In re Grand Jury Subpoena Duces Tecum, Etc., Grand Jury No. 82-2(MIA).

• Decision Date: 06 August 1982
• Docket Number: Grand Jury No. 82-2(MIA).
• Citation: 544 F. Supp. 721
• Parties: In re GRAND JURY SUBPOENA DUCES TECUM (PASSPORTS) DATED JUNE 8, 1982.
• Court: U.S. District Court — Southern District of Florida

544 F. Supp. 721

In re GRAND JURY SUBPOENA DUCES TECUM (PASSPORTS) DATED JUNE 8, 1982.

Grand Jury No. 82-2(MIA).

United States District Court, S. D. Florida, Miami Division.

August 6, 1982.

Stanley Marcus, U. S. Atty., S. D. Fla., by Carol Wilkinson, Sp. Asst. U. S. Atty., Miami, Fla., for the Government.

William Cagney, III, Miami, Fla., for Witness Manuel Lopez-Castro.

ORDER GRANTING GOVERNMENT'S MOTION TO ENFORCE GRAND JURY SUBPOENA

ARONOVITZ, District Judge.

THIS MATTER comes before the Court upon the Government's Motion to Enforce Grand Jury Subpoena. The Government seeks to enforce a subpoena issued to the witness on June 9, 1982, requiring him to produce before the Grand Jury the United States passport issued to him for the period commencing January 1, 1977. The witness is not requested to present any testimony, but merely to produce the passport. Government's Memorandum of Law at 1. The Court held a hearing on August 3, 1982, at which both the Government and the witness were given a full opportunity to present testimony and documentary evidence. No testimony was introduced by either party; the Government introduced one document into evidence. The Court having considered the Motion and Memorandum of Law in support thereof, the witness' written response thereto, the document received into evidence at the hearing, and the argument of counsel, and being otherwise fully advised in the premises, it is thereupon

ORDERED AND ADJUDGED that the Government's Motion to Enforce Grand Jury Subpoena be, and the same is, hereby GRANTED, as follows:¹

1. On or before August 10, 1982, or on the date of the first meeting of the Grand Jury thereafter, the witness shall appear at the place of the meeting of the Grand Jury and, outside the presence of the Grand Jury, pursuant to the subpoena duces tecum previously issued, the witness shall produce to the Assistant United States Attorney for transmission to the Grand Jury, the passport sought by the subpoena;

2. The witness shall not be compelled to appear or testify before the Grand Jury for the purpose of producing the passport, and the fact that the witness produced the passport shall not be used as evidence against the witness before the Grand Jury or in any subsequent judicial proceeding;²

3. Authentication of the passport produced, if such authentication is necessary, shall be obtained from a source other than the witness;

4. The Government shall, as expeditiously as possible after production of the passport occurs, cause to be issued to the witness a new or duplicate passport, or in lieu thereof, make copies of the original passport and thereupon return the original passport to the witness, or in lieu thereof, the witness shall be afforded a hearing before the appropriate administrative agency under the applicable federal regulations and/or procedures regarding the reasons for failure to provide a passport to the witness.

MEMORANDUM OPINION

The witness contends that compelling him to produce the passport issued to him violates his protection against self-incrimination under the Fifth Amendment. Consideration of this issue necessarily begins with an examination and application of the Supreme Court's decision in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

In Fisher, the Court first discussed its prior ruling in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which held that the Fifth Amendment was violated by compulsory production of the private books and papers owned by a defendant. Fisher, supra, 96 S.Ct. at 1578-80. Noting that "several of Boyd's express or implicit declarations have not stood the test of time," id. at 1579, the Court further observed:

To the extent ... that the rule against compelling production of private papers rested on the proposition that seizures of or subpoenas for "mere evidence," including documents, violated the Fourth Amendment and therefore also transgressed the Fifth, Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), the foundations for the rule have been washed away.

Id. at 1580.

The Court in Fisher carefully defined and delineated the nature of the Fifth Amendment's protection against self-incrimination:

It is ... clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. Emphasis in original.³

Id. at 1579. Thus, in order to determine whether the Fifth Amendment's protection against self-incrimination is infringed, the analysis should first focus on whether the act of producing the passport in this case constitutes testimonial communication by the witness.

As the Supreme Court in Fisher reasoned:

A subpoena served on a taxpayer requiring him to produce an accountant's workpapers 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 omitted. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, 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 taxpayers 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.

Id. at 1580-81. Likewise, in the case sub judice, the witness is not compelled to give oral testimony. The Government has specifically stated that no testimony from the witness is sought; rather, the Government seeks only production of the passport. Government's Memorandum of Law at 1. Nor is the witness compelled to restate, repeat or affirm the truth of the matters reflected by the passport. The witness does not own the passport; rather, it is the property of the Government. United States v. Falley, 489 F.2d 33, 41 (2d Cir. 1973); Lynd v. Rusk, 389 F.2d 940, 948 (D.C.Cir.1967); 22 C.F.R. § 51.9.⁴ The passport itself does not contain testimonial evidence. The witness himself did not write it,⁵ moreover, whatever the contents of the passport, the documentations made therein came to exist there as the result of the witness' voluntary actions, and the contents of the passport are not the result of coercion against the witness. Just as in Fisher, the witness here cannot avoid compliance with the subpoena merely by asserting that the item of evidence that he is required to produce contains incriminating matters. Fisher, supra, 96 S.Ct. at 1580-81.

However, as the Supreme Court in Fisher recognized, "the act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced." Id. at 1581. The Court identified three (3) aspects in which compelled production of a document may be testimonial: (1) the witness may thereby concede the existence of the documents sought, (2) the witness may concede possession of the documents sought, and/or (3) the witness may be required to concede his belief that the document is in fact that sought in the subpoena, thereby authenticating the document. As the Supreme Court observed:

The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both "testimonial" and "incriminating" for purposes of applying the Fifth Amendment.

Id. at 1581. Having considered these three (3) potentially testimonial aspects of the compelled production of the witness' passport, the Court concludes that compelling such production by the witness will not compel a testimonial communication. See United States v. Praetorius, 622 F.2d 1054, 1062-63 (2d Cir. 1979), cert. denied, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980); United States v. Friedman, 593 F.2d 109, 118 (9th Cir. 1979).

With regard to the existence and/or possession of the passport, the witness neither admits nor denies the existence and/or possession thereof. The Government introduced into evidence at the hearing a certified State Department document establishing that a passport was issued to the witness on March 30, 1978. Government's Exhibit No. 1, Hearing of August 3, 1982. Although the witness contends that this does not sufficiently establish the current existence of the passport, the Court disagrees. The Government has prima facie established the existence of the passport in question, and by conceding its existence the witness "adds little or nothing to the sum total of the Government's information...." Fisher, supra, 96 S.Ct. at 1581. With regard to possession and/or location, here again, the Government has established a prima facie showing through introduction of Government's Exhibit No. 1. There is no basis upon which to presume, as the witness would have the Court do, that the passport was lost, stolen or destroyed. Accordingly, the Government having made a prima facie showing of existence and possession of the passport, by conceding possession and/or location, the witness concedes nothing to the Government that it does not already know. Id. at 1581.

With regard to authentication, as in Fisher, production would express nothing more than the witness' belief that the document is that described in the subpoena. Id. at 1582. If authentication of the passport is necessary, such authentication...