Grand Jury Subpoena, In re

• Citation: 826 F.2d 1166
• Decision Date: 14 August 1987
• Docket Number: No. 1575,D,1575
• Parties: 23 Fed. R. Evid. Serv. 609 In re GRAND JURY SUBPOENA. TWO GRAND JURY CONTEMNORS, Appellants, v. UNITED STATES of America, Appellee. ocket 87-6165.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1166

826 F.2d 1166

23 Fed. R. Evid. Serv. 609

In re GRAND JURY SUBPOENA.

TWO GRAND JURY CONTEMNORS, Appellants, v. UNITED STATES of America, Appellee.

No. 1575, Docket 87-6165.

United States Court of Appeals, Second Circuit.

Argued July 14, 1987.

Decided Aug. 14, 1987.

Cristina C. Arguedas, Berkeley, Cal. (Penelope M. Cooper, Cooper & Arguedas, Berkeley, Cal., of counsel), Peter E. Fleming, New York City (William L. Osterhoudt, San Francisco, Cal., and Curtis, Mallet-Prevost, Colt & Mosle New York City, of counsel), for appellants.

Baruch Weiss, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty.

S.D.N.Y., Bruce A. Green, Asst. U.S. Atty., of counsel), for appellee.

Before NEWMAN, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Appellants, two witnesses before the grand jury, appeal from orders of the United States District Court for the Southern District of New York (Vincent L. Broderick, Judge ), which held them in civil contempt for refusing to sign directives authorizing foreign financial institutions to release documents and information to the government, and ordered them confined until they signed the directives. 28 U.S.C. Sec. 1826(a). Appellants contend inter alia that compelled execution of the directives, as written, would violate their fifth amendment privilege against self-incrimination and right to due process of law. Because we find no fifth amendment violation here, we affirm.

FACTS and BACKGROUND

On May 28 and 29, 1987, the grand jury issued subpoenas duces tecum to appellants which required them to sign "consent directives" which were attached to the subpoenas. The directives provided that the signator, i.e., both appellants, authorized foreign financial institutions to disclose to the government information and documents relating to accounts maintained by appellants, or their corporations, at the foreign financial institutions. The directives did not acknowledge that accounts in foreign financial institutions were in existence or that they were controlled by appellants. Nor did the directives indicate whether documents or any other information relating to appellants were present at foreign financial institutions, assuming that such accounts did exist.

The directives provided that they should be "construed as consent" with respect "to any and all bank confidentiality laws of any state or nation." In addition, and apparently to make it clear that, although the directives were to be construed as consent, they nevertheless were being compelled by the grand jury, the directives provided that they were executed "in compliance with the direction of a Grand Jury Subpoena Duces Tecum."

On June 8, 1987, appellants filed motions to quash the subpoenas, arguing inter alia that compelled execution of the directives would violate their fifth amendment rights. After a hearing on June 15, 1987, the district court denied their motions to quash after it found that execution of the directives by appellants would not involve testimonial communications, and thus created no basis for fifth amendment violations. The district court then ordered appellants to appear before the grand jury to sign the directives.

In light of appellants' objections to some of the language contained in the directives, however, the district court modified them by changing the title from "Consent Directive" to "Directive," and specifying that they were being executed in compliance with a court order, rather than in compliance with the direction of a grand jury subpoena. The district court also provided that the directives could not be used as an admission against appellants in any subsequent trial, and it inserted a time limitation in the directives so that, as modified, they authorized disclosure of information and records dating back to 1980.

On June 22, 1987, appellants appeared before the grand jury and refused to sign the directives as modified by the district court, despite being ordered to do so by the grand jury foreman. On the same day, and after a hearing, the district court found appellants in civil contempt, and ordered them incarcerated until such time as they executed the modified directives. 28 U.S.C. Sec. 1826(a). At the hearing, the district court again stated that it found no testimonial communications implicated by the execution of the directives, and noted that if appellants had executed the directives, the government would have been barred from using them as an admission in any subsequent trial. The district court stated that it did not feel its order excluding the admission of the directives into evidence was required by the fifth amendment, but was The district court then denied appellants' motion for a stay or bail pending appeal of the contempt and confinement orders, but granted them a limited stay to apply to this court for a stay pending appeal. On June 25, 1987, we continued the stay of confinement until the matter could be heard on an expedited basis, and at oral argument on July 14, 1987, we continued the stay until disposition of this appeal. For the reasons stated below, we affirm the district court orders holding appellants in contempt, and accordingly, lift the stay of execution of the confinement orders.

in response to Second Circuit precedent which provided for such exclusion.

