IN RE GRAND JURY SUBPOENAS S. FEB. 27, 1984

• Decision Date: 18 May 1984
• Docket Number: No. GJ-84-1-JLQ.,GJ-84-1-JLQ.
• Citation: 599 F. Supp. 1006
• Parties: In re GRAND JURY SUBPOENAS SERVED FEBRUARY 27, 1984.
• Court: U.S. District Court — District of Washington

599 F. Supp. 1006

In re GRAND JURY SUBPOENAS SERVED FEBRUARY 27, 1984.

No. GJ-84-1-JLQ.

United States District Court, E.D. Washington.

May 18, 1984.

COPYRIGHT MATERIAL OMITTED

Robert Whaley, Spokane, Wash., for petitioner.

Bruce Carter, Sp. Asst. U.S. Atty., Francis Burke, Sp. Asst. U.S. Atty., Seattle, Wash., for government.

MEMORANDUM OPINION AND ORDER

QUACKENBUSH, District Judge.

THIS MATTER is before the court on John Doe's Motion to Quash or Modify two (2) subpoenas duces tecum which were served on him February 27, 1984. A hearing was held in Seattle, Washington on April 2, 1984 at which John Doe (hereinafter "petitioner") appeared with his counsel Robert Whaley. Special Assistant United States Attorneys Bruce Carter and Francis Burke represented the government. Subsequently, on May 14, 1984, a telephonic hearing was held in which Mr. Whaley, Mr. Burke and Mr. Carter again participated.

One of the subpoenas was directed to Petitioner in his personal capacity and listed eight (8) categories of requested documents (Attachment A). The other subpoena named Petitioner as "Custodian of Records" for POE and required the production of twenty (20) categories of documents (Attachment B). Petitioner's objections to these subpoenas are based on fourth and fifth amendment grounds. Each of these objections will be addressed after a discussion of the relevant law.

FIFTH AMENDMENT

The pertinent language of the fifth amendment states that "No person ... shall be compelled in any criminal case to be a witness against himself". Like much of the Constitution, those fifteen words have generated hundreds of thousands (if not millions) of words interpreting the meaning of that clause. Indeed, the highest court of this land has written voluminously in its attempts to establish the scope of the privilege against self-incrimination. In spite of numerous Supreme Court pronouncements (or perhaps because of it) critical questions remain unanswered and the state of the law surrounding the fifth amendment privilege—particularly in the context of a subpoena duces tecum—is anything but settled.

The most recent example of this uncertainty appears in United States v. Doe, ___ U.S. ___, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984). While on the one hand the Doe Court did resolve one issue in this area of the law by holding that the business records of a sole proprietorship are not privileged, id. at 1242, on the other hand, the opinion underscores the Court's divergent views as to the applicability of the fifth amendment to the contents of an individual's private papers. According to the singular statement of Justice O'Connor, "the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." Id. at 1245 (O'Connor, J., concurring). But, in sharp contrast to Justice O'Connor's interpretation of the constitutional privilege, Justice Marshall believes "that under the Fifth Amendment `there are certain documents no person ought to be compelled to produce at the Government's request.'" Id., at 1246 (Marshall, J., joined by Brennan, J., concurring in part and dissenting in part). Understandably, due to such amphibolic guidance from the Court one judge has aptly described the role of the lower federal courts in discerning the present state of the law surrounding the fifth amendment privilege as that of a "tea leaves reader". United States v. Karp, 484 F.Supp. 157, 158 (S.D. N.Y.1980). With these preliminary comments, this court's discussion will now turn to the case at hand.

The two subpoenas at issue here raise essentially three questions: (1) whether Petitioner's non-business "personal papers" are privileged;¹ (2) whether Petitioner may assert the "act of production" doctrine in regard to those documents he possesses as custodian for POE;² and, (3) whether the compelled act of producing any unprivileged documents would be both a "testimonial communication" and "incriminating". Each of these questions will be discussed separately.

A. Non-Business Personal Papers:³

As highlighted by the recent contradictory pronouncements of Justices O'Connor and Marshall, 104 S.Ct. at 1245-1246, the extent of the applicability, if any, of the fifth amendment to an individual's nonbusiness personal papers is not clear. Although the Court has provided an analytical template to be used when a subpoena duces tecum implicates the fifth amendment, Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), what remains unresolved is whether the same analytical framework is utilized regardless of whether the documents are business or personal.⁴ The clues to this mystery lie primarily in Fisher, and its progeny.

