United States v. Cohen

Decision Date19 December 1967
Docket NumberNo. 20921.,20921.
Citation388 F.2d 464
PartiesUNITED STATES of America et al., Appellants, v. Carl COHEN, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard M. Roberts, Dept. of Justice, Washington, D. C. (argued), Joseph L. Ward, U. S. Atty., Las Vegas, Nev., Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, John M. Brant, Attys., Dept. of Justice, Washington, D. C., for appellants.

Adrian B. Fink, Jr. (argued), Cleveland, Ohio, for appellee.

Before BARNES, HAMLIN, and BROWNING, Circuit Judges

BROWNING, Circuit Judge:

Samuel Berke, an accountant with offices in Beverly Hills, California, performed accounting and general business services for Carl Cohen of Las Vegas, Nevada. On July 8, 1964, Berke had in his possession work papers which he had compiled from data supplied orally and in writing by Cohen, as well as copies of correspondence between the two men and other documents pertaining to these services. On that day, July 8, 1964, Special Agents C. L. Beason and J. R. Chamberlain of the Internal Revenue Service called on Cohen in Las Vegas and asked to see Cohen's records pertaining to his tax liability for the years 1958 through 1963. Cohen told the agents that Berke had them. The following day Cohen went to Beverly Hills and requested and obtained the records from Berke. Four days later Beason demanded the records from Berke, and was informed that Cohen had picked them up. Beason requested Berke to ask Cohen for their return. Berke complied. Cohen declined to return the papers.

On September 29, 1964, Beason served Cohen with a summons, issued under section 7602, I.R.C.1954, 26 U.S.C. § 7602 (1964), to appear before Beason on October 12, 1964, and produce the papers which Cohen had obtained from Berke on July 9.1 Cohen appeared but declined to produce the documents described in the summons on the ground that to do so might tend to incriminate him.

Beason filed a petition in the district court for enforcement of the summons pursuant to section 7604(a), I.R.C.1954, 26 U.S.C. § 7604(a) (1964). After an evidentiary hearing, the district court quashed the summons. United States v. Cohen, 250 F.Supp. 472 (D.Nev.1965). The government appeals. We affirm.

The Fifth Amendment commands that "No person * * * shall be compelled * * * to be a witness against himself." It is obvious that the government seeks to compel Cohen to produce the described documents without regard to his wishes. It has been the law for at least eighty years that compelled production of documents falls within the ambit of the privilege.2 It is conceded that the documents demanded here might be used by the government against Cohen in a future criminal proceeding.3 Moreover, since the documents themselves are incriminating, their very production pursuant to the description in the summons would constitute an incriminating admission of their identity and authenticity.4 Clearly, recognition of the privilege in this case would serve most of the purposes of the privilege, recently restated in Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed. 2d 678 (1964):

It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load," * * * our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life," * * * our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection for the innocent."5

The government nonetheless contends that the privilege should not apply in this case, for two basic reasons.


The substance of the government's first contention is that the privilege against self-incrimination applies only to papers which are held by the claimant free of any duty to surrender them to another. Since, according to the government, Cohen held the papers subject to a duty to surrender them to Berke, Cohen could not claim the privilege.6

The government rests this contention principally upon United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), in which the Court held that an officer of a labor union could not avail himself of the privilege to avoid producing his union's records because they might tend to incriminate him; and Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), in which the Court held that a corporate officer could not claim the privilege to avoid the production of his corporation's records. The government reads these cases as denying the protection of the privilege to the officer-claimant because he held the records subject to an obligation to relinquish them to the organization which owned them. We read them rather as an extension of the rule that the privilege against self-incrimination is available to protect only the personal interests of natural persons and not group interests embodied in impersonal organizations.7 Custodians of organizational records may not frustrate the public policy underlying the organization's lack of privilege by withholding the organization's official records from examination by public authorities under a claim of personal privilege. This rationale is obviously inapplicable to the present case.8

As the government recognizes, the rule it suggests would make ownership of subpoenaed documents virtually essential to a claim of privilege, for ordinarily only the owner will be able to assert a right to possession superior to all others. But it is possession of papers sought by the government, not ownership, which sets the stage for exercise of the governmental compulsion which it is the purpose of the privilege to prohibit. The "cruel trilemma" of perjury, contempt, or self-incrimination, of which the Court spoke in Murphy v. Waterfront Comm'n, faces the individual whenever the government seeks to compel him to produce papers in his possession, for he must then either falsify, accept punishment for contempt, or yield. Lack of title does not free him from this choice.9 Possession of potentially incriminating documents is thus the necessary and sufficient condition of the privilege, for the compelled production, identification, and authentication of incriminating materials by the possessor will incriminate him, whether or not the documents are his.10

It is difficult to see how this conclusion could be affected by the fact that the papers were owned by another who had the right to demand their return. The owner's demand would not involve compulsion by the state, and compliance with it would not incriminate the possessor. The considerations upon which the right depends therefore would not apply, even though the documents might thereafter be obtained by the government from the owner. "The sentiments which bar the state from requiring a person to deliver to it a self-incriminating document are logically unrelated to the fact that someone else, using methods and for reasons not giving rise to those same sentiments, can require the person to deliver up the document to that someone else." 8 Wigmore, Evidence § 2259b, at 360 (McNaughton rev. 1961).11

It has been suggested12 that if the owner were served with a summons he would be required to retrieve the papers from the possessor for production in compliance with the summons;13 that the possessor could neither refuse to return the papers to the owner nor prevent the owner from submitting the papers to the government on the ground that they would tend to incriminate the possessor; and that the government should be permitted to accomplish directly by serving the summons upon the possessor what it could in any event accomplish indirectly by serving the owner.

The suggestion overlooks the fact that if the owner is a natural person, as in our case, he might himself, after acquiring possession, assert the privilege and refuse to produce the papers.14 Moreover, it misses the point to argue that since the government might obtain the papers by another means it should be permitted to compel the possessor to produce them over his claim of privilege15 — that the government might obtain these documents without compelling Cohen to incriminate himself is hardly a justification for compelling Cohen to incriminate himself. We cannot ignore the dictates of the Fifth Amendment on the ground that it would be more convenient or efficient to do so.

In a slight variation of its basic theme, the government argues that Berke's request to Cohen to return the papers rendered Cohen's possession "wrongful" and therefore insufficient to support a claim of privilege.16

There is authority that possession of incriminating documents is sufficient to support the privilege even though the possession is wrongfully acquired and the owner has requested that the documents be returned.17 The logic of the privilege supports this view, for, as we have said, the exercise of governmental power which the privilege was intended to bar occurs whenever, without more, a person is compelled to identify, authenticate, and produce documents which may tend to incriminate him.

In any event, Cohen's possession cannot fairly be characterized as wrongful. Berke testified without contradiction that he considered all papers relating to his clients' affairs to be theirs to command, and that it had been his invariable practice to deliver such papers to the client whenever...

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