On Appeal From The United States District Court For The District Of New Jersey - Newark, Misc. No. 85-343
Weis, Stapleton and Hunter, Circuit Judges
STAPLETON, Circuit Judge:
Appellant is the target of a grand jury investigation. He received a subpoena directing him to appear before the grand jury with seven categories of business records. Immediately beneath his name at the top of the subpoena was the name of a corporation and the description of the documents sought indicated that the subpoena was directed to corporate records. Appellant moved to quash the subpoena on the ground that its enforcement would violate his fifth amendment privilege against compelled self-incrimination. The government opposed the motion, asserting that appellant could be compelled to produce the records in his representative capacity as an officer of the named corporation.
The government acknowledged that it could overcome appellant's fifth amendment privilege by obtaining use immunity for him pursuant to 18 U.S.C. §§ 6002 and 6003, but declined to do so. Instead, the government argued that, because it sought the records from appellant in his representative capacity, it could not later use appellant's act of producing the records against him in his individual capacity and thus that there was no risk of self-incrimination.
The district court found that appellant had been subpoenaed solely in his capacity as a representative of the named corporation, not in his individual capacity. It then noted that the government had disavowed any desire to interrogate appellant before the grand jury and had represented that it would not thereafter use the act of production against appellant. The district court held that the government's commitment not to use the act of production would be enforceable against it in any subsequent proceeding and, accordingly, that it created a situation in which appellant could not "assert that whatever 'testimonial communications' his act of producing the requested documents might entail [would] prove to be self-incriminating." App. at 54. Accordingly, appellant was ordered to comply with the subpoena.*fn1
When appellant refused to comply, he was found to be in civil contempt under 28 U.S.C. § 1826 and was ordered to pay a fine of $100 per day of non-compliance. Imposition of the fine was stayed pending this court's review of the contempt citation. Because the contempt citation is based upon an erroneous view of the law and is unsupported by a finding that appellant failed to show that the compelled act of production would have testimonial aspects that might tend to incriminate him, we reverse and remand.
In Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), the Supreme Court observed that the act of producing documents may have testimonial aspects:
The act of producing evidence in response to a subpoena . . . 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.
In In re Grand Jury Matter (Brown), 768 F.2d 525 (3d Cir. 1985) (in banc), this court held that a custodian of corporate records subpoenaed to produce such records in his representative capacity could assert a personal fifth amendment privilege if the act of production would provide testimonial evidence tending to incriminate him. Accord In re Grand Jury Empanelled 3-23-83, 773 F.2d 45, 47 (3d Cir. 1985).
Appellant understandably relies heavily on the Brown decision. The government asserts that Brown is inapplicable here because the prosecution in Brown insisted that it could later use the testimonial aspects of the custodian's act of production against him. In contrast, the government insists, appellant can have no reasonable fear that his act of production may be used against him in the future because the government has stipulated that appellant has been subpoenaed solely in his capacity as a corporate representative. Relying upon what it terms "the representative capacity doctrine," the government argues that "[a] subpoena which calls for a custodian of corporate records to produce the corporation's documents solely in his capacity as a corporate representative by definition does not incriminate him individually" because the "act of production must be construed as ...