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United States District Court, Southern District of New York

June 20, 1990


The opinion of the court was delivered by: Sweet, District Judge.


Defendant has moved to quash a grand jury subpoena pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure. For the reasons set forth below the motion is granted.

The Instant Motion

Defense counsel accepted a grand jury subpoena duces tecum on behalf of movant, requiring movant to appear before the grand jury on May 18, 1990. The subpoena orders production of "any and all diaries, appointment books and telephone and address books" maintained by movant during the period from January 1, 1978 through December 31, 1984 and all tape recordings of conversations between movant or co-defendant and any vendor or contractor who did or sought to do business with a certain corporation (the "corporation") during the same time period. The government represents that it has cause to believe that these materials may contain evidence of movant's soliciting and receiving kickbacks from various vendors who did business with the corporation, including those named in the indictment and others unnamed or unknown to the government.

By consent of the government, the appearance date was adjourned to enable movant to make this motion which was heard on May 25, 1990 and, along with the letters of May 31, June 4, and June 6, considered submitted as of that date.

At the hearing, the government offered movant immunity for the act of production of the subpoenaed materials. Movant established by affidavit that the subpoenaed materials were personal to him and that the tape recordings were made after the termination of his employment with the corporation.

Prior Proceedings

On April 27, 1990, the government in a four-count indictment, charged movant with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and two counts of subscribing to false income tax returns for tax years 1983 and 1984, in violation of 26 U.S.C. § 7206(1). The indictment alleges that movant extorted kickbacks from two vendors who did business or sought to do business with the corporation. The indictment further alleges that movant failed to report those kickbacks as income on his income tax returns for tax years 1983 and 1984.

In the fourth count, the indictment also charges co-defendant with subscribing to a false income tax return for the tax year 1983. Co-defendant pled guilty to this count on June 4, 1990 and entered into a cooperation and plea agreement with the government.

Since the return of the initial indictment, the government has continued its investigation of movant's activities at the corporation with the alleged intent of seeking a superseding indictment against him should additional evidence of criminal conduct be uncovered. As a result of this ongoing investigation, the government obtained information concerning additional vendors involved with kickbacks and other payments to movant and now possibly seeks to indict others.*fn1

The government has alleged that it seeks the materials subpoenaed to bring a superseding indictment which would broaden the scope of the conspiracy charge in the existing indictment and add additional tax fraud charges against movant and possibly others.

On April 20, 1989, one week before charges were filed against movant, movant's counsel met with a trial attorney at the Tax Division of the Department of Justice in Washington, D.C. to present evidence to the government on behalf of movant in an attempt to dissuade the government from bringing the indictment. Counsel's representations included assertions about vendors interviewed by counsel who stated that they had never provided gratuities of any sort to movant and information about various persons already known to the government.

The Issues

Movant seeks to quash the subpoena on the grounds that the government's dominant and improper purpose in issuing the subpoena is to discover evidence for use at trial against movant and that the materials sought to be produced in the grand jury are private and as such will fall within movant's invocation of the Fifth Amendment's protection against self-incrimination.

I.  The Purpose of the Grand Jury Subpoena

It is well-settled that "[i]t is clearly 'improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial.'" United States v. Vanwort, 887 F.2d 375, 387 (2d Cir. 1989) cert. denied, ___ U.S. ___, 110 S.Ct. 1927, 109 L.Ed.2d 290 (1990) (quoting Payden v. United States (In re Grand Jury Subpoena Duces Tecum Dated January 2, 1985 (Simels)), 767 F.2d 26, 29 (2d Cir. 1985) and United States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964), cert. denied, 379 U.S. 845, 869, 85 S.Ct. 50, 117, 13 L.Ed.2d 73 (1964)).

In the absence of a factual showing to the contrary, however, there is a presumption of regularity of the grand jury proceedings, see In re Grand Jury Proceedings, 632 F.2d 1033, 1041 (3d Cir. 1980), and it is entirely proper to issue grand jury subpoenas following the return of an initial indictment if the grand jury is continuing its investigation with the purpose of considering a superseding indictment. See Vanwort, 887 F.2d at 387; In re Grand Jury Subpoenas of Clay, 603 F. Supp. 197, 200-201 (S.D.N.Y. 1985); In re Grand Jury Subpoena Dated November 9, 1979, 484 F. Supp. 1099, 1101 (S.D.N.Y. 1980).

