UNITED STATES v. DOE
No. 82-786
SUPREME COURT OF THE UNITED STATES
465 U.S. 605
December 7, 1983, Argued
February 28, 1984, Decided
POWELL, J., delivered the
opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, REHNQUIST,
and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p.
618. MARSHALL, J., filed an opinion concurring in part and dissenting in part,
in which BRENNAN, J., joined, post, p. 618. STEVENS, J., filed an opinion
concurring in part and dissenting in part, post, p. 619.
JUSTICE POWELL delivered the opinion of the Court.
This case presents the issue whether, and to what extent, the Fifth Amendment
privilege against compelled self-incrimination applies to the business records
of a sole proprietorship.
I
Respondent is the owner of several sole proprietorships. In late 1980, a grand
jury, during the course of an investigation of corruption in the awarding of
county and municipal contracts, served five subpoenas on respondent. The first
two demanded the production of the telephone records of several of respondent's
companies and all records pertaining to four bank accounts of respondent and his
companies. The subpoenas were limited to the period between January 1, 1977, and
the dates of the subpoenas. The third subpoena demanded the production of a list
of virtually all the business records of one of respondent's companies for the
period between January 1, 1976, and the date of the subpoena. n1 The fourth
subpoena sought production of a similar list of business records belonging to
another company. n2 The final subpoena demanded production of all bank
statements and cancelled checks of two of respondent's companies that had
accounts at a bank in the Grand Cayman Islands.
n1 The categories of records
sought by the third subpoena were: (1) general ledgers; (2) general journals;
(3) cash disbursement journals; (4) petty cash books and vouchers; (5) purchase
journals; (6) vouchers; (7) paid bills; (8) invoices; (9) cash receipts journal;
(10) billings; (11) bank statements; (12) canceled checks and check stubs; (13)
payroll records; (14) contracts and copies of contracts, including all retainer
agreements; (15) financial statements; (16) bank deposit tickets; (17) retained
copies of partnership income tax returns; (18) retained copies of payroll tax
returns; (19) accounts payable ledger; (20) accounts receivable ledger; (21)
telephone company statement of calls and telegrams, and all telephone toll
slips; (22) records of all escrow, trust, or fiduciary accounts maintained on
behalf of clients; (23) safe deposit box records; (24) records of all purchases
and sales of all stocks and bonds; (25) names and home addresses of all
partners, associates, and employees; (26) W-2 forms of each partner, associate,
and employee; (27) workpapers; and (28) copies of tax returns.
n2 The only documents requested in the fourth subpoena that were not requested
in the third were the company's stock transfer book, any corporate minutes, the
corporate charter, all correspondence and memoranda, and all bids, bid bonds,
and contracts. The request for "corporate" minutes and the "corporate" charter
is puzzling because the company named in the subpoena was an unincorporated sole
proprietorship.
II
Respondent filed a motion in Federal District Court seeking to quash the
subpoenas. The District Court for the District of New Jersey granted his motion
except with respect to those documents and records required by law to be kept or
disclosed to a public agency. n3 In reaching its decision, the District Court
noted that the Government had conceded that the materials sought in the subpoena
were or might be incriminating. The court stated that, therefore, "the relevant
inquiry is . . . whether the act of producing the documents has communicative
aspects which warrant Fifth Amendment protection." In re Grand Jury Empanelled
March 19, 1980, 541 F.Supp. 1, 3 (1981) (emphasis in original). The court found
that the act of production would compel respondent to "admit that the records
exist, that they are in his possession, and that they are authentic." Ibid.
While not ruling out the possibility that the Government could devise a way to
ensure that the act of turning over the documents would not incriminate
respondent, the court held that the Government had not made such a showing.
n3 The District Court mentioned
tax returns and W-2 statements as examples of documents falling within this
category. Respondent has not challenged this aspect of the District Court's
opinion. We therefore understand that this case concerns only business documents
and records not required by law to be kept or disclosed to a public agency. We
also note that our opinion addresses only the Fifth Amendment implications of
the subpoenas. The subpoenas were drawn in the broadest possible terms. It may
be that the breadth of the subpoenas is subject to attack on other grounds that
are not before us.
