409 U.S. 322 (1973), 71-889, Couch v. United States

Docket Nº:No. 71-889
Citation:409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548
Party Name:Couch v. United States
Case Date:January 09, 1973
Court:United States Supreme Court

Page 322

409 U.S. 322 (1973)

93 S.Ct. 611, 34 L.Ed.2d 548



United States

No. 71-889

United States Supreme Court

Jan. 9, 1973

Argued November 14, 1972




Petitioner challenges an Internal Revenue Service (IRS) summons directing an accountant, an independent contractor with numerous clients, to produce business records that she had been giving to him for preparation of her tax returns from 1955 to 1968, when the summons was issued. The District Court and the Court of Appeals concluded that the privilege against self-incrimination asserted by petitioner was not available.

Held: On the facts of this case, where petitioner had effectively surrendered possession of the records to the accountant, there was no personal compulsion against petitioner to produce the records. The Fifth Amendment therefore constitutes no bar to their production by the accountant, even though the IRS tax investigation may entail possible criminal, as well as civil, consequences. Nor does petitioner, who was aware that much of the information in the records had to be disclosed in her tax returns, have any legitimate expectation of privacy that would bar production under either the Fourth or Fifth Amendment. Pp. 327-336.

449 F 2d 141, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 337. DOUGLAS, J., post, p. 338, and MARSHALL, J., post, p. 344, filed dissenting opinions.

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POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U.S.C. §§ 7402 (b) and 7604 (a),1 seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964-1968. The summons was directed to petitioner's accountant for the production of:

All books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the above taxpayer.2

The question is whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant.

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Both the District Court3 and the Court of Appeals for the Fourth Circuit4 held the privilege [93 S.Ct. 614] unavailable. We granted certiorari, 405 U.S. 1038.

Petitioner is the sole proprietress of a restaurant. Since 1955, she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee, but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis. When petitioner surrendered possession of the records to Shaffer, she, of course, retained title in herself.

During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns. After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income. Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service.

Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves to determine petitioner's correct tax liability, the possibility of income tax fraud and the imposition of tax fraud penalties, and, lastly, the possibility of a recommendation of a criminal tax violation. Jennings first introduced himself to petitioner, gave her Miranda warnings

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as required by IRS directive, and then issued the summons to Shaffer5 after the latter refused to let him see, remove, or microfilm petitioner's records.

When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.6

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It is now undisputed that a special agent is authorized, pursuant to 26 U.S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation [93 S.Ct. 615] with civil and possible criminal consequences.7 In Donaldson v. United States, 400 U.S. 517 (1971), the Court upheld such a summons, noting that:

Congress clearly has authorized the use of the summons in investigating what may prove to be criminal conduct. . . . There is no statutory suggestion for any meaningful line of distinction, for civil as compared with criminal purposes, at the point of a special agent's appearance. . . . To draw a line where a special agent appears would require the Service, in a situation of suspected but undetermined fraud, to forgo either the use of the summons or the potentiality of an ultimate recommendation for prosecution. We refuse to draw that line, and thus to stultify enforcement of federal law.

Id. at 535-536.8

The Court in Donaldson noted that the taxpayer there had attempted to intervene, pursuant to Fed.Rule Civ.Proc. 24(a)(2), to bar production of records

in which the taxpayer has no proprietary interest of any kind, which are owned by the third person, which are in his

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hands, and which relate to the third person's business transactions with the taxpayer.

Id. at 523. The Court quite properly concluded that, under those facts, no absolute right to intervene existed. Id. at 530-531. The instant case, however, presents a different question. Here, petitioner does own the business records which the Government seeks to review, and the courts below did permit her to intervene. The essential inquiry is whether her proprietary interest further enables her to assert successfully a privilege against compulsory self-incrimination to bar enforcement of the summons and production of the records, despite the fact that the records no longer remained in her possession.


The importance of preserving inviolate the privilege against compulsory self-incrimination has often been stated by this Court, and need not be elaborated. Counselman v. Hitchcock, 142 U.S. 547 (1892); Malloy v. Hogan, 378 U.S. 1 (1964); Miranda v. Arizona, 384 U.S. 436 (1966). By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought, and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one's own mouth. United States v. White, 322 U.S. 694, 698 (1944). The Court has thought the privilege necessary to prevent any "recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality," Ullmann v. United States, 350 U.S. 422, 428 (1956).

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In Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964), the Court articulated the policies and purposes of the privilege:

[O]ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial, rather than an inquisitorial, system of criminal justice; our fear that self-incriminating statements will [93 S.Ct. 616] be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government . . . , in its contest with the individual, to shoulder the entire load," . . . our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life." . . .

It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: "A party is privileged from producing the evidence, but not from its production." Johnson v. United States, 228 U.S. 457, 458 (1913). The Constitution explicitly prohibits compelling an accused to bear witness "against himself"; it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and

prohibition of compelling a man . . . to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,

Holt v. United States, 218 U.S. 245, 252-253 (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.

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In the case before us, the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant.9 He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no "shadow of testimonial compulsion upon or enforced communication by the accused" is involved. Schmerber v. California, 384 U.S. 757, 765 (1966).

The divulgence of potentially incriminating evidence against petitioner...

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