Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, In re

• Decision Date: 29 October 1992
• Citation: 1 F.3d 87
• Parties: , 37 Fed. R. Evid. Serv. 659 In re GRAND JURY SUBPOENA DUCES TECUM DATED
• Court: U.S. Court of Appeals — Second Circuit

Page 87

1 F.3d 87

62 USLW 2068, 37 Fed. R. Evid. Serv. 659

In re GRAND JURY SUBPOENA DUCES TECUM DATED OCTOBER 29, 1992.

UNITED STATES of America, Appellant, v. John DOE, Appellee.

No. 1497, Docket 93-1070.

United States Court of Appeals, Second Circuit.

Argued May 18, 1993.

Decided July 21, 1993.

Scott A. Edelman, Asst. U.S. Atty., New York City (Roger S. Hayes, U.S. Atty., S.D.N.Y., John W. Auchincloss II, Asst. U.S. Atty., of counsel), for appellant.

Jed S. Rakoff, New York City (Fried, Frank, Harris, Shriver & Jacobson, John Sullivan, of counsel), for appellee.

John H. Doyle, III, New York City filed a brief on behalf of New York Council of Defense Lawyers as amicus curiae.

Before: LUMBARD, CARDAMONE, and ALTIMARI, Circuit Judges.

LUMBARD, Circuit Judge:

The government appeals from an order entered on January 7, 1993 in the Southern District of New York, Pollack, J., denying its motion to compel John Doe to comply with a grand jury subpoena duces tecum dated October 29, 1992. The subpoena commanded Doe to produce "[t]he original version of any diary or calendar for the year 1988, a copy of which has been produced to the SEC." On appeal, the government argues that the court erred in denying its motion to compel because: (1) the Fifth Amendment does not protect the contents of voluntarily prepared, non-business documents such as Doe's calendar; (2) Doe's act of producing the calendar would not constitute compelled testimonial self-incrimination; and (3) enforcement of the subpoena is not barred by alleged governmental misconduct. Because we agree, we reverse.

In 1989, the SEC was investigating possible violations of the federal securities laws by Doe and others. The investigation focused in part on the trading of securities by Doe in his personal brokerage accounts. Pursuant to that investigation, Doe was served with a subpoena dated October 24, 1989, demanding that he appear before the SEC and produce various documents, including his daily calendar for 1988. That calendar is a breast-pocket appointment book which Doe used to record appointments, social engagements, chores, phone numbers, and other reminders.

On January 10, 1990, Doe appeared before the SEC and, on the advice of counsel, responded to the subpoena by asserting his Fifth Amendment privilege against self-incrimination. Thereafter, however, Doe, through new counsel, agreed to withdraw his prior invocation of the Fifth Amendment and comply with the SEC's requests. In return, the SEC agreed, inter alia, to: withdraw the subpoena previously served on Doe; agree with Doe as to the timing and scope of future document requests; and extend the time for Doe to respond to any recommendation it might make for enforcement action against him.

On December 6 and 7, 1990, Doe appeared before the SEC in New York and testified about the trading of securities in his personal brokerage accounts. Thereafter, on December 20, 1990, the SEC requested that Doe produce various documents, including "[d]esk calendars, diaries and appointment books kept by him or on his behalf."

On January 28, 1991, Doe complied with that request by producing a number of documents, including a photocopy of the calendar. The documents were submitted with a cover letter from Doe's counsel which stated in part:

We claim that all materials provided to the Staff during the course of this investigation, including this letter and the documents transmitted herewith, are entitled to confidential treatment. Because such documents constitute investigatory records obtained by the Commission in connection with a potential law enforcement proceeding, they certainly are subject, at least at the present, to the exemption from mandatory disclosure under ... the Freedom of Information Act * * * as well as the protections available under the Privacy Act of 1974....

Accordingly, we expect that all copies of documents produced in connection with the Staff's investigation, including this letter, will be kept in a non-public file and that access to them by any third party not a member of the Commission or its Staff will be denied.

Each page of every document produced by Doe was stamped:

This document is provided to the United States Securities and Exchange Commission solely for its use, and neither the document nor its contents may be disclosed to any other person or entity, pursuant to a claim of confidentiality made by letter dated JAN 28 1991.