The Court of Appeals for the Third Circuit affirmed. In re Grand Jury Empanelled
March 19, 1980, 680 F.2d 327 (1982). It first addressed the question whether the
Fifth Amendment ever applies to the records of a sole proprietorship. After
noting that an individual may not assert the Fifth Amendment privilege on behalf
of a corporation, partnership, or other collective entity under the holding of
Bellis v. United States, 417 U.S. 85 (1974), n4 the Court of Appeals reasoned
that the owner of a sole proprietorship acts in a personal rather than a
representative capacity. As a result, the court held that respondent's claim of
the privilege was not foreclosed by the reasoning of Bellis. 680 F.2d, at 331.
n4 Bellis defined a "collective
entity" as "an organization which is recognized as an independent entity apart
from its individual members." 417 U.S., at 92.
The Court of Appeals next considered whether the documents at issue in this case
are privileged. The court noted that this Court held in Fisher v. United States,
425 U.S. 391 (1976), that the contents of business records ordinarily are not
privileged because they are created voluntarily and without compulsion. The
Court of Appeals nevertheless found that respondent's business records were
privileged under either of two analyses. First, the court reasoned that,
notwithstanding the holdings in Bellis 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, n5 the court accorded
the same protection to respondent's business papers. n6 Second, it held that
respondent's act of producing the subpoenaed records would have "communicative
aspects of its own." 680 F.2d, at 335. The turning over of the subpoenaed
documents to the grand jury would admit their existence and authenticity.
Accordingly, respondent was entitled to assert his Fifth Amendment privilege
rather than produce the subpoenaed documents.
n5 See In re Grand Jury
Proceedings (Johanson), 632 F.2d 1033 (1980); ICC v. Gould, 629 F.2d 847 (1980),
cert. denied, 449 U.S. 1077 (1981).
n6 JUSTICE STEVENS apparently
reads the Court of Appeals' decision as merely affirming the District Court's
finding that the act of producing the subpoenaed records was privileged. In
support of this hypothesis, he quotes extensively from that portion of the Court
of Appeals' opinion that addresses the act-of-production issue. The quoted
passage, however, begins after the court has discussed whether the records
themselves are privileged. After noting that Fisher could be read to deprive the
contents of a sole proprietorship's records of Fifth Amendment protection, the
court noted that other Third Circuit cases -- principally ICC v. Gould, supra,
had refused to adopt that interpretation. The court stated: "Gould, then, stands
for the proposition that an individual's business papers, as well as his
personal records, cannot be subpoenaed by a grand jury." 680 F.2d, at 334
(footnote omitted). The court went on to hold, in the alternative, that the act
of production is privileged as well. We note in passing that both parties share
our interpretation of the Court of Appeals' opinion. Brief for United States 5;
Brief for Respondent 3-4.
The Government contended that the court should enforce the subpoenas because of
the Government's offer not to use respondent's act of production against
respondent in any way. The Court of Appeals noted that no formal request for use
immunity under 18 U. S. C. §§ 6002 and 6003 had been made. In light of this
failure, the court held that the District Court did not err in rejecting the
Government's attempt to compel delivery of the subpoenaed records.
We granted certiorari to resolve the apparent conflict between the Court of
Appeals' holding and the reasoning underlying this Court's holding in Fisher.
461 U.S. 913 (1983). We now affirm in part, reverse in part, and remand for
further proceedings.
III
A
The Court in Fisher expressly declined to reach the question whether the Fifth
Amendment privilege protects the contents of an individual's tax records in his
possession. n7 The rationale underlying our holding in that case is, however,
persuasive here. As we noted in Fisher, the Fifth Amendment protects the person
asserting the privilege only from compelled self-incrimination. 425 U.S., at
396. Where the preparation of business records is voluntary, no compulsion is
present. n8 A subpoena that demands production of documents "does not compel
oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat,
or affirm the truth of the contents of the documents sought." Id., at 409.
