Opinion — Dreier v. United States

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DREIER v. UNITED STATES.

DREIER v. HENKEL, UNITED STATES MARSHAL.

ERROR TO AND APPEAL FROM THE CIRCUIT COURT OF THE

UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW

YORK.

Nos. 358, 359. Argued March 2, 3, 1911.—Decided May 15, 1911.

Wilson v. United States, ante, p. 361, followed to effect that an officer

of a corporation cannot refuse to produce books and papers of the

corporation in response to a subpoena duces tecum on the ground that

the contents thereof would tend to incriminate him personally.

Quere whether if a privilege to refuse to produce documents of a cor-

DREIER v. UNITED STATES. 395

221 U. S. Argument for Plaintiff in Error and Appellant.

poration in response to a subpoena duces tecum does exist the person

entitled to claim it may not waive it by his conduct.

Tue facts, which involve the validity of a subpoena

duces tecum issued to the custodian of the books of a cor-

poration, and the right of such custodian to refuse to pro-

duce the documents required by such subpcena on the

ground that they would incriminate him, are stated in the

opinion.

Mr. W. Wickham Smith, with whom Mr. John K. Maz-

well was on the brief, for plaintiff in error and appellant:

Dreier had an absolute right to refuse to produce books

for the consideration of the grand jury or to give testi-

mony upon the ground that to do so might tend to in-

criminate him. Burr’s Trial, 244; Counselman v. Hitch-

cock, 142 U.S. 547.

The witness could no more be compelled to produce

books for the examination of the grand jury than to

testify orally before them. Bollman v. Fagin, 200 U. S.

186; Boyd v. United States, 116 U.S. 616.

The authorities, both state and Federal, upholding the

privilege of a witness to refuse to answer questions that

he claims would tend to incriminate him, are innumerable.

Among them are the following in addition to those already

cited: Ex parte Chapman, 153 Fed. Rep. 371; In re Kanter,

117 Fed. Rep. 356; In re Hess, 134 Fed. Rep. 109; Foot v.

Buchanan, 113 Fed. Rep. 156.

The same rule has been applied in bankruptcy cases.

In re Nachman, 114 Fed. Rep. 995; In re Smith, 112 Fed.

Rep. 509; In re Shera, 114 Fed. Rep. 207; Edelstein v.

United States, 149 Fed. Rep. 636, at 642; United States

v. Goldstein, 132 Fed. Rep. 789.

A witness who claims privilege is not required to admit

that he is guilty. The protection of the Constitution is

for the innocent as well as for the guilty. People v. Forbes,

2

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396 OCTOBER TERM, 1910.

Argument for the United States. 221 U.S.

143 N. Y. 219; Lamsen v. Boyden, 160 Illinois, 613; Emery’s

Case, 107 Massachusetts, 172.

There was no waiver by the defendant of his right to

refuse to produce books or give testimony. 29 Am. &

Eng. Ency. of Law, 2d ed., 1093.

Where a witness has testified to certain facts having an

apparent tendency to incriminate him and a question is

asked, an affirmative answer to which, in connection with

the other facts testified to, would furnish criminating

evidence, witness may assert his privilege. Wallace v.

State, 41 Florida, 547.

It is the duty of the court when the witness is brought

before it and shown that his answer would incriminate

him to entertain the witness’s objection notwithstanding

he had stated to the grand jury that his answer would

not criminate him. Ex parte Wilson, 47 S. W. Rep. 996;

see also Lamsen v. Boyden, 160 Illinois, 613; Blum v. State,

94 Maryland, 375; Wilson v. State, 57S. W. Rep. 916.

The Solicitor General, with whom The Attorney General,

Mr. Wm. S. Kenyon, Assistant to the Attorney General,

and Mr. O. E. Harrison, Special Assistant to the Attorney

General, were on the brief, for the United States:

The order to produce the books and papers did not in-

fringe the Fourth Amendment.

