In Re Grand Jury Subpoena. Appeal of Glenn C. Lincoln, Jr.

Fifth Circuit

In Re Grand Jury Subpoena. Appeal of Glenn C. Lincoln, Jr.

767 F.2d 1130, 1985 U.S. App. LEXIS 21190

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 30, 1985

Docket85-2407, 85-2408

StatusPublished

Cited by10 cases

This text of 767 F.2d 1130 (In Re Grand Jury Subpoena. Appeal of Glenn C. Lincoln, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Grand Jury Subpoena. Appeal of Glenn C. Lincoln, Jr., 767 F.2d 1130, 1985 U.S. App. LEXIS 21190 (5th Cir. 1985).

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Opinion

REAVLEY, Circuit Judge:

Glenn C. Lincoln, Jr. refuses to comply with a grand jury subpoena directing him to produce records of eight organizations. He appeals the district court’s denial of his motion to quash and his application to enjoin the Internal Revenue Service from seeking to force the production of records, and also appeals that court’s order holding him in contempt and ordering him into custody until he purges himself by compliance with the subpoena. We affirm.

Lincoln’s argument is based entirely on the Supreme Court’s decision in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), holding that the act of producing the records of a sole proprietorship had testimonial significance and could not be compelled over Fifth Amendment objection. We see Doe as applicable to the records of a sole partnership but not to the records of a collective entity held in a representative capacity. The difference was fully explained by the Supreme Court in Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), and we see no reason to believe the Supreme Court has rejected the holding or writing of Bellis. See In Re Grand Jury Proceedings (Vargas), 727 F.2d 941 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 90, 83 L.Ed.2d 37 (1984); United States v. Malis, 737 F.2d 1511 (9th Cir.1984).

The subpoena, to which the district court’s attention and orders were directed, duplicated a prior subpoena but added, in handwriting, to the list of organizations “any other entities in which you have control for the period Jan. 1, 1980 through January 31, 1984.” What has been said does not apply to this feature of the subpoena. If the identification of an entity as one in which Lincoln had control would tend to incriminate him or furnish a link in the chain of evidence needed to prosecute him, that communicative disclosure would be protected by the Fifth Amendment privilege. Doe, 465 U.S. at-, 104 S.Ct. at 1242.

AFFIRMED as to all parts of the subpoena except the “other entities” phrase discussed in the last paragraph. REMANDED for further proceedings, if the United States seeks to compel delivery of documents of the “other entities,” but not to delay compliance with the remainder of the subpoena.

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REAVLEY, Circuit Judge:

Glenn C. Lincoln, Jr. refuses to comply with a grand jury subpoena directing him to produce records of eight organizations. He appeals the district court’s denial of his motion to quash and his application to enjoin the Internal Revenue Service from seeking to force the production of records, and also appeals that court’s order holding him in contempt and ordering him into custody until he purges himself by compliance with the subpoena. We affirm.

Lincoln’s argument is based entirely on the Supreme Court’s decision in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), holding that the act of producing the records of a sole proprietorship had testimonial significance and could not be compelled over Fifth Amendment objection. We see Doe as applicable to the records of a sole partnership but not to the records of a collective entity held in a representative capacity. The difference was fully explained by the Supreme Court in Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), and we see no reason to believe the Supreme Court has rejected the holding or writing of Bellis. See In Re Grand Jury Proceedings (Vargas), 727 F.2d 941 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 90, 83 L.Ed.2d 37 (1984); United States v. Malis, 737 F.2d 1511 (9th Cir.1984).

The subpoena, to which the district court’s attention and orders were directed, duplicated a prior subpoena but added, in handwriting, to the list of organizations “any other entities in which you have control for the period Jan. 1, 1980 through January 31, 1984.” What has been said does not apply to this feature of the subpoena. If the identification of an entity as one in which Lincoln had control would tend to incriminate him or furnish a link in the chain of evidence needed to prosecute him, that communicative disclosure would be protected by the Fifth Amendment privilege. Doe, 465 U.S. at-, 104 S.Ct. at 1242.

AFFIRMED as to all parts of the subpoena except the “other entities” phrase discussed in the last paragraph. REMANDED for further proceedings, if the United States seeks to compel delivery of documents of the “other entities,” but not to delay compliance with the remainder of the subpoena.

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767 F.2d 1130, 1985 U.S. App. LEXIS 21190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-subpoena-appeal-of-glenn-c-lincoln-jr-ca5-1985.

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