United States v. Doe, 465 U.S. 605 (1984)

United States v. Doe

No. 82-786

Argued December 7, 1983
Decided February 28, 1984
465 U.S. 605

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Syllabus

During a federal grand jury investigation of corruption in the awarding of county and municipal contracts, subpoenas were served on respondent owner of sole proprietorships demanding production of certain business records of several of his companies. Respondent then filed a motion in Federal District Court seeking to quash the subpoenas. The District Court granted the motion (except as to records required by law to be kept or disclosed to a public agency), finding that the act of producing the records would involve testimonial self-incrimination. The Court of Appeals affirmed, holding that the records were privileged, that the act of producing them also would have "communicative aspects of its own" in that the turning over of the records to the grand jury would admit their existence, possession, and authenticity, and that hence respondent was entitled to assert his Fifth Amendment privilege against compelled self-incrimination rather than produce the records. The court further held that, in view of the Government’s failure to make a formal request for use immunity under 18 U.S.C. §§ 6002 and 6003, it was proper to reject the Government’s attempt to compel delivery of the records.

Held:

1. The contents of the subpoenaed records in question are not privileged under the Fifth Amendment. That Amendment protects the person asserting the privilege only from compelled self-incrimination. Fisher v. United States, 425 U.S. 391, 396. Where the preparation of business records is voluntary, no compulsion is present. Here, respondent does not claim that he prepared the records involuntarily or that the subpoenas would force him to restate, repeat, or affirm the truth of the records’ contents. The fact that the records are in his possession is irrelevant to the determination of whether the creation of the records was compelled. Pp. 610-612.

2. The act of producing the documents at issue in this case is privileged. Pp. 612-614.

3. The act of producing the subpoenaed documents cannot be compelled without a statutory grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. This Court will not extend the jurisdiction of courts to include prospective grants of use immunity under a doctrine of constructive use immunity (as the Government urges), in the absence of the formal request that the statute requires. Pp. 614-617.

680 F.2d 327, affirmed in part, reversed in part, and remanded.

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.