Applying this reasoning in Fisher, we stated:
"[The] Fifth Amendment would not be violated by the fact alone that the papers
on their face might incriminate the taxpayer, for the privilege protects a
person only against being incriminated by his own compelled testimonial
communications. Schmerber v. California, [384 U.S. 757 (1966)]; United States v.
Wade, [388 U.S. 218 (1967)]; and Gilbert v. California, [388 U.S. 263 (1967)].
The accountant's workpapers are not the taxpayer's. They were not prepared by
the taxpayer, and they contain no testimonial declarations by him. Furthermore,
as far as this record demonstrates, the preparation of all of the papers sought
in these cases was wholly voluntary, and they cannot be said to contain
compelled testimonial evidence, either of the taxpayers or of anyone else. The
taxpayer cannot avoid compliance with the subpoena merely by asserting that the
item of evidence which he is required to produce contains incriminating writing,
whether his own or that of someone else." Id., at 409-410.
n7 In Fisher, the Court stated:
"Whether the Fifth Amendment would shield the taxpayer from producing his own
tax records in his possession is a question not involved here; for the papers
demanded here are not his 'private papers,' . . ." 425 U.S., at 414. We note
that in some respects the documents sought in Fisher were more "personal" than
those at issue here. The Fisher documents were accountant's workpapers in the
possession of the taxpayers' lawyers. The workpapers related to the taxpayers'
individual personal returns. To that extent, the documents were personal, even
though in the possession of a third party. In contrast, each of the documents
sought here pertained to respondent's businesses.
n8 Respondent's principal argument is that the Fifth Amendment should be read
as creating a "zone of privacy which protects an individual and his personal
records from compelled production." Brief for Respondent 15. This argument
derives from language in Boyd v. United States, 116 U.S. 616, 630 (1886). This
Court addressed substantially the same argument in Fisher:
"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." 425 U.S., at 399.
In Andresen v. Maryland, 427 U.S. 463 (1976), the petitioner also relied on
Boyd. In rejecting his argument, we observed that "the continued validity of the
broad statements contained in some of the Court's earlier cases [has] been
discredited by later opinions." 427 U.S., at 472. See also United States v.
Nobles, 422 U.S. 225, 233, n. 7 (1975).
This reasoning applies with equal force here. Respondent does not contend that
he prepared the documents involuntarily n9 or that the subpoena would force him
to restate, repeat, or affirm the truth of their contents. The fact that the
records are in respondent's possession is irrelevant to the determination of
whether the creation of the records was compelled. We therefore hold that the
contents of those records are not privileged. n10
n9 The Court of Appeals
recognized the absence of compulsion in the compilation of the records sought in
this case and those sought in Fisher. "To be sure, the documents requested here,
like those sought in Fisher, were voluntarily prepared, and therefore 'cannot be
said to contain compelled testimonial evidence' in and of themselves." 680 F.2d,
at 334. The Court of Appeals nevertheless gave our holding in Fisher an unduly
restrictive reading and found it not to control the outcome in this case.
n10 Accord, In re Grand Jury Proceedings, 626 F.2d 1051, 1055 (CA1 1980) ("The
line of cases culminating in Fisher have stripped the content of business
records of any Fifth Amendment protection"). While not directly on point,
Andresen v. Maryland, supra, is consistent with our holding. In Andresen,
investigators from a bicounty fraud unit obtained warrants to search the
petitioner's office. During the search, the investigators seized several
incriminating business records relating to the petitioner's practice as a sole
practitioner of real estate law. The petitioner sought suppression of the
documents on Fourth and Fifth Amendment grounds. The petitioner based his Fifth
Amendment argument on "dicta in a number of cases which imply, or state, that
the search for and seizure of a person's private papers violate the privilege
against self-incrimination." Id., at 471. The Court dismissed this argument and
found the documents not to be privileged because the petitioner "had voluntarily
committed to writing" any incriminating statements contained therein. Id., at
473. Although Andresen involved a search warrant rather than a subpoena, the
underlying principle is the same in this context. If the party asserting the
Fifth Amendment privilege has voluntarily compiled the document, no compulsion
is present and the contents of the document are not privileged.