DISCUSSION

In this expedited appeal, appellants present several challenges to the district court orders requiring them to sign the directives at issue. Appellants assert, first, that the orders violated their fifth amendment privilege against compelled self-incrimination; and second, that absent language in the directives indicating that appellants signed them under protest and under threat of confinement, they were being compelled to sign false documents. Appellants also raised other challenges which we find are without merit, and thus we summarily reject them.

With respect to the self-incrimination claim, appellants recognize that precedent in this Circuit has approved of the compelled execution of directives in the face of fifth amendment challenges, In Re N.D.N.Y. Grand Jury Subpoena, 811 F.2d 114 (2d Cir.1987), and United States v. Davis, 767 F.2d 1025 (2d Cir.1985), but contend that those cases conflict with the Supreme Court's decision in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), to the extent that they purportedly relied on a de facto use immunity to obviate any fifth amendment problems. Appellants thus invite us to reverse our prior decisions in light of this conflict, and hold that compelled execution of the directives violates their fifth amendment privilege against sef-incrimination. We decline appellants' invitation, and we write here to clarify the meaning of our prior decisions.

1. Self-incrimination claim.

The fifth amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. Despite this broad language, however, the fifth amendment does not proscribe the compelled production of every sort of incriminating evidence. Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976). Historically, the privilege has been interpreted to protect a witness from being compelled to make self-incriminating "communications, whatever form they might take[.]" Schmerber v. California, 384 U.S. 757, 763-764, 763 n. 7, 86 S.Ct. 1826, 1832 n. 7, 16 L.Ed.2d 908 (1966) (refusing to adopt Wigmore's formulation of the privilege which covered only "testimonial disclosures"). The scope of the privilege, however, has since been limited, and it now "applies only when the accused is compelled to make a testimonial communication that is incriminating." Fisher, 425 U.S. at 408, 96 S.Ct. at 1579 (emphasis in original). In contrast, the privilege does not bar compelling an accused to provide, or making him the source of, real or physical evidence, Schmerber, 384 U.S. at 764-765, 86 S.Ct. at 1832, even though the accused may be compelled to speak, United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 1929-1930, 18 L.Ed.2d 1149 (1967), or write, Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), provided that his speech or writing exemplar is sought for identification purposes, and not to "disclose any knowledge he might have." Wade, 388 U.S. at 222, 87 S.Ct. at 1930.

To establish a fifth amendment violation, appellants must therefore demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that communication. In re N.D.N.Y. Grand Jury Subpoena, 811 F.2d 114, 116 (2d Cir.1987). The compulsion element is clearly present here. See United States v. Browne, 624 F.Supp. 245, 248 (N.D.N.Y.1985) (where the court orders an individual to sign a consent form after he refuses, the element of compulsion is met). More troublesome, though, is the question of whether ordering appellants to sign the directives--and thus requiring them to authorize disclosure of records and information if any exist--constitutes testimonial self-incrimination. We conclude, however, that it does not.

At the outset, we emphasize that appellants do not contend, nor could they argue, that their fifth amendment privilege extends to preclude the financial institutions from producing records or information regarding appellants' transactions. United States v. Davis, 767 F.2d 1025, 1039 (2d Cir.1985). Thus, since the directives are the only communications which appellants were compelled to make, they are the only possible source of a fifth amendment violation. Id.

In this regard, we have twice approved of the compelled execution of a directive in the face of fifth amendment self-incrimination challenges. Thus, in Davis, while we observed that a directive, such as the one at issue, may have had aspects that were communicative in nature, 767 F.2d at 1040, we nevertheless rejected the...