Smith v. Richert

• Decision Date: 13 September 1994
• Docket Number: No. 93-3711,93-3711
• Citation: 35 F.3d 300
• Parties: William SMITH, Petitioner-Appellant, v. John RICHERT, Judge, Pulaski Circuit Court; Pamela Carter, Attorney General, State of Indiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 300

35 F.3d 300

William SMITH, Petitioner-Appellant, v. John RICHERT, Judge, Pulaski Circuit Court; Pamela Carter Attorney General, State of Indiana, Respondents-Appellees.

No. 93-3711.

United States Court of Appeals Seventh Circuit.

Argued April 22, 1994.

Decided Sept. 13, 1994.

Kelly Leeman, Leeman & Perrone, Logansport, IN (argued), for petitioner-appellant.

Wayne E. Uhl, Deputy Atty. Gen., Indianapolis, IN (argued), for respondents-appellees.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

It used to be thought that if a person was required by the government to yield up an incriminating document, this was the equivalent of his being forced, in violation of the self-incrimination clause of the Fifth Amendment, to testify against himself. Boyd v. United States, 116 U.S. 616, 634-36, 6 S.Ct. 524, 534-35, 29 L.Ed. 746 (1886). It was in this setting that the "required records" doctrine evolved. A person could not complain about being forced to yield up a document that he was required as a member of a regulated industry to keep and to grant the government free access to. Shapiro v. United States, 335 U.S. 1, 32-35, 68 S.Ct. 1375, 1391-93, 92 L.Ed. 1787 (1948); United States v. Lehman, 887 F.2d 1328, 1333-34 (7th Cir.1989). His choice to enter such an industry was a voluntary one, and once in it he was required to abide by its rules. The compulsion to testify against himself through the document came, therefore, from a lawful regulatory regime and, critically, from his voluntary decision to submit himself to it, rather than being exerted by government officers in aid of a criminal investigation or prosecution.

But then the Supreme Court decided that the compelled surrender of a self-incriminating document was not compulsion to testify unless the author had been forced to write the document. Fisher v. United States, 425 U.S. 391, 407-09, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976); United States v. Doe, 465 U.S. 605, 610-12, 104 S.Ct. 1237, 1240-42, 79 L.Ed.2d 552 (1984). This change of view greatly reduced the significance of the required records doctrine. Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1232-34 (7th Cir.1993). Now the government could compel the production of nonrequired records, because their creation, and the setting forth of potentially self-incriminating facts entailed by that creation, were the author's voluntary choice; the government had not made him give utterance to or record these facts, as it would have done had it forced him to testify or beaten a confession out of him. The only time the government needed the required-records doctrine any more was when the act of production was itself testimonial, that is, when it communicated knowledge possessed by the person making the production and was, therefore--but for the doctrine--protected by the Fifth Amendment from being compelled by the government. If a subpoena demanded all the documents possessed by the subpoenaed person concerning some subject, by producing them the person would be acknowledging that he possessed them and that they concerned the subject in question, and if this acknowledgment was self-incriminating he could not be forced to produce them. Fisher v. United States, supra, 425 U.S. at 409-14, 96 S.Ct. at 1580-83; United States v. Doe, supra, 465 U.S. at 612-14, 104 S.Ct. at 1242-43; Doe v. United States, 487 U.S. 201, 209-10, 108 S.Ct. 2341, 2346-47, 101 L.Ed.2d 184 (1988). But if the documents were required records the person could not resist the subpoena on this ground, for the only acknowledgment conveyed by compliance would be of the existence and applicability of the regulatory program that required him to maintain the records. In re Two Grand Jury Subpoenae, 793 F.2d 69, 73 (2d Cir.1986).

