers constitute instrumental-

ities of crime rather than “mere evidence.” All these

cases refute the notion that Boyd conferred special

status upon papers either for Fourth or Fifth Amend-

ment purposes.

2. In recent years, this Court has made it more

than clear that Boyd’s interpretation of the Fifth

Amendment privilege is no longer good law. In

Fisher, the Court noted (425 U.S. at 408) that “[t]he

pronouncement in Boyd that a person may not be

forced to produce his private papers has * * * often

appeared as dictum in later opinions of this Court.”

However, the Court explained (425 U.S. at 409)

that “the foundations for the rule have been washed

away.” The Court added (ibid.) :

In consequence, the prohibition against forcing

the production 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 in-

criminates him.

The Court also expressly rejected the argument,

which the court of appeals in this case adopted (see

Pet. App. 1la-12a), that the Fifth Amendment privi-

lege was intended to protect privacy in a generalized

way. The Fisher court wrote (425 U.S. at 399; foot-

note omitted) :

Within the limits imposed by the language of

the Fifth Amendment, which we necessarily ob-

serve, the privilege truly serves privacy interests;

but the Court has never on any ground, per-

sonal privacy included, applied the Fifth Amend-

ment to prevent the otherwise proper acquisition

or use of evidence which, in the Court’s view, did

20

not involve compelled testimonial self-incrimina-

tion of some sort.

Decisions of this Court holding that an individual’s

papers may be seized pursuant to a search warrant

(Andresen v. Maryland, 427 U.S. 463 (1976)) and

that testimony otherwise protected by the Fifth

Amendment may be compelled pursuant to a grant of

immunity (Kastigar v. United States, 406 U.S. 441

(1972) ) also leave no room to argue that the Fifth

Amendment privilege exists for the independent pur-

pose of protecting personal privacy.

Following Fisher, Doe further confirmed Boyd’s de-

mise. Faced with a court of appeals’ decision that

“continued to recognize Boyd’s protection-of-private-

papers principle” (680 F.2d at 332-333 n.7), the

Court again made clear that this view of the Fifth

Amendment privilege had been discredited (Doe, slip

op. 5-6 & nn.8, 10). The Court noted (id. at 7 n.10)

that Andresen had “dismissed” the argument that

dicta from later cases continued to support Boyd.

And, the Court continued (Doe, slip op. 7 n.10):

Although Andresen involved a search warrant

rather than a subpoena, the underlying principle

is the same in this context. If the party asserting

the Fifth Amendment privilege has voluntarily

compiled the document, no compulsion is present

and the contents of the document are not privi-

leged.

D. The court of appeals’ second reason for refusing

to apply Doe in this case was that Doe “merely reit-

erated the well-established premise that an individua!

holding the documents of an artificial entity, whether

a corporation, partnership or sole proprietorship,

cannot assert a fifth amendment privilege” (Pet. App.

21

10a). It is abundantly clear, however, that Doe did

not treat the individual whose business records were

subpoenaed in that case as an “artificial entity.” No-

where in the Court’s opinion is there a hint of a

distinction between the records of a sole proprietor-

ship and an individual’s business records. On the

contrary, the Court referred interchangeably to the

records in Doe as “the business records of a sole pro-

prietorship” (slip op. 1) and “his [%.e., the respond-

ent’s|] business records” (id. at 11 & n.17). More-

over, the Court held that in Doe for the act of pro-

ducing the subpoenaed records, immunity was re

quired without suggesting that this conclusion was

at all inconsistent with this Court’s line of cases that

had firmly established that the custodian of the rec-

ords of an “artificial entity,” such as a corporation

or partnership, may be compelled to comply with a

documentary subpoena without immunity of any

kind. See Fisher, 425 U.S. at 408, 413. If the Court

had regarded the sole proprietorship as an “artificial

entity,” then the act of production would not have

been privileged.

In any event, the court of appeals’ description of

a sole proprietorship as an “artificial entity” (Pet.

App. 10a) is flatly wrong, and its distinction between

the business records of a sole proprietorship and an

individual’s business or financial records makes no

sense. A sole proprietorship is not an artificial en-

tity; it “has no legal existence apart from its own-

er.” In re Grand Jury Empanelled February 14,

1978, 597 F.2d 851, 859 (3d Cir. 1979). “Sole pro-

prietorship” is simply a term used to describe a busi-

ness conducted by an individual in his personal ca-

pacity rather than through a partnership or corpora-

tion The assets and debts of the sole proprietorship

are those of the individual owner and vice versa The

22

sole proprietorship dies with the owner. The sole

proprietorship does not pay taxes or even file a sep-

arate tax return; instead, its income is taxable to

the owner. A person who owns a sole proprietorship

is under no obligation to separate records relating

directly to his business from any of his other financial

records. Nor is a person who owns several separate

businesses that are run as sole proprietorships re-

quired to segregate the records of each. In such situ-

ations, all of the assets, liabilities, and documents re-

flecting them are regarded for virtually all legal pur-

poses—e.g., taxes, creditors’ rights, inheritance, ali-

mony and child support—as those of the individual.