Of course, it "is difficult, if not impossible, to enforce" the rule barring use of the grand jury to gather evidence improperly for trial in view of the propriety of the authority to use the grand jury to garner evidence for a superseding indictment. Simels, 767 F.2d at 30 (citing 8 J. Moore, Moore's Federal Practice ¶ 6.04[5] at 6-86 (1984)). Absent some clearly indicative sequence of events such as those present in Simels, a court will be faced with having to take at face value the government's word that the dominant purpose is proper, even when the subpoena will inevitably produce evidence applicable to prosecuting the existing indictment pending trial.

Movant urges that because the indictment was returned one week after movant's counsel demonstrated to the Department of Justice the "many weaknesses and flaws in the Government's case" and because one week after the indictment the government was told that trial would be set for June 25, just seven weeks away, that the government "suddenly found itself facing imminent trial on a case riddled with problems." Although movant's self-serving interpretation of the sequence of events may be entirely plausible, the government has represented to the court that the grand jury investigation is continuing and that after the return of the indictment, additional evidence developed indicating that movant received kickbacks from vendors not named in the current indictment.*fn2

According to the government, this new information, when developed, is likely to result in the government's request for the grand jury to vote a superseding indictment against movant and possibly others. Although the subpoena calls for the production of recordings and documents which relate to the charges contained in the initial indictment, the government believes that the evidence contained in these materials may enable the grand jury to revise the conspiracy count to charge additional overt acts involving the vendors already named in the indictment. The government also believes that the material may contain evidence of specific payments to movant which might enable the grand jury to charge movant with income tax evasion, in violation of 26 U.S.C. § 7201, in addition to the false subscribing charges already contained in the initial indictment.

Accordingly, although the materials requested may well relate to issues relevant to the existing indictment, because of the government's representations, there is no basis on which to conclude that the government's dominant purpose is preparation for trial, rather than investigation for the purpose of superseding the existing indictment. The motion to quash on the basis of improper purpose is denied.

II. The Fifth Amendment

Movant also claims that the grand jury subpoena calling for the production of tape recordings and documents prepared by movant and characterized by him as personal violates his Fifth Amendment right against self-incrimination despite the government's assurance that the government will seek a court order granting movant act-of-production immunity.

A.  The Fisher-Doe Approach

The Fifth Amendment provides in relevant part that no person "shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. Amend. V. Since 1886, when the Supreme Court enunciated in Boyd v. United States,
116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that a subpoena was analogous to a search, an individual's private papers have been protected absolutely from subpoenas for documents by the privilege against self-incrimination. Boyd, 116 U.S. at 633, 6 S.Ct. at 533. The expansive view of the Fourth and Fifth Amendments contemplated by the Court in Boyd, and clarified further in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), however, has been altered considerably, and with respect to the Fourth Amendment, explicitly discarded. See Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 301-302, 87 S.Ct. 1642, 1647-1648, 18 L.Ed.2d 782 (1967). See also Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 1580, 48 L.Ed.2d 39 (1976) ("foundations of the 'mere evidence' rule have been washed away" and "[s]everal of Boyd's express or implicit declarations have not stood the test of time"). Nonetheless, according to movant, the century-old pronouncement concerning the privilege for a person's private papers is still the law today. According to the Government, recent Supreme Court cases setting forth the Court's current analytical approach to the scope of the Fifth Amendment's protection against compelled self-incrimination question the continued vitality of Boyd with respect to Fifth Amendment protection for the production of private documents.

In Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the Supreme Court held that "the Fifth Amendment would not be violated by the [compelled production of] papers [which] on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communication." Id. at 409, 96 S.Ct. at 1580. Fisher involved Internal Revenue summonses of an accountant's workpapers relating to the preparation of the tax returns of taxpayers under investigation, when the taxpayers had given the accountant's papers to the taxpayers' attorney. In rejecting the taxpayers' claim of privilege, the Court stated that for the privilege to apply there must be testimonial communication, compulsion, and incrimination. Id. at 408, 96 S.Ct. at 1579. The Court emphasized that where "the preparation of . . . the papers sought in these cases was wholly voluntary . . . they can not be said to contain compelled testimonial evidence, either of the [person subject to subpoena] or of anyone else." Id. at 409-10, 96 S.Ct. at 1580-81 (footnote omitted).*fn3

The Fisher Court concluded the act of production did not involve testimonial self-incrimination because the existence and location of the papers were a "foregone conclusion" and thus production added "little or nothing to the sum total of the Government's information. . . ." Id. at 411, 96 S.Ct. at 1581. The Court recognized, however, that the act of producing the documents in certain circumstances may be testimonial to the extent that the act of production concedes "the existence of the papers demanded and their possession or control by the taxpayer," or because the production serves to authenticate the materials in question. Fisher, 425 U.S. at 410, 96 S.Ct. at 1581.

