U.S. v. Wujkowski, s. 90-3132

• Decision Date: 02 April 1991
• Docket Number: 90-3135 and 90-3146,Nos. 90-3132,s. 90-3132
• Citation: 929 F.2d 981
• Parties: 33 Fed. R. Evid. Serv. 1423 UNITED STATES of America, Plaintiff-Appellee, v. Roy A. WUJKOWSKI, Defendant-Appellant (Two Cases). UNITED STATES of America, Plaintiff-Appellee, v. John T. STONE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 981

929 F.2d 981

33 Fed. R. Evid. Serv. 1423

UNITED STATES of America, Plaintiff-Appellee, v. Roy A. WUJKOWSKI, Defendant-Appellant (Two Cases).

UNITED STATES of America, Plaintiff-Appellee, v. John T. STONE, Jr., Defendant-Appellant.

Nos. 90-3132, 90-3135 and 90-3146.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1991.

Decided April 2, 1991.

Richard Murray, argued (Carmen A. Jacobs, Jr. and Christian D. Abel, on brief), Murray & Price, Washington, D.C., for defendants-appellants.

Lowell V. Sturgill, Jr., Civ. Div., U.S. Dept. of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Anthony John Steinmeyer, Civ. Div., U.S. Dept. of Justice, Washington, D.C., and Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before WIDENER, SPROUSE and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

This case presents recurrent issues in Fifth Amendment jurisprudence: which individuals or entities are eligible to invoke the privilege against self-incrimination and what types of materials are protected by the privilege. The dispute over these issues arises from a classic confrontation between the subpoena power of a government agency and the asserted Fifth Amendment rights of those individuals targeted by the subpoena. Here, the Department of Energy, as part of an investigation into alleged corruption among its employees and contractors, subpoenaed documents from appellants who are officers of corporations doing business with the Department. Appellants resisted the subpoenas on the principal ground that the documents sought by the Department were personal and shielded by the privilege against self-incrimination. The district court rejected appellants' Fifth Amendment claims and ordered the subpoenaed documents to be relinquished to the government.

Appellants now argue that the district court should have been more thorough both in its examination of the documents and in its examination of the legal issues involved in the case. We agree and remand the case for further proceedings consistent with the directions set forth herein.

I.

For several years the Department of Energy through its Inspector General has been investigating allegations that one of its contractors, Technology and Management Services, Inc. ("TMS"), gave gratuities to Department employees in return for favorable treatment on contracts and mischarged the Department on contracts. Appellants John Stone, Jr. and Roy Wujkowski are officers of TMS. In addition, Wujkowski is the owner of Ashford Associates, Inc. Ashford provided services to Department contractors and is now under investigation on charges of corruption similar to those leveled against TMS.

As part of the Department's investigation, it issued subpoenas duces tecum to Stone and Wujkowski. The subpoenas contained a similar demand to produce:

all original desk and pocket calendars, appointment books, planner schedules, and daily meeting logs maintained or kept on a personal and/or business basis for calendar years 1985, 1986, 1987, 1988, and for the first three quarters of 1989.

The subpoena directed to Wujkowski also demanded that he produce business records related to Ashford Associates and records related to a beach home he owned. In regard to the beach house, the subpoena sought a list of names and addresses of all people who had used the house from 1983 to September 1989 and any correspondence related to its use. The Department contended that Wujkowski had allowed its employees to use the house in return for preferential treatment for his business interests.

Wujkowski and Stone refused to comply with the subpoenas, asserting their Fifth Amendment rights against self-incrimination. The Department moved to enforce the subpoenas in district court. The court ordered Wujkowski and Stone to submit the pocket calendars and planner schedules sought in the subpoena for an in camera review to determine whether the materials were corporate or personal. They complied with this order. The Department then argued that the court should reconsider its order because new case law made an in camera review unnecessary.

