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In re Grand Jury Subpoena Duces Tecum

decided: August 7, 1981.

IN RE GRAND JURY SUBPOENA DUCES TECUM DATED APRIL 23, 1981 WITNESS, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE .



Appeal from an order of the United States District Court for the Southern District of New York, Palmieri, J., holding a grand jury witness in contempt of court for failing to produce documents subpoenaed by the grand jury. Remanded.

Before Lumbard and Oakes, Circuit Judges, and Lasker, District Judge.*fn*

Author: Lasker

The legal principles governing this appeal are not disputed. On the one hand, the Fifth Amendment protects individuals from government compelled production of personal documents. Bellis v. United States, 417 U.S. 85, 87, 94 S. Ct. 2179, 2182, 40 L. Ed. 2d 678 (1974); United States v. White, 322 U.S. 694, 699, 64 S. Ct. 1248, 1251, 88 L. Ed. 1542 (1944); Wilson v. United States, 221 U.S. 361, 377-78, 31 S. Ct. 538, 543, 55 L. Ed. 771 (1911); Boyd v. United States, 116 U.S. 616, 630, 633-35, 6 S. Ct. 524, 533-534, 29 L. Ed. 746 (1886). On the other hand, the privilege against self-incrimination does not extend to the records or documents of a corporation or association. Bellis v. United States, 417 U.S. 85, 88, 94 S. Ct. 2179, 2183, 40 L. Ed. 2d 678 (1974); United States v. White, 322 U.S. 694, 699-701, 64 S. Ct. 1248, 1251-1252, 88 L. Ed. 1542 (1944); Grant v. United States, 227 U.S. 74, 79-80, 33 S. Ct. 190, 192, 57 L. Ed. 423 (1913); Wheeler v. United States, 226 U.S. 478, 490, 33 S. Ct. 158, 162, 57 L. Ed. 309 (1913); Wilson v. United States, 221 U.S. 361, 377-78, 55 L. Ed. 771, 31 S. Ct. 538 (1911).

This case presents a problem of categorization: whether the pocket diaries and desk calendars used by a corporate executive are more appropriately characterized as personal documents and protected against compelled production, or as corporate documents which lie outside the Fifth Amendment's shelter.

I.

"John Doe" appeals from an order of the district court holding him in contempt for refusing to comply with a grand jury subpoena duces tecum directing the production of "(a)ll original pocket calendars and desk calendars reflecting business appointment between January 1, 1973, and December 31, 1978." Sanction has been stayed pending the outcome of this appeal.

The grand jury which issued the subpoena in question is investigating the operations of a company of which Doe is an assistant treasurer. Doe is responsible for overseeing the investments of other company executives.

According to the testimony of Doe's secretary, before the Securities and Exchange Commission and before the grand jury, Doe maintained a record of his appointments through the use of a pocket diary which he kept with him at all times. Some but not all of his appointments were also noted in a desk calendar. Because it was incomplete, the desk calendar was not as reliable as the pocket diary. The secretary occasionally wrote in the desk calendar, but she never wrote in the pocket diary. At the end of each year, Doe took the diary and desk calendar to his home.

The secretary also testified that the pocket diary contained Doe's business and doctor appointments, as well as other personal reminders. Moreover, Doe used the desk calendar, according to his secretary, to remind himself when the investments of company employees "were coming due."

An unaided examination of the diaries and the desk calendars reveals very little as to the meaning of their contents. Many of the notations are illegible, and as to those which can be read, the significance is not apparent. In the pocket diaries, some notations appear to record appointments with named persons, although it is not always clear whether the appointments are business or personal. An exception exists in a few cases, such as when a name is preceded by the designation "Dr." Frequently a single name appears on a certain date in the diary, without a time which might be expected if it connoted an appointment to meet that person. There are also numerical notations, which, in light of the testimony of the secretary, may relate to investment information either of Doe or other company executives. The desk calendars contain predominantly blank pages. Occasionally notations similar to those found in the pocket diaries appear there and on miscellaneous detached slips of paper which are included among the pages of the calendars.

The district court concluded that

"these papers contain substantially a record of corporate entries and records of business appointments and a record of matters pertaining to corporate business.

"There are scattered entries like the name of somebody whose surname is preceded by the title "doctor' and it could mean a doctor's appointment. Also the name of someone with a lady's name who could be the writer's wife or daughter and there is a reference to a theatre which could be a place of meeting or perhaps just a place of where the writer intended to spend an evening for his own diversion.

"I accept Mr. Ackerman's statement that any items of a personal nature will not only be relied upon, they will not be used for any purpose by the government since the government's only interest and the materiality and relevance of the corporate records relate to the corporate matters and not the personal matters. So that any ...


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