The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
This is a motion under Rule 17(c), Fed.R.Crim.P. to compel the production of business records, pursuant to a subpoena duces tecum, of a two-man partnership for use upon the trial of the partners for wilful subscription to false partnership and personal tax returns (26 U.S.C. §§ 7206(1), 7201). The defendant partners oppose the motion and move to quash the subpoena on the ground that their Fifth Amendment privilege against self-incrimination immunizes the records from production.
The government contends that the records are not privileged from compulsory production by the Fifth Amendment because of the size and scope of the partnership.
The partnership, consisting solely of two brothers, operates a resort known as the Nevele Country Club. The resort was originally opened in 1901 by the father of the partners. It consists of a hotel with 325 guest rooms with many facilities on a 1,000 acre tract of land in Ellenville, New York. The Nevele has a payroll of about $1,000,000, gross receipts of $4,000,000, buildings worth about $4,400,000, and a convention sales office in New York City. It employs several full-time and part-time cashiers, a full-time bookkeeper, and a full-time accountant. The partners live on the resort premises and personally manage it full time along with their two sons. These four are the only persons authorized to draw checks on the partnership.
The privilege against self-incrimination applies only to natural persons; it is purely personal and, thus, does not apply to corporations. Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906). The law, however, clearly distinguishes a partnership from a corporation. Unlike the officer of a corporation, the partners in a partnership are really co-owners of all the partnership property, including the partnership papers. While partnership ownership is shared, it is, nonetheless, personal and, consequently, the business records of a partnership are really the personal records of each of the partners. Traditionally, therefore, partnership records have been constitutionally privileged under the Fifth and Fourth Amendments from compulsory production in a criminal prosecution. Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886); United States v. Brasley, 268 F. 59 (D.C.W.D.Pa.1920); In re Subpoena Duces Tecum, 81 F. Supp. 418 (D.N.D.Cal.1948).
Contemporary authority teaches, however, that the form of a business entity is not determinative of whether its records receive the protection of the Fifth Amendment.
" The test, rather, is whether one can fairly say under all the circumstances that a particular type of organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common interests only." United States v. White, 322 U.S. 694, 701, 64 S. Ct. 1248, 1252, 88 L. Ed. 1542 (1944).
The application of this test is essentially factual. United States v. Silverstein, 314 F.2d 789 (2d Cir. 1963).
White also recognized that, because the privilege is personal, the Fifth Amendment does not apply to papers of an association held by a custodian in a representative capacity on behalf of a collective group, regardless of the size of the organization. United States v. White, supra, 322 U.S. at 698, 64 S. Ct. 1248, 88 L. Ed. 1542. See, McPhaul v. United States, 364 U.S. 372, 380, 81 S. Ct. 138, 5 L. Ed. 2d 136 (1960).
Under either test, the privilege against self-incrimination applies to the records sought here.
If the Nevele were owned by a sole proprietor, there can be no question that the records would be immune from production under the Fifth Amendment. The reason for such protection does not change because there is a shared proprietorship in this case.
The government argues, however, that the nature of the partnership in size, scope, and impersonality warrants treating the partnership as a corporation and cites In re Mal Bros. Contracting Co., 444 F.2d 615 (3d Cir.), cert. denied, 404 U.S. 857, 92 S. Ct. 106, 30 L. Ed. 2d 99 (1971), and United States v. Quick, 336 F. Supp. 744 (E.D.N.Y.1972). Neither case is applicable here.
In Mal Bros., the court forced a partnership in the engineering business to produce its business records because "the defendants . . . had all the aspects of a corporate enterprise and . . . there was nothing personal or private in connection with the papers . . ." 444 F.2d at 619. While not describing the size of the partnership, the court noted that the partners were not involved personally in either the engineering or the accounting and bookkeeping end of the business.
In contrast, the partners here give their personal attention to the day-to-day business activities of the partnership. Only the partners and their two sons can sign checks, and all four live on the resort premises. They are familiar with the firm's accounting and bookkeeping because they have only one full-time accountant and bookkeeper. While Mal Bros. had all the aspects of a corporate entity, the Nevele has only the size, not the nature, of a corporation.
Size alone is not sufficient to warrant treatment as a corporation. The Supreme Court in White emphasized the nature of the group associated, as well as its size. Following White this court has held that size alone is not determinative of whether the Fifth Amendment applies. United States v. Cogan, 257 F. Supp. 170, 174 (S.D.N.Y. 1966). Rather, focus is placed on the extent and nature ...