Prior to Fisher v. United States, the prevailing rule was that "the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony." Bellis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974); see also Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). One of the pervasive rationales for this principle was the notion that "the protection of personal privacy is a central purpose of the privilege against compelled self-incrimination." Fisher, 425 U.S. at 416-420, 96 S.Ct. at 1583-1586 (Brennan, J., concurring in the judgment) (citing cases).

The Fisher majority, however, down-played the importance of the privacy interests, Fisher, 425 U.S. at 399-401, 96 S.Ct. at 1575-1576 (cited in apparent approval in Doe, 104 S.Ct. at 1241 n. 8), and instead focused on the precise words of the fifth amendment that "no person ... shall be compelled in any criminal case to be a witness against himself', 425 U.S. at 396, 96 S.Ct. at 1574 (emphasis by the Court). In so doing, the Justices concluded that the privilege against self-incrimination "applies only when the accused is compelled to make a testimonial communication that is incriminating." Id. at 408, 96 S.Ct. at 1579. Thus, the Court created a new framework to be used in fifth amendment cases, consisting of three factors—compulsion, testimonial communication and incrimination.

Even if the contents of non-business personal papers are found to be incriminating, a mechanical application of this Fisher test would render such material unprivileged either because the documents were not authored by the person asserting the privilege (i.e., not a "testimonial communication") or the documents were not authored under the power of governmental compulsion (i.e., not "compelled"). Because such a result obtains from a mechanical application of Fisher many courts have applied Fisher narrowly and have declined to subject an individual's private papers to a documentary summons. E.g., In Re Grand Jury Subpoena Duces Tecum, 657 F.2d 5 (2d Cir.1981); In Re Grand Jury Proceedings (Johanson), 632 F.2d 1033 (3d Cir. 1980). However, in Doe, (involving an individual's business records) the Supreme Court, in reaffirming the necessity for "compulsion" and a "testimonial communication", noted that Fisher is not to be given an "unduly restrictive reading". 104 S.Ct. at 1242 n. 9. Indeed, the Court emphasized its point by stating: "If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged." Id. at 1242 n. 10 (emphasis added); accord Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469, 476-477 (3rd Cir. 1979).

Since Fisher, the Ninth Circuit has not squarely addressed the issue of whether a documentary subpoena may reach an individual's non-business personal papers. On several occasions this circuit protected an individual's business records. E.g., United States v. Helina, 549 F.2d 713 (9th Cir. 1977) (individual's business records not subject to I.R.S. summons); United States v. Cohen, 388 F.2d 464 (9th Cir.1967) (taxpayer not required to produce accountant's work papers relating to taxpayer's business). However, the holdings of these cases apparently have been undercut by Doe. More recent Ninth Circuit cases, although involving primarily business records, have contained language intimating that perhaps this circuit will not now afford a blanket privilege to all non-business personal papers. For example, in United States v. Osborn, 561 F.2d 1334, 1338-1339 (9th Cir.1977), the court, in denying a fifth amendment privilege to Osborn's business documents, focused on the fact that the documents were voluntarily prepared and were not testimonial declarations of Osborn since they were not prepared by him. In another case which is more on point, the court stated:

The Fifth Amendment privilege against self-incrimination protects an individual against forced production of personal papers and effects, at least to the extent that the act of producing the documents might serve as a basis for incriminating inferences.

In Re Grand Jury Proceedings (Hutchinson), 633 F.2d 754, 756 (9th Cir.1980) (Judge Fletcher) (business records of a trust held not privileged). This circuit seems to have taken the above-quoted language one step further in two cases decided one month apart in 1981. In a unanimous opinion authored by Judge Sneed the court noted:

The Fifth Amendment does not protect against production of corporate records held in a representative capacity, nor does it protect against production of personal papers and effects unless the act of producing them would itself serve as the basis for incriminating inferences.

Baker v. Limber, 647 F.2d 912, 917 n. 5 (9th Cir.1981) (Emphasis added). (Most of the documents were corporate, but apparently some were personal). In, United States v. Mackey, 647 F.2d 898, 900 (9th Cir.1981) the per curiam opinion of Judges Wright, Kennedy, and Farris phrased the rule pertaining to documentary subpoenas in these terms:

The compelled production of a physical object, such as a document,

...