B
Although the contents of a
document may not be privileged, the act of producing the document may be. Id.,
at 410. A government subpoena compels the holder of the document to perform an
act that may have testimonial aspects and an incriminating effect. As we noted
in Fisher:
"Compliance with the subpoena tacitly concedes the existence of the papers
demanded and their possession or control by the taxpayer. It also would indicate
the taxpayer's belief that the papers are those described in the subpoena.
Curcio v. United States, 354 U.S. 118, 125 (1957). The elements of compulsion
are clearly present, but the more difficult issues are whether the tacit
averments of the taxpayer are both 'testimonial' and 'incriminating' for
purposes of applying the Fifth Amendment. These questions perhaps do not lend
themselves to categorical answers; their resolution may instead depend on the
facts and circumstances of particular cases or classes thereof." Id., at 410.
In Fisher, the Court explored the effect that the act of production would have
on the taxpayer and determined that the act of production would have only
minimal testimonial value and would not operate to incriminate the taxpayer.
Unlike the Court in Fisher, we have the explicit finding of the District Court
that the act of producing the documents would involve testimonial
self-incrimination. n11 The Court of Appeals agreed. n12 The District Court's
finding essentially rests on its determination of factual issues. See United
States v. Nixon, 418 U.S. 683, 702 (1974). Therefore, we will not overturn that
finding unless it has no support in the record. Ibid. Traditionally, we also
have been reluctant to disturb findings of fact in which two courts below have
concurred. Rogers v. Lodge, 458 U.S. 613, 623 (1982). We therefore decline to
overturn the finding of the District Court in this regard, where, as here, it
has been affirmed by the Court of Appeals. n13
n11 The District Court stated:
"With few exceptions, enforcement of the subpoenas would compel [respondent] to
admit that the records exist, that they are in his possession, and that they are
authentic. These communications, if made under compulsion of a court decree,
would violate [respondent's] Fifth Amendment rights. . . . The government argues
that the existence, possession and authenticity of the documents can be proved
without [respondent's] testimonial communication, but it cannot satisfy this
court as to how that representation can be implemented to protect the witness in
subsequent proceedings." 541 F.Supp., at 3.
n12 The Court of Appeals stated:
"In the matter sub judice, however, we find nothing in the record that would
indicate that the United States knows, as a certainty, that each of the myriad
documents demanded by the five subpoenas in fact is in the appellee's possession
or subject to his control. The most plausible inference to be drawn from the
broad-sweeping subpoenas is that the Government, unable to prove that the
subpoenaed documents exist -- or that the appellee even is somehow connected to
the business entities under investigation -- is attempting to compensate for its
lack of knowledge by requiring the appellee to become, in effect, the primary
informant against himself." 680 F.2d, at 335 (footnote omitted).