Eight years later, the Court applied the Fisher analysis in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), when a sole proprietor invoked a Fifth Amendment privilege to resist production of subpoenaed business records. In Doe, the Court explained and followed its earlier analysis in Fisher by specifically indicating that the contents of the subpoenaed records were not privileged, and that the sole proprietor's act of producing the subpoenaed records was the only testimonial communication compelled by the subpoena. Id. at 612, 104 S.Ct. at 1242. ("Where the preparation of business records is voluntary, no compulsion is present. A subpoena that demands production of documents 'does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.'") Id. at 610-11, 104 S.Ct. at 1241 (citing Fisher, 425 U.S. at 409, 96 S.Ct. at 1580) (footnote omitted).

Although these cases concerned the subpoena of business records, the Court's recent and apparent abandonment of the traditional Fifth Amendment inquiry into the nature of the contents of documents, see e.g., Bellis v. United States, 417 U.S. 85, 87-95, 94 S.Ct. 2179, 2182-87, 40 L.Ed.2d 678 (1974) (containing history of Court's practice of distinguishing between business and private papers and status of their possession), as well as some dicta in the opinions calls into question Boyd's continued protection for private papers.*fn4

In 1988, the First Circuit, recognizing this question to be an open question of law, surveyed the Circuits' diverging opinions regarding Justice O'Connor's conclusion that Fisher and Doe implicitly had overruled Boyd's protection for private papers.*fn5 See In re Steinberg, 837 F.2d 527, 529-30 & nn. 3-4 (1st Cir. 1988). Consistent with Justice O'Connor's reasoning, the Ninth Circuit has held that if the creation of the documents subpoenaed was not compelled, the contents of the documents are not protected by the Fifth Amendment, irrespective of the characterization of those documents. In Re Grand Jury Proceedings on February 4, 1982, 759 F.2d 1418, 1419 (9th Cir. 1985). See also In Re Sealed Case, 877 F.2d 83, 84 (D.C. Cir. 1989) (in dicta, contents of voluntarily prepared personal records not covered by privilege); United States v. Clark, 847 F.2d 1467, 1468 (10th Cir. 1988) (contents of voluntarily prepared tax records not contested); In Re Kave, 760 F.2d 343, 355 (1st Cir. 1985) (rejecting content-based Fifth Amendment analysis).

In United States v. (Under Seal), 745 F.2d 834 (4th Cir. 1984), vacated as moot, 471 U.S. 1001, 105 S.Ct. 1861, 85 L.Ed.2d 155 (1985), however, the Court of Appeals for the Fourth Circuit has held that despite the dicta of the Supreme Court opinions with respect to the vitality of Boyd's protection of private documents, "none of these decisions has overruled Boyd" and "no later decision of the Supreme Court has held to the contrary [that the Fifth Amendment privilege no longer protects an individual from producing private papers]." Id. at 839. See also United States v. Lehman, 887 F.2d 1328, 1336 (7th Cir. 1989) (implying in dicta distinction between private documents and bank records); United States v. Katin, 109 F.R.D. 406, 406 (D.Mass. 1986) (acknowledging open question of law, citing the Fourth Circuit, and holding that Fifth Amendment protects compelled production of personal papers such as photographs, diaries, and personal correspondence).

The Second Circuit has followed the Fisher-Doe analysis in In Re Proceedings before August 6, 1984 Grand Jury, 767 F.2d 39, 41 (2d Cir. 1985) and affirmed the district court's order directing the witness to produce a tape recording, found to be a business record*fn6, that the defendant had made of conversations between himself and others pursuant to an act-of production immunity order. Id. at 41. The Court of Appeals, however, expressly stated that the question of whether the Fifth Amendment protects the contents of private non-business papers had been left open in Fisher and remained open in this Circuit.*fn7 Accordingly, to the extent the documents subpoenaed are non-business records, movant's motion to quash presents an open question of law.

