In Re Grand Jury Subpoena. Two Grand Jury Contemnors v. United States

826 F.2d 1166, 1987 U.S. App. LEXIS 11221

• Court: Court of Appeals for the Second Circuit
• Decided: August 14, 1987
• Docket: 1575, Docket 87-6165
• Status: Published

Opinions

ALTIMARI, Circuit Judge:

Appellants, two witnesses before the grand jury, appeal from orders of the United States District Court for the Southern District of New York (Vincent L. Broderick, Judge), which held them in civil contempt for refusing to sign directives authorizing foreign financial institutions to release documents and information to the government, and ordered them confined until they signed the directives. 28 U.S.C. § 1826(a). Appellants contend inter alia that compelled execution of the directives, as written, would violate their fifth amendment privilege against self-incrimination and right to due process of law. Because we find no fifth amendment violation here, we affirm.

FACTS and BACKGROUND

On May 28 and 29, 1987, the grand jury issued subpoenas duces tecum to appellants which required them to sign “consent directives” which were attached to the subpoenas. The directives provided that the signator, i.e., both appellants, authorized foreign financial institutions to disclose to the government information and documents relating to accounts maintained by appellants, or their corporations, at the foreign financial institutions. The directives did not acknowledge that accounts in foreign financial institutions were in existence or that they were controlled by appellants. Nor did the directives indicate whether documents or any other information relating to appellants were present at foreign financial institutions, assuming that such accounts did exist.

The directives provided that they should be “construed as consent” with respect “to any and all bank confidentiality laws of any state or nation.” In addition, and apparently to make it clear that, although the directives were to be construed as consent, they nevertheless were being compelled by the grand jury, the directives provided that they were executed “in compliance with the direction of a Grand Jury Subpoena Duces Tecum.”

On June 8, 1987, appellants filed motions to quash the subpoenas, arguing inter alia that compelled execution of the directives would violate their fifth amendment rights. After a hearing on June 15, 1987, the district court denied their motions to quash after it found that execution of the directives by appellants would not involve testimonial communications, and thus created no basis for fifth amendment violations. The district court then ordered appellants to appear before the grand jury to sign the directives.

In light of appellants’ objections to some of the language contained in the directives, however, the district court modified them by changing the title from “Consent Directive” to “Directive,” and specifying that they were being executed in compliance with a court order, rather than in compliance with the direction of a grand jury subpoena. The district court also provided that the directives could not be used as an admission against appellants in any subsequent trial, and it inserted a time limitation in the directives so that, as modified, they authorized disclosure of information and records dating back to 1980.

On June 22, 1987, appellants appeared before the grand jury and refused to sign the directives as modified by the district court, despite being ordered to do so by the grand jury foreman. On the same day, and after a hearing, the district court found appellants in civil contempt, and ordered them incarcerated until such time as they executed the modified directives. 28 U.S.C. § 1826(a). At the hearing, the district court again stated that it found no testimonial communications implicated by the execution of the directives, and noted that if appellants had executed the directives, the government would have been barred from using them as an admission in any subsequent trial. The district court stated that it did not feel its order excluding the admission of the directives into evidence was required by the fifth amendment, but was in response to Second Circuit precedent which provided for such exclusion.

The district court then denied appellants’ motion for a stay or bail pending appeal of the contempt and confinement orders, but granted them a limited stay to apply to this court for a stay pending appeal. On June 25, 1987, we continued the stay of confinement until the matter could be heard on an expedited basis, and at oral argument on July 14, 1987, we continued the stay until disposition of this appeal. For the reasons stated below, we affirm the district court orders holding appellants in contempt, and accordingly, lift the stay of execution of the confinement orders.

DISCUSSION

In this expedited appeal, appellants present several challenges to the district court orders requiring them to sign the directives at issue. Appellants assert, first, that the orders violated their fifth amendment privilege against compelled self-incrimination; and second, that absent language in the directives indicating that appellants signed them under protest and under threat of confinement, they were being compelled to sign false documents. Appellants also raised other challenges which we find are without merit, and thus we summarily reject them.

With respect to the self-incrimination claim, appellants recognize that precedent in this Circuit has approved of the compelled execution of directives in the face of fifth amendment challenges, In Re N.D.N.Y. Grand Jury Subpoena, 811 F.2d 114 (2d Cir.1987), and United States v. Davis, 767 F.2d 1025 (2d Cir.1985), but contend that those cases conflict with the Supreme Court's decision in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), to the extent that they purportedly relied on a de facto use immunity to obviate any fifth amendment problems. Appellants thus invite us to reverse our prior decisions in light of this conflict, and hold that compelled execution of the directives violates their fifth amendment privilege against sef-incrimination. We decline appellants’ invitation, and we write here to clarify the meaning of our prior decisions.

