Grand Jury Proceedings, In re, 95-10390
| Citation | 55 F.3d 1012 |
| Decision Date | 09 June 1995 |
| Docket Number | No. 95-10390,95-10390 |
| Parties | , 1995-1 Trade Cases P 71,045 In re GRAND JURY PROCEEDINGS. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Thomas F. Zych, Leslie William Jacobs, Thompson, Hine and Flory, Patrick M. McLaughlin, Mansour, Gavin, Gerlack & Manos, John Francis McCaffrey, Mansour, Gavin, Gerlack & Manos, Cleveland, OH, for sealed appellant.
John J. Powers, III, U.S. Dept. of Justice, Antitrust Div., Appellate Section, Washington, DC, for appellee U.S.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, JOLLY and DeMOSS, Circuit Judges.
The district court below determined that certain "daytimers" sought by the government in an ongoing grand jury investigation were properly characterized as corporate documents and hence beyond the purview of the Fifth Amendment privilege against self-incrimination. The appellants, John Doe I and John Doe II, are executives in a company which is the subject of an ongoing grand jury investigation into possible price fixing within a certain industry. The appellants filed a timely appeal to this court, contending that the daytimers were personal documents and therefore privileged by the Fifth Amendment. We affirm.
We have previously issued two unpublished opinions in connection with this case, No. 94-11133 (Feb. 6, 1995) and No. 95-10390 (May 8, 1995), both of which are to remain under seal until such time as, in the discretion of the district court or this court, is necessary to prevent disclosure of matters relating to those proceedings. In our second opinion, rendered May 8, 1995, we denied the appellants' request for a stay of the district court's order holding them in contempt for their failure to turn over certain daytimer calendars sought by the grand jury. Following our denial of their motion for a stay, on May 11, 1995, appellants turned over their daytimers to the grand jury and purged themselves of their contempt. Having now turned over the daytimers, the appellants seek review on the merits of the district court's turnover order; specifically, the appellants challenge the determination that the daytimers were corporate, not personal, documents and hence not privileged under the Fifth Amendment. See Braswell v. United States, 487 U.S. 99, 113, 108 S.Ct. 2284, 2292-93, 101 L.Ed.2d 98 (1988); United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944).
The question of whether the district court applied the correct legal standard in determining whether a given document is corporate or legal in nature is, of course, a question of law over which we exercise plenary review. However, the parties agree that the determination of whether a particular document is corporate or personal is, by its very nature, a factual inquiry. Accordingly, provided the district court has applied the correct legal standard, we may reverse its determination as to the corporate or personal nature of a given document only if it is clearly erroneous. A finding is clearly erroneous only if, viewing the evidence in light of the record as a whole, we are left with the "definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179-80, 94 L.Ed. 150 (1949).
The appellants argue that the district court clearly erred in finding that the daytimers in question were corporate documents. Specifically, appellants contend that the district court impermissibly placed dispositive emphasis on the nature of the documents rather than placing them in context of numerous relevant factors, including ownership, access preparation, and use. They argue that the district court should have used a multi-factor approach similar to that articulated in In re Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 522 F.Supp. 977 (S.D.N.Y.1981), which they characterize as "the most cogent and thoughtful implementation of these factors...."
It is apparent from the district court's opinion that it adopted a multi-factor approach analogous to that used in In re Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 657 F.2d 5 (2d Cir.1981), the opinion which established the multi-factor approach used by the district court on remand in In re Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 522 F.Supp. 977 (S.D.N.Y.1981)--the case now contended by appellants to represent the correct legal standard. The district court in this case concluded that, unlike the pocket calendar deemed to be personal in In re Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 522 F.Supp. 977, 982-84 (S.D.N.Y.1981), the daytimers of John Doe I and John Doe II calendars were more akin to the desk calendar and pocket diaries decreed to be corporate in United States v. MacKey, 647 F.2d 898 (9th Cir.1981). While the district court stated that the facts in MacKey were "more apposite" than the facts in In re Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, it is nonetheless clear that, in determining whether the appellants' daytimers were corporate or personal in nature, the district court used the multi-factor balancing approach advocated by the appellants.