B.  Boyd Remains the Law

In Boyd, the Boyds contested a government order directing the Boyds to produce an invoice allegedly containing proof that the Boyds were guilty of tax evasion and the Supreme Court found that the statute pursuant to which the order was issued violated the Fifth Amendment privilege against self-incrimination. Boyd, 116 U.S. at 633, 6 S.Ct. at 533. Justice Bradley, writing for the seven-justice majority, stated that there exists an "intimate relation" between the Fourth and Fifth Amendments creating a zone of privacy encompassing an individual's person and property such that the seizure of the documents in question was "unreasonable" within the meaning of the Fourth Amendment and that the Fifth Amendment prohibited the admission of evidence seized in violation of the Fourth Amendment prohibition against unreasonable seizures. Id. Indeed, Justice Bradley concluded that the search for "mere evidence" constituted compelled self-incrimination in that "we have been 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."*fn8 Id. at 633, 6 S.Ct. at 534.

The Boyd opinion rested heavily on the English case Entick v. Carrington, 19 How.St.Tr. 1029 (C.P.1765), in which Lord Camden invalidated a "paper-search" as a trespass at common law when conducted against the party with a superior property right. Lord Camden found that a search of an individual's allegedly seditious private papers was tantamount to compelling the individual to testify against himself and that the search was offensive in that "[p]apers are the owners goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection. . . ." Id. 19 How.St.Tr. at 1066. Justice Bradley in Boyd stated that:

  The principles laid down in [Entick] affect the
  very essence of constitutional liberty and
  security. They reach farther than the concrete form
  of the case then before the court, with its
  adventitious circumstances; they apply to all
  invasions on the party of the government and its
  employees of the sanctity of a man's home and the
  privacies of life. 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 his private papers to be used as evidence to
  convict him of a crime or to forfeit his goods, is
  within the condemnation of that judgment. In this
  regard the Fourth and Fifth Amendments run almost
  into each other.

116 U.S. at 630, 6 S.Ct. at 532 (emphasis added).*fn9

Boyd, as the first significant Court case*fn10 on the meaning of both the Fourth*fn11 and Fifth Amendments, has been woven into constitutional case law throughout the twentieth century and Fifth Amendment analysis for the production of documents as recently as 1988, inevitably begins with Boyd. See Braswell v. United States, 487 U.S. 99, 105, 108 S.Ct. 2284, 2288, 101 L.Ed.2d 98 (1988). Boyd, however, announced an expansive view of the Fourth and Fifth Amendments that soon caused analytical problems.*fn12 Over the last century, the construction of both Amendments has gone from Boyd's broad view that an accused could not be forced to help his accuser in any way to the narrow construction of both Amendments now voiced by the Court.

Commensurate with the advance of technological ability and the increased need to detect more sophisticated forms of crime,*fn13 the Court has altered the principle that the accused should not provide the evidence that may self-incriminate and, accordingly, has strained to carve exceptions out of the analysis in Boyd. In addition to the overruling of the Fourth Amendment aspects of the opinion, over the century, the Court has chipped away from Boyd's protection two other large blocks of formerly unobtainable self-incriminating evidence — "nontestimonial" evidence*fn14 and business records.*fn15

With respect to business records, the Bellis Court demonstrated how the Fifth Amendment privilege forced courts into a hairsplitting analysis of the character and size of the business organization and the status of the person having access to those documents. United States v. Bellis, 417 U.S. at 88-95, 94 S.Ct. at 2183-87. Fisher and Doe, however, pronounced a new approach to the application of the Fifth Amendment to business records that allows courts to avoid the inquiries formerly required. See e.g., Note, The Fifth Amendment Privilege For Producing Corporate Documents, 84 Mich.L.Rev. 1544, 1563 ("Fisher and Doe rendered privacy and ownership irrelevant to analysis of self-incrimination claims."). In so doing, the Court narrowed the spectrum of interpretation of the purpose and meaning of the Fifth Amendment from the meaning of self-incrimination as being the source of evidence in Boyd and Gouled, to the Fisher-Doe test of whether the person subpoenaed is compelled to give testimonial evidence that incriminates or to self-incriminate through the admission of the existence of, the authentification of, or the identification of the documents subpoenaed.