This thumbnail sketch of the evolution of self-incrimination doctrine relating to documents provides the background necessary for an understanding of the present case. The Indiana Department of Revenue believed that William Smith and his wife had not filed Indiana income tax returns for some years though required by law to do so. The Department served the Smiths with a subpoena duces tecum which commanded them to produce, for the years 1984 through 1988, "Books, accounts, Forms W-2, Forms 1099, Receipts, Invoices, Cancelled checks and any other records necessary to determine the Indiana Adjusted Gross Income Tax Liability of William E. and Beverly K. Smith, as required by" an Indiana statute which provides that any person subject to an Indiana tax "must keep books and records so that the [Department of Revenue] can determine the amount, if any, of the person's liability for that tax by reviewing those books and records." Ind.Code Sec. 6-8.1-5-4(a). Smith refused on Fifth Amendment and other grounds to comply with the subpoena and was prosecuted for and convicted of failing to permit the examination of records that the Indiana statute required him to keep, a misdemeanor. His principal defense was that by complying with the subpoena and thus allowing such examination he would have been testifying against himself. His conviction was affirmed over Fifth Amendment objection in Smith v. State, 588 N.E.2d 1303 (Ind.App.1992). The court ruled that the records sought by the subpoena were required records and so could lawfully be compelled to be produced. Smith then applied for federal habeas corpus. (He has remained free on bail throughout the entire course of his criminal and postconviction proceedings, which is why the state court judge and the state attorney general are the respondents named in his application for habeas corpus, rather than a conventional custodian, such as a prison warden. See 28 U.S.C. Sec. 2254, Rule 2(b).) The district court dismissed Smith's application in a brief order which gives no reason for rejecting the Fifth Amendment claim except what may be inferred from the court's approving reference to the opinion of the Indiana court of appeals in Smith v. State.

A statute that merely requires a taxpayer to maintain records necessary to determine his liability for personal income tax is not within the scope of the required-records doctrine. We so held in United States v. Porter, 711 F.2d 1397, 1404-05 (7th Cir.1983), which involved a Treasury Regulation materially identical to the Indiana statute, Treas.Reg. Sec. 1.6001-1(a), and the state has given us no reason to reexamine that decision. Despite the fears expressed by Justice Jackson, dissenting in Shapiro, see 335 U.S. at 71, 68 S.Ct. at 1410, a statute that required all Americans to keep a diary in which they recorded every arguably illegal act that they committed, or make a tape-recorded confession whenever they committed an illegal act, would not empower the authorities, under the aegis of the required-records doctrine, to compel the production of the diary or the tape. Baltimore Dept. of Social Services v. Bouknight, 493 U.S. 549, 556-58, 110 S.Ct. 900, 905-07, 107 L.Ed.2d 992 (1990). A statute that requires taxpayers to maintain records relating to an activity in which the government has a legitimate interest--whether our Orwellian hypothetical statute or a statute, federal or state, that requires taxpayers to maintain records required to document their tax liability--does not violate the self-incrimination clause of the Fifth Amendment (our hypothetical statute might of course violate other provisions of the Constitution). But this does not dispose of the question whether the compelled production of those records without a suitable grant of immunity would comport with the clause. The hypothetical case in which every individual is required to maintain a record of everything he does that interests the government is remote from the case of the individual who enters upon a regulated activity knowing that the maintenance of extensive records available for inspection by the regulatory agency is one of the conditions of engaging in the activity. The decision to become a taxpayer cannot be thought voluntary in the same sense. Almost anyone who works is a taxpayer, along with many who do not.

It is true that California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), held that a law requiring drivers involved in automobile accidents to give their name and address to the owner of the other car involved in the accident did not violate the self-incrimination clause of the Fifth Amendment. There was no majority opinion, so the rationale for the decision is unclear. But the plurality opinion, at least, did not regard the information--although it might place the informant at the scene of a crime that he had committed--as testimonial in character, and both it and Justice Harlan's concurrence emphasized that the fraction of cases in which the information would be self-incriminating was tiny and the public interest in the self-reporting of accidents immense. Neither opinion relies on the required-records doctrine.

In an effort to get out from under Porter the state points out that Smith is a farmer and cites Indiana statutes that the state contends require farmers to keep certain records. Ind.Code Secs. 26-3-7-19(a), 26-3-7-28, 26-3-7-33. Now to begin with there is no evidence that Smith is a farmer, other than what little can be inferred from the testimony of the revenue agents that when they approached him about the documents they wanted he was "standing in a field." Not every field is on a farm, and not every person standing in a farmer's field is a farmer. But suppose Smith is a farmer. It is true that like most businesses nowadays farming is regulated to a considerable extent; but it is far from the usual conception of a regulated industry, such as electrical generation, local telephone service, or railroad transportation. We need not run this hare to the ground, however, since the statutes that the state has cited to us are addressed to persons who warehouse farm commodities, rather...