487 U.S. 201 (1988), 86-1753, Doe v. United States

Docket Nº:No. 86-1753
Citation:487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184, 56 U.S.L.W. 4708
Party Name:Doe v. United States
Case Date:June 22, 1988
Court:United States Supreme Court

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487 U.S. 201 (1988)

108 S.Ct. 2341, 101 L.Ed.2d 184, 56 U.S.L.W. 4708



United States

No. 86-1753

United States Supreme Court

June 22, 1988

Argued March 2, 1988




Pursuant to a subpoena, petitioner, the target of a federal grand jury investigation, produced some records as to accounts at foreign banks, but invoked his Fifth Amendment privilege against self-incrimination when questioned about the existence or location of additional bank records. After the foreign banks refused to comply with subpoenas to produce any account records because their governments' laws prohibit such disclosure without the customer's consent, the Government filed a motion with the Federal District Court for an order directing petitioner to sign a consent directive, without identifying or acknowledging the existence of any account, authorizing the banks to disclose records of any and all accounts over which he had a right of withdrawal. The court denied the motion, concluding that compelling petitioner to sign the form was prohibited by the Fifth Amendment. The Court of Appeals disagreed and reversed. On remand, the District Court ordered petitioner to execute the consent directive, and, after he refused, found him in civil contempt. The Court of Appeals affirmed.

Held: Because the consent directive here is not testimonial in nature, compelling petitioner to sign it does not violate his Fifth Amendment privilege against self-incrimination. Pp. 206-218.

[108 S.Ct. 2343] (a) In order to be "testimonial," an accused's oral or written communication, or act, must itself, explicitly or implicitly, relate a factual assertion or disclose information. Cf. Fisher v. United States, 425 U.S. 391; United States v. Doe, 465 U.S. 605. It is consistent with the history of and the policies underlying the Self-Incrimination Clause to hold that the privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information. Pp. 207-214.

(b) Petitioner's execution of the consent directive here would not have testimonial significance, because neither the form nor its execution communicates any factual assertions, implicit or explicit, or conveys any information to the Government. The form does not acknowledge that an account in a foreign bank is in existence, or that it is controlled by petitioner. Nor does the form indicate whether documents or any other information relating to petitioner are present at the foreign bank, assuming that such an account does exist. Given the consent directive's phraseology, petitioner's execution of the directive has no testimonial

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significance either. If the Government obtains bank records after petitioner signs the directive, the only factual statement made by anyone will be the bank's implicit declaration, by its act of production in response to a subpoena, that it believes the accounts to be petitioner's. Pp. 214-218.

812 F.2d 1404, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, post, 219.

BLACKMUN, J., lead opinion

JUSTICE BLACKMUN delivered the opinion of the Court.

This case presents the question whether a court order compelling a target of a grand jury investigation to authorize foreign banks to disclose records of his accounts, without identifying those documents or acknowledging their existence, violates the target's Fifth Amendment privilege against self-incrimination.


Petitioner, named here as John Doe, is the target of a federal grand jury investigation into possible federal offenses arising from suspected fraudulent manipulation of oil cargoes and receipt of unreported income. Doe appeared before the grand jury pursuant to a subpoena that directed him to produce records of transactions in accounts at three named banks in the Cayman Islands and Bermuda. Doe produced some bank records and testified that no additional records responsive

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to the subpoena were in his possession or control. When questioned about the existence or location of additional records, Doe invoked the Fifth Amendment privilege against self-incrimination.

The United States branches of the three foreign banks also were served with subpoenas commanding them to produce records of accounts over which Doe had signatory authority. Citing their governments' bank secrecy laws, which prohibit the disclosure of account records without the customer's consent,1 the banks refused [108 S.Ct. 2344] to comply. See App. to Pet. for Cert. 17a, n. 2. The Government then filed a motion with the United States District Court for the Southern District of Texas that the court order Doe to sign 12 forms consenting to disclosure of any bank records respectively relating to 12 foreign bank accounts over which the Government knew or suspected that Doe had control. The forms indicated the account numbers and described the documents that the Government wished the banks to produce.

