Fred R. Witte Center Glass No. 3, Matter of, 76-3061

• Decision Date: 26 October 1976
• Docket Number: No. 76-3061,76-3061
• Citation: 544 F.2d 1026
• Parties: 76-2 USTC P 9761 In the Matter of the Grand Jury Subpoena of FRED R. WITTE CENTER GLASS NO. 3. Fred R. WITTE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1026

544 F.2d 1026

76-2 USTC P 9761

In the Matter of the Grand Jury Subpoena of FRED R. WITTE

CENTER GLASS NO. 3.

Fred R. WITTE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 76-3061.

United States Court of Appeals, Ninth Circuit.

Oct. 26, 1976.

Clyde R. Maxwell (argued), of Newport Beach, Cal., for petitioner-appellant.

Thomas M. Coffin, Asst. U. S. Atty. San Diego, Cal. (on the brief), Terry J. Knoepp, U. S. Atty., San Diego, Cal., for respondent-appellee.

Before TRASK, SNEED and KENNEDY, Circuit Judges.

SNEED, Circuit Judge:

Fred R. Witte appeals from an order of the district court finding him to be a recalcitrant witness within the meaning of 28 U.S.C. § 1826(a) because he "refused without just cause to produce documents know as the 'Teerlink' work papers" before a grand jury as directed by a subpoena issued August 13, 1976 and served August 18, 1976. The work papers referred to in the subpoena were prepared by Richard Teerlink, an accountant, in connection with the corporate affairs of Center Glass Company No. 3 and related business enterprises. The subpoena initially was directed to John Dimaggio, vice-president of Center Glass Company No. 3, but he was substituted out when Fred R. Witte appeared before the district court and agreed to stand in his stead. The grand jury is investigating the possible criminal liability under federal tax laws of Center Glass Company No. 3 and there is no assurance that this investigation will not concern itself with possible similar liability of Fred R. Witte. The subpoena described the papers sought as "all work papers of Richard Teerlink."

I.

Appellant Witte's basic position is that the Fifth Amendment's self-incrimination privilege justifies his failure to comply with the subpoena. In support of this position he asserts that he now is the "owner" of the Teerlink papers, that the work papers contain references to his personal tax liability, and that the district court is seeking to compel him to produce incriminating evidence. The Government, on the other hand, insists that under Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the Fifth Amendment privilege is unavailable under the circumstances of this case.

In Fisher the issue as stated by the Court was:

". . . whether a summons directing an attorney to produce documents delivered to him by his client in connection with the attorney-client relationship is enforceable over claims that the documents were constitutionally immune from summons in the hands of the clients and retained that immunity in the hands of the attorneys." At 393, 96 S.Ct. at 1572.

The documents sought in Fisher were obtained by the client from his accountant and related to the preparation by the accountant of the client's tax returns. They were transferred by the client, in order to obtain legal assistance, to his attorney to whom the challenged Internal Revenue Service summons was directed.

In holding that the attorney must comply with the summons the Court concluded that, even though the attorney-client privilege under the circumstances of Fisher would permit an attorney to refuse to produce documents which the client under the Fifth Amendment was privileged to refuse to produce, the client was not entitled under the Fifth Amendment to refuse to produce an accountant's work papers in his possession. The Court observed:

"A subpoena served on a taxpayer requiring him to produce an accountant's work papers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. (Citations). The accountants' work papers are not the taxpayer's. They were not prepared by him, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayer or of anyone else. The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else." At 409, 96 S.Ct. at 1580.

This passage, the Government asserts, is applicable to the facts of this case and constitutes authority sufficient to support the district court's order. We agree.

Appellant Witte seeks to distinguish Fisher in several ways. First, he asserts that Teerlink, under California law, Business and Professions Code of California, section 5037, owned his work papers and that his title thereto was transferred to Witte and that this fact distinguishes Fisher. As indicated above, the Court in Fisher did observe that in that case the client did not own the work papers. Thus, assuming without deciding that appellant is right about California law and his ownership of the work papers, this would distinguish this case from Fisher in a factual sense. However, the distinction does not render Fisher inapplicable.

We read Fisher as resting on a broader principle. It permits compulsion by way of a summons or subpoena to produce documents when their production does not "ordinarily compel the taxpayer to restate, repeat or affirm the truth of the content of the documents sought." Mere ownership of an accountant's work papers does not convert the production of such papers into an affirmation of the truth of their contents.

We recognize that possibly there may exist situations in which the compelled production of papers, even perhaps an accountant's work papers, reasonably may be designated as involving a "compulsory authentication of incriminating information." See Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 2745, 49 L.Ed.2d 627 (1976). No showing has been made here sufficient to raise this issue. The fact that information in the papers is incriminating is not sufficient.

Appellant also attempts to distinguish Fisher on the ground that here the work papers were subpoenaed directly from the party claiming the Fifth Amendment, while in Fisher the subpoena was directed against the party's attorney. But, as noted above, Fisher was decided specifically on the basis that the taxpayer would have had no Fifth Amendment privilege if he had held the work papers...