Matter of Grand Jury Subpoena Duces Tecum, etc.

• Decision Date: 28 February 1979
• Docket Number: No. M-11-188 (KTD).,M-11-188 (KTD).
• Citation: 466 F. Supp. 325
• Parties: In the Matter of GRAND JURY SUBPOENA DUCES TECUM SERVED UPON JOHN DOE.
• Court: U.S. District Court — Southern District of New York

466 F. Supp. 325

In the Matter of GRAND JURY SUBPOENA DUCES TECUM SERVED UPON JOHN DOE.

No. M-11-188 (KTD).

United States District Court, S. D. New York.

February 28, 1979.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for the United States; Michael S. Devorkin, Asst. U. S. Atty., New York City, of counsel.

James M. La Rossa, New York City, for petitioner; Paul B. Bergman, New York City, of counsel.

OPINION AND ORDER

KEVIN THOMAS DUFFY, District Judge:

Presently before me is a motion to quash a subpoena directed against the target of a grand jury investigation. The Government seeks to require the target to produce all records of any kind received from certain named individuals in connection with or reflecting moneys paid or lent to or received from those persons. The investigation apparently involves the illegal payment of moneys by the target, who is a major principal of a stevedoring operation, to labor union officials. Two of the persons whose writings the Government asks the target to produce are such union officials. The other persons are two vice presidents of the stevedoring company, three personal friends of the target and the target's sister-in-law who also happens to be the wife of one of the vice presidents.

The Government invokes the rules laid down in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1975) and United States v. Beattie, 522 F.2d 267 (2d Cir. 1975), modified, 541 F.2d 329 (1976) in support of the subpoena as issued. By requiring the productions of documents "received" by the target and not documents that he himself has generated, the Government believes it has foreclosed any right the target may have to invoke his Fifth Amendment privilege against compelled self-incrimination. On the other hand, the target argues that Fisher and Beattie are distinguishable from his case because in neither of those cases was there a question regarding the existence, identity and location of the documents in issue. The target suggests that the very act of producing the documents in this situation would amount to an incriminatory statement and, as such, would violate the Fifth Amendment.

To be sure the target has raised a knotty question. In Fisher v. United States, supra, the Supreme Court cutback significantly on the ability of one under subpoena to restrict Government access to documents in one's possession. In that case, it was determined that accountant's work papers, in the possession of the taxpayer to whose tax returns they related, could be subpoenaed from the taxpayer without running afoul of the Fifth Amendment. According to the Court, the subpoenas seeking these records did not compel oral testimony, nor did the act of producing the documents compel the taxpayer "to restate, repeat, or affirm the truth of the contents of the documents sought." Id. 425 U.S. at 409, 96 S.Ct. at 1580. The Court recognized nevertheless, that "the act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced." Id. at 410, 96 S.Ct. at 1581. Thus, the Court has directed us to look beyond the contents of the document sought as had always been the inquiry, see, e. g., Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (one may not be compelled to produce one's private papers for use at trial), and toward the testimonial elements of production in determining whether or not the Fifth Amendment privilege exists. See also Andresen v. Maryland, 427 U.S. 463, 473-74, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1975).

In Fisher the Court found that the act of producing the accountant's work papers did not involve testimonial self-incrimination. The existence of the papers was a "foregone conclusion" and the taxpayer's concession that he possessed such papers added "little or nothing to the sum total of the Government's information." 425 U.S. at 411, 96 S.Ct. at 1581. Nor was the taxpayer asked to authenticate the work papers by the act of production since that very act would prove nothing other "than the taxpayer's belief that the papers are those described in the subpoena." Id. at 413, 96 S.Ct. at 1582.

The question for my consideration thus narrows down to whether the compelled production of the papers sought herein amounts to "`responses which are also communications.'" United States v. Beattie, 522 F.2d 267, 270 (2d Cir. 1975), quoting Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). And, of course, to be proscribed by the Fifth Amendment those "communicative responses must tend to incriminate" 522 F.2d at 270-71. Were this a situation where the accused was required to produce his personally maintained records, my decision would be somewhat simplified. For as the Second Circuit has observed, requiring the production of one's own papers would be tantamount to asking him "to take the stand and admit their genuineness." Beattie, supra, 522 F.2d at 270. Indeed, the only cases I have found following Fisher that quashed subpoenas seeking personal records involved documents that were in some manner generated by the person seeking their suppression. See, e. g., United States v. Beattie, 541 F.2d 329, 331 (2d Cir. 1976); United States v. Plesons, 560 F.2d 890 (8th Cir. 1977); In re Bernstein, 425 F.Supp. 37 (D.C.Fla.1977); In re Grand Jury Subpoena...