This narrowing of the former, firmly held vision of the Fifth Amendment and a straightforward application of the Fisher-Doe analysis according to the government compels a contents-blind approach to the Fifth Amendment. See, e.g., Bradley, Constitutional Protection for Private Papers, 16 Harv.C.R.C.L.L.Rev. 461, 475 (1981) ("Despite the reservations expressed in Fisher and Andresen, the thrust of those opinions is that diaries, datebooks, letters, and other papers of the most private nature are not protected anymore than were Andresen's business records."). The Court in Doe did not reserve the business/personal contents*fn16 dichotomy as it did in Fisher, and the Doe reasoning appears to apply with equal force to all preexisting voluntarily prepared documents. Comment, The Right Against Self-Incrimination by Producing Documents: Rethinking the Representative Capacity Doctrine, 80 Nw.L. Rev. 1605, 1619 n. 123 (1986). Coupled with footnote ten, according to the government, the Court has laid the groundwork for a contents-blind analysis and has appeared to all but bring itself to overrule the vestiges of Boyd's Fifth Amendment protection for the contents of private papers. See also Bouknight, 493 U.S. at ___, 110 S.Ct. at 905 (broad characterization of the Doe holding in dicta promotes a contents-blind analysis); see also Note, The Life and Times of Boyd v. United States (1986-1976), 76 Mich.L.Rev. 184, 212 ("Boyd is dead. But the Court refuses to take the final step of overruling it.").

If the Fisher-Doe definition of compelled self-incrimination is limited to apply only to documents not voluntarily produced or utterances forcibly extracted, then the contents of movant's personal diaries, private non-business tape recordings, appointment books, and myriad personal papers, voluntarily created at one time, to the extent that movant already has admitted their existence and his possession of such documents, would not be protected by the Fifth Amendment. However, a mechanical application of the Fisher-Doe analysis to bar the invocation of the Fifth Amendment for private papers is inappropriate.

The Court's own reluctance to overrule Boyd explicitly, to narrow consistently its discussion to the topic of "business records," see Bradley, Constitutional Protection for Private Papers, 16 Harv.C.R.C. L.L.Rev. 461, 473 n. 58 (1981-82); Braswell v. United States, 487 U.S. 99, 102, 108 S.Ct. 2284, 2286, 101 L.Ed.2d 98 (1988) ("There is no question but that the contents of the subpoenaed business records are not privileged." (emphasis added)), and to reserve the issue of private papers, can be read to portend a willingness to preserve Boyd's protection of private papers. Similarly, the Court's refusal to apply the Fisher-Doe analysis in Braswell may be indicative that the Fisher-Doe analysis is not necessarily an overarching theory to the scope of the entire Fifth Amendment. See Braswell, 487 U.S. at 109, 108 S.Ct. at 2290-91 ("To be sure, the holding in Fisher — later reaffirmed in Doe — embarked upon a new course of Fifth Amendment analysis. . . . We cannot agree, however, that it rendered the collective entity rule obsolete.")*fn17 See also The Supreme Court, 1987 Term — Leading Cases 102 Harv.L. Rev. 170, 177 (1988) (the Braswell Court relied indirectly upon an analysis based on the compelled disclosure of private documents); Doe v. United States, ("Doe II"), 487 U.S. 201, 209, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988) ("[T]he Court in Fisher and Doe did not purport to announce a universal test for determining the scope of the privilege . . ."). Furthermore, in addition to the Fourth Circuit's contention that Boyd is controlling still, see United States v. (Under Seal), 745 F.2d at 839, the opinions stating that the question is open support a reading of Fisher-Doe that does not eliminate automatically the contents-based approach for retaining the privilege with respect to private documents.

Boyd's holding with respect to private papers should be preserved, because the underpinning for the protection against the use of private papers to incriminate is more than a relic of a property-laden construction of the Fourth and Fifth Amendments and the now discarded legal analysis of the intimate relation between them. Boyd contains a "kernel of truth" and an appealing, defensible analytical proposition that the compelled production of one's personal papers is testimonial to the extent that those papers are no more than an extension of one's thoughts. See, Documents and the Privilege Against Self-Incrimination, 48 U.Pitt.L.Rev. 27, 39 (1986) (Boyd has endured "because its reasoning contained a kernel of truth . . . forcing an individual to give up possession of these intimate writings may be psychologically comparable to prying words from his lips.") Bradley, Constitutional Protection For Private Papers, 16 Harv.C.R.C.L.L.Rev. 461, 480-81 (1981-82) (the most private papers are the "sanctum sanctorum" of the personality). Indeed, such papers and statements are statements of the witness and thus among the most powerful forms of proof in the law.

