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In re Grand Jury Matter. James Gilbert Brown

July 23, 1985

IN RE: GRAND JURY MATTER. JAMES GILBERT BROWN, APPELLANT


On Appeal From the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 84-124-2.

Author: Gibbons

Before: ALDISERT, Chief Judge, SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER and MANSMANN, Circuit Judges.

Opinion OF THE COURT

GIBBONS, Circuit Judge:

James Gilbert Brown appeals from an order adjudging him to be in civil contempt of court for refusing to obey an order enforcing a subpoena duces tecum. The subpoena duces tecum sought the production before a grand jury, of corporate records of J. Gilbert Brown Co., P.C. In resisting the enforcement of the subpoena duces tecum, Brown asserted that his authenticating testimony with respect to those records would violate his privilege against self-incrimination. The district court held that because the records belonged to a corporation, Brown had no privilege against self-incrimination, either with respect to the contents of the records, or with respect to their authentication before the grand jury. On appeal Brown does not contend that his privilege against self-incrimination applies to the contents of the records. He contends, rather, that having made a non-frivolous claim that authentication of the records would incriminate him, he could not be held in contempt absent findings by the district court that the fact of his possession of the records was not of evidentiary significance, and that his production of them would not be used for evidentiary purposes. We agree, and thus we reverse.

The issue presented by this appeal is a narrow one. We must decide whether a person, simply by virtue of his status as a custodian of a corporation's records, can be compelled to make self-incriminating disclosures that are testimonial, i.e., communicative or assertive in nature. The subpoena duces tecum addressed to Brown seeks the records of J. Gilbert Brown Co., P.C., an incorporated accounting firm wholly owned by Brown. Brown makes no claim that because he is the sole owner of this professional corporation, it or he can claim any privilege against self-incrimination with respect to the contents of the records. The government acknowledges that the grand jury could obtain the records by means other than a subpoena duces tecum addressed to Brown. Thus, what is in issue is solely the question whether Brown may be compelled by a subpoena to give testimony before the grand jury, verbally or by a non-verbal communicative act, authenticating those records. The government urges (1) that he may be so compelled, and (2) that if such compelled authentication testimony is elicited before the grand jury, it may be used against Brown, to the extent relevant, in the trial of any indictment which might be returned against him. See Fed. R. Evid. 801(d). The district court agreed with the government, and held Brown in contempt for refusing to give authentication testimony even though he is concededly a target of the grand jury investigation, and even though he had offered to submit the records to the grand jury through his attorney.*fn1 The possibility that the authentication testimony might tend to incriminate Brown was, in the trial court's view, irrelevant.

In United States v. Austin-Bagley Corp., 31 F.2d 229, 233-34 (2d Cir.), cert. denied, 279 U.S. 863, 49 S. Ct. 479, 73 L. Ed. 1002 (1929) the Court of Appeals for the Second Circuit held that communicative or assertive testimony with respect to corporate records could be compelled, even though it resulted in self-incrimination. The Austin-Bagley exception to the privilege against self-incrimination has never been adopted by this court or the Supreme Court. Such an exception is, moreover, inconsistent with the Supreme Court's recent treatment of the privilege.

The Supreme Court's modern treatment of the privilege against self-incrimination commences with Justice Brennan's opinion in Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), in which, in contrast with earlier cases such as Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886), the Court focused upon the distinction between evidence of acts which are noncommunicative, and evidence of acts which, by their nature, require the direct manifestations of an individual's thoughts. Schmerber v. California recognized that compelled production of blood samples did not require disclosure of the mental process of the person from whom the sample was taken. Schmerber, 384 U.S. at 765. The Court has applied the same principle to permit a defendant's compelled participation in a lineup, United States v. Wade, 388 U.S. 218, 221-23, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and the compelled production of handwriting samples, Gilbert v. California, 388 U.S. 263, 265-67, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), and voice exemplars, United States v. Dionisio, 410 U.S. 1, 5-7, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973). In each case the Court noted that the evidence obtained was devoid of testimonial significance. Once the Court recognized that the privilege against self-incrimination was concerned only with the compelled disclosure of thought processes, it was inevitable that earlier holdings such as Boyd v. United States, supra, 116 U.S. 616, applying the privilege to the contents of records which were voluntarily created, would be reconsidered. That reconsideration occurred in Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), holding that the compelled production from attorneys of documents which had been prepared either by their clients or for their clients by accountants did not implicate the clients' privilege against self-incrimination. As the Court explained,

The Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.