The search and seizure clause of the Fourth Amendment

does not interfere with the power of the courts to compel

production of documentary evidence through a subpoena

duces tecum. The writ of subpoena duces tecum to compel

the production of documentary evidence has come down

to us through centuries, and without it the administration

of justice would be impossible. Summers v. Moseley,

2 Cr. & M. 477; Wertheim v. Continental R. & T. Co.,

15 Fed. Rep. 718; Amey v. Long, 9 East, 473; Bull v.

Loveland, 10 Pick. 9; United States Express Co. v. Hender-

son, 69 Iowa, 40; Greenleaf on Evidence, § 469a.

DREIER v. UNITED STATES. 397

221 U.S. Argument for the United States.

This court has settled the question in Boyd v. United

States, 116 U. S. 616; Interstate Com. Comm. v. Baird,

194 U.S. 25; Hale v. Henkel, 201 U.S. 43.

The books belonged to the corporation, and its office.

having custody of them was bound to produce them under

a subpoena duces tecum.

A corporation can be compelled to furnish information

upon the order of a proper judicial tribunal concerning

the conduct of its business, even though such information

might be incriminatory. This is settled by Hale v. Henkel,

201 U. S. 43; Hammond Packing Co. v. Arkansas, 212

U. S. 322, 348, 349; Consolidated Rendering Co. v. Vermont,

207 U.S. 541, 553, and Am. Tobacco Co. v. Werckmeister,

207 U.S. 284, 302.

it must appear to the court that the evidence sought

could reasonably have a tendency to criminate the witness

and it is then for the witness to say that such evidence

would have such a tendency. See /rvine Case, 74 Fed. Rep.

954; citing Burr Trial Case, 14692e; Regina v. Boyes, 1 Best

& Smith, 329; Ex parte Reynolds, 20 Ch. Div. 294; and see

Richmond v. The State, 2 Greene, 532; Stevens v. The State,

50 Kansas, 712; Minters v. The People, 139 Illinois, 363;

United States v. McCarthy, 18 Fed. Rep. 87; The People v.

Mather, 4 Wend. 229; Commonwealth v. Willard, 22 Pick.

476; Commonwealth v. Kimball, 24 Pick. 366; Ex parte

Senior, 37 Florida, 1; LaFontaine v. Southern Underwriters,

83 N. Car. 132, 141; Floyd v. The State, 7 Texas, 215; Mis-

kimmins v. Shaver, 8 Wyoming, 392, 418.

It is the province of the court to determine whether or

not the witness could be incriminated by truthfully answer-

ing, and it is then for the witness to determine whether

the answers would incriminate him. -

The cases in which the privilege was claimed and allowed

show that it was apparent from the question asked that

a direct answer would incriminate the witness. Rez v.

Gordon, 2 Doug. K. B. Rep. 593; Paxton v. Douglas, 19

398 OCTOBER TERM, 1910.

Argument for the United States. 221 U.S.

Ves. Ch. 224; Malony v. Bartley, 3 Campb. 210; Cates v.

Hardacre, 3 Taunt. 424; Rex v. Pegler, 5 C. & P. 687;

Fisher v. Ronalds, 16 Eng. Law & Eq. Rep. 417; Emery’s

Case, 107 Massachusetts, 172; In re Graham, 8 Ben. 419;

Bank v. Henry, 2 Den. 155; People ex rel. Taylor v. Sea-

man, 8 Misc. (N. Y.) 152; Cullen v. Commonwealth, 24

Gratt. 624; Smith v. Smith, 116 N. Car. 386; Lester v.

Boker, 6 Blatch. (Ind.) 439.

It is apparent from the record that the witness did not

invoke the protection of the Constitution in good faith.

The cautionary words used by the court in Brown v.

Walker, 101 U. S. 591, seem to describe the situation

that was before the court below. The plea of privilege

is personal to the witness and must be made in good faith

on behalf of himself, and not to shield a corporation or a

third person. Hale v. Henkel, 201 U. S. 43, 69.

