Wild v. Brewer

• Decision Date: 02 June 1964
• Docket Number: No. 18860.,18860.
• Citation: 329 F.2d 924
• Parties: Albert J. WILD, Appellant, v. Bennett Y. BREWER, Revenue Agent of the Internal Revenue Service, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.2d 924 (1964)

Albert J. WILD, Appellant, v. Bennett Y. BREWER, Revenue Agent of the Internal Revenue Service, Appellee.

No. 18860.

United States Court of Appeals Ninth Circuit.

June 2, 1964.

Brown, Vlassis & Bain, Jack E. Brown, and Arthur P. Allsworth, Phoenix, Ariz., and McLane & McLane, and W. Lee McLane, Jr., Phoenix, Ariz., and Thaddeus Rojek, Washington, D. C., for appellant.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph M. Howard, and Burton Berkley, Attys., Dept. of Justice, Washington, D. C., and Carl A. Muecke, U. S. Atty., and Richard C. Gormley, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before MERRILL, Circuit Judge, MADDEN, Judge of the Court of Claims, and KOELSCH, Circuit Judge.

On Rehearing

MERRILL and KOELSCH, Circuit Judges:

Judgment affirmed on the authority of Grant v. United States (1912) 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423, and Wilson v. United States (1911) 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771.

MADDEN, Judge (dissenting):

I respectfully dissent from the decision of the court. In order to explain the reasons for my dissent, I state the facts of the case.

Brewer, an agent of the Secretary of the Treasury, served upon Wild a summons addressed to

Albert J. Wild, President Air Conditioning Supply Company

requiring Wild to appear before Brewer to give testimony relating to the tax liability and/or the collection of the tax liability of "the above named person" and to bring with him and produce for examination certain books and records specified in the summons. All of the books and records specified were books and records of Air Conditioning Supply Company.

Wild appeared, pursuant to the summons, but refused to produce the books and records called for in the summons. He gave as the reason for his refusal the fact that the production of the books and records might tend to incriminate him and thus compel him, in a criminal case, to be a witness against himself in violation of his rights under the Fifth Amendment to the Constitution of the United States, and that to compel him to produce the books and records would amount to an unreasonable search and seizure, in violation of his rights under the Fourth Amendment to the Constitution. He stated that Air Conditioning Supply Company, though it was a corporation, was owned 100 per cent by himself, and was completely controlled and directed by him.

Brewer's summons to Wild was, as it showed on its face, issued pursuant to Section 7602, Internal Revenue Code of 1954, 26 U.S.C., 1958 ed., § 7602. Section 7604 gives to the appropriate United States District Court the power, upon application by the Secretary of the Treasury or his delegate, to issue an attachment against a person neglecting or refusing to obey a summons issued under § 7602, as for contempt. Brewer made an application to the United States District Court for the District of Arizona. That court issued the attachment, held a hearing at which evidence was taken and arguments were heard, and thereafter made findings of fact and stated conclusions of law to the effect that the privilege against self-incrimination and unreasonable search and seizure cannot be claimed by a corporation; that the records requested were the property of Air Conditioning Company, Inc.; and that Brewer was entitled to get the records. The court ordered Wild to appear before the court at a specified time and produce the records.

Wild brought the instant appeal from that order of the District Court. The records were placed in escrow in a bank, and a stay was granted pending this appeal. The issue, then, in the appeal is whether Wild, who might be incriminated by what was written in the documents which were called for in the summons, could, in the circumstances, refuse to turn the documents over to the Government.

The privilege guaranteed by the Fifth Amendment, against the Government of the United States, "in any criminal case" not to be compelled to be a witness against one's self, is available not only to defendants in criminal trials but to witnesses in any kind of official proceeding under the auspices of the United States. It applies not only to the giving of oral testimony, but to the production from one's possession of incriminating documents or objects, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, at least if the possession is coupled with a certain minimum of right. See United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542.

Whether the Constitutional Fathers were wise or not in inserting this guaranty in the Constitution might now, 172 years after its insertion, be regarded as irrelevant, except that when, in a case such as the instant one, special circumstances exist, it may be permissible to weigh the arguments which, in this country and in England, have been advanced for and against the privilege.

In the 1911 case of Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, at page 549, 55 L.Ed. 771, Mr. Justice McKenna, at page 392, in a dissenting opinion strongly urging a generous interpretation of the privilege, referred to certain critical discussions of the privilege in legal literature. He said:

"Indeed, eminent legal names may be cited in criticism, if not ridicule, of the policy expressed by the 5th Amendment, that is, the policy of protection against self-incrimination. It is declared to have no logical relation to the abuses that are said to sustain it, and that the pretense for it, so far as based on hardship, is called an `old woman\'s reason\' (also a `lawyer\'s reason\') and a `double distilled and treble refined sentimentality.\' So far as based on unfairness, it is called `the fox hunter\'s reason,\' its basis being that a criminal and a fox must have a chance to escape, the subsequent pursuit being made thereby more interesting."

Justice McKenna cited Bentham on Judicial Evidence, 1827, vol. 5, page 229 et seq., for the foregoing. His own brief response is, "A reply would be difficult if government had no other concern than the punishment of crime."

In the 1937 case of Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, Mr. Justice Cardozo, speaking obiter, but for all but one of the Justices, said:

"What is true of jury trials and indictments is true also, as the cases show, of the immunity from compulsory self-incrimination. Twining v. New Jersey, supra 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. This too might be lost, and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Brown v. Mississippi, supra 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry."

In Ullmann v. United States, 350 U.S. 422, 426, 427, 76 S.Ct. 497, 500, 100 L.Ed. 511, Mr. Justice Frankfurter said, for the Court:

"It is relevant to define explicitly the spirit in which the Fifth Amendment\'s privilege against self-incrimination should be approached. This command of the Fifth Amendment (`nor shall any person * * * be compelled in any criminal case to be a witness against himself * * *\') registers an important advance in the development of our liberty — `one of the great landmarks in man\'s struggle to make himself civilized.\' Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. * * *"

There is without question a general doctrine that an officer of a corporation who, as such officer, has custody of its records may not successfully refuse to produce those records in response to a subpoena issued to the corporation and served upon him as custodian, on the ground that the records contain material which would incriminate him. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771. In that case Mr. Justice Hughes, during his earlier period of service on the Court, wrote the opinion which directly so held. The result of the decision was that Wilson, the president of the corporation, being already under indictment by the same grand jury which subpoenaed the corporation's records, was held to have been validly sentenced for contempt for refusal to supply to the grand jury documents which would be used to convict him of the crimes which the grand jury was investigating. His sentence for contempt was that he be committed "until he delivers to the United Wireless Telegraph Company the said books called for by said subpoena, and ceases to obstruct and impede the process of this court, or otherwise purge himself of this contempt." The other directors of United Wireless were...