n13 The Government concedes that the act of producing the subpoenaed documents
might have had some testimonial aspects, but it argues that any incrimination
would be so trivial that the Fifth Amendment is not implicated. The Government
finds support for this argument in Marchetti v. United States, 390 U.S. 39
(1968). In Marchetti, the Court stated that a party who wishes to claim the
Fifth Amendment privilege must be "confronted by substantial and 'real,' and not
merely trifling or imaginary, hazards of incrimination." Id., at 53; see United
States v. Apfelbaum, 445 U.S. 115, 128 (1980). On the basis of the findings made
in this case we think it clear that the risk of incrimination was "substantial
and real" and not "trifling or imaginary." Respondent did not concede in the
District Court that the records listed in the subpoena actually existed or were
in his possession. Respondent argued that by producing the records, he would
tacitly admit their existence and his possession. Respondent also pointed out
that if the Government obtained the documents from another source, it would have
to authenticate them before they would be admissible at trial. See Fed. Rule
Evid. 901. By producing the documents, respondent would relieve the Government
of the need for authentication. These allegations were sufficient to establish a
valid claim of the privilege against self-incrimination. This is not to say that
the Government was foreclosed from rebutting respondent's claim by producing
evidence that possession, existence, and authentication were a "foregone
conclusion." Fisher, 425 U.S., at 411. In this case, however, the Government
failed to make such a showing.
IV
The Government, as it concedes, could have compelled respondent to produce the
documents listed in the subpoena. Title 18 U. S. C. §§ 6002 and 6003 provide
for the granting of use immunity with respect to the potentially incriminating
evidence. n14 The Court upheld the constitutionality of the use immunity
statute in Kastigar v. United States, 406 U.S. 441 (1972).
n14 Section 6002 provides:
"Whenever a witness refuses, on the basis of his privilege against
self-incrimination, to testify or provide other information in a proceeding
before or ancillary to --
"(1) a court or grand jury of the United States,
"(2) an agency of the United States, or
"(3) either House of Congress, a joint committee of the two Houses, or a
committee or a subcommittee of either House,
"and the person presiding over the proceeding communicates to the witness an
order issued under this part, the witness may not refuse to comply with the
order on the basis of his privilege against self-incrimination; but no testimony
or other information compelled under the order (or any information directly or
indirectly derived from such testimony or other information) may be used against
the witness in any criminal case, except a prosecution for perjury, giving a
false statement, or otherwise failing to comply with the order."
Section 6003 provides:
"(a) In the case of any individual who has been or may be called to testify or
provide other information at any proceeding before or ancillary to a court of
the United States or a grand jury of the United States, the United States
district court for the judicial district in which the proceeding is or may be
held shall issue, in accordance with subsection (b) of this section, upon the
request of the United States attorney for such district, an order requiring such
individual to give testimony or provide other information which he refuses to
give or provide on the basis of his privilege against self-incrimination, such
order to become effective as provided in section 6002 of this part.
"(b) A United States attorney may, with the approval of the Attorney General,
the Deputy Attorney General, or any designated Assistant Attorney General,
request an order under subsection (a) of this section when in his judgment --
"(1) the testimony or other information from such individual may be necessary to
the public interest; and
"(2) such individual has refused or is likely to refuse to testify or provide
other information on the basis of his privilege against self-incrimination."
The Government did state several times before the District Court that it would
not use respondent's act of production against him in any way. But counsel for
the Government never made a statutory request to the District Court to grant
respondent use immunity. n15 We are urged to adopt a doctrine of constructive
use immunity. Under this doctrine, the courts would impose a requirement on the
Government not to use the incriminatory aspects of the act of production against
the person claiming the privilege even though the statutory procedures have not
been followed.
n15 Despite repeated questioning
at oral argument, counsel for the Government gave no plausible explanation for
the failure to request official use immunity rather than promising that the act
of producing the documents would not be used against respondent.
We decline to extend the jurisdiction of courts to include prospective grants of
use immunity in the absence of the formal request that the statute requires. n16
As we stated in Pillsbury Co. v. Conboy, 459 U.S. 248 (1983), in passing the use
immunity statute, "Congress gave certain officials in the Department of Justice
exclusive authority to grant immunities." Id., at 253-254 (footnotes omitted).
"Congress foresaw the courts as playing only a minor role in the immunizing
process. . . ." Id., at 254, n. 11. The decision to seek use immunity
necessarily involves a balancing of the Government's interest in obtaining
information against the risk that immunity will frustrate the Government's
attempts to prosecute the subject of the investigation. See United States v.
