United States of America, Appellant, v. (under Seal), Appellee.in Re John Doe No. 462, 745 F.2d 834 (4th Cir. 1985)

The United States appeals from the district court's order quashing, on fifth amendment grounds, a portion of a grand jury subpoena directing appellee to produce specified records and papers held by him in an individual capacity.¹  The district court, relying on Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), held that the fifth amendment prevented the government from subpoenaing incriminating personal documents, notwithstanding the fact that appellee was given immunity for the implicit "testimony" involved in the act of producing the documents. On this appeal, the government argues that the judgment of the district court should be reversed because, it contends, the fifth amendment does not protect an individual against the compelled disclosure of the contents of incriminatory documents or papers, no matter how personal or private they may be. Because we believe that the Supreme Court's decision in Boyd is contrary to the position urged by the government, we affirm the judgment of the district court.

* In March 1984, on application of the assistant United States Attorney, the federal grand jury sitting in the Eastern District of Virginia issued a subpoena duces tecum to appellee, who is a target of the grand jury's investigation into certain alleged narcotics, tax and currency violations. The subpoena required appellee to produce specified "personal records" for the period extending from January 1, 1975 to the date of the subpoena's issuance. Included within the scope of the subpoena were "records of purchases, trades, sales, receipts, gifts and distributions of controlled substances."²  On April 10, 1984, appellee filed a motion to quash that portion of the subpoena requiring him to produce documents held by him in an individual capacity. He argued, first, that the subpoena was overbroad, and irrelevant to the grand jury's investigation, and, second, that the compelled production of personal records violated his fifth amendment right not to incriminate himself.

Following a hearing on April 13, 1984, the district court granted the motion to quash "to the extent that the subpoena calls for the production of personal records of appellee."³  The court directed counsel for appellee to submit for the court's in camera inspection a list of the documents that were asserted to be "personal." At the same time, at the government's request, the court granted appellee immunity for the act of producing the documents.⁴ 

After reviewing the submitted description, the district court concluded that the documents were "clearly personal," and therefore were protected by the fifth amendment. The court ordered the in camera submission sealed until further order of the court,⁵  and the United States noticed an appeal from this order.⁶ 

II

The government contends that the district court should be reversed because the fifth amendment does not protect appellee from the subpoena of his personal documents. Specifically, the United States argues that no fifth amendment privilege attaches to the contents of pre-existing documents of any kind. Although the government admits that subpoenaed documents constitute "testimonial evidence," it contends that the fifth amendment does not come into play because the individual's voluntary choice, not governmental compulsion, results in the incriminating documentary "testimony." Since the incriminating testimony is not itself compelled, so the argument goes, there is no constitutional right that prevents its disclosure to the government, even though the disclosure is unquestionably the result of government compulsion.

In line with this view, the government contends that the fifth amendment places no limits on governmental intrusion into an individual's private affairs, other than a narrow proscription against the extortion of testimony. Cf. 8 Wigmore, Evidence Sec. 2263 (McNaughton rev. 1961) (privilege "directed at the employment of legal process to extract from the person's own lips an admission of guilt"). An individual's "right to privacy" is thus left protected in a constitutional sense only by the conditional limits set by the fourth amendment.⁷  Because we believe that the government's argument is inconsistent with the long-standing holding of the Supreme Court, first enunciated in Boyd, we affirm the order of the district court quashing the subpoena on fifth amendment grounds.

Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), involved a forfeiture action brought by the United States against thirty-five cases of plate glass, allegedly imported without the payment of import duties. In the course of the action, the district court entered an order⁸  requiring the claimants of the glass to produce an invoice from the exporter. The Supreme Court held that the district court's order, and the statute pursuant to which it was entered, violated both the fourth and fifth amendments. Noting that the district court's order went even further than "the Act under which the obnoxious writs of assistance were issued," id. at 623, 6 S. Ct. at 528, the Court first held that "a compulsory production of a man's private papers to establish a criminal charge against him" id. at 622, 6 S. Ct. at 528, violates the fourth amendment's proscription against unreasonable searches and seizures.⁹  Observing that both the fourth and fifth amendments protect an individual's right to privacy, the Court declared that the prohibition against the forced production of private papers involves "the very essence of constitutional liberty and security."

It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense; it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime ... is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.

Id. at 630, 6 S. Ct. at 532.