In June 1991, Doe again appeared before the SEC and testified about the documents he had produced in January. In particular, Doe was questioned about calendar entries for March 7, 1988, a date of particular importance in the SEC's investigation.

After the SEC concluded its investigation, it brought a civil lawsuit against Doe and others alleging participation by Doe in insider trading.

While the SEC's investigation was pending, the U.S. Attorney's Office for the Southern District of New York requested access to documents produced by Doe. On March 5, 1991, the SEC granted that request and provided the U.S. Attorney's Office with a copy of the calendar. Upon examining it, the government became suspicious that entries in the original version of the calendar had been "whited-out" with "liquid paper" before it was copied and produced to the SEC. Accordingly, on October 29, 1990, a grand jury, which had been investigating possible perjury and obstruction of justice by Doe and others, issued a subpoena commanding Doe to produce the original version of the calendar.

Doe informed the government that, on the basis of his Fifth Amendment privilege against self-incrimination, he would refuse to produce the calendar. The government then moved to compel Doe to comply with the subpoena. At a November 12, 1992 conference before Judge Pollack, the government advised the court and Doe's counsel of its suspicion that the calendar had been altered, explaining that it wanted to perform physical tests on the original version of the calendar to reveal any entries that had been whited-out. Doe maintained that the subpoena was unenforceable because: (1) the contents of the calendar, as well as the act of producing it, were protected by the Fifth Amendment; and (2) the SEC had breached a confidentiality agreement with him by providing a copy of the calendar to the U.S. Attorney's Office.

Doe's counsel then permitted the government to view the original version of the calendar. The government's examination confirmed its suspicion that numerous entries had been whited-out, including entries for the critical date of March 7, 1988.

At a hearing on January 7, 1993, Judge Pollack denied the government's motion to compel, stating:

The diary is a [sic] intimate personal document; the content of the original document as originally written or revised was not published to anyone; the disclosure of a purported copy to the SEC was not a publication of the original; the original document was not voluntarily disclosed to the SEC or to the Assistant United States Attorney. The original document is subject to the privilege of the Fifth Amendment in its original and its present altered (if it was) form. ¹

This appeal followed.

A. Contents-Based Privilege

Doe maintains that the contents of the calendar are protected from compelled production by the Fifth Amendment's Self-incrimination Clause, which provides, "No person ... shall be compelled in any criminal case to be a witness against himself." While we have previously left undecided the question of whether the Fifth Amendment "protects the contents of private papers that are not business documents," In re Proceedings Before August 6, 1984 Grand Jury, 767 F.2d 39, 41 (2d Cir.1985), we now rule that it does not.

In arguing for a contents-based privilege, Doe relies principally upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which involved a civil forfeiture proceeding against two partners charged with importing glass without paying the prescribed duty. Over the partners' objections, the government obtained a court order requiring them to produce the invoice for the glass. After the invoice was admitted at trial, the glass was ordered forfeited. The Supreme Court reversed, holding that the order violated both the Fourth and Fifth Amendments.

In so ruling, the Court concluded that the Fourth Amendment applied to court orders in the nature of subpoenas duces tecum in the same manner that it applied to search warrants, and that the government could not, consistent with the Fourth Amendment, seize a person's documents as evidence unless it had a superior proprietary interest in them. Id. at 622-24, 6 S.Ct. at 527-29. The Court also held that a defendant in a criminal or forfeiture case could not be compelled to produce certain evidentiary items without violating the Fifth Amendment, stating, "[A] compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution." ² Id. at 634-35, 6 S.Ct. at 534-35.

Several aspects of the Boyd decision did not endure. ³ Nevertheless, the pronouncement in Boyd that the Fifth Amendment protects against the compelled production of private papers often appeared as dictum in later Supreme Court opinions. See, e.g., Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 698-99, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966); Bellis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). In a series of decisions beginning with Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976), however, the Court raised serious doubt as to the continued validity of that pronouncement.

In Fisher, the Court ruled that taxpayers' Fifth...