Mandujano, 425 U.S. 564, 575 (1976) (plurality opinion). Congress expressly left
this decision exclusively to the Justice Department. If, on remand, the
appropriate official concludes that it is desirable to compel respondent to
produce his business records, the statutory procedure for requesting use
immunity will be available. n17
n16 Of course, courts generally
suppress compelled, incriminating testimony that results from a violation of a
witness' Fifth Amendment rights. See United States v. Mandujano, 425 U.S. 564,
576 (1976); United States v. Blue, 384 U.S. 251, 255 (1966). The difference
between that situation and the Government's theory of constructive use immunity
is that in the latter it is the grant of judicially enforceable use immunity
that compels the witness to testify. In the former situation, exclusion of the
witness' testimony is used to deter the Government from future violations of
witnesses' Fifth Amendment rights.
n17 Respondent argues that any grant of use immunity must cover the contents of
the documents as well as the act of production. We find this contention
unfounded. To satisfy the requirements of the Fifth Amendment, a grant of
immunity need be only as broad as the privilege against self-incrimination.
Murphy v. Waterfront Comm'n, 378 U.S. 52, 107 (1964) (WHITE, J., concurring);
see Pillsbury Co. v. Conboy, 459 U.S., at 253, n. 8; United States v. Calandra,
414 U.S. 338, 346 (1974). As discussed above, the privilege in this case extends
only to the act of production. Therefore, any grant of use immunity need only
protect respondent from the self-incrimination that might accompany the act of
producing his business records.
V
We conclude that the Court of Appeals erred in holding that the contents of the
subpoenaed documents were privileged under the Fifth Amendment. The act of
producing the documents at issue in this case is privileged and cannot be
compelled without a statutory grant of use immunity pursuant to 18 U. S. C. §§
6002 and 6003. The judgment of the Court of Appeals is, therefore, affirmed in
part and reversed in part, n18 and the case is remanded to the District Court
for further proceedings consistent with this opinion.
n18 JUSTICE STEVENS states that
we should affirm the Court of Appeals decision as a whole because our reasoning
is entirely consistent with that of the courts below. See post, at 623. As we
stated above, see n. 6, supra, we read the opinion of the Court of Appeals as
holding that the contents of the subpoenaed records were privileged. It is that
aspect of the court's opinion that we reverse today. Were we to adopt JUSTICE
STEVENS' suggestion, respondent could argue on remand that any grant of use
immunity must cover the contents of the records because the records themselves
are privileged under the holding of the Court of Appeals. To avoid that result,
we must reverse the decision below insofar as it held that the contents of the
subpoenaed records are privileged.
It is so ordered.
JUSTICE O'CONNOR, concurring.
I concur in both the result and reasoning of JUSTICE POWELL'S opinion for the
Court. I write separately, however, just to make explicit what is implicit in
the analysis of that opinion: that the Fifth Amendment provides absolutely no
protection for the contents of private papers of any kind. The notion that the
Fifth Amendment protects the privacy of papers originated in Boyd v. United
States, 116 U.S. 616, 630 (1886), but our decision in Fisher v. United States,
425 U.S. 391 (1976), sounded the death knell for Boyd. "Several of Boyd's
express or implicit declarations [had] not stood the test of time," 425 U.S., at
407, and its privacy of papers concept "[had] long been a rule searching for a
rationale. . . . " Id., at 409. Today's decision puts a long overdue end to that
fruitless search.
JUSTICE MARSHALL, with whom
JUSTICE BRENNAN joins, concurring in part and dissenting in part.
