Grand Jury Proceedings, In re

• Citation: 814 F.2d 791
• Decision Date: 23 March 1987
• Docket Number: No. 86-1832,86-1832
• Parties: , 55 USLW 2566, 22 Fed. R. Evid. Serv. 1370 In re GRAND JURY PROCEEDINGS. Appeal of William A. RANAURO.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 791

814 F.2d 791

87 A.L.R.Fed. 661, 55 USLW 2566, 22

Fed. R. Evid. Serv. 1370

In re GRAND JURY PROCEEDINGS.

Appeal of William A. RANAURO.

No. 86-1832.

United States Court of Appeals,

First Circuit.

Argued Nov. 7, 1986.

Decided March 23, 1987.

Albert F. Cullen, Jr. with whom Cullen & Wall, Boston, Mass., was on brief for appellant.

Patrick M. Walsh, Sp. Atty., Dept. of Justice, with whom Robert S. Mueller, III, Acting U.S. Atty., and Jeremiah T. O'Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief for the United States.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

William A. Ranauro, who is being investigated by a grand jury for possible reporting or currency violations, appeals from a district court order holding him in contempt for refusing to sign a "Direction and Consent" form. ¹ The signed form would authorize a Singapore bank to release any records pertaining to accounts or transactions, if any, Ranauro has with the bank. Foreign bank secrecy law impedes the United States from obtaining the records unless Ranauro signs the form.

Ranauro contends that the court's order violates the fifth amendment. His argument is not that the contents of any existing bank records are privileged, but rather, that the signed consent form would amount to compelled self-incriminating testimony.

The fifth amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." Though this language is broad, the Supreme Court has held that the privilege "applies only when the accused is compelled to make a testimonial communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976) (emphasis added). It is clear that the district court's order forcing Ranauro to choose between signing the consent form and the penalty of contempt constitutes compulsion within the meaning of the fifth amendment. What is less apparent is whether the signed consent form is a testimonial self-incriminating communication within the scope of the privilege.

Though the fifth amendment was historically interpreted to protect an accused from being forced to make self-incriminating "communications, whatever In contrast, the Court has consistently held that physical exemplars are outside the scope of the fifth amendment privilege. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ("a mere handwriting exemplar ..., like the voice or body itself, is an identifying physical characteristic outside [the fifth amendment's] protection"); United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 1929-30, 18 L.Ed.2d 1149 (1967) (forcing defendant to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial nature"); Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966) (blood test evidence, although an incriminating product of compulsion, was not "petitioner's testimony"); Holt v. United States, 218 U.S. 245, 252-53, 31 S.Ct. 2, 6, 54 L.Ed. 245 (1910) (fifth amendment "prohibition of the use of physical or moral compulsion to extort communications" does not prohibit compelling accused to don blouse worn by perpetrator and exhibit his person for observation by a prosecution witness prior to trial).

                form they might take," 2 the Supreme Court has since limited its coverage to compelled incriminating testimonial communications.   Fisher, 425 U.S. at 408, 96 S.Ct. at 1579.  The Supreme Court has indicated that compelled incriminating acts or statements must communicate some assertion, assurance, or admission to fall within the scope of the fifth amendment privilege.  In United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), the Court recognized that the act of producing records in response to a documentary subpoena could have testimonial aspects.  Specifically, the Court respected the district court's finding, affirmed by the court of appeals, that "enforcement of the subpoenas would compel [the witness] to admit that the records exist, that they are in his possession, and that they are authentic."    465 U.S. at 621, 104 S.Ct. at 1246
                

The Supreme Court has stated that the difficult question of whether a particular communication involves compelled testimonial self-incrimination within the scope of the privilege may not be answered categorically, but rather, may depend upon the facts and circumstances of the particular case. Fisher v. United States, 425 U.S. at 410, 96 S.Ct. at 1580. In this case, the carefully drafted statement--"I consent to the production of records in my name, if such records exist"--does not itself assert the existence of any bank records in Ranauro's name. Nor does it admit the authenticity of or Ranauro's control over any records which might be produced by the bank. It does, however, admit and assert Ranauro's consent. The fact of Ranauro's consent is potentially incriminating, for it could be used, before the grand jury or at trial, to prove the ultimate facts that accounts in Ranauro's name existed or that Ranauro controlled those accounts. We explain with the following scenario: Suppose that at trial the government were to introduce bank records produced in response to a subpoena that had been accompanied by the consent form and that it was not apparent from the face of the records or otherwise how Ranauro was linked to them. Suppose also that the government then introduced the subpoena and consent form, and a government witness testified that the bank records were received in response to the subpoena and consent form. Would not the evidence linking Ranauro to the records be his own testimonial admission of consent? We believe it would. In other words, the testimonial admission (in substance, "I consent to the release of records relating to accounts, if any, which you, bank, believe are mine") would have been used as some evidence of Ranauro's control of the accounts. For this reason, we conclude that the fifth amendment prohibits the government from using Ranauro's compelled admission of consent as evidence against him.

Our brother dissents on the ground that the order compelling Ranauro to grant his consent does not subject him to the risk of perjury. We doubt that such a risk is always a prerequisite to invocation of the privilege. The Court in Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964) noted "the cruel trilemma" (self-accusation, perjury, or contempt) as one of no fewer than seven "fundamental values" that are reflected by the privilege. ³ That the risk of perjury is not always present is illustrated by perhaps the most blatant imaginable example of a fifth amendment violation, where a court orders a suspect to either swear to a prepared confession or suffer the penalties of contempt.

Nor do we agree with our brother's conclusion that the consent form in this case can be likened to a physical exemplar. Since the content of a physical characteristic--the bloodtype, handwriting style, or fingerprint configuration--pre-exists any court order, the only thing compelled by the government in a physical exemplar case is the act of producing the pre-existing physical characteristic in the form of a sample. Since the creation of the characteristic is not compelled, its content, even if testimonial and no matter how incriminating, falls outside the scope of the privilege. In contrast, in this case the government is compelling the creation of the content, not the production, of the evidence "I consent." For this reason, the content of the testimonial and incriminating consent form, unlike the content of a physical exemplar, falls within the scope of the privilege.

We also believe that we are justified in grounding our judgment upon our supervisory powers over the administration of criminal justice within the federal courts of our circuit. See, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (Federal appellate courts may require lower federal courts "to follow procedures deemed desirable from the viewpoint of sound judicial practice although in nowise commanded by statute or by the Constitution.); Murphy v. Waterfront Commission, 378 U.S. at 91, 84 S.Ct. at 1624 (Harlan, J., concurring); McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 609, 87 L.Ed. 819 (1942) ("Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence."). Even if the consent form in this case were not, by itself, to be considered direct testimony by Ranauro of his control over whatever bank accounts are produced as a result of his execution of the form, it so closely approximates such testimony that we believe its compelled creation and subsequently incriminating use would violate not only the values underlying the fifth amendment but also the essence of our accusatorial system of justice:

[T]he constitutional foundation underlying the privilege is the respect a government--state or federal--must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966) (citations omitted). See also Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949) ("Under our system society carries the burden of proving its charge against the accused not out of his own mouth.").

against him by its own independent labors, rather than by the cruel, simple expedient of compelling...