The question now squarely presented before this court is one of first impression in this circuit--namely, whether the district court's use of a multi-factor balancing approach in determining whether a document is corporate or personal in nature is the correct legal standard. We think so.
A multi-factor balancing approach attempts to answer the key question: what is the essential nature of the document? It attempts to answer this question in light of the entire context of the ownership, preparation and use of the document. We agree with the Second Circuit that the following nonexhaustive list of criteria is relevant in this inquiry: who prepared the document; the nature of its contents; its purpose or use; who possessed it; who had access to it; whether the corporation required its preparation; and whether its existence was necessary to or in furtherance of corporate business. In re Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 657 F.2d at 8; accord United States v. Wujkowski, 929 F.2d 981, 984 (4th Cir.1991).
Having agreed with the appellants that the multi-factor approach is the correct legal standard to be applied in this case does not end our inquiry. The appellants contend that, in applying the multi-factor standard, the district court clearly erred in its conclusion that the daytimers were corporate documents. Specifically, the appellants contend that the district court failed to take into account the...
To continue reading
Request your trial
-
Barrett v. Acevedo
...control over the document, and that the document is authentic. See Fisher, 425 U.S. at 410, 96 S.Ct. at 1580-81. For example, in In re Grand Jury Proceedings, the court held that the act of production would violate the taxpayer's Fifth Amendment privilege because such action would "implicit......
-
Barrett v. Acevedo
...does not protect the contents of voluntarily prepared documents, whether business or personal) with In re Grand Jury Proceedings, 55 F.3d 1012, 1013-14 (5th Cir.1995) (per curiam); In re Grand Jury Proceedings, 632 F.2d 1033, 1043 (3d Cir.1980) (holding that the contents of personal papers ......
-
In re U.S., 05-20001.
...with specificity, and a court can ultimately demand in camera review of privileged documents. See, e.g., In re Grand Jury Proceedings, 55 F.3d 1012, 1015 (5th Cir.1995). In this extreme situation, however, the Government's assertion of privilege was sufficient. Cf. Inmates of Attica Correct......
-
In re Russo
...its preparation; and whether its existence was necessary to or in furtherance of the entity’s business. See In re Grand Jury Proceedings , 55 F.3d 1012, 1014 (5th Cir. 1995) ; Grand Jury Subpoena Duces Tecum Dated April 23, 1981 Witness v. United States , 657 F.2d 5, 8 (2d Cir. 1981) ; Unit......
-
Table of Cases
...Proceedings, 43 F.3d 966 (5th Cir. 1994), 111 In re Grand Jury Proceedings, 473 F.2d 840 (8th Cir. 1973), 97 In re Grand Jury Proceedings, 55 F.3d 1012 (5th Cir. 1995), 145 In re Grand Jury Proceedings, 604 F.2d 798 (3d Cir. 1979), 90 312 Antitrust Evidence Handbook In re Grand Jury Proceed......
-
The Privilege Against Self-Incrimination
...Generally, such records are considered corporate records if they contain business-related information. See In re Grand Jury Proceedings, 55 F.3d 1012, 1015 (5th Cir. 1995) (multifactor balancing approach is correct legal standard in determining whether a document is corporate or personal in......
-
The Privilege Against Self-Incrimination
...Generally, such records are considered corporate records if they contain business-related information. See In re Grand Jury Proceedings , 55 F.3d 1012, 1015 (5th Cir. 1995) (multifactor balancing approach is correct legal standard in determining whether a document is corporate or personal i......
-
Criminal Antitrust Enforcement
...of the Fourth Amendment); In re Grand Jury Proceeding (Doe), 317 F. App’x 54, 55–56 (2d Cir. 2009); In re Grand Jury Proceedings (Sealed), 55 F.3d 1012, 1015 (5th Cir. 1995) (district court correctly applied a multifaceted balancing approach to determine that “daytimers” were not self-servi......