417 U.S. 85 (1974), 73-190, Bellis v. United States

Docket Nº:No. 73-190
Citation:417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678
Party Name:Bellis v. United States
Case Date:May 28, 1974
Court:United States Supreme Court
 
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417 U.S. 85 (1974)

94 S.Ct. 2179, 40 L.Ed.2d 678

Bellis

v.

United States

No. 73-190

United States Supreme Court

May 28, 1974

Argued February 25, 1974

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Fifth Amendment privilege against self-incrimination held not available to member of dissolved law partnership who had been subpoenaed by a grand jury to produce the partnership's financial books and records, since the partnership, though small, had an institutional identity and petitioner held the records in a representative, not a personal, capacity. The privilege is "limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records." United States v. White, 322 U.S. 694, 701. Pp. 87-101.

483 F.2d 961, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 101.

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

The question presented in this case is whether a partner in a small law firm may invoke his personal privilege against self-incrimination to justify his refusal to comply with a subpoena requiring production of the partnership's financial records.

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[94 S.Ct. 2182] Until 1969, petitioner Isadore Bellis was the senior partner in Bellis, Kolsby & Wolf, a law firm in Philadelphia. The firm was formed in 1955 or 1956. There were three partners in the firm, the three individuals listed in the firm name. In addition, the firm had six employees: two other attorneys who were associated with the firm, one part-time; three secretaries; and a receptionist. Petitioner's secretary doubled as the partnership's bookkeeper, under the direction of petitioner and the firm's independent accountant. The firm's financial records were therefore maintained in petitioner's office during his tenure at the firm.

Bellis left the firm in late 1969 to join another law firm. The partnership was dissolved, although it is apparently still in the process of winding up its affairs. Kolsby and Wolf continued in practice together as a new partnership, at the same premises. Bellis moved to new offices, leaving the former partnership's financial records with Kolsby and Wolf, where they remained for more than three years. In February or March, 1973, however, shortly before issuance of the subpoena in this case, petitioner's secretary, acting at the direction of petitioner or his attorney, removed the records from the old premises and brought them to Bellis' new office.

On May 1, 1973, Bellis was served with a subpoena directing him to appear and testify before a federal grand jury and to bring with him "all partnership records currently in your possession for the partnership of Bellis, Kolsby & Wolf for the years 1968 and 1969." App. 6. Petitioner appeared on May 9, but refused to produce the records, claiming, inter alia, his Fifth Amendment privilege against compulsory self-incrimination. After a hearing before the District Court on May 9 and 10, the court held that petitioner's personal privilege did not extend to the partnership's financial books and records, and ordered

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their production by May 16.1 When petitioner reappeared before the grand jury on that date and again refused to produce the subpoenaed records, the District Court held him in civil contempt, and released him on his own recognizance pending an expedited appeal.

On July 9 1973, the Court of Appeals affirmed in a per curiam opinion. In re Grand Jury Investigation, 483 F.2d 961 (CA3 1973). Relying on this Court's decision in United States v. White, 322 U.S. 694 (19,44), the Court of Appeals stated that "the privilege has always been regarded as personal in the sense that it applies only to an individual's words or personal papers," and thus held that the privilege against self-incrimination did not apply to "records of an entity such as a partnership which has a recognizable juridical existence apart from its members." 483 F.2d at 962. After MR. JUSTICE WHITE had stayed the mandate of the Court of Appeals on August 1, we granted certiorari, 414 U.S. 907 (1973), to consider this interpretation of the Fifth Amendment privilege and the applicability of our White decision in the circumstances of this case. We affirm.

It has long been established, of course, that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony. In Boyd v. United States, 116 U.S. 616 (1886), we held that "any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime" would violate the Fifth Amendment privilege. Id. at 630; see also id. at 633-635; Wilson v. United States, 221 U.S. 361, 377 (1911). The privilege applies to the business records of

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the sole proprietor [94 S.Ct. 2183] or sole practitioner as well as to personal documents containing more intimate information about the individual's private life. Boyd v. United States, supra; Couch v. United States, 409 U.S. 322 (1973); Hill v. Philpott, 445 F.2d 144 (CA7), cert. denied, 404 U.S. 991 (1971); Stuart v. United States, 416 F.2d 459! 462 (CA5 1969). As the Court explained in United States v. White, supra, at 698,

[t]he constitutional privilege against self-incrimination . . . is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him.

See also Curcio v. United States, 354 U.S. 118, 125 (1957); Couch v. United States, supra, at 330-331.

On the other hand, an equally long line of cases has established that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally. This doctrine was first announced in a series of cases dealing with corporate records. In Wilson v. United States, supra, the Court held that an officer of a corporation could not claim his privilege against compulsory self-incrimination to justify a refusal to produce the corporate books and records in response to a grand jury subpoena duces tecum directed to the corporation. A companion case, Dreier v. United States, 221 U.S. 394 (1911), held that the same result followed when the subpoena requiring production of the corporate books was directed to the individual corporate officer. In Wheeler v. United States, 226 U.S. 478 (1913), the Court held that no Fifth Amendment privilege could be claimed with respect to corporate records even though the corporation had previously been dissolved. And

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Grant v. United States, 227 U.S. 74 (1913), applied this principle to the records of a dissolved corporation where the records were in the possession of the individual who had been the corporation's sole shareholder.

To some extent, these decisions were based upon the particular incidents of the corporate form, the Court observing that a corporation has limited powers granted to it by the State in its charter, and is subject to the retained "visitorial power" of the State to investigate its activities. See, e.g., Wilson v. United States, supra, at 382-385. But any thought that the principle formulated in these decisions was limited to corporate records was put to rest in United States v. White, supra. In White, we held that an officer of an unincorporated association, a labor union, could not claim his privilege against compulsory self-incrimination to justify his refusal to produce the union's records pursuant to a grand jury subpoena. White announced the general rule that the privilege could not be employed by an individual to avoid production of the records of an organization, which he holds in a representative capacity as custodian on behalf of the group. 322 U.S. at 699-700. Relying on White, we have since upheld compelled production of the records of a variety of organizations over individuals' claims of Fifth Amendment privilege. See, e.g., United States v. Fleischman, 339 U.S. 349, 357-358 (1950) (Joint Anti-Fascist Refugee Committee); Rogers v. United States, 340 U.S. 367, 371-372 (1951) (Communist Party of Denver); McPhaul v. United States, 364 U.S. 372, 380 (1960) (Civil Rights Congress). See also Curcio v. United States, supra, [94 S.Ct. 2184] (local labor union).

These decisions reflect the Court's consistent view that the privilege against compulsory self-incrimination should be

limited to its historic function of protecting only the natural individual from compulsory incrimination through

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his own testimony or personal records.

United States v. White, supra, at 701. White is only one of the many cases to emphasize that the Fifth Amendment privilege is a purely personal one, most recent among them being the Court's decision last Term in Couch v. United States, 409 U.S. at 327-328. Relying on this fundamental policy limiting the scope of the privilege, the Court in White held that

the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.

322 U.S. at 699. Mr. Justice Murphy reasoned that

individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges...

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