In re Agan

• Decision Date: 08 September 1980
• Docket Number: No. GJ 79-3.,GJ 79-3.
• Citation: 498 F. Supp. 493
• Parties: In re Grand Jury No. 79-3 Ramsey AGAN.
• Court: U.S. District Court — Northern District of Georgia

498 F. Supp. 493

In re Grand Jury No. 79-3 Ramsey AGAN.

No. GJ 79-3.

United States District Court, N. D. Georgia, Atlanta Division.

September 8, 1980.

William L. Harper, U. S. Atty., N. D. Ga., Andrew J. Ekonomou, Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Steven W. Ludwick, Atlanta, Ga., for defendant.

ORDER

O'KELLEY, District Judge.

Ramsey Agan, president and sole shareholder of Adana Mortgage Bankers, Inc. (Adana), has been subpoenaed to appear before a grand jury and produce for its inspection corporate records designated in a subpoena duces tecum. The grand jury is investigating Adana's business activities, and Agan is a target of the investigation. The U.S. Attorney handling the Adana investigation notified Agan¹ that he would be required to give a limited amount of testimony before the grand jury in order to ensure that he complied with the subpoena. The U.S. Attorney indicated he would ask him his name, address, home telephone number, name of business, business address, business telephone number, and whether each of the items requested in the subpoena had been produced. Agan notified the U.S. Attorney that he would refuse to produce the corporate records or answer any questions before the grand jury on the ground that to do so might tend to incriminate him. Prior to Agan's scheduled appearance before the grand jury, Agan and the U.S. Attorney made oral motions to this court to rule on the validity of the subpoena. Although Agan has not yet refused to comply with the subpoena, he has stipulated to the court that he would not produce the records or answer any questions before the grand jury. Because of this stipulation and the urgency of the situation, the court has agreed to make a preliminary ruling on whether the documents must be produced and whether Agan may be compelled to give oral testimony to the grand jury in connection with the production of the documents.

At a hearing on the respective motions, Agan conceded that the documents requested were corporate records and were not privileged from production because they were his personal papers. Agan also conceded that the existence and location of the records were not in dispute. Agan instead contended that he could not be compelled to produce the records because the act of submitting them to the grand jury would implicitly authenticate their contents, a testimonial act. Agan also argued that he could not be required to give his name, the name of his business, business address, or business telephone number because to do so would compel him to furnish a link in the chain of prosecution for wire fraud, 18 U.S.C. § 1343. The U.S. Attorney responded that a corporation must speak through its officers, and relied on the well settled rule that an officer of a corporation may be compelled to produce records of the corporation even if they tend to incriminate him. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911). He further argued that the oral testimony requested of Agan would be necessary in order to ensure that he had complied with the subpoena.

The court concludes that Agan may be compelled to produce the corporate records and to testify to the extent necessary to ensure that he complied with the subpoena. This includes his name and address and whether particular records called for in the subpoena were produced. While the recitation of the name of one's business, its address and telephone number would be innocuous under most circumstances, the court can conceive of situations in which revelation of these facts may tend to be incriminating. The court declines to rule on whether Agan can be compelled to answer any questions concerning his business activities until the actual questions have been propounded and Agan has refused to answer.²

Corporations have no fifth amendment privilege against self-incrimination and may be compelled to produce incriminating information. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (seminal case). Corporations can only speak through their officers, and it is now beyond dispute that a corporate officer may be compelled to produce corporate records even though they may be personally incriminating. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); In re Grand Jury Subpoena of Fred R. Witte Center Glass No. 3, 544 F.2d 1026 (9th Cir. 1976). Accord, Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1976). See also Fisher v. United States, 425 U.S. 391, 411-12, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1975). Production of corporate records may be compelled from an officer even if he is the sole shareholder or alter ego of the corporation. Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913); United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973); In re Grand Jury Subpoena, 460 F.Supp. 150 (W.D.Mo.1978). Cf. United States v. Hankins, 581 F.2d 431 (5th Cir. 1978) (partnership records), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979).

The Supreme Court most recently addressed the question of when business records can be compelled by subpoena in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1975). In that case attorneys refused to produce accountants' workpapers relating to the preparation of their clients' income tax returns. The attorneys argued that the fifth amendment and attorney-client privileges precluded them from turning over the documents to the Internal Revenue Service. In rejecting the attorneys' claims, the Supreme Court expressed its view that the mere act of production would not itself involve testimonial self-incrimination:

It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment .... The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers.

Id. at 411, 96 S.Ct. at 1581.

The Court analogized the situation in Fisher to the compelled production of corporate records from its officers:

This Court has also time and again allowed subpoenas against the custodian of corporate documents or those belonging to other collective entities such as unions and partnerships . . . over claims that the documents will incriminate the custodian despite the fact that producing the documents tacitly admits their existence and their location in the hands of their possessor. The existence and possession or control of the subpoenaed documents being no more in issue here than in the above cases, the summons is equally enforceable.

Id. at 411-12, 96 S.Ct. at 1581 (citations omitted).

The court holds that Agan can be compelled to produce the corporate records designated in the subpoena even though they may tend to incriminate him personally.

The question now presented is whether and to what extent a corporate officer can be compelled to testify concerning documents produced by a valid subpoena duces tecum. The court finds that absent unusual circumstances not present in this case, testifying as to one's name and address merely provides identification information ancillary to production of the documents called for in the subpoena and is not within the scope of the fifth amendment privilege against self-incrimination.

A more difficult question is whether the United States Attorney may compel a corporate officer to identify the records produced in the subpoena. In the leading case of United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir.), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929), Judge Learned Hand held that a corporate officer may be compelled to identify and authenticate corporate records produced pursuant to a valid subpoena duces tecum. The principle was followed in subsequent cases, Lumber Products Ass'n v. United States, 144 F.2d 546 (9th Cir. 1944), rev'd on other grounds sub nom. United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973 (1947); Carolene Products Co. v. United States, 140 F.2d 61 (4th Cir.), aff'd, 323 U.S. 18, 65 S.Ct. 1, 89 L.Ed. 15 (1944), and was discussed with approval in Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). In Curcio, the Supreme Court ruled that a grand jury witness could not be compelled to testify as to the location of union records which he failed to produce pursuant to a subpoena duces tecum. Without expressly ruling on the validity of the Austin-Bagley line of cases, the Court distinguished the case before it from the principle established in those cases:

The custodian's act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes

...