Even where the individual segregates the records

of his businesses, it makes no sense to distinguish be-

tween the records of a sole proprietorship and the bus-

iness or financial records of the individual. For ex-

ample, documents showing income received by the in-

dividual show income on which the “sole proprietor”.

may draw. Likewise, records memorializing the indi-

vidual’s debts necessarily reflect the ‘“‘sole proprietor’s”’

liabilities. And finally, assuming (as the indictment

alleges) that respondent earns his income from illicit

drug transactions and invests the proceeds in, for

example, real estate, then he is as much a “sole pro-

prietor” of drug and real estate ventures as the re-

spondent in Doe was of his businesses. The distinc-

tion sought to be drawn by the court of appeals is

thus wholly without substance.°

6 Respondent maintains (Br. in Opp. 13-14) that this dis-

tinction is analogous to the distinction in First Amendment

law between commercial and noncommercial speech. ‘here

are two glaring flaws in this comparison. First, the court of

appeals in this case did not distinguish between commercial

and noncommercial records, for there can be no doubt that

the subpoenaed records are of a commercial or business na-

23

E. Under the logic of Fisher, Andresen, and Doe,

the contents of even the most personal papers would

not appear to be privileged under the Fifth Amend-

ment. See Doe, slip op. (O’Connor, J., concurring) ;

United States v. Nobles, 422 U.S. 225, 233 n.7 (1975).

And in our view, it would be unjustified to extend the

Fifth Amendment privilege beyond its traditional role

of protecting against compelled testimonial disclo-

sures, in order to serve privacy interests associated

with particular types of documents. In the first place,

as we previously noted (page 20, supra), the privacy-

protection component thereby injected into Fifth

Amendment analysis would be entirely incompatible

with the settled principle that disclosure can be com-

pelled through an adequate grant of immunity. Be-

yond that, use of the Fifth Amendment privilege for

this purpose is probably unnecessary. Certainly it is

not immediately apparent why unreasonable and un-

justified official examination of intimately private

documents cannot be adequately controlled through

application of First and Fourth Amendment princi-

ples, which after all embody the relevant policies.

For example, it may be appropriate, as a matter of

Fourth Amendment law, to require an exceptionally

high showing of need before government officials may

reasonably be permitted to examine the contents of a

personal diary; but it makes absolutely no sense, in

terms of privacy protection concerns, to make the

right to read the diary turn upon whether it is found

during a lawful search of an automobile or produced

pursuant to a subpoena.

ture (see Pet. App. 18a-20a). Second, while the First Amend-

ment undoubtedly protects the contents of speech, the Fifth

Amendment privilege merely protects against compelled testi-

monial self-incrimination.

24

In any event, the documents at issue in this case

are of a business or financial nature * and do not touch

upon “the more intimate aspects of one’s life.” *

7 Respondent has contended (Br. in Opp. 4-5 (emphasis in

original) ) that “this case involves personal records, not ‘fi-

nancial records’ nor ‘business records’ as petitioner would

prefer to describe them.” Respodent’s assertion is highly

misleading. To be sure, the subpoena and the lower court

opinions described the records as “personal.” But all that this

description meant was that they were not the records of ary

corporation, partnership, or identified sole proprietorship.

The suggestion that the subpoenaed records are not “financial”

or “business” documents is flatly wrong, as a brief examina-

tion of the subpoena (Pet. App. 18a-20a) will reveal.

8 Indeed, as the district court observed (Pet. App. 14a),

many of the documents are duplicates of documents held by

third parties, such as respondent’s bank. Accordingly, re-

spondent has no legitimate privacy expectation in the contents

of those documents. As the Court explained in United States

v. Miller, 425 U.S. at 442-443, where it was argued that an

individual had a legitimate expectation of privacy in records

kept by his bank:

Even if we direct our attention to the original checks

and deposit slips, rather than to the microfilm copies ac-

tually viewed and obtained by means of the subpoena, we

perceive no legitimate “expectation of privacy” in their

contents. The checks are not confidential communications

but negotiable instruments to be used in commercial

transactions. All of the documents obtained, including

financial statements and deposit slips, contain only infor-

mation voluntarily conveyed to the banks and exposed to

their employees in the ordinary course of business.

Although Miller speaks only of bank records, its teaching

applies with equal force to each of the categories of docu-

ments at issue in this case. The bulk of the documents sub-

poenaed are records of commercial transactions that by their

nature require disclosure to third parties, often total

strangers. There is simply no reasonable expectation of pri-

vacy inherent in documents of this kind.

25

Fisher, 425 U.S. at 425-427 (Brennan, J., concur-

ring) ; see also Doe, slip op. 2 (Marshall, J., dissent-

ing); Andresen, 427 U.S. at 486 (Brennan, J., dis-

senting). In Judge Friendly’s apt phrase, the sort

of documents involved here—such as sales contracts,

financial statements, and deeds (see Pet. App. 17a-

20a)—are not “the outpourings of an individual’s

soul.” Friendly, The Fifth Amendment Tomorrow:

The Case for Constitutional Change, 37 U. Cin. L.

Rev. 671, 703 (1968).°

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

MARCH 1985

® Respondent has attempted (Br. in Opp. 12) to pass off the

records of his illegal drug deals as “tantamount” to a “private

diary.” We very much doubt, however, that drug ledgers are

what members of this Court had in mind in suggesting that

the contents of some intimate documents may enjoy Fifth

Amendment protection. See United States v. Doe, No. 82-786

(Feb. 28, 1984), slip op. 2 (Marshall, J., dissenting) ; Andre-

sen V. Maryland, 427 U.S. 463, 486 (1976) (Brennan, J., dis-

senting).

W ov. &. GOVERNMENT PRINTING orrice; 1985 461531 10178