Id. at 408 (emphasis in original).

Although Fisher v. United States put an end to the successful assertion of the privilege against self-incrimination with respect to the contents of business documents voluntarily created, the quoted passage makes clear that the Court continued to recognize that testimonial communication of any kind was protected if it might tend to incriminate. Indeed, long before the Court cut back on the privacy interests in the contents of records which it recognized in Boyd, it had determined that custodians of business records were protected from compelled incriminating testimony. In Curcio v. United States, 354 U.S. 118, 1 L. Ed. 2d 1225, 77 S. Ct. 1145 (1957), the government, relying on United States v. White, 322 U.S. 694, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944), urged that the custodian of a labor union's books and records could be compelled to testify before a grand jury about their location. A unanimous Court flatly rejected that contention, reasoning:

The Fifth Amendment suggests no such exception. It guarantees that "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.

Curcio, 354 U.S. at 123-24. Justice Burton's opinion in Curcio v. United States distinguishes the Second Circuit opinion in United States v. Austin-Bagley Corp., supra, and contains dicta to the effect that mere authentication testimony may be compelled. 354 U.S. at 125. That dicta, however, is inconsistent with the reasoning and holding of Curcio, for Justice Burton holds unequivocally that "forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind." Id. at 128. By focusing on the fact that the testimony for which compulsion was sought would require a custodian of records to reveal the contents of his mind, Curcio anticipated the reasoning of the Schmerber line of cases. The dicta in Curcio arguably approving the Austin-Bagley rule simply cannot be squared with such a focus of inquiry, and furthermore, are inconsistent with the Court's reasoning in Fisher and in the more recent case of United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984).

In Fisher the Court specifically referred to the communicative nature of production:

The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125, 1 L. Ed. 2d 1225, 77 S. Ct. 1145 (1957).

425 U.S. at 410. Thus in Fisher the Court cited with approval the holding in Curcio that a record custodian could not be compelled to give evidence of a communicative nature which might incriminate him. The Court went on to examine the papers in issue, prepared by someone other than the custodian, and determined that as a matter of law admitting the existence and possession of the papers would not tend to incriminate. 425 U.S. at 411. The Fisher Court, therefore, did what the trial court in this case refused to do, and what the Austin-Bagley Court held to be irrelevant. It made a determination that the production of the requested evidence would not tend to incriminate the subpoenaed witness.

More recently, in United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984), that critical determination was made, in the first instance, by the district court which found that the act of producing the subpoenaed documents would be communicative and incriminatory. The Supreme Court affirmed the holding of this court that the production of the documents in question was privileged, and could not be compelled absent a grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. Doe, U.S. , 104 S. Ct. at 1245. The Court stated that

although the contents of a document may not be privileged, the art of producing the document may be. [ Fisher v. United States, supra ] at 410, 96 S. Ct. at 1581. A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect.

Id. at , 104 S. Ct. at 1242.

The government urges that the holding in United States v. Doe does not control because in Doe the records were those of a sole proprietorship, while in this case they belong to a professional corporation. That argument misses the whole point of the Court's analysis in Fisher and Doe.*fn2 Those cases, consistent with Schmerber v. California, make the significant factor, for the privilege against self-incrimination, neither the nature of the entity which owns documents, nor the contents of documents, but rather the communicative or noncommunicative nature of the arguably incriminating disclosures sought to be compelled.