I concur in the Court's affirmance of the Court of Appeals' ruling that the act
of producing the documents could not be compelled without an explicit grant of
use immunity pursuant to 18 U. S. C. §§ 6002 and 6003. I dissent, however, with
respect to that part of the Court's opinion reversing the Court of Appeals. The
basis for the reversal is the majority's disagreement with the Court of Appeals'
discussion of whether the Fifth Amendment protected the contents of the
documents respondent sought to withhold from disclosure. Inasmuch as the Court
of Appeals' judgment did not rest upon the disposition of this issue, this Court
errs by reaching out to decide it. As JUSTICE STEVENS rightly insists, "'[this]
Court . . . reviews judgments, not statements in opinions.'" Post, at 619
(quoting Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956)).
Contrary to what JUSTICE O'CONNOR contends, ante, at 618, I do not view the
Court's opinion in this case as having reconsidered whether the Fifth Amendment
provides protection for the contents of "private papers of any kind." This case
presented nothing remotely close to the question that JUSTICE O'CONNOR eagerly
poses and answers. First, as noted above, the issue whether the Fifth Amendment
protects the contents of the documents was obviated by the Court of Appeals'
rulings relating to the act of production and statutory use immunity. Second,
the documents at stake here are business records n1 which implicate a lesser
degree of concern for privacy interests than, for example, personal diaries. n2
n1 As the majority notes, "each
of the documents sought here pertained to respondent's businesses." Ante, at
610, n. 7.
n2 See Couch v. United States, 409 U.S. 322, 350 (1973) (MARSHALL, J.,
dissenting) ("Diaries and personal letters that record only their author's
personal thoughts lie at the heart of our sense of privacy. In contrast, I see
no bar in the . . . Fifth Amendment to the seizure of a letter from one
conspirator to another directing the recipient to take steps that further the
conspiracy. Business records . . . lie between those cases").
Were it true that the Court's opinion stands for the proposition that "the Fifth
Amendment provides absolutely no protection for the contents of private papers
of any kind," ibid., I would assuredly dissent. I continue to believe that under
the Fifth Amendment "there are certain documents no person ought to be compelled
to produce at the Government's request." Fisher v. United States, 425 U.S. 391,
431-432 (1976) (MARSHALL, J., concurring in judgment).
JUSTICE STEVENS, concurring in
part and dissenting in part.
"This Court . . . reviews judgments, not statements in opinions." Black v.
Cutter Laboratories, 351 U.S. 292, 297 (1956). n1 When both the District Court
and the Court of Appeals correctly apply the law, and correctly dispose of the
issue before them, I think it is poor appellate practice for this Court to
reverse.
n1 More particularly, we review
the judgment that the Court of Appeals entered in this case, not the judgment
that it may have entered in some other case, see ante, at 609, n. 6, or some
isolated statement in its opinion commenting on the holding in some other case.
The question in this case is whether, without tendering statutory immunity, the
Government can compel the sole proprietor of a business to produce incriminating
records pursuant to a grand jury subpoena. Except for the records that are
required by law to be kept or to be disclosed to public agencies, the District
Court held that production could not be required. The basis for that decision
turned, not on any suggestion that the contents of the documents were
privileged, but rather on the significance of the act of producing them. As the
District Court explained:
"[The] relevant inquiry is not whether the subpoenaed documents on their face
reveal incriminating communications, but whether the act of producing the
documents has communicative aspects which warrant Fifth Amendment protection.
Fisher v. United States, 425 U.S. 391 . . . (1976). In yielding to the command
of the subpoena, Mr. [Doe] may be required to make any one of several
communications. The mere act of producing the documents may be considered 'a
communication of testimonial significance as an admission that the subpoenaed
records exist and that they are authentic.' In Re Grand Jury Empanelled (Colucci),
597 F.2d 851, 861 (3d Cir. 1979); Andresen v. Maryland, 427 U.S. 463, 475 . . .
(1976) ('the Fifth Amendment may protect an individual from complying with a
subpoena for the production of his personal records in his possession because
the very act of production may constitute a compulsory authentication of
incriminating information'). In addition, the act of production may indicate a
belief that the papers produced are those described in the subpoena. Fisher, 425
U.S. at 410. . . .
