Appeal from the District Court of the United States, for the Middle District of Pennsylvania; Albert W. Johnson, Judge
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
The facts in the case at bar are not in dispute. On December 28, 1942, a subpoena duces tecum was issued by the District Court of the United States for the Middle District of Pennsylvania addressed to a labor union, "Local No. 542, International Union of Operating Engineers", requiring it to produce on January 11, 1943, certain books and records before a grand jury of the United States District Court for the Middle District of Pennsylvania sitting at Harrisburg. The books and records called for were books and records belonging to the union.*fn1 On December 30, 1942, the subpoena was served on the president of the union.
The grand jury was engaged in an investigation of alleged irregularities occurring in connection with the construction of the Mechanicsburg Naval Supply Depot. On January 11, 1943, the defendant, Jasper White, an assistant supervisor or business manager of the union, came before the grand jury and stated that he appeared in response to the subpoena and that he had brought with him the books and records specified. He then read a statement which had been prepared for him by counsel and refused to turn over the books and records, claiming " * * * on behalf of Local Union 542, International Union of Operating Engineers, and on behalf of myself, in my capacity as an Assistant Supervisor thereof, and individually * * * " the immunity guaranteed by the Fourth and Fifth Amendments to the Constitution of the United States.
The judge assigned to preside in the District Court of the United States for the Middle District of Pennsylvania at Harrisburg was not available on January 11, 1943. The defendant was requested to return to the Federal Building on January 13, 1943, at which time the judge was expected to be present. On January 13, 1943, the grand jury filed a presentment charging the defendant with being a contumacious witness and requesting his punishment. On January 14, 1943, the judge held a hearing in respect to the presentment and heard the arguments of counsel. The defendant was in the courtroom and had the books and records with him. So far as the record shows, the District Judge did not examine the books and records called for by the subpoena. He delivered an oral opinion, proceeding on the theory that a labor union cannot avail itself of the privilege against self incrimination*fn2 and made it clear that if the defendant persisted in his refusal to produce the books and records before the grand jury he would be found guilty of contempt of court. The judge then called the defendant before the bar of the court and directed him to produce the books and records before the grand jury. The defendant again declined to produce the books and records and his counsel read a statement wherein the defendant claimed " * * * on behalf of Local No. 542, its officers and members, and on my own behalf, the immunity granted under the Fourth and Fifth Amendments of the Constitution of the United States".
The question before the Court is: Can the defendant refuse to produce the records of the union on the ground that they will incriminate him? It has been established law since the decision in Boyd v. United States, 1886, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746, that the right of a witness to refuse to produce books and papers upon the ground that their production would incriminate him must be based upon the fact that the books and papers in respect to which the privilege is asserted are the witness's own books and papers. It is clear that the books and records here are not the private books and records of the defendant alone and that they do not in fact belong to him only. They are the books and records of the union. Nor has the defendant asserted any facts which would bring him by analogy within the rule stated by Wigmore in respect to officers of corporations,*fn3 that " * * * , for any documents therein [corporate records] that concern only the 'private or personal' affairs of the officer, the Court may direct their 'withdrawal from scrutiny'." citing Wilson v. United States, 1911, 221 U.S. 361, at page 378, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D. 558.
However, that does not dispose of the case. We think that if the defendant was a member of the union he could avail himself of the privilege against self incrimination if the documents tended to incriminate him. The appellee claims there is an analogy between corporations and labor unions. If this were so, neither the union nor White as its officer could claim the privilege. Hale v. Henkel, 1906, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652; Wilson v. United States, 1911, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558. However, we do not find the analogy persuasive. The reasons why a corporation cannot avail itself of the privilege are stated in Wilson v. United States and Hale v. Henkel, supra. A corporation is a creature of the state legislature, enjoying privileges and franchises subject to the laws of the state and limitations of its charter. When the state grants incorporation, it reserves a visitatorial power to exact compliance with these regulations. Implicit in this situation is the requirement that the corporation maintain books and records to reflect its transactions and that it yield these documents to inspection when its affairs are questioned by the state.
The present day status of Local 542 is quite different. It does not derive its existence from any charter granted by the state. Its books and records are not of a public or even semi-public character. They are the private documents of the union members who, had they so chosen, did not need to keep records in the first instance. There is nothing, in the absence of legislation, giving the state a reserved visitatorial power over the union and its affairs. For the purposes of the privilege against self incrimination the members of the union are in the same position as ordinary individuals who maintain books and records of their transactions. We think if the defendant was a member of the union and the contents of the books and records subpoenaed would, upon examination by the trial judge, have tended to incriminate him, that his claim to privilege should have been allowed.
However, the record does not answer the basic question of whether White was a member of the union. It is stated that he was the business manager or assistant supervisor of the union. Whether to hold this position he had to be such a member the Court does not know. The view taken by the court below obviated the necessity for such an inquiry and neither White nor the government offered any evidence or testimony on this issue. Such evidence is in our view highly relevant. The case is, therefore, remanded to the District Court to determine whether White was a member of Local 542.If he was, then the books should be examined by the trial judge to determine whether they tend to incriminate White as an individual. See Brown v. United States, 1928, 276 U.S. 134, 144, 145, 48 S. Ct. 288, 72 L. Ed. 500. If they do, the claim of privilege should be sustained.
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.
BIGGS, Circuit Judge (dissenting).
I must record my dissent from the opinion expressed by the majority.
Two questions must be answered in the case at bar: (1) May the defendant refuse to produce the records of the union on the ground that they will incriminate him; and (2) May he refuse on the ground that their ...