1. Self-incrimination claim.

The fifth amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. Despite this broad language, however, the fifth amendment does not proscribe the compelled production of every sort of incriminating evidence. Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976). Historically, the privilege has been interpreted to protect a witness from being compelled to make self-incriminating “communications, whatever form they might take[.]” Schmerber v. California, 384 U.S. 757, 763-764, 763 n. 7, 86 S.Ct. 1826, 1832 n. 7, 16 L.Ed.2d 908 (1966) (refusing to adopt Wigmore’s formulation of the privilege which covered only “testimonial disclosures”). The scope of the privilege, however, has since been limited, and it now “applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher, 425 U.S. at 408, 96 S.Ct. at 1579 (emphasis in original). In contrast, the privilege does not bar compelling an accused to provide, or making him the source of, real or physical evidence, Schmerber, 384 U.S. at 764-765, 86 S.Ct. at 1832, even though the accused may be compelled to speak, United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 1929-1930, 18 L.Ed.2d 1149 (1967), or write, Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), provided that his speech or writing exemplar is sought for identification purposes, and not to “disclose any knowledge he might have.” Wade, 388 U.S. at 222, 87 S.Ct. at 1930.

To establish a fifth amendment violation, appellants must therefore demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that communication. In re N.D.N.Y. Grand Jury Subpoena, 811 F.2d 114, 116 (2d Cir.1987). The compulsion element is clearly present here. See United States v. Browne, 624 F.Supp. 245, 248 (N.D.N.Y.1985) (where the court orders an individual to sign a consent form after he refuses, the element of compulsion is met). More troublesome, though, is the question of whether ordering appellants to sign the directives — and thus requiring them to authorize disclosure of records and information if any exist — constitutes testimonial self-incrimination. We conclude, however, that it does not.

At the outset, we emphasize that appellants do not contend, nor could they argue, that their fifth amendment privilege extends to preclude the financial institutions from producing records or information regarding appellants' transactions. United States v. Davis, 767 F.2d 1025, 1039 (2d Cir.1985). Thus, since the directives are the only communications which appellants were compelled to make, they are the only possible source of a fifth amendment violation. Id.

In this regard, we have twice approved of the compelled execution of a directive in the face of fifth amendment self-incrimination challenges. Thus, in Davis, while we observed that a directive, such as the one at issue, may have had aspects that were communicative in nature, 767 F.2d at 1040, we nevertheless rejected the appellant’s fifth amendment challenge because we found that any potential fifth amendment problems were obviated by the fact that the district court precluded the government from using the directive as an admission at trial. Id. We did not, however, decide in Davis whether the communicative aspects of the directive were either testimonial or incriminating in nature.

Recently, however, we were called upon to address the precise questions which were left unresolved in Davis. Thus, in In re N.D.N.Y. Grand Jury Subpoena, 811 F.2d 114 (2d Cir.1987), we considered, in a factual context quite similar to the instant appeal, whether compelled execution of a directive — whose wording was nearly identical to the one at issue — constituted a testimonial communication that was incriminating. There, we observed that the directive at issue employed language “that require[d] disclosure [of bank records] only if the bank ha[d] such accounts.” Id. at 117 (citations omitted) (emphasis in original). Relying on the Eleventh Circuit decision in United States v. Ghidoni, 732 F.2d 814 (11th Cir.), cert. denied, 469 U.S. 932, 105 S.Ct. 328, 83 L.Ed.2d 264 (1984), we concluded that “executing th[e] directive would not implicate any testimonial communication,” and thus would not impair the appellant’s fifth amendment rights. 811 F.2d at 117.

In both Davis and In re N.D.N.Y. Grand Jury Subpoena, we adopted the Eleventh Circuit’s approach toward resolving these questions as set forth in United States v. Ghidoni, supra. In Ghidoni, the Eleventh Circuit was confronted with the same question presented in the instant appeal. The directive at issue there differed from the ones here in only minor respects. For example, it was entitled “consent directive,” rather than “directive,” and, in addition to using language indicating that it was directed to any bank where appellant had an account, it also named a specific bank, whereas the directives at issue here do not name any specific bank or financial institution.

