Grand Jury Subpoena Duces Tecum Dated May 29, 1987, In re

• Citation: 834 F.2d 1128
• Parties: In re GRAND JURY SUBPOENA DUCES TECUM DATED
• Decision Date: 29 May 1987
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1128

834 F.2d 1128

In re GRAND JURY SUBPOENA DUCES TECUM DATED MAY 29, 1987.

John DOE and Jane Doe, Appellants, v. UNITED STATES of America, Appellee.

No. 354, Docket 87-6193.

United States Court of Appeals,

Second Circuit.

Argued Oct. 1, 1987.

Decided Oct. 2, 1987.

Opinion Dec. 1, 1987.

Stephen E. Kaufman, New York City (Dominic F. Amorosa, Roanne L. Mann, New York City, of counsel), for appellants.

James R. DeVita, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., Aaron R. Marcu, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, MESKILL and NEWMAN, Circuit Judges.

MESKILL, Circuit Judge:

John and Jane Doe appeal from a decision of the United States District Court for the Southern District of New York, Broderick, J., allowing them to intervene but denying their motion to quash a subpoena duces tecum directed to their administrative assistant Richard Roe. Doe and Roe are pseudonyms used to preserve the anonymity of the principals involved and the secrecy of the underlying grand jury proceedings. The district court simultaneously granted the government's motion to compel compliance with the subpoena but stayed that portion of its order pending resolution of this expedited appeal. The Does argue, as they did below, that the subpoena violates their rights under the Fourth and Fifth Amendments. We affirmed the judgment of the district court on October 2, 1987, with a notation that an opinion would follow.

BACKGROUND

The Does, husband and wife, are respectively presidents of at least two corporations. They carry on their business and personal affairs from a suite of offices where their administrative assistant Roe also works. Although Roe is paid by a Doe-controlled corporation and his duties include corporate matters, he also looks after the Does' personal checking accounts. In connection with the latter he writes checks for the Does' signatures, keeps check registers, reconciles monthly statements, prepares deposits and maintains a separate ledger book for each account. The checkbooks, registers and ledgers are kept in a file cabinet in his office within the Does' suite; cancelled checks and past statements are filed in a credenza in the hallway outside of his office. ¹ The Does' own offices are located elsewhere within the suite.

A grand jury is investigating allegations that the Does diverted corporate funds to personal use while falsifying records to conceal the diversion and evade federal taxation. In the course of its investigation the grand jury issued a subpoena duces tecum on February 26, 1987, directing Roe to appear and bring any documents relating to such transactions. The subpoena, redacted to eliminate identifiable references to the Does, directed Roe to produce:

Any documents of any description relating or referring in any way to expenditures by [Doe-controlled corporations], a) for or on behalf of [the Does] personally, or b) for the provision of goods or services for [the Does' home] and its surrounding grounds.

J.App. at 76.

In his first appearance before the grand jury on March 24, 1987, Roe brought no documents but testified about the nature and scope of his work for the Does, including his role with respect to their personal checking accounts. The grand jury issued a second, more detailed subpoena duces tecum on May 29, 1987, requesting four specific categories of documents "within [Roe's] custody or control (joint or exclusive)." These were set forth in a rider attached to the May 29 subpoena as follows:

1) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to [a specified checking account], including, but not limited to, monthly statements, cancelled checks, check stubs or check register, deposit tickets, debit memoranda, credit memoranda, reconciliations, ledgers or journals.

2) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to [a second specified checking account], including, but not limited to, monthly statements, cancelled checks, check stubs or check register, deposit tickets, debit memoranda, credit memoranda, reconciliations, ledgers or journals.

3) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to expenditures for construction, renovation, furnishing, goods or services, or operating expenses of any kind at [the Does' home] and the surrounding grounds in [city, state].

4) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to charge accounts in the name of, or known by you to be utilized by, [one of the Does].

J.App. at 145. Roe again appeared before the grand jury on June 9 and 16, 1987. He testified under immunity, see J.App. at 72, but once more brought no documents. When the government went to the district court seeking to compel Roe to comply with the second subpoena, the Does intervened.