Implicit in Boyd are the corollary realities that one's papers can be an extension of oneself and may exist to some extent because of the limitations of one's faculties — the ability to remember and the need or desire to write down thoughts to clearly formulate and to record them for future use. If all minds could recall perfectly a month's worth of lunch appointments, remember what was said in Father's Day cards of yesteryear, or draft cogently a letter on first attempt, there would be little need to write but for the desire to share these mental processes with others or to see the satisfaction of words on paper. See Bradley, Constitutional Protection For Private papers, 16 Harv.C.R.C.L.L. Rev. 461, 494 ("[G]iven the limitations of the human brain, many thoughts, often fleeting and impermanent, are of little importance unless they are recorded. . . . Just as mental input is protected in Stanley [v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)], so should mental output be protected.").

As Justice Brennan stated in Fisher:

  I perceive no principle which does not permit
  compelling one to disclose the contents of one's
  mind but does permit compelling the disclosure of
  the contents of that scrap of paper by compelling
  its production. Under a contrary view, the
  constitutional protection would turn on fortuity,
  and persons would, at their peril, record their
  thoughts and the events of their lives. The
  ability to think private thoughts, facilitated as
  it is by pen and paper, and the ability to
  preserve intimate memories would be curtailed

  through fear that those thoughts or the events of
  those memories would become the subjects of
  criminal sanctions however invalidly imposed.

Fisher, 425 U.S. at 420, 96 S.Ct. at 1585-86 (Brennan, J., concurring).

To the extent that ones private papers reveal the contents of one's mind, there is no defensible line to be drawn between extracting a confession from one's lips and doing the same by subpoenaing the thoughts one recorded in one's diary this morning. See Boyd, 116 U.S. at 633, 6 S.Ct. at 533. Coerced communications are undesirable insofar as they are unreliable, but then if the Fifth Amendment were to protect only against State-extracted confessions there is no reason the Due Process Clause of the Fifth or Fourteenth Amendments, or even the Eighth Amendment could not protect against a Star-Chamber method of law enforcement.*fn18 On the contrary, a reading of the Fifth Amendment as concerned only with these aspects of compulsion is underinclusive*fn19 and is not the measure of a system of justice premised on an accusatorial as opposed to an inquisitorial system. See, Gerstein, The Demise of Boyd: Self-Incrimination and Private Papers in the Burger Court, 27 U.C.L.A. L.Rev. 343, 395 (1979). If the Fifth Amendment is to stand for our constitutional preference for an accusatorial system, it must protect the divulgence of the contents of one's mind, one's thought proceases, when those testimonial divulgences — be they oral or written communications — would self-incriminate. See Pennsylvania v. Muniz, ___ U.S. ___, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (quoting Doe II, 487 U.S. at 213, 108 S.Ct. at 2349, "'[t]hese policies [the purposes of the privilege] are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating to him to the offense or from having to share his thoughts and beliefs with the Government'") (emphasis added) (footnote omitted); Braswell, 487 U.S. at 119, 108 S.Ct. at 2296 (Fifth Amendment protects realm of human thought and expression) (Kennedy, J., dissenting); Schmerber, 384 U.S. at 765, 86 S.Ct. at 1832 (testimonial implies "some communicative act or writing").

The Balance of Interests Compels Protection

If the Fifth Amendment is not read to protect against the subpoena of private papers, then, to the degree that Fifth Amendment analysis permits the balancing of interests to arrive at the extent to which a person must participate in their own incrimination, the interests of privacy, the desire to preserve the autonomous functioning of the individual, and practical considerations outweigh the need for incriminating evidence and support the retention of the privilege for private papers.*fn20

Although the Fifth Amendment is worded absolutely, like the similarly absolute First Amendment, the privilege against compelled self-incrimination has been subject to both explicit and implicit balancing analyses weighing the need for tools to procure evidence for law enforcement and the interests of those invoking the privilege against self-incrimination. Arenella, Schmerber and the Privilege Against Self-Incrimination, 20 Am.Cr.L.Rev. 31, 38 (1982). See also Note, The Supreme Court, 1987 Term: Leading Cases I.A. Constitutional Law: Criminal Law and Procedure, 4. Right Against Self-Incrimination — Product of Documents., 102 Harv.L.Rev. 170, 173 (1988) ("To augment the doctrinal justification, the [Braswell] Court appealed to policy considerations. . . . The prosecution of white collar crime . . . would be hampered by allowing custodians [of documents] to invoke the fifth amendment, and thereby to shroud evidence of wrongdoing."); California v. Byers, 402 U.S. 424, 427, 91 S.Ct. 1535, 1537, 29 L.Ed.2d 9 (1971) ("Tension between the State's demand for disclosures and the protection of the right against self-incrimination . . . must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protection on the others."); Id. at 434, 91 S.Ct. at 1541 (Harlan, J., concurring) (scope of the privilege will vary depending upon the contexts and interests at stake); United States v. Holt, 218 U.S. at 252-53, 31 S.Ct. at 6 (Fifth Amendment does not shield physical evidence when need is material); Geyh, The Testimonial Component of the Right Against Self-Incrimination, 36 Cath.U.L.Rev. 611, 619 n. 35 (1987) ("in context of fifth amendment, the testimonial requirement may be viewed as the product of a categorical balancing of interests . . . between the values the right was intended to protect and the practical need for effective crime control").