Our holding that a witness may not be held in contempt for refusing to authenticate records absent either a finding that there is no likelihood of self-incrimination or a grant of use immunity casts no doubt on the continued vitality of the rules of Hale v. Henkel, 201 U.S. 43, 50 L. Ed. 652, 26 S. Ct. 370 (1906) and United States v. White, 322 U.S. 694, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944), that neither corporations nor other collective entities may assert a privilege against self-incrimination. Nor does it weaken in the slightest the utility of the compulsory record rule discussed in Marchetti v. United States, 390 U.S. 39, 57, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968). Records of collective entities still must be maintained, and their production can be compelled by a subpoena duces tecum addressed to the entity. In situations where authentication is required,*fn3 Fed. R. Evid. 901(a) indicates that the requirement can be satisfied by the submission of "sufficient evidence to support a finding that the matter in question is what its proponent claims." Id. See Fed. R. Evid. 104(b). This is particularly true in the case of business records which, more often than not, can be authenticated without resort to extrinsic evidence. In re Japanese Electronic Products, 723 F.2d 238, 284, 288 (3d Cir. 1983), cert. granted in part sub nom. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 471 U.S. 1002, 105 S. Ct. 1863, 85 L. Ed. 2d 157 (1985). Where a witness is required to authenticate records, most business entities will have agents who can provide the testimony without self-incrimination.*fn4 The grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003 is always a possibility. The dissent's raising the spectre of two corporations avoiding prosecution for price fixing by virtue of a "de facto" corporate privilege is, thus, unrealistic in suggesting that the actual participants in a corporate conspiracy would be the only persons within the organization capable of authenticating the hypothetical document. Further, the dissent is notably silent on the possibility of the grant of use immunity in this scenario.

In the present case the government never explored alternate means of production or authentication of the documents, and it never considered the possibility of a grant of use immunity before moving to have Brown held in contempt. Indeed, it candidly concedes that what it wants amounts to compelled authentication testimony which may later be used against a target of the grand jury investigation. Such a result would be a convenience to prosecutors, but the Court rejected essentially the same argument for efficiency in prosecutions in Curcio v. United States, 354 U.S. at 127. We have no doubt that the repeal of the privilege against self-incrimination by a constitutional amendment would even be a greater convenience to prosecutors, but until that occurs prosecutors must live with the rule that no person, even the sole stockholder of a professional corporation, may be compelled to disclose the contents of his mind when such disclosure may tend to provide an incriminating link in an evidentiary chain for use against him.

Since the court gave Brown no opportunity to establish that production and authentication would tend to incriminate him, and no offer of statutory use immunity was made, the order holding Brown in civil contempt must be reversed. Whether the act of production, or testimony authenticating the records of J. Gilbert Brown Co., P.C., would in fact tend to incriminate Brown is a matter which must be determined by the trial court if the government makes a further effort to enforce the subpoena duces tecum.

The judgment appealed from will, therefore, be reversed.

BECKER, J., Concurring.

Although I agree with much of the reasoning of Judge Garth's dissent, I agree with the result reached by Judge Gibbons that the judgment of the district court holding Brown in contempt of court must be reversed; hence this separate opinion.

Judge Gibbons is apparently of the view that the Supreme Court does not treat custodians of corporate records differently from other record-keepers for fifth amendment purposes. He posits that the Court holds corporate custodians to be protected by the fifth amendment with respect to testimony regarding corporate documents, whether such testimony is verbal or results from the act of production itself. See supra typescript at 7-10. According to Judge Gibbons, cases suggesting the contrary, such as Bellis v. United States, 417 U.S. 85, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974), address only the question whether the documents themselves were privileged, and not whether the act of production by the custodian would constitute testimonial self-incrimination. See supra typescript at 10 n.1.

