Shaughnessy v. Bacolas

• Decision Date: 19 August 1955
• Citation: 135 F. Supp. 15
• Parties: Application to Enforce an Administrative Subpoena, of Edward J. SHAUGHNESSY, District Director, Immigration and Naturalization Service, New York District, Petitioner, v. Emmanuel BACOLAS, Respondent.
• Court: U.S. District Court — Southern District of New York

135 F. Supp. 15

Application to Enforce an Administrative Subpoena, of Edward J. SHAUGHNESSY, District Director, Immigration and Naturalization Service, New York District, Petitioner, v. Emmanuel BACOLAS, Respondent.

United States District Court S. D. New York.

August 19, 1955.

Lloyd F. MacMahon, U. S. Atty. for the Southern Dist. of New York, New York City, for petitioner (Arthur B. Kramer, Asst. U. S. Atty., New York City, of counsel).

William B. Rothschild, New York City, for respondent.

LUMBARD, Circuit Judge.

This is a proceeding in which respondent seeks vacation of an order of this Court signed by Judge Dawson enforcing an administrative subpoena issued under 8 U.S.C.A. § 1225(a). This order required respondent to appear and give testimony at a specified time and place before a Special Inquiry Officer in deportation proceedings pending against Joanna Zaffreas, and to "bring with him cancelled checks and bank statements for the years 1953, 1954 and to date of 1955 of both business and personal checking accounts * * *"

Respondent seeks vacation of the above-described order on several grounds: First, because the petitioner has not shown the relevance and materiality of the testimony and documents sought; Second, because the order invades the privacy of the respondent; Third, because production of the requested records might incriminate the respondent; and finally because the business records sought are the records of the Smiling Lady Corp. and not respondent's own.

In their affidavits counsel for petitioner aver that respondent had "extensive knowledge and dealings with the alien under deportation proceedings and would give material and relevant testimony concerning the fraudulent manner in which she procured her immigration visa." It is further averred that "The Immigration and Naturalization Service has information that respondent paid out sums of money to, or on behalf of the alien, Joanna Zaffreas."

Respondent has not denied that he could give testimony relevant to the deportation proceeding nor that the checks and statements ordered to be produced are relevant to the inquiry. In view of the broad powers of inquiry granted administrative agencies and officers in ferreting out violations of the laws they enforce, Hagen v. Porter, 9 Cir., 1946, 156 F.2d 362, certiorari denied, 1946, 329 U.S. 729, 67 S.Ct. 85, 91 L.Ed. 631; Walling v. American Rolbal Corp., 2 Cir., 1943, 135 F.2d 1003; and see United States v. Morton Salt Co., 1950, 338 U.S. 632, 642, 70 S.Ct. 357, 94 L.Ed. 401, there has been a sufficient showing of relevance and materiality to justify the issuance of the order enforcing this administrative subpoena.

There is no merit in the respondent's argument founded upon an alleged right of privacy. Once the required relevance has been shown, a Court is justified in invading his privacy to the extent of ordering giving of testimony and the production of documents required for the administrative inquiry.

This brings us to the question whether the respondent has a valid claim of privilege on the ground that the testimony and documents sought might incriminate him. It is of course premature at this stage of the proceedings for him to assert the privilege with respect to testimony he may be asked to give. Only after individual questions have been propounded can it be determined whether it may reasonably be claimed that the answers will incriminate him. He must therefore appear before the Special Inquiry Officer and raise such objections at that time. See In re Minker, D.C.E.D. Pa., 1953, 118 F.Supp. 264, 266, reversed on other grounds, 3 Cir., 1955, 217 F.2d 350, certiorari granted 349 U.S. 904, 75 S.Ct. 582.

The order to produce documents raises a different question. Since particular documents have already been requested, there is a sufficient basis for assertion of the claim of privilege at this stage of the proceedings. Petitioner contended on argument that because the respondent is ordered only to bring the requested documents with him his constitutional rights will be in no way prejudiced since he can interpose his objection when asked to produce the documents for inspection. The utility of an order merely to bring the documents with him is, however, questionable. Since it still leaves the respondent free to refuse to produce the documents for inspection, it would merely require, after such refusal, an order of the Court directing him to produce them. At that time the question of privilege would have to be decided, and it does not appear that the Court would be in any better position to decide it then than it is now. It has been held that a claim of privilege is a sufficient basis for quashing a subpoena duces tecum requiring the witness to "bring documents with him", Brush v. Harkins, D.C.S.D. Mo., 1950, 9 F.R.D. 681; cf. United States v. National Lead Co., 1896, 75 F. 94. Although in one case the subpoena was sustained and the witness left to assert his privilege when asked to produce the documents, In the Matter of Chopnick, 6 Fed.Rules Serv. Sec....