United States v. McCollom

• Decision Date: 15 January 1987
• Docket Number: No. 86 CR 410.,86 CR 410.
• Citation: 651 F. Supp. 1217
• Parties: UNITED STATES of America v. John H. McCOLLOM, Defendant.
• Court: U.S. District Court — Northern District of Illinois

651 F. Supp. 1217

UNITED STATES of America v. John H. McCOLLOM, Defendant.

No. 86 CR 410.

United States District Court, N.D. Illinois, E.D.

January 15, 1987.

COPYRIGHT MATERIAL OMITTED

Anton R. Valukas, U.S. Atty., Sheldon Zenner, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Gary L. Starkman, Arvey, Hodes, Costello & Burman, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Defendant John H. McCollom is under indictment on charges of mail fraud, racketeering, and tax evasion. The superseding indictment alleges that McCollom received cash bribes beginning in the late 1970s until 1982 for disposing of cases pending before him while he served as a traffic court judge in the Circuit Court of Cook County, Illinois and failed to report that income on his tax returns.

The government has petitioned for an order under 18 U.S.C. §§ 6002 and 6003¹ directing McCollom to comply with a trial subpoena duces tecum. The subpoena requires McCollom to produce

Any and all original checks, check registers, or withdrawal slips, or other information reflecting withdrawals of funds or the drawing on funds from accounts owned by John H. McCollom in whole or in part.

The parties have agreed that the subpoena will be limited to material dated from 1978 to 1983. The petition complies with the statutory requirements in all respects. Accordingly, the order is granted subject to the qualifications outlined below.

McCollom moves to quash the subpoena, arguing that it violates his rights under the Fifth Amendment and that it fails to comply with Federal Rule of Criminal Procedure 17(c). McCollom also argues that the court should quash the subpoena under its supervisory powers. For the following reasons, the motion to quash is granted in part and denied in part.

DISCUSSION

I. Constitutional Considerations

An order under 18 U.S.C. § 6003 requiring an individual to give testimony or provide information is inextricably linked to the use immunity provided in 18 U.S.C. § 6002. When such an order is properly requested and issued, the immunity automatically follows. In re Sealed Case, 791 F.2d 179, 182 (D.C.Cir.) (Scalia, J.), cert. denied, ___ U.S. ___, 107 S.Ct. 331, 93 L.Ed.2d 303 (1986). It is derived from the statute, not from the court's order or the government's petition, and it is coextensive with the individual's privilege against compulsory self-incrimination under the Fifth Amendment. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972) (upholding the constitutionality of 18 U.S.C. §§ 6002 and 6003 under the Fifth Amendment); see also In re Daley, 549 F.2d 469 (7th Cir.) (court order compelling testimony before a federal grand jury and extending immunity beyond Fifth Amendment requirements would not be enforced against the Illinois Attorney Registration and Disciplinary Commission), cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977). Therefore, the statute eliminates any Fifth Amendment objections to the order itself.

However, the extent of McCollom's Fifth Amendment rights determines the extent of the immunity conferred by § 6002. The government's only legitimate purpose for obtaining the documents described in the subpoena is to use them as evidence at trial, and the grant of immunity may preclude that use. Accordingly, an analysis of McCollom's Fifth Amendment rights is still necessary.

A. Use of the Documents' Contents

McCollom argues that the contents of the documents sought are privileged under Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and its progeny. In Boyd the Supreme Court held that the compulsory production of an invoice of certain imported glass owned by a partnership was unconstitutional in a forfeiture case, stating that "a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself" in violation of the Fifth Amendment. 116 U.S. 634-35, 6 S.Ct. at 534.

Although later cases have not explicitly overruled Boyd, its reasoning and holding have been so seriously eroded that little if anything remains of either. See, e.g., Note, The Rights of Criminal Defendants and the Subpoena Duces Tecum: The Aftermath of Fisher v. United States, 95 Harv.L.Rev. 683 (1982); Note, The Life and Times of Boyd v. United States (1886-1976), 76 Mich.L.Rev. 184 (1977). Most significantly, in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the Supreme Court held that taxpayers had no Fifth Amendment rights against the compulsory production of certain documents held by their lawyers relating to the preparation of their income tax returns, emphasizing that the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. Id. at 396-97, 96 S.Ct. at 1573-74; see United States v. Doe, 465 U.S. 605, 610, 104 S.Ct. 1237, 1240, 79 L.Ed.2d 552 (1984) (emphasis in originals). That the documents on their face might incriminate the taxpayers did not in itself implicate the Fifth Amendment. Because no compulsion was involved in preparing the documents, their contents were not protected. Fisher, 425 U.S. at 410-11 & n. 11, 96 S.Ct. at 1580-81 & n. 11.

