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UNITED STATES v. WALKER

November 3, 1997

UNITED STATES OF AMERICA, Plaintiff, against SHELDON WALKER, Defendant.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 The government moves to compel the production of documents called for in a subpoena duces tecum dated October 13, 1997 and returnable October 22, 1997. Defendant asserts that (i) production of the documents would violate his Fifth Amendment privilege against self-incrimination; (ii) the documents sought are inadmissible and therefore not subject to a Rule 17 subpoena and (iii) the government's delay in seeking enforcement of the subpoena is unduly prejudicial. For the reasons discussed below, the motion to compel is GRANTED in part, on condition that the government grant the defendant use immunity with respect to any act-of-production communication and DENIED in part.

 BACKGROUND

 Defendant is an immigration attorney charged with submitting false asylum applications on behalf of his clients, sometimes without the client's knowledge. The government charges in the indictment that defendant charged his clients an initial fee of $ 300. Superseding Indictment at P 16. It charges further that defendant collected the remainder of his fee when the client returned to defendant's office to pick up the approval notice mailed by the INS and that defendant ensured such a return visit by altering his clients' address information so that the notices could only be sent to his office. Id.

 The government has submitted an affidavit stating that several of defendant's former employees have informed the government that defendant maintained fee payment records on client file jackets and that this was the primary method of recording such payments. Smith Aff. P 7. The government has also submitted redacted excerpts of a report prepared by INS Special Agent Craig Vanderhoff supporting these contentions. See Smith Aff. Exh. C. The affidavit and report also state that the client files were kept at defendant's office, at 7 Penn Plaza in New York City.

 The government initially sought production of this information by means of a grand jury subpoena that sought "all documents referring or relating to any and all fees paid" by approximately 1,350 identified asylum clients. In response, defendant produced the contents of his client files, but invoked his Fifth Amendment privilege with regard to some material, and noted that accordingly he had "not produced the jackets of Mr. Walker's client files" in response to the grand jury subpoena. See Letter from Robert G. Morvillo to Patrick Smith, June 10, 1996. The government subsequently sought and received the Court's permission to serve a Rule 17(c) subpoena, which seeks the production of "all documents referring or relating to fees paid by any person to Sheldon Walker . . . including but not limited to, file jackets from client files" as well as "all documents containing financial information" previously withheld in response to the grand jury subpoena. That brings us somewhat belatedly, in my view, to this motion. Defendant again invoked his Fifth Amendment privilege and also objected to the subpoena on the ground that the requested documents are "not evidentiary or relevant to any issue at trial as they do not relate to any material allegation in the indictment." See Letter from Robert G. Morvillo to Patrick Smith, October 16, 1997.

 DISCUSSION

 I. Fifth Amendment Privilege

 A. Content of Documents

 The Supreme Court has held that "If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged." United States v. Doe, 465 U.S. 605, 612 n.10, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984) (emphasis added). This is because the act of communication inherent in transcribing an individual's thoughts (in this case, noting the payments made by defendant's clients) is made voluntarily, and not under compulsion. See Fisher v. United States, 425 U.S. 391, 409-410, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976) ("the preparation of all the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence"). Pursuant to Doe and Fisher, therefore, the notations on the file jackets, voluntarily made by defendant or his employees, are not privileged, nor does defendant contend they are.

 B. Act of Production Privilege

 Nevertheless, the Supreme Court has recognized that "the act of producing the document may be [privileged]." Doe, 465 U.S. at 612. This is so because "[a] government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect." Id. The act of producing voluntarily prepared documents may constitute compelled testimonial communication in two circumstances: "(1) 'if the existence and location of the subpoenaed papers are unknown to the government'; or (2) where production would 'implicitly authenticate' the ...


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