A contrary reading of the Constitution, Boyd noted, might "suit the purposes of despotic power," but it conflicted with "the pure atmosphere of political liberty and personal freedom" enjoyed in this country. Id. at 632, 6 S. Ct. at 533. The Court was "unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself." Id. at 633, 6 S. Ct. at 534. As a consequence, Boyd explicitly held that "a compulsory production of the private books and papers of the owner of the goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution."¹⁰  Id. at 634-35, 6 S. Ct. at 534.

Later Supreme Court decisions have reaffirmed Boyd's essential holding. See, e.g., Bellis v. United States, 417 U.S. 85, 87, 94 S. Ct. 2179, 2182, 40 L. Ed. 2d 678 (1974) ("the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony"); United States v. Calandra, 414 U.S. 338, 346, 94 S. Ct. 613, 619, 38 L. Ed. 2d 561 (1974) ("grand jury may not compel a person to produce books and papers that would incriminate him"); United States v. Dionisio, 410 U.S. 1, 11, 93 S. Ct. 764, 770, 35 L. Ed. 2d 67 (1973) (grand jury "cannot require the production by a person of private books and records that would incriminate him");¹¹  Schmerber v. California, 384 U.S. 757, 763-64, 86 S. Ct. 1826, 1831-32, 16 L. Ed. 2d 908 (1966) (fifth amendment reaches "compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers"); United States v. White, 322 U.S. 694, 699, 64 S. Ct. 1248, 1251, 88 L. Ed. 1542 (1944) (privilege "protects the individual from any disclosure, in the form of ... documents, sought by legal process against him as a witness").

No later decision of the Supreme Court has held to the contrary on the point directly in issue. The government here relies on dicta in several recent decisions of the Court to support its view. The dicta are assuredly there, but none of these decisions has overruled Boyd.

The Supreme Court's decision in Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976), which the government contends resulted in the "peaceful interment" of Boyd, involved a subpoena issued to a third party for the production of business records which were not written by the proponent of the privilege. The Fisher Court took pains to distinguish Boyd, and explicitly reserved judgment on the question presented here--whether the compelled production of the proponent's own papers would violate the Constitution. See 425 U.S. at 414, 96 S. Ct. at 1582. Other cases relied upon by the government merely reiterate the well-established premise that an individual holding the documents of an artificial entity, whether a corporation, partnership or sole proprietorship, cannot assert a fifth amendment privilege. See United States v. Doe, --- U.S. ----, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984) (sole proprietorship); United States v. Fishman, 726 F.2d 125 (4th Cir. 1983) (sole proprietorship). See also Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) (search for business records of law office does not violate fifth amendment).

III

Among other things, the fifth amendment evinces "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.' " Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S. Ct. 1594, 1597, 12 L. Ed. 2d 678 (1964) (quoting United States v. Grunewald, 233 F.2d 556, 581-82 (Frank, J., dissenting), rev'd, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957)) . See also Bellis, 417 U.S. at 91-92, 94 S. Ct. at 2184-2185; Couch v. United States, 409 U.S. 322 at 327, 93 S. Ct. 611 at 615, 34 L. Ed. 2d 548 (1973). The fundamental teaching of Boyd is consistent with this purpose: the forced disclosure of private incriminating information jeopardizes the individual's right to keep at least that aspect of himself which is reflected in his private papers free from the intrusive hands of the government.¹²  Implicit in the cherished right of the individual to "pursue happiness" is the concomitant right to express one's own thoughts free from the government's exaction of those thoughts upon penalty of one's liberty. We therefore hold, in line with Boyd, that the fifth amendment prevents the government from subpoenaing an individual's incriminating papers that are in his possession and are held by him in an individual, as opposed to representative capacity. Accord United States v. Davis, 636 F.2d 1028, 1043 (5th Cir.), cert. denied, 454 U.S. 862, 102 S. Ct. 320, 70 L. Ed. 2d 162 (1981); In re Grand Jury Proceedings, 632 F.2d 1033, 1044 (3d Cir. 1980). See also United States v. Helina, 549 F.2d 713 (9th Cir. 1977). But see In re Grand Jury Proceedings, 626 F.2d 1051 (1st Cir. 1980) (no protection for personal business records); United States v. Schlansky, 709 F.2d 1079, 1083 (6th Cir. 1983) (no fifth amendment protection against disclosure of contents of documents "less private" than personal diary), cert. denied, --- U.S. ----, 104 S. Ct. 1591, 80 L. Ed. 2d 123 (1984). Since the documents at issue in this case were held by appellee in his individual capacity, the district court's order quashing the subpoena in part is affirmed.

AFFIRMED.