Accordingly, the government's interest in securing evidence for law enforcement, although compelling, is not absolute, see Weeks v. United States, 232 U.S. 383, 397, 34 S.Ct. 341, 346, 58 L.Ed. 652 (1914) and must be balanced against the court's recognition of the Fifth Amendment's protection for individual privacy.*fn21

Although the Fisher Court limited privacy considerations to the extent that it could not "cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy"*fn22 the Court just two years earlier in Bellis stated that. ""[p]rotection of individual privacy was the major theme running through the court's decision in Boyd" Bellis, 417 U.S. at 91, 94 S.Ct. at 2184. See also Couch, 409 U.S. 322, 327, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973) ("the privilege . . . respects a private inner sanctum of individual feeling and thought. . . ."). Indeed, in surveying the goals of the Fifth Amendment, Justice Goldberg stated that the privilege:

  reflects many of our fundamental values and most
  noble aspirations: our unwillingness to subject
  those suspect of crime to the cruel trilemma of
  self-accusation, perjury or contempt; our
  preference for an accusatorial rather than an
  inquisitorial system of criminal justice; our fear
  that self-incriminating statements will be
  elicited by inhuman treatment and abuses; our
  sense of fair play . . .; 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" . . .; our
  distrust of self-deprecatory statements; and our
  realization that the privilege, while sometimes "a
  shelter to the guilty," is often "a protection to
  the innocent."

Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964) (citations omitted) (emphasis added); see also Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) ("These three amendments [the first, fourth, fifth] are indeed closely related, safeguarding not only privacy and protection against self-incrimination but 'conscience and human dignity and freedom of expression as well."' (citing Frank v. Maryland, 359 U.S. 360, 376, 79 S.Ct. 804, 814, 3 L.Ed.2d 877 (Douglas, J., dissenting) (citations omitted)).

Consequently, even if a zone of privacy is not imputed into the Fifth Amendment, the fundamental right to privacy can certainly be said to buttress an exemption for personal communications. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969) (fundamental right to privacy provided an "added dimension" for finding that First Amendment right to receive information protected rights of an individual to read "obscene matter"); Note, Formalism, 90 Harv.L. Rev. at 987 & n. 251 ("Unless the fourth and fifth amendments can be read as putting a premium on the value of personal privacy in the face of government encroachment, it is difficult to imagine what these amendments can mean.").

Moreover, in consideration of the extent to which an individual should be made to produce documents the contents of which are personal and self-incriminating, not only privacy, but concerns of moral autonomy are present. Gerstein, The Demise of Boyd: Self-Incrimination and Private Papers in the Burger Court, 27 U.C.L.A. L.Rev. at 396 (1979) (privilege "is part of the overall structure of rights which is directed precisely at maintaining a private life, and thereby individual freedom, possible."). Not only is a dimension of one's character forfeited*fn23 but one's "autonomy is attacked at its source when the government purports to control, not only particular actions, but the process of reflection by which we work out the values underlying our decisions to act." Gerstein, The Demise of Boyd: Self-Incrimination and Private Papers in the Burger Court, 27 U.C.L.A.L.Rev. at 390.

Finally, in addition to privacy and moral autonomy, practical reasons, when addressed in the balancing analysis, also militate toward the retention of the privilege for private documents. First, unlike business records, there will be few instances where the government knows for certain of the existence of the private records and even fewer instances where the nonproduction of records, as in regulated and thereby required business records, is in itself incriminating. Consequently, unless the government can prove that an individual actually has the documents requested, the individual may invoke the Fifth merely by denying the existence or possession of the documents. See Alito, Documents and the Privilege Against Self-Incrimination, 48 U.Pitt.L.Rev. 27, 471-81 & n. 239 ("Precisely because such records are private, their existence is seoldom [sic] known to law enforcement authorities. Even if the authorities suspect or have some evidence that such documents may exist, unless there is substantial proof of the documents' existence, the witness possessing the records will be able to disobey the subpoena with substantial impunity."); Cf. Doe, 465 U.S. at 614 n. 13, 104 S.Ct. at 1243 n. 13.