The District Court denied the motion, reasoning that, by signing the consent forms, Doe would necessarily be admitting

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the existence of the accounts. The District Court believed, moreover, that, if the banks delivered records pursuant to the consent forms, those forms would constitute "an admission that [Doe] exercised signatory authority over such accounts." Id. at 20a. The court speculated that the Government, in a subsequent proceeding, then could argue that Doe must have guilty knowledge of the contents of the accounts. Thus, in the court's view, compelling Doe to sign the forms was compelling him "to perform a testimonial act that would entail admission of knowledge of the contents of potentially incriminating documents," id. at 20a, n. 6, and such compulsion was prohibited by the Fifth Amendment. The District Court also noted that Doe had not been indicted, and that his signing of the forms might provide the Government with the incriminating link necessary to obtain an indictment, the kind of "fishing expedition" that the Fifth Amendment was designed to prevent. Id. at 21a.

The Government sought reconsideration. Along with its motion, it submitted to the court a revised proposed consent directive that was substantially the same as that approved by the Eleventh Circuit in United States v. Ghidoni, 732 F.2d 814, cert. denied, 469 U.S. 932 (1984). The form purported to apply to any and all accounts over which Doe had a right of withdrawal, without acknowledging the existence of any such account.2 The District Court denied this motion also, reasoning

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that compelling execution of the consent directive might lead to the uncovering and linking of Doe to accounts that the grand jury did not know were in existence. The court concluded that execution of the proposed form would

admit signatory authority over the speculative accounts, [and] would implicitly authenticate any records of the speculative accounts provided by the banks pursuant to the consent.

App. to Pet. for Cert. 13a, n. 7.

The Court of Appeals for the Fifth Circuit reversed in an unpublished per curiam opinion, 775 F.2d 300 (1985). Relying on its intervening decision in In re United States Grand Jury Proceedings (Cid), 767 F.2d 1131 (1985), [108 S.Ct. 2345] the court held that Doe could not assert his Fifth Amendment privilege as a basis for refusing to sign the consent directive, because the form "did not have testimonial significance," and therefore its compelled execution would not violate Doe's Fifth Amendment rights. App. to Pet. for Cert. 7a.3

On remand, the District Court ordered petitioner to execute the consent directive. He refused. The District Court accordingly found petitioner in civil contempt and ordered

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that he be confined until he complied with the order. Id. at 2a. The court stayed imposition of sanction pending appeal and application for writ of certiorari. Id. at 2a-3a.

The Fifth Circuit affirmed the contempt order, again in an unpublished per curiam, concluding that its prior ruling constituted the "law of the case," and was dispositive of Doe's appeal. Id. at 3a; judgt. order reported at 812 F.2d 1404 (1987). We granted certiorari, 484 U.S. 813 (1987), to resolve a conflict among the Courts of Appeals as to whether the compelled execution of a consent form directing the disclosure of foreign bank records is inconsistent with the Fifth Amendment.4 We conclude that a court order compelling the execution of such a directive as is at issue here does not implicate the Amendment.


It is undisputed that the contents of the foreign bank records sought by the Government are not privileged under the Fifth Amendment. See Braswell v. United States, ante at 108-110; United States v. Doe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976). There also is no question that the foreign banks cannot invoke the Fifth Amendment in declining to produce the documents; the privilege does not extend to such artificial entities. See Braswell v. United States, ante at 102-103; Bellis v. United States, 417 U.S. 85, 89-90 (1974). Similarly, petitioner asserts no Fifth Amendment right to prevent the banks from disclosing the account records, for the Constitution "necessarily does not proscribe incriminating statements elicited from another."

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Couch v. United States, 409 U.S. 322, 328 (1973). Petitioner's sole claim is that his execution of the consent forms directing the banks to release records as to which the banks believe he has the right of withdrawal has independent testimonial significance that will incriminate him, and that the Fifth Amendment prohibits governmental compulsion of that act.

The Self-Incrimination Clause of the Fifth Amendment reads: "No person . . . shall be compelled in any criminal...

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