Doe v. US
| Decision Date | 22 June 1988 |
| Docket Number | No. 86-1753.,86-1753. |
| Citation | 487 US 1240 |
| Parties | John Doe, Petitioner v. United States. |
| Court | U.S. Supreme 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 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 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 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." App. to Pet. for Cert. 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 84-1 USTC ¶ 9498, 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 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. Relying on its intervening decision in In re United States Grand Jury Proceedings (Cid), 767 F.2d 1131 (1985), 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 that he be confined until he complied with the order. App. to Pet. for Cert. 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. We granted certiorari, ___ U.S. ___ (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, ___ U.S. ___, ___ (1988) (slip op. 9-10); United States v. Doe, 465 U.S. 605 (1984); Fisher v. United States 76-1 USTC ¶ 9353, 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, ___ U.S., at ___ (slip op. 3); 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." Couch v. United States 73-1 USTC ¶ 9159, 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 case to be a witness against himself." This Court has explained that "the privilege protects a person only against being incriminated by his own compelled testimonial communications." Fisher v. United States, 425 U.S., at 409, citing Schmerber v. California, 384 U.S. 757 (1966); United States v. Wade, 388 U.S. 218 (1967); and Gilbert v. California, 388 U.S. 263 (1967). The execution of the consent directive at issue in this case obviously would be compelled, and we may assume that its execution would have an incriminating effect.5 The question on which this case turns is whether the act of executing the form is a "testimonial communication." The parties disagree about both the meaning of "testimonial" and whether the consent directive fits the proposed definitions.
Petitioner contends that a compelled statement is testimonial if the Government could use the content of the speech or writing, as opposed to its physical characteristics, to further a criminal investigation of the witness. The second half of petitioner's "testimonial" test is that the statement must be incriminating, which is, of course, already a separate requirement for invoking the privilege. Thus, Doe contends, in essence, that every written and oral statement significant for its content is necessarily testimonial for purposes of the Fifth Amendment.6 Under this view, the consent directive is testimonial because it is a declarative statement of consent made by Doe to the foreign banks, a statement that the Government will use to persuade the banks to produce potentially incriminating account records that would otherwise be unavailable to the grand jury.
The Government, on the other hand, suggests that a compelled statement is not testimonial for purposes of the privilege, unless it implicitly or explicitly relates a factual assertion or otherwise conveys information to the Government. It argues that, under this view, the consent directive is not testimonial because neither the directive itself nor Doe's execution of the form discloses or communicates fact or information. Petitioner disagrees.
The Government's view of the privilege, apparently accepted by the Courts of Appeals that have considered compelled consent forms,7 is derived largely from this Court's decisions in Fisher and Doe. The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. Doe, 465 U.S., at 613, and n.11; Fisher, 425 U.S., at 409-410; id., at 428, 432 (concurring opinions). See Braswell v. United States, ___ U.S., at ___ (slip op. 5); id., at ___ (slip op. 4) (dissenting opinion). Thus, the Court made clear...
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