U.S. v. Dean

• Decision Date: 06 April 1993
• Docket Number: No. 92-3180,92-3180
• Citation: 989 F.2d 1205
• Parties: , 61 USLW 2634, 36 Fed. R. Evid. Serv. 1241 UNITED STATES of America, Appellant, v. Deborah Gore DEAN, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1205

989 F.2d 1205

300 U.S.App.D.C. 333, 61 USLW 2634,

36 Fed. R. Evid. Serv. 1241

UNITED STATES of America, Appellant, v. Deborah Gore DEAN, Appellee.

No. 92-3180.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 17, 1992.

Decided April 6, 1993.

Appeal from the United States District Court for the District of Columbia (Criminal No. 92-00181).

Bruce C. Swartz, Deputy Independent Counsel, Office of Independent Counsel, Washington, DC, with whom Arlin M. Adams, Independent Counsel, Philadelphia, PA, and Jo Ann Harris, New York City, and Paula A. Sweeney, Associate Independent Counsel, Office of Independent Counsel, Washington, DC, were on the brief, for appellant.

Stephen V. Wehner, with whom Donald E. Santarelli and Richard O. Wolf, Washington, DC, were on the brief, for appellee.

Before WALD, D.H. GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

This appeal grows out of the Independent Counsel's investigation of allegations that former Secretary of Housing and Urban Development (HUD) Samuel Pierce, Jr. and other HUD officials violated certain federal laws in awarding HUD grants and contracts. The district court ruled that defendant Deborah Gore Dean had to produce certain government records in response to a grand jury subpoena but that the Independent Counsel could not use evidence of Dean's act of production against her at trial. For the reasons discussed below, we affirm the district court.

I.

On May 18, 1990, as part of the investigation, the grand jury working with the Independent Counsel issued a subpoena duces tecum to Dean, who served as an executive assistant to Pierce from 1984 to 1987. The subpoena ordered Dean to produce all documents in her possession related to her prior employment at HUD. Invoking her fifth amendment right against self-incrimination, Dean refused to comply with the subpoena. The district court then ordered her to produce the documents. Eventually, Dean turned over 5 boxes of papers but she continued to withhold other documents, including her appointment calendars, which she asserted were her personal property. The district court agreed with her and rebuffed further attempts by the Independent Counsel to obtain the material.

The Independent Counsel then appealed to this court which ordered Dean to produce all government records in her possession. In re Sealed Case (Government Records), 950 F.2d 736 (D.C.Cir.1991). In so ruling, we held that "government records do not belong to the custodian, in this case the appellee, but to the government agency. Their production thus falls outside the Fifth Amendment privilege, which is a personal one." Id. at 740. We remanded the case to the district court to determine what records remaining in Dean's possession constituted government records.

In the district court, Dean took the position that all of the documents, in their entirety, were personal. After conducting an in camera review, the lower court rejected her position and ruled that the documents were government records. Dean then turned them over to the government. Subsequently, the grand jury indicted Dean on 13 counts of criminal misconduct, alleging that she used her influence at HUD to obtain federal grants for clients of her family and friends, accepted money from private sources for the performance of public duties and lied about her activities in testifying before Congress.

The Independent Counsel sought before trial to introduce as evidence at trial some of the records obtained, including excerpts from Dean's appointment calendars, a handwritten "to do" list and a two-page, typed document resembling a diary. The Independent Counsel also sought to introduce evidence that Dean produced the documents in response to a government subpoena, contending that her act of production would both authenticate the documents and imply concealment or consciousness of guilt on her part. Dean did not assert a fifth amendment right as to the contents of the documents. She did claim, however, that the government could not use against her at trial her act of producing the documents pursuant to a subpoena without violating that right.

The district court granted Dean's motion to suppress evidence of her act of production, concluding that her act was testimonial in nature. The court also reserved judgment on whether certain portions of the documents, which he thought might be "purely private," would have to be redacted at trial. Memorandum in Support of Order of July 6, 1992 at 6. The Independent Counsel now appeals.

II.

The fifth amendment prohibits the government from compelling a citizen to incriminate himself through testimony. ¹ The amendment guards against "the extortion of information from the accused that offends our sense of justice." Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973). The Supreme Court has recognized that various types of evidence may be testimonial in nature, including the act of producing materials in response to a subpoena. See Fisher v. United States, 425 U.S. 391, 410-11, 96 S.Ct. 1569, 1580-81, 48 L.Ed.2d 39 (1976). Because compliance with a subpoena acknowledges by implication both the "existence of the papers demanded and their possession or control," the Court stated that the act of production "has communicative aspects of its own, wholly aside from the contents of the papers produced." Id.

On the other hand, the Supreme Court has also insisted that an individual cannot rely upon the fifth amendment privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity. See, e.g., Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). These decisions recognize that the fifth amendment privilege is a purely personal one that "protects only the natural individual from compulsory incrimination through his own testimony or personal records." United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542 (1944). Accordingly, the government, corporations and other collective entities are not entitled to fifth amendment protection.

Dean first asserts that she possesses a fifth amendment privilege here because she acted in a personal capacity rather than as a government custodian when she produced the records. To support her contention, Dean argues preliminarily that the Independent Counsel abandoned his position that she was a government custodian in the district court. During the hearing on Dean's motion to suppress, the Independent Counsel argued that "it is our position that Miss Dean does not hold these documents as a custodian. She has government records in her possession. They are the property of the government. That's already been ruled on by the courts here." Supp.App. at 2. This somewhat confused and contradictory statement does not suggest to us that the Independent Counsel abandoned his position that Dean was acting in a non-personal capacity. Indeed, the Independent Counsel consistently asserted that Dean retained control of "property of the government." Id. In Government Records, 950 F.2d at 740, we made clear that we considered Dean to be acting as a custodian of any government records she retained. We stated that "government records do not belong to the custodian, in this case, the appellee [Dean], but to the government agency." Id. The district court subsequently found that the records at issue here are government records a finding Dean does not contest. See Tr. of Hearing of February 10, 1992 at 21-22; App. at 54-55. Under our reasoning in Government Records, the district court's finding that these records are government records leads us to reaffirm our earlier conclusion that Dean was the custodian of the records. ²

The fact that Dean was acting in a custodial capacity, however, does not necessarily deprive her of all fifth amendment protection. The Supreme Court has held that a custodian of corporate records can be required to produce those records but evidence of the act of production cannot be used against him. Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988). The petitioner in Braswell was the president of two corporations. He received a subpoena duces tecum requiring him to produce corporate documents to a federal grand jury. The Court first reaffirmed that "the custodian of corporate records may not interpose a Fifth Amendment objection to the compelled production of corporate records, even though the act of production may prove personally incriminating." Id. at 111-12, 108 S.Ct. at 2292. The Court emphasized that a corporation, like other collective entities, has no fifth amendment rights. Id. at 105-06, 108 S.Ct. at 2288-89. Since a corporation can act only through its officers and employees, an officer or employee who is a custodian of corporate records "holds those documents in a representative rather than a personal capacity." Id. at 110, 108 S.Ct. at 2291. The Court concluded that a corporate custodian's "assumption of his representative capacity leads to certain obligations, including the duty to produce corporate records on proper demand by the Government." Id. By acting in a representative capacity, the corporate custodian cannot assert his own fifth amendment rights with respect to records belonging to the corporation. Id. at 112, 108 S.Ct. at 2292. "Any claim of [f]ifth [a]mendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation--which of course possesses no such privilege." Id. at 110, 108 S.Ct. at 2291.

Nonetheless, in Braswell the Court was careful to acknowledge the limits of the agency relationship. It noted that "in a criminal prosecution against the...