The opinion of the court was delivered by: TYLER
The government moves for an order, pursuant to 26 U.S.C. §§ 7402(b) and 7604, directing respondent, Harry G. Silverstein, to produce the books and records set forth in an Internal Revenue summons dated May 16, 1961, served upon respondent on that day pursuant to 26 U.S.C. § 7602.
The summons, in the nature of a subpoena duces tecum and addressed to the respondent, directed him to appear on May 26, 1961, before a Special Agent of the Internal Revenue Service, and there to produce for examination specified books and records of five
named partnerships, of which respondent is, in all cases, a general partner.
Respondent appeared before the Special Agent as directed but there refused, and has continued to refuse, to produce the partnerships' books and records specified in the summons.
The sole ground for respondent's refusal to produce these documents is his assertion, under the Fifth Amendment to the Constitution of the United States, of the privilege against self-incrimination.
More particularly, he asserts that the Fifth Amendment forbids the use of compulsory legal process to secure these documents for examination in view of his recorded refusal to produce them with the concomitant statement by him that they may tend to incriminate him.
The government urges that the privilege does not protect respondent as to the documents here sought since they are the property, respectively, of the five named partnerships and that, under controlling case law, these partnerships are of such a nature that a general partner thereof may not assert the privilege against self-incrimination with respect to their books and records.
It is beyond substantial dispute that the privilege may, under circumstances otherwise appropriate, be asserted by one who appears before a Special Agent of the Internal Revenue Service in response to a summons issued under the authority of 26 U.S.C. § 7602. In re Turner, 309 F.2d 69 (2d Cir., 1962). The government, as heretofore indicated, while conceding that an appearance before an Internal Revenue Special Agent is not a 'criminal proceeding', does not urge this point as precluding respondent from claiming his privilege.
Thus, this proceeding poses the question whether the government, under the circumstances of this case, may subpoena partnership records through a general partner, which records that partner asserts will incriminate him.
The Fifth Amendment declares, in part, '* * * nor shall (any individual) be compelled in any criminal case to be a witness against himself * * *.' Constitution, Amend. V.
Justice Frankfurter, writing for the Supreme Court, has given concise expression to the significance of this provision of the Bill of Rights:
'Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.' Watts v. Indiana, 338 U.S. 49, 54, 69 S. Ct. 1347, 1350, 93 L. Ed. 1801 (1949).
This important principle has proved difficult to administer.
The difficulty is attributable, in part, to the pragmatically required expansion of the scope of the principle beyond its literal meaning.
For example, it was early understood that in order to give effect to the Fifth Amendment, it was necessary to extend its reach to government proceedings which, not in themselves a 'criminal trial', could yield the evidence to be used in such a trial. Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S. Ct. 195, 35 L. Ed. 1110 (1892).
Also, the privilege was extended beyond the oral testimony of an individual to include the production by him of his personal property, which could itself 'speak for' and incriminate its owner. Boyd v. United States, 116 U.S. 616, 634-635, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
The latter application of the privilege has caused difficulty in judicial administration and interpretation in more than one respect. The particular difficulty inherent in the present case arises from the fact that the ownership or dominion of a given individual over given property may be ...