United States v. Doe

• Decision Date: 28 February 1984
• Docket Number: No. 82-786,82-786
• Citation: 104 S.Ct. 1237,79 L.Ed.2d 552,465 U.S. 605
• Parties: UNITED STATES, Petitioner v. John DOE
• Court: U.S. Supreme Court

465 U.S. 605

104 S.Ct. 1237

79 L.Ed.2d 552

UNITED STATES, Petitioner

v John DOE.

No. 82-786.

Argued Dec. 7, 1983.

Decided Feb. 28, 1984.

Syllabus

During a federal grand jury investigation of corruption in the awarding of county and municipal contracts, subpoenas were served on respondent owner of sole proprietorships demanding production of certain business records of several of his companies. Respondent then filed a motion in Federal District Court seeking to quash the subpoenas. The District Court granted the motion (except as to records required by law to be kept or disclosed to a public agency), finding that the act of producing the records would involve testimonial self-incrimination. The Court of Appeals affirmed, holding that the records were privileged, that the act of producing them also would have "communicative aspects of its own" in that the turning over of the records to the grand jury would admit their existence, possession, and authenticity, and that hence respondent was entitled to assert his Fifth Amendment privilege against compelled self-incrimination rather than produce the records. The court further held that in view of the Government's failure to make a formal request for use immunity under 18 U.S.C. §§ 6002 and 6003, it was proper to reject the Government's attempt to compel delivery of the records.

Held:

1. The contents of the subpoenaed records in question are not privileged under the Fifth Amendment. That Amendment only protects the person asserting the privilege from compelled self-incrimination. Fisher v. United States, 425 U.S. 391, 396, 96 S.Ct. 1569, 1573, 48 L.Ed.2d 39. Where the preparation of business records is voluntary, no compulsion is present. Here, respondent does not claim that he prepared the records involuntarily or that the subpoenas would force him to restate, repeat, or affirm the truth of the records' contents. The fact that the records are in his possession is irrelevant to the determination of whether the creation of the records was compelled. Pp. 610-612.

2. The act of producing the documents at issue in this case is privileged. Pp. 612-614.

3. The act of producing the subpoenaed documents cannot be compelled without a statutory grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. This Court will not extend the jurisdiction of courts to include prospective grants of use immunity under a doctrine of con- structive use immunity (as the Government urges), in the absence of the formal request that the statute requires. Pp. 614-617.

680 F.2d 327 (3d Cir.1982), affirmed in part, reversed in part, and remanded.

Samuel A. Alito, Jr., Newark, N.J., for petitioner.

Richard T. Philips, Newark, N.J., for respondent.

Justice POWELL delivered the opinion of the Court.

This case presents the issue whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.

I

Respondent is the owner of several sole proprietorships. In late 1980, a grand jury, during the course of an investigation of corruption in the awarding of county and municipal contracts, served five subpoenas on respondent. The first two demanded the production of the telephone records of several of respondent's companies and all records pertaining to four bank accounts of respondent and his companies. The subpoenas were limited to the period between January 1, 1977 and the dates of the subpoenas. The third subpoena demanded the production of a list of virtually all the business records of one of respondent's companies for the period be- tween January 1, 1976, and the date of the subpoena.¹ The fourth subpoena sought production of a similar list of business records belonging to another company.² The final subpoena demanded production of all bank statements and cancelled checks of two of respondent's companies that had accounts at a bank in the Grand Cayman Islands.

II

Respondent filed a motion in federal district court seeking to quash the subpoenas. The District Court for the District of New Jersey granted his motion except with respect to those documents and records required by law to be kept or disclosed to a public agency.³ In reaching its decision, the District Court noted that the Government had conceded that the materials sought in the subpoena were or might be incriminating. The court stated that, therefore, "the relevant inquiry is . . . whether the act of producing the documents has communicative aspects which warrant Fifth Amendment protection." 541 F.Supp. 1, 3 (1981) (emphasis in original). The court found that the act of production would compel respondent to "admit that the records exist, that they are in his possession, and that they are authentic." Ibid. While not ruling out the possibility that the Government could devise a way to ensure that the act of turning over the documents would not incriminate respondent, the court held that the Government had not made such a showing.

The Court of Appeals for the Third Circuit affirmed. It first addressed the question whether the Fifth Amendment ever applies to the records of a sole proprietorship. After noting that an individual may not assert the Fifth Amendment privilege on behalf of a corporation, partnership, or other collective entity ⁴ under the holding of Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), the Court of Appeals reasoned that the owner of a sole proprietorship acts in a personal rather than a representative capacity. As a result, the court held that respondent's claim of the privilege was not foreclosed by the reasoning of Bellis. 680 F.2d 327, 331 (1982).

The Court of Appeals next considered whether the documents at issue in this case are privileged. The court noted that this Court held in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), that the contents of business records ordinarily are not privileged because they are created voluntarily and without compulsion. The Court of Appeals nevertheless found that respondent's business records were privileged under either of two analyses. First, the court reasoned that, notwithstanding the holdings in Bellis and Fisher, the business records of a sole proprietorship are no different from the individual owner's personal records. Noting that Third Circuit cases had held that private papers, although created voluntarily, are protected by the Fifth Amendment,⁵ the court accorded the same protection to respondent's business papers.⁶ Second, it held that respondent's act of producing the subpoenaed records would have "communicative aspects of its own." 680 F.2d, at 335. The turning over of the subpoenaed documents to the grand jury would admit their existence and authenticity. Accordingly, respondent was entitled to assert his Fifth Amendment privilege rather than produce the subpoenaed documents.

The Government contended that the court should enforce the subpoenas because of the Government's offer not to use respondent's act of production against respondent in any way. The Court of Appeals noted that no formal request for use immunity under 18 U.S.C. §§ 6002 and 6003 had been made. In light of this failure, the court held that the District Court did not err in rejecting the Government's attempt to compel delivery of the subpoenaed records.

We granted certiorari to resolve the apparent conflict between the Court of Appeals holding and the reasoning underlying this Court's holding in Fisher. We now affirm in part, reverse in part, and remand for further proceedings.

III

A.

The Court in Fisher expressly declined to reach the question whether the Fifth Amendment privilege protects the contents of an individual's tax records in his possession.⁷ The rationale underlying our holding in that case is, however, persuasive here. As we noted in Fisher, the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. 425 U.S., at 396, 96 S.Ct., at 1573. Where the preparation of business records is voluntary, no compulsion is present.⁸ A subpoena that demands production of docu- ments "does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought." Id., at 409, 96 S.Ct., at 1580. Applying this reasoning in Fisher, we stated:

"[T]he Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. Schmerber v. California [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ], supra; United States v. Wade [388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ], supra; and Gilbert v. California [388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ], supra. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else. The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else." Id., at 409-410, 96 S.Ct., at 1580-81.

This reasoning applies with equal force here. Respondent does not contend that he prepared the documents involun- tarily ⁹ or that the subpoena would force him to restate, repeat, or affirm the truth of their contents. The fact that the records are in respondent's possession is irrelevant to the determination of whether the creation of the records was compelled. We therefore hold that the contents of those records are not privileged.¹⁰

B

Although the contents of a document...