On July 27, 1990, the court ruled summarily that such a review was unnecessary and that the contents of the calendars and schedules were not protected by the privilege against self-incrimination. In addition, the court held that any business notations in these materials were corporate records and that the privilege does not protect the act of producing corporate records. The court also concluded that the act of producing any personal notations in these materials did not create any additional threat of self-incrimination beyond the unprivileged act of producing the corporate notations. The court apparently believed that the statement of these general propositions relieved it of the need to conduct any real examination of the documents at issue or to explain why the act of production of any materials which might be personal failed to implicate the protections of the privilege. As part of its judgment, the court allowed the Department to take possession of the materials originally submitted for in camera review. Similarly, the court ordered Wujkowski and Stone to relinquish any additional items called for by the common language of their subpoenas. They now appeal the court's judgment.

The court also ordered Wujkowski to produce the subpoenaed documents pertaining to Ashford Associates and to the beach house. Wujkowski refused to comply with the order and the court held him in contempt. He now appeals the court's order requiring him to turn over these documents.

These appeals have been consolidated for review. Wujkowski and Stone maintain that both the contents of the subpoenaed documents and the act of producing them are privileged. The Department argues primarily that nothing about the documents or the act of producing them is privileged and that, in any event, its regulatory interests diminish any Fifth Amendment privilege to which the appellants may otherwise be entitled. We shall address each argument in turn.

II.

Two approaches have been advanced for determining whether a Fifth Amendment privilege can be claimed for a particular document. Fifth Amendment analysis initially focused on whether the contents of a subpoenaed item would be self-incriminating. See Bellis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). More recently, the focus of the privilege inquiry has shifted to whether the act of production associated with relinquishing an item would be self-incriminating. Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976).

The case law now makes plain that appellants' claim of a privilege broadly based on the contents of appointment books and on beach house records must be rejected. See United States v. Mason, 869 F.2d 414, 416 (8th Cir.1989); In re Steinberg, 837 F.2d 527, 530 (1st Cir.1988). "[A] person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded." Baltimore City Dep't of Social Serv. v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 905, 107 L.Ed.2d 992 (1990). This is so because "when the government demands that an item be produced, 'the only thing compelled is the act of producing the [item].' " Id. (citing Fisher, 425 U.S. at 410 n. 11, 96 S.Ct. at 1581 n. 11). The district court was therefore correct to conclude on the facts of this case that the contents of appellants' documents could not support a claim of privilege.

Wujkowski and Stone also contend the court erred in concluding that they could not claim act of production privileges for the subpoenaed documents. It is well settled that an individual may claim that his act of producing his own materials implicates his Fifth Amendment rights. Bouknight, 110 S.Ct. at 905. In contrast, a collective entity such as a corporation has no Fifth Amendment rights and the corporation and its officers cannot resist the production of corporate records on self-incrimination grounds. Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988). "The official records and documents of the organization that are held by [its officers] in a representative rather than in a personal capacity cannot be the subject of the personal privilege against selfincrimination, even though production of the papers might tend to incriminate them personally." United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944).

The logic behind this rule is that records of a corporation belong to the corporation and that the holder of the records is simply a custodian who has assumed a duty to produce the records upon proper demand by the government. Braswell, 487 U.S. at 108-14, 108 S.Ct. at 2290-93. Accordingly, the act of production is ascribed to the corporation and not to the individual. Id. at 117-18, 108 S.Ct. at 2294-95. To be sure, a person does not forfeit his or her Fifth Amendment rights merely by accepting employment with a corporation; rather these rights are inapplicable when an employee holds the corporation's records in a representative capacity.

Thus, the crucial distinction for act of production purposes is between personal documents and corporate documents held by agents in a representative capacity. While in some cases it is quite easy to draw the necessary distinctions, in other cases it can be more difficult to determine whether a document is personal or corporate. See In re Grand Jury Investigation, 600 F.Supp. 436 (D.Md.1984).

III.

Here, the district court concluded that "the business related notations in the appointment books or calendars are corporate records." And the court seems to have assumed that the beach house records were corporate also. We agree with appellants that the court should have conducted a more extensive inquiry into the documents themselves before reaching...