In United States v. Doe, the Supreme Court quoted extensively from Fisher in holding that the Fifth Amendment only applied to the defendant's act of producing certain documents relating to the operation of several sole proprietorships, not to the voluntarily compiled contents of the documents. "A subpoena that demands production of documents `does not compel oral testimony; nor would it ordinarily compel the defendant to restate, repeat, or affirm the truth of the documents sought.'" Doe, 465 U.S. at 610-11, 104 S.Ct. at 1241, quoting Fisher, 425 U.S. at 409, 96 S.Ct. at 1580. The subpoena compels the act of producing documents, and the testimonial aspects of that act may be privileged under the Fifth Amendment. See Doe, 465 U.S. at 612-14, 104 S.Ct. at 1242-43. However, the Court confirmed that "if the party asserting the privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged." Id. at 612 n. 10, 104 S.Ct. at 1242 n. 10. Both Doe and Fisher addressed the argument that the Fifth Amendment creates a zone of privacy which protects an individual and his personal records from compelled production by observing that:

Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort.

Doe, 465 U.S. at 610-11 n. 8, 104 S.Ct. at 1241 n. 8, quoting Fisher, 425 U.S. at 399, 96 S.Ct. at 1575.

McCollom contends that the reasoning underlying Fisher and Doe applies only to documents held in a representative capacity on behalf of a business entity, not to documents held by a defendant as an individual, relying chiefly on United States v. (Under Seal), 745 F.2d 834 (4th Cir.1984), vacated as moot sub nom., United States v. Doe, 471 U.S. 1001, 105 S.Ct. 1861, 85 L.Ed.2d 155 (1985). In Fisher, the Supreme Court apparently left this possibility open. 425 U.S. at 414, 96 S.Ct. at 1582. Doe did not directly resolve the issue either. Compare 465 U.S. at 618, 104 S.Ct. at 1245 (O'Connor, J., concurring) ("the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind.") with Id. at 619 104 S.Ct. at 1246 (Marshall, J., concurring in part and dissenting in part) ("under the Fifth Amendment there are certain documents no person ought to be compelled to produce at the Government's request citation omitted"). However, it is difficult to reconcile the holding of (Under Seal) with the emphasis on compulsion adopted in the Fisher and Doe majority opinions. In Doe, the Court of Appeals had

reasoned that, notwithstanding the holdings in Bellis v. United States, 417 U.S. 85 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) and Fisher, the business records of a sole proprietorship are no different from the individual owner's personal records. Noting that Third Circuit cases had held that private papers, although created voluntarily, are protected by the Fifth Amendment, the court accorded the same protection to respondent's business papers.

465 U.S. at 609, 104 S.Ct. at 1240 (footnotes omitted). Rather than affirm the result by adopting a distinction between records held in a representative capacity and those held in a personal capacity, the Supreme Court reversed, criticizing the Third Circuit for adopting an unduly restrictive reading of Fisher's focus on compulsion. Doe, 465 U.S. at 612 n. 9, 104 S.Ct. at 1242 n. 9. If the Fifth Amendment does not protect the contents of voluntarily prepared business records held by the owner of a sole proprietorship because no compulsion was involved in their creation, it is difficult to see why the contents of an individual's voluntarily created private financial records should be treated differently.

Whatever is left of the holding in Boyd, it does not extend to financial records such as checks, check registers or information reflecting withdrawals from accounts. See United States v. Porter, 557 F.Supp. 703, 714-15 (N.D.Ill.1982) (respondent's appointment book was content-protected under the Fifth Amendment, but cancelled checks and withdrawal slips were not), rev'd, 711 F.2d 1397 (7th Cir.1983) (contents of cancelled checks and withdrawal slips are not protected, but the act of producing them is);²see also Fisher, 425 U.S. at 427, 96 S.Ct. at 1589 (Brennan, J., concurring) ("Nonbusiness economic records in the possession of an individual are, however, like business records and the papers involved in ...