In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc.

606 F. Supp. 7, 1983 U.S. Dist. LEXIS 12649
District Court, D. Rhode Island·Decided October 18, 1983·No. Misc. Nos. 83-118-S, 83-107-S and 83-108-S·Published·Cited by 3 cases

Opinion

MEMORANDUM AND ORDER

SELYA, District Judge.

These petitions, individually and collectively, place in issue the validity of various subpoenas duces tecum served on behalf of the government in furtherance of an ongoing grand jury inquiry into certain alleged malefactions in the used-car business. The grand jury is investigating, among other things, the possibility that some or all of the petitioners may have violated the odometer provisions of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. §§ 1981-1991, and committed mail or wire fraud, 18 U.S.C. §§ 1341 and 1343. While several separate subpoenas are involved, they share common characteristics. The petitioners are all persons (some natural, some corporate) to whom such subpoenas have been addressed; they have, without exception, filed motions to quash. Although each set of motions bears the idiosyncratic flair so precious to the veteran litigator, all of the motions are, at bottom, functionally equivalent. Response to the subpoenas has been stayed by agreement of the parties pending resolution of these motions. The matter has been fulsomely briefed, and was argued in open court on August 31, 1983. Decision was reserved pending submission of supplemental briefs (now received).

Turning to the motions themselves, the petitioners have proffered a salmagundi of grounds upon which they claim entitlement to an order quashing the subpoenas. First, the petitioners aver that the subpoenas violate their Fifth Amendment privilege against self-incrimination. Second, the petitioners contend that the subpoenas do not meet applicable Fourth Amendment tests. Finally, the petitioners claim that the production requests of the subpoenas are onerous and overly broad. The government demurs on all counts.

I.

Before embarking on yet another journey into the by-ways of the Fifth Amendment privilege against self-incrimination as applied to business and corporate records, prudence demands that the court reflect upon the monition of the Supreme Court in Fisher v. United States, 425 U.S. 391, 401, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976), to “adhere to the view that the Fifth Amendment protects against ‘compelled self-iricrimination, not [the disclosure of] private information.’ United States v. Nobles, 422 U.S. 225, 233 n. 7 [95 S.Ct. 2160, 2167 n. 7, 45 L.Ed.2d 141] (1975).” The court emphasized in Fisher that the privilege go the person, not to the records.

It is well settled that the subpoena of business records implicates the Fifth Amendment only when those records are possessed by the individual who created them. Fisher v. United States, 425 U.S. at 399, 96 S.Ct. at 1575; United States v. Doe, 628 F.2d 694, 696 (1st Cir.1980). If the documents were prepared by another party, or if the documents are corporate records, the custodian cannot resist a subpoena, even if the records contain information incriminating to him. United States v. Doe, 628 F.2d at 696. The Court in Fisher stated that the custodians of corporate documents are required to produce the documents, “despite the fact that producing the documents tacitly admits their existence and their location in the hands of their possessor.” 425 U.S. at 411, 96 S.Ct. at 1581. And, if further testimonial authentication is necessary, the custodians may be granted limited immunity. Curcio v. Unit[10] ed States, 354 U.S. 118, 124, 77 S.Ct. 1145, 1149, 1 L.Ed.2d 1225 (1957).

The Court of Appeals in Doe noted that “a sole proprietor or practitioner whose business records are subpoenaed by the grand jury enjoys Fifth Amendment protection against the compulsion of testimony inherent in the act of submitting the requested documents to the grand jury, but not against the acquisition or use of the contents of the records.” 628 F.2d at 695. See also In re Grand Jury Proceedings (Martinez), 626 F.2d 1051 at 1057 (1st Cir. 1980). Therefore, the government may subpoena the records if it grants the witness use immunity for the authentication of other testimonial information that could be implied from the witness’s compliance with the subpoena. United States v. Doe, 628 F.2d at 695; In re Grand Jury Proceedings (Martinez), 626 F.2d 1051 at 1057.

In order to be granted use immunity, the individual seeking protection should submit an affidavit which states that he is a sole practitioner or proprietor who prepared and maintained the requested records for use in his business. United States v. Doe, 628 F.2d at 696. To gain even the limited privilege afforded by the decided cases, the custodian of records must demonstrate that the records he possesses are those of his sole proprietorship; and further, that he is the author of the records.

The government maintains, however, that even this restricted Fifth Amendment privilege against self-incrimination vanishes with regard to records required by law to be kept. In effect, as to such records, the government would embargo even the shallow safe harbor of Doe. In the instant case, records required by 15 U.S.C. §§ 1988, 1990d, 1990f, and 49 C.F.R. § 580.7 are apparently subject to the subpoenas. The government’s point is not without support in precedent. Historically, there has been no protection of records required by law to be kept. Some seven decades ago, the Supreme Court stated in Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544, 55 L.Ed. 771 (1911):

“The principle [allowing no Fifth Amendment privilege] applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transaction which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There the privilege, which exists as to private papers, cannot be maintained.”

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In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., 606 F. Supp. 7, 1983 U.S. Dist. LEXIS 12649 (D.R.I. 1983).

606 F. Supp. 7 (In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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