After first setting out general fifth amendment principles, the Ghidoni court then reviewed the directive in light of those Supreme Court decisions addressing the testimonial and incriminating aspects of the compelled production of documents, i.e., United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), and Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Thus, the Ghidoni court likened the situation before it— where an individual was being compelled to authorize and direct a third party, i.e., the banks, to produce documents — to the situations presented in Doe and Fisher, where an individual was compelled to produce the documents himself.

The Ghidoni court, accordingly, examined the directive to determine whether it contained any testimonial assertion regarding the documents sought from the banks. The court concluded that the directive was “devoid of any testimonial aspects,” 732 F.2d at 818, after it found that “nothing in the directive implie[d] that [bank] accounts exist,” that it contained no statements regarding possession or control over such accounts, and that it could not be used to authenticate any records obtained. Id. at 818-819. The court thus concluded that compelled execution of the directive would not violate the privilege against self-incrimination because the directive itself was not testimonial in nature. Id. at 819. In upholding the compelled execution of the directive, the court further observed that the defendant was only being compelled to “waive a barrier [i.e., foreign states’ confidentiality laws] to permit the bank to produce documents” — an act which it concluded provided no testimonial assertions. Id. at 819 n. 12.

The Ghidoni decision is not without criticism. Its approach to these questions was recently rejected by the First Circuit in In re Grand Jury Proceedings (Ranauro), 814 F.2d 791 (1st Cir.1987). In Ranauro, the First Circuit agreed with the Ghidoni court’s conclusion that the directive itself does not assert that any records exist, that the appellant has control over such accounts, or that any records obtained would be authentic. Id. at 793. The court observed, however, that the directive did “admit and assert [the appellant’s] consent,” id., and thus it concluded that his assertion of consent could be potentially incriminating, because it might later be used “to prove the ultimate facts that accounts in [appellant’s] name existed or that [appellant] controlled those accounts.” Id. To illustrate how the directive may later be used at trial as self-incriminating testimony, the court posited the following hypothetical:

Suppose that at trial the government were to introduce bank records produced in response to a subpoena that had been accompanied by the consent form and that it was not apparent from the face of the records or otherwise how [appellant] was linked to them. Suppose also that the government then introduced the subpoena and consent form, and a government witness testified that the bank records were received in response to the subpoena and consent form. Would not the evidence linking [appellant] to the records be his own testimonial admission of consent? We believe it would.

Id. Thus, the court found that since the directive contained a statement admitting his consent, that statement, standing alone, constituted a self-incriminating testimonial communication. Id. The court, accordingly, concluded that compelled execution of the directive would violate the fifth amendment. Id.

While we see some merit in the First Circuit’s approach, we are constrained here to apply our precedent in N.D.N.Y. Grand Jury Subpoena, and follow the analysis set forth in Ghidoni. We therefore hold that because the directives here contain no testimonial assertions, the district court orders compelling appellants to sign the directives provide no basis for a fifth amendment violation. The directives here, as in Ghidoni, do not contain any assertions by appellants regarding the existence of, or control over, foreign bank accounts. They authorize disclosure of records and information only if such accounts exist. We also agree with the Ghidoni court’s conclusion that the directives could not be used to authenticate any bank records obtained.

In affirming the district court here, however, we necessarily must clarify certain aspects of our holdings in Davis and In re N.D.N.Y. Grand Jury Subpoena. Appellants suggest that the determination of the fifth amendment question in those decisions rested on the fact that the government was precluded from using the directive at trial as an admission against the signator of the directive. Appellants contend that we recognized in those cases that the directives were both testimonial and incriminating, and that by sanctioning a district court order precluding admission of the directives into evidence, we were approving of a de facto use immunity — a practice forbidden by United States v. Doe, 465 U.S. 605, 614-17, 104 S.Ct. 1237, 1243-44, 79 L.Ed.2d 552 (1984).

In light of our holding today, it is clear that the fifth amendment would not stand as a bar to admission of the directives into evidence at trial because the directives contain no testimonial assertions that are incriminating, and thus do not implicate fifth amendment questions. But cf. In re N.D.N.Y. Grand Jury Subpoena, 811 F.2d at 117. We also note, however, that since the directives contain no statements regarding existence of, or control over, any accounts, they should be excluded from evidence because they lack any probative value. Ghidoni, 732 F.2d at 818 & n. 