UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 7, 1986
UNITED STATES OF AMERICA AND SCOTT R. HAMMOND, SPECIAL AGENT, INTERNAL REVENUE SERVICE
ROGERS TRANSPORTATION, INC. ROGERS TRANSPORTATION, INC., APPELLANT
On Appeal From the United States District Court for the District of New Jersey (Misc. Action No. 84-159), District Judge: Hon. Herbert J. Stern
SEITZ, Circuit Judge.
This is an appeal under 28 U.S.C. § 1291 by Rogers Transportation, Inc. (appellant) from an order of the district court enforcing an Internal Revenue summons directed to appellant corporation.*fn1 It ordered appellant to produce an identified list of corporate documents through any responsible official. ENforcement has been stayed pending resolution of this appeal.
In its answer to the enforcement petition the corporation asserted that Richard Rogers, individually, was protected by the fifth amendment privilege against self-incrimination from producing and/or testifying with respect to the summoned documents. It was argued to the district court that Rogers was the only one who could produce and testify regarding the documents sought.
Counsel for the corporation argues before us, in effect, that Rogers is the only responsible official because Rogers Transportation is a "one man corporation." In consequence, he says, the order is in reality directed to Rogers and if he is forced to comply, his fifth amendment rights will be violated. The difficulty with this argument is twofold: first counsel for the corporation cannot assert any fifth amendment rights Rogers may have and, two, the district court found that two employees of Rogers Transportation had been granted use immunity by the government any may now produce the documents. Based on these findings the order of the district court did not require Richard Rogers, individually, to do anything. Rather, we believe that the district court in reality ordered appellant corporation to turn over the requested records to the immunized employees. Under these circumstances, we do not believe this case implicates any fifth amendment rights of Richard Rogers.
The difference between the order here involved and the subpoena duces tecum involved in In Re Grand Jury Matter (Brown), 768 F.2d 525 (3d Cir. 1985) (in banc), is that in Brown the subpoena was directed to Brown individually. In our case the order is directed to the corporation and directs production through any responsible official. In view of the wording of the summons and the findings of the district court it is not directed to Rogers individually.
The order of the district court will be affirmed.