"With few exceptions, enforcement of the subpoenas would compel Mr. [Doe] to
admit that the records exist, that they are in his possession, and that they are
authentic. These communications, if made under compulsion of a court decree,
would violate Mr. [Doe's] Fifth Amendment rights." In re Grand Jury Empanelled
March 19, 1980, 541 F.Supp. 1, 3 (NJ 1981). n2
n2 Similarly, during oral
argument in the District Court, Judge Sarokin stated: "If you can resolve it to
my satisfaction I have no hesitancy in saying, yes, I will direct the turn-over,
but only on the condition that the act of turn-over will not be utilized against
the target." App. 35.
The Court of Appeals agreed with the District Court's reasoning and affirmed. It
explained:
"To be sure, the documents
requested here, like those sought in Fisher, were voluntarily prepared, and
therefore 'cannot be said to contain compelled testimonial evidence' in and of
themselves. See Fisher, supra, 425 U.S. at 409-10 . . . . But the Supreme Court
in Fisher went to great lengths to demonstrate that, in certain situations, the
very act of producing subpoenaed records might amount to an incriminating
declaration. See id. at 410-13 . . . ; see also id. at 430-34 . . . (Marshall,
J., concurring in the judgment). And such a situation, we believe, is present in
the dispute at bar.
. . . . .
"The record contains no explanation by the United States as to how documents of
this sort could be authenticated without the appellee's explicit or implicit
participation. As the district court observed in this connection,
'the government can give no assurances that the act of turning over the
documents will not constitute incriminating admissions against [the appellee]
either before the grand jury or at a subsequent trial, if he is indicted. The
government argues that the existence, possession and authenticity of the
documents can be proved without [the appellee's] testimonial communication, but
it cannot satisfy this court as to how that representation can be implemented to
protect [the appellee] in subsequent proceedings.'
"Appendix at 98 (footnote omitted). Under these circumstances, we are unable to
say, as did the Court in Fisher, that responding to the subpoenas 'would not
appear to represent a substantial threat of self-incrimination.' 425 U.S. at
413. . . .
"Accordingly, we hold, therefore, that enforcement of these subpoenas would
result in a compelled testimonial communication, an outcome neither compatible
with the fifth amendment nor consonant with Fisher." In re Grand Jury Empanelled
March 19, 1980, 680 F.2d 327, 334, 335-336 (CA3 1982).
In addition, the Court of Appeals noted that the Government had had an
opportunity to obtain the documents by providing the respondent with statutory
immunity, but had declined to do so. It wrote:
"Finally, the United States argues that the district court erred in not
compelling the appellee to produce the subpoenaed documents subject to 'the
functional equivalent of use immunity with respect to the act of production.'
Under this arrangement, presumably the appellee would turn over the requested
records to the Government, which in turn would be obligated not to use the
appellee's act of production against him in any way.
"We are unpersuaded by the Government's proposition. As the appellee stresses,
although the Government, on a number of occasions, suggested to the district
court that there were means by which the appellee's act of production could be
immunized, no procedure ever was agreed upon and no formal immunization offer
under 18 U. S. C. § 6002 or § 6003 was advanced. Given this failure on the part
of the Government to identify with particularity the immunity proposal it
envisioned, we cannot say that the district court erred in rejecting this
approach, especially in view of the court's finding that 'the government can
give no assurances that the act of turning over the documents will not
constitute incriminating admissions against [the appellee] either before the
grand jury or at a subsequent trial.' Appendix at 98; see United States v.
Garcia, 544 F.2d 681, 685 n. 4 (3d Cir. 1976)." Id., at 337.
This Court's opinion is entirely consistent with both the reasoning of the Court
of Appeals and its disposition of the case. This Court agrees that the subpoena
directed to respondent should have been quashed -- which is all that the
judgment we review today contains. Accordingly, the Court of Appeals' judgment
should be affirmed.
To the extent that the Court purports to reverse the judgment of the Court of
Appeals, I respectfully dissent.