U.S. v. Doe

• Decision Date: 14 August 1980
• Docket Number: No. 80-1221,80-1221
• Parties: UNITED STATES of America, Appellant, v. John DOE, Witness, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 694

628 F.2d 694

UNITED STATES of America, Appellant, v. John DOE, Witness, Appellee.

No. 80-1221.

United States Court of Appeals, First Circuit.

Argued June 3, 1980.

Decided Aug. 14, 1980.

Douglas P. Woodlock, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellant.

John S. Leonard, Boston, Mass., with whom Theodore E. Daiber, George A. McLaughlin, Jr., and The McLaughlin Brothers, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and CAFFREY, District Judge. ^*

COFFIN, Chief Judge.

A federal grand jury issued a subpoena duces tecum to appellee, an accountant, requesting that he surrender his personal business records pertaining to an eight year period. Appellee moved to quash the subpoena, claiming that compliance would violate his Fifth Amendment privilege against self-incrimination. Accompanying this motion was appellee's affidavit, wherein he stated that he was a sole practitioner and that he prepared and maintained the requested records for use in his business. After a hearing the district court granted the motion to quash as to those business records prepared by and in the possession of appellee, but ordered the submission of bank receipts, records required to be kept by law and records prepared by other parties. An in camera inspection followed where the court classified the records as privileged or not and made minor adjustments in the order not relevant here. The government appealed from the order quashing the subpoena in part.

After briefs were filed on appeal, we issued our opinion in In re Grand Jury Proceedings, 626 F.2d 1051 (1st Cir. 1980). In that case, we held that a sole proprietor or practitioner whose business records are subpoenaed by the grand jury enjoys Fifth Amendment protection against the compulsion of testimony inherent in the act of submitting the requested documents to the grand jury, but not against the acquisition or use of the contents of those records. We directed that the government could subpoena the records if it first granted the witness use immunity for the authentication of other testimonial information that could be implied from the witness's compliance with the subpoena. As the parties to this appeal recognize, ¹ Grand Jury controls every issue in the present appeal but one.

The government maintains, as it did in the district court, that it need not grant appellee use immunity from compelled implicit authentication of the records because he waived his privilege when he submitted his affidavit in support of his motion to quash, wherein he stated that he had prepared all the records and that they were in his possession. The government contends that furnishing this much information about the records waived any privilege against providing further information that would authenticate the records. The district court refused to find a waiver in the affidavit because it was filed to support the assertion of the very right that the government claims was thereby waived and was necessary to the success of the assertion. The court reasoned that to find a waiver in the proof of facts necessary to support the claim of privilege would place the witness in a "Catch-22" position. Thus, the court made no finding that the information revealed in the affidavit was the kind of incriminating testimony found in Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951), to waive the Fifth Amendment as to further questioning, but seems to have held that even if the provision of this information could constitute a waiver it would be unfair so to construe it in this context. We agree.

After Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), it was clear that the subpoena of business records implicates the Fifth Amendment only when those records are possessed by the individual who created them. If the records are corporate records, Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), or if they were prepared by another party, the custodian of the records cannot resist a subpoena even if the records contain information incriminating to him. Thus, to gain even the limited privilege afforded by In re Grand Jury Proceedings, supra, the custodian of the records must show that the records he possesses are those of his sole proprietorship and that he created them. Appellee filed his affidavit to prove these predicate facts. To hold that a custodian who attempts to establish the facts necessary to support a valid claim of self-incrimination thereby waives that privilege would make a mockery of the substantive constitutional right.

We think that the reasoning of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), applies forcefully to this situation. The Court there established the rule that testimony by a defendant to support his motion to suppress evidence could not be admitted against him at trial to establish his guilt. See also In re Grand Jury Investigation, 587 F.2d 589, 597-98 (3d Cir. 1978). The Court's concern was that without this...