The privilege has become deeply fixed in our system

of jurisprudence and will never be abolished, and every

consideration of a proper protection of the body politic

demands that the privilege should not be extended beyond

the limits which are to be fixed by reference to its historical

origin. This means that it must be confined to the bene-

ficent protection of the privilege to witnesses in their

personal and not their representative capacity. Wigmore

on Evidence, pp. 3101, 3107.

Every consideration that arises from conditions of

modern civilization requires that the rule should not be

extended further than is necessary to accomplish its orig-

inal purpose of caring for the personal rights of indi-

viduals. Greenleaf on Evidence, 16th ed. 469d; Common-

wealth v. Shaw, 4 Cush. 594; Phillips on Evidence, 4th

Am. ed., p. 935; Reynolds v. Reynolds, 1882, 15 Cox, Cr.

108, 115; Wigmore, pp. 2967, 2968, and on page 3102,

quoting Bentham.

The witness had waived his privilege.

If a witness discloses a part of a transaction with which

DREIER v. UNITED STATES. 399

221 U.S. Opinion of the Court.

he was criminally concerned, without claiming his privi-

lege, he must disclose the whole. People v. Freshour, 55

California, 375; Coburn v. Odell, 10 Fost. (N. H.) 540;

Foster v. Pierce, 65 Massachusetts, 439; Chamberlain v.

Wilson, 12 Vermont, 491; Commonwealth v. Nichols, 114

Massachusetts, 285.

A witness who has voluntarily testified in part on a

matter tending to criminate cannot afterwards decline to

answer a question upon the ground that it will criminate

him. Commonwealth v. Pratt, 126 Massachusetts, 462;

Commonwealth v. Price, 10 Gray, 472; People v. Carroll,

3 Park. (N. Y. Cr.) 83; Low v. Mitchell, 18 Maine, 372;

Evans v. O’Connor, 174 Massachusetts, 287; State v.

Nichols, 29 Minnesota, 357; State v. Foster, 23 N. H. 348;

State v. Kansas, 4 N. H. 562; Brown v. Walker, 161 U.S.

p. 591 and cases cited on p. 597.

The writ of habeas corpus was properly dismissed.

Mr. Justice Hucues delivered the opinion of the court.

The plaintiff in error and appellant, William Dreier,

was subpcenaed to produce before the grand jury in the

Circuit Court certain books and papers of the Lichten-

stein Millinery Company, a New York corporation, of

which he was the secretary. The grand jury was conduct-

ing an inquiry with respect to alleged violations of the

customs laws by N. Hayes and others. The subpcena

contained the ad testificandum clause, but the only question

presented is with respect to the demand for the corporate

documents. For his refusal to produce them for the in-

spection of the grand jury, Dreier was committed for con-

tempt. The first case (No. 358) is a writ of error to the

Circuit Court to review the judgment holding him to be

in contempt and directing his commitment; and the second

(No. 359) is an appeal from an order dismissing a writ of

habeas corpus. The contention of Dreier in both cases is

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400 OCTOBER TERM, 1910.

Syllabus. 221 U.S.

that the contents of the books and papers would tend to

incriminate him and that the proceedings to compel their

production were in violation of the Fifth Amendment

of the Constitution of the United States.

It is urged that if he had a privilege, his conduct was

such as to constitute a waiver. But it is not necessary to

consider the case in this aspect. Dreier was not entitled

to refuse the production of the corporate records. By

virtue of the fact that they were the documents of the

corporation in his custody, and not his private papers, he

was under obligation to produce them when called for by

proper process. Wilson v. United States, decided this

day, ante, p. 361. In that case the writ was directed to

the corporation and here it was addressed to the custodian.

As he had no privilege with respect to the corporate books

and papers it was his duty to obey.

A firmed.

Mr. Justice McKenna concurs in the result upon the

ground of waiver.