I disagree with this interpretation of the relevant case law. Rather, I agree with Judge Garth, see infra typescript at (Garth, J. dissenting), that the Court continues to make a distinction between custodians of collective entity records and other record-keepers. While non-collective entity custodians can claim a fifth amendment privilege with respect to both oral testimony and the act of production, see United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 1241-43, 79 L. Ed. 2d 552 (1984), collective entity custodians can claim a blanket privilege only regarding oral testimony.*fn1 See Curcio v. United States, 354 U.S. 118, 1 L. Ed. 2d 1225, 77 S. Ct. 1145 (1957). to the extent that mere production of the documents in compliance with a subpoena would result in an implicit admission that they are authentic corporate documents under the control of the custodian, however, the cases make clear that the custodian is not protected by the fifth amendment. See, e.g., United States v. White, 322 U.S. 694, 699, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944); Wilson v. United States, 221 U.S. 361, 378-79, 55 L. Ed. 771, 31 S. Ct. 538 (1911). The rationale behind this distinction is that the custodian should not be able to shield the collective entity, which has no fifth amendment privilege, from governmental scrutiny by asserting a personal right. Thus, the custodian is deemed to have waived his privilege with respect to any testimonial incrimination inherent in the act of production by acceptance of his corporate position. See United States v. White, 322 U.S. at 700.

As recently as Fisher v. United States, the Court reaffirmed the difference in fifth amendment treatment as between corporate and other record-keepers. The Court stated that a collective-entity custodian must comply with a subpoena duces tecum even though he has been responsible for keeping the books and his producing them would itself be sufficient authentication to permit their introduction against him.*fn2 Nothing in United States v. Doe, which addressed the question whether a sole-proprietior [sic] can claim the fifth amendment with respect to the production of business documents, and which is an application of Fisher,*fn14 can be taken to have eradicated the historic line drawn in fifth amendment jurisprudence between record-keepers of collective and non-collective entities.*fn3

Were this a "mere production" case, in which the only potential incrimination to Brown from the production of the corporate documents was that which is inherent in the production itself -- i.e., an acknowledgment that the documents exist, that the custodian has control over them, and that they are authentic corporate documents -- I would agree with the result reached by Judge Garth. In my view, however, the case involves testimonial incrimination beyond that inherent in the act of production because of the wording of the grand jury subpoena. It is for this reason that I concur in the result reached by Judge Gibbons.

The specific terms of the grand jury subpoena, in pertinent part, are as follows:

To: James Gilbert Brown, Custodian of Records, J. Gilbert Brown Co., P.C.

You are hereby commanded to appear in the United States District Court for the Eastern District of Pennsylvania at Federal Grand Jury Room . . . and bring with you all workpapers, reports, records, correspondence and copies of tax returns in your possession or under your control relating to accounting services performed by you or under your supervision on behalf of the below-listed persons or entities for the years 1977 through 1982.

(Emphasis added.) As I read this subpoena, its request for production constitutes, in effect, an interrogatory that asks Brown, "Did you prepare the documents?" Production of documents pursuant to the subpoena would consequently convey implied and probably incriminatory testimony by Brown that he had prepared, or had supervised the preparation of, the documents produced.*fn4 Brown's compliance with the subpoena, therefore, would potentially result in substantially more incriminating testimony than that necessarily resulting from the production of corporate documents. Moreover, I cannot say with confidence that a trial court would hold inadmissible against Brown any such implied testimony.*fn5 Thus, the documents request goes far beyond what Fisher permits and crosses the line into an area protected by the fifth amendment.*fn6

I therefore believe that Brown's claim of privilege may have properly been invoked; hence, the contempt sanction should be vacated. If the government makes a further effort to enforce the subpoena duces tecum, then the district court would have to determine whether production of the documents would in fact incriminate Brown.*fn7 I also believe that if the government were to narrow the subpoena by eliminating its impermissible interrogatory character, it could obtain the records without difficulty for the reasons explained by Judge Garth in his dissent.

Judge Adams joins in this opinion.

GARTH, Circuit Judge, dissenting, with whom Seitz and Hunter, ...


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