The grounds on which the Does resisted the motion to compel are essentially the same as those they urge on appeal. First and principally, they contend that the subpoena circumvents their Fifth Amendment rights because it effectively compels the production of documents within their constructive possession despite its nominal direction to Roe. Second, they argue that the subpoena violates the Fourth Amendment because it requires Roe to conduct a warrantless search of their office suite at the government's instance. We reject both contentions.

I. Jurisdiction

Because denial of a motion to quash a subpoena duces tecum is ordinarily not an appealable final order within the meaning of 28 U.S.C. Sec. 1291 (1982), a brief discussion of our appellate jurisdiction is in order. As a rule, denial of a motion to quash becomes appealable only after the person served with the subpoena refuses to comply and has been held in contempt. See Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed.2d 783 (1940); Cogen v. United States, 278 U.S. 221, 223-24, 49 S.Ct. 118, 119, 73 L.Ed. 275 (1929); In re Katz, 623 F.2d 122, 124 (2d Cir.1980). There is an exception to this rule, however: "where the subpoena is directed against a third party [who is unlikely to risk being held in contempt to vindicate someone else's rights], the movant who claims that production of the subpoenaed material would violate his fifth amendment privilege against self-incrimination is permitted an immediate appeal." Id. See also Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 420, 62 L.Ed. 950 (1918); In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52, 54-55 (2d

Cir.1985). The situation before us falls squarely within this exception. We thus have jurisdiction to consider this appeal.

II. The Fifth Amendment Claim

The Fifth Amendment proscribes the compulsion of self-incriminating testimonial communications. See In re N.D.N.Y. Grand Jury Subpoena # 86-0351-S, 811 F.2d 114, 116 (2d Cir.1987). All three elements, "compulsion, a testimonial communication and the incriminating nature of that communication" must be present to support a finding that the amendment's proscription has been offended. See id.; see also In re Grand Jury Subpoena (Two Grand Jury Contemnors), 826 F.2d 1166, 1168 (2d Cir.1987). The amendment is concerned, however, only with compulsion to give testimony against oneself. See S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 2725, 81 L.Ed.2d 615 (1984); United States v. Doe, 465 U.S. 605, 610-11, 104 S.Ct. 1237, 1240-41, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425 U.S. 391, 397-98, 96 S.Ct. 1569, 1574-75, 48 L.Ed.2d 39 (1976); Couch v. United States, 409 U.S. 322, 327-28, 93 S.Ct. 611, 615-16, 34 L.Ed.2d 548 (1973) ("extortion of information from the accused himself ... offends our sense of justice"). The production of evidence against a person thus may be compelled if that person is not directly subjected to compulsion: " 'A party is privileged from producing the evidence but not from its production.' " Couch, 409 U.S. at 328, 93 S.Ct. at 616 (quoting Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913)).

It follows that material owned by one person may, at least under some circumstances, be subpoenaed from a third party non-owner in possession without impinging on the Fifth Amendment rights of the owner. See, e.g., Fisher, 425 U.S. at 397, 96 S.Ct. at 1574 (enforcement of subpoena to obtain taxpayer's accountant's work papers from taxpayer's attorney "would not 'compel' the taxpayer to do anything"); Couch, 409 U.S. at 329, 93 S.Ct. at 616 (taxpayer's accountant, "not the taxpayer, is the only one compelled to do anything" in response to subpoena ordering accountant to turn over records related to taxpayer); In re Horowitz, 482 F.2d 72, 84 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973) (drawing parallel to Couch where subpoena was directed to accountant).

The Does seek to distinguish their case, however, on the theory that the records sought here were in their office suite and therefore in their "constructive possession." They contend that the subpoena thus actually compels them personally despite its nominal direction to their assistant Roe. They rely for this analysis on a statement in Couch that, when an owner's documents are subpoenaed in the hands of a third party, "situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions on the accused substantially intact." 409 U.S. at 333, 93 S.Ct. at 618. The precise meaning of this dictum is unclear, however, because the Couch Court "neither defined [constructive possession] in a Fifth Amendment context nor decided...