Second, if act of production immunity is construed to immunize the contents insofar as production attests to existence, and the contents are the fruits of the existence, see Fisher, 425 U.S. at 434, 96 S.Ct. at 1592 (Marshall, J., concurring) (grant of immunity with respect to testimonial act of admitting existence will effectively shield contents); but see Alito, Documents and the Privilege Against Self-Incrimination, 48 U.Pitt.L.Rev. 27, 60 (argument clearly wrong to extent non-immunized source will exist and contents themselves equal non-immunized evidence of their own existence), prosecution may prove difficult if not impossible in that the government will be required to show an independent source of all information contained within the documents. See Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1664, 32 L.Ed.2d 212 (1972).

Finally, because broad subpoena power is subject to relevance and scope requirements rather than Fourth Amendment limitations, absent Fifth Amendment protection, subpoenas for private documents can be used as an end run around probable cause and warrant requirements. See McKenna, The Constitutional Protection of Private Papers: The Role of A Hierarchical Fourth Amendment, 53 Ind.L.J. 55, 90 (1977-1978) (heightened showing for subpoena of private papers may be necessary to prevent circumvention of warrant clause requirements); cf. United States v. (Under Seal), 745 F.2d 834, 839 n. 11 (4th Cir. 1984) (discussing United States v. Dionisio, 410 U.S. 1, 11, 93 S.Ct. 764, 770, 35 L.Ed.2d 67 (1972) and contending that one reason subpoenas are not subject to more strenuous Fourth Amendment constraints is precisely because Supreme Court has recognized that other constitutional limitations, including Fifth Amendment's protection against production of private books and records protect against broad subpoena power).*fn24


The history and purpose of the Fifth Amendment, the Supreme Court's repeated attempts to preserve the sanctity of private papers, the recognition that one's personal documents are no more than an extension of one's thought processes, the fundamental right of privacy, as well as practical considerations, all militate toward preventing an application of Fisher-Doe to personal documents and quashing the government's subpoena for those possessed by the movant.

Accordingly, movant's motion to quash is granted to the extent that the subpoenaed materials are personal "non-business" records and movant is ordered to produce the subpoenaed materials for in camera inspection.

It is so ordered.


On Motion To Modify or Withdraw

The request pursuant to correspondence from the government to modify or withdraw the opinion in In Re Grand Jury Subpoena Duces Tecum Dated May 9, 1990 (M-11-189) (June 20, 1990) (the "Opinion") is denied for the reasons set forth below.

Prior Proceedings

On June 20, 1990 this court issued the Opinion granting the defendant's motion to quash a grand jury subpoena duces tecum on the ground that the Fifth Amendment would preclude the production of certain personal records allegedly within the defendant's possession. The Opinion directed delivery of the documents in question to chambers for in camera review.

In mid-August, after the parties briefed and argued the question over which of the documents fell within the scope discussed in the Opinion, but prior to the application of the June 20 opinion to the specific documents in question, it was agreed between the parties that the defendant would enter a guilty plea which was taken on August 28, 1989. The government was given ten days to address the question of the status of the Opinion. All of the letters on this issue were considered fully submitted as of September 19, 1990.

The Government's Request to Withdraw or Modify the Opinion is Denied

The government argues, and the court agrees, that at the time the Opinion was issued the court lacked a sufficient factual record to apply the legal principles set forth in the Opinion to the documents in this case. Indeed, the lack of the factual record prompted the direction for in camera review. The government and the court also agree that defendant's subsequent guilty plea mooted the motion to quash. According to the government the Opinion will be "misinterpreted and inappropriately cited in future cases" and therefore should be modified or withdrawn.

Upon review, this request is denied. The Opinion contains a discussion of the legal issues presented to the court at the time of the motion to quash and eschews any application of the law discussed to any particular documents involved in this case. Moreover, the Opinion held that the application of the law to the facts there presented required a review of the documents and that the court was awaiting the development of a complete factual record before applying the discussion to the documents involved. The Opinion is neither "preliminary" nor "incomplete." Whether the Opinion is subject to misinterpretation because the circumstances of this particular case precluded the court from applying the Opinion to the facts on this record is not within the further control of the court.

Accordingly, the government's informal request is denied.

It is so ordered.

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