Braswell v. United States

487 U.S. 99, 108 S. Ct. 2284, 101 L. Ed. 2d 98, 1988 U.S. LEXIS 2864, 25 Fed. R. Serv. 632, 56 U.S.L.W. 4681, 62 A.F.T.R.2d (RIA) 5724
CourtSupreme Court of the United States
DecidedJune 22, 1988
Docket87-3
StatusPublished
Cited by342 cases

This text of 487 U.S. 99 (Braswell v. United States) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284, 101 L. Ed. 2d 98, 1988 U.S. LEXIS 2864, 25 Fed. R. Serv. 632, 56 U.S.L.W. 4681, 62 A.F.T.R.2d (RIA) 5724 (1988).

Opinions

Chief Justice Rehnquist

delivered the opinion of the Court.

This case presents the question whether the custodian of corporate records may resist a subpoena for such records on the ground that the act of production would incriminate him in violation of the Fifth Amendment. We conclude that he may not.

From 1965 to 1980, petitioner Randy Braswell operated his business — which comprises the sale and purchase of equip[101]*101ment, land, timber, and oil and gas interests — as a sole proprietorship. In 1980, he incorporated Worldwide Machinery Sales, Inc., a Mississippi corporation, and began conducting the business through that entity. In 1981, he formed a second Mississippi corporation, Worldwide Purchasing, Inc., and funded that corporation with the 100 percent interest he held in Worldwide Machinery. Petitioner was and is the sole shareholder of Worldwide Purchasing, Inc.

Both companies are active corporations, maintaining their current status with the State of Mississippi, filing corporate tax returns, and keeping current corporate books and records. In compliance with Mississippi law, both corporations have three directors, petitioner, his wife, and his mother. Although his wife and mother are secretary-treasurer and vice-president of the corporations, respectively, neither has any authority over the business affairs of either corporation.

In August 1986, a federal grand jury issued a subpoena to “Randy Braswell, President Worldwide Machinery Sales, Inc. [and] Worldwide Purchasing, Inc.,” App. 6, requiring petitioner to produce the books and records of the two corporations.1 The subpoena provided that petitioner could deliver the records to the agent serving the subpoena, and did not require petitioner to testify. Petitioner moved to quash the subpoena, arguing that the act of producing the records would incriminate him in violation of his Fifth Amendment privilege against self-incrimination. The District Court denied the motion to quash, ruling that the “collective entity doctrine” prevented petitioner from asserting that his act of producing the corporations’ records was protected by the [102]*102Fifth Amendment. The court rejected petitioner's argument that the collective entity doctrine does not apply when a corporation is so small that it constitutes nothing more than the individual’s alter ego.

The United States Court of Appeals for the Fifth Circuit affirmed, citing Bellis v. United States, 417 U. S. 85, 88 (1974), for the proposition that a corporation’s records custodian may not claim a Fifth Amendment privilege no matter how small the corporation may be. The Court of Appeals declared that Bellis retained vitality following United States v. Doe, 465 U. S. 605 (1984), and therefore, “Braswell, as custodian of corporate documents, has no act of production privilege under the fifth amendment regarding corporate documents.” In re Grand Jury Proceedings, 814 F. 2d 190, 193 (1987). We granted certiorari to resolve a conflict among the Courts of Appeals.2 484 U. S. 814 (1987). We now affirm.

There is no question but that the contents of the subpoenaed business records are not privileged. See Doe, supra; Fisher v. United States, 425 U. S. 391 (1976). Similarly, petitioner asserts no self-incrimination claim on behalf of the corporations; it is well established that such artificial entities are not protected by the Fifth Amendment. Bellis, supra. Petitioner instead relies solely upon the argument that his [103]*103act of producing the documents has independent testimonial significance, which would incriminate him individually, and that the Fifth Amendment prohibits Government compulsion of that act. The bases for this argument are extrapolated from the decisions of this Court in Fisher, supra, and Doe, supra.

In Fisher, the Court was presented with the question whether an attorney may resist a subpoena demanding that he produce tax records which had been entrusted to him by his client. The records in question had been prepared by the client’s accountants. In analyzing the Fifth Amendment claim forwarded by the attorney, the Court considered whether the client-taxpayer would have had a valid Fifth Amendment claim had he retained the records and the subpoena been issued to him. After explaining that the Fifth Amendment prohibits “compelling a person to give ‘testimony’ that incriminates him,” 425 U. S., at 409, the Court rejected the argument that the contents of the records were protected. The Court, however, went on to observe:

“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer’s belief that the papers are those described in the subpoena. Curcio v. United States, 354 U. S. 118, 125 (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer aré both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof.” Id., at 410.

[104]*104The Court concluded that under the “facts and circumstances” there presented, the act of producing the accountants’ papers would not “involve testimonial self-incrimination.” Id., at 411.3

Eight years later, in United States v. Doe, supra, the Court revisited the question, this time in the context of a claim by a sole proprietor that the compelled production of business records would run afoul of the Fifth Amendment. After rejecting the contention that the contents of the records were themselves protected, the Court proceeded to address whether respondent’s act of producing the records would constitute protected testimonial incrimination. The Court concluded that respondent had established a valid Fifth Amendment claim. It deferred to the lower courts, which had found that enforcing the subpoenas at issue would provide the Government valuable information: By producing the records, respondent would admit that the records existed, were in his possession, and were authentic. 465 U. S., at 613, n. 11.

Had petitioner conducted his business as a sole proprietorship, Doe would require that he be provided the opportunity to show that his act of production would entail testimonial self-incrimination. But petitioner has operated his business through the corporate form, and we have long recognized that, for purposes of the Fifth Amendment, corporations and other collective entities are treated differently from individuals. This doctrine — known as the collective entity rule— has a lengthy and distinguished pedigree.

[105]

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487 U.S. 99, 108 S. Ct. 2284, 101 L. Ed. 2d 98, 1988 U.S. LEXIS 2864, 25 Fed. R. Serv. 632, 56 U.S.L.W. 4681, 62 A.F.T.R.2d (RIA) 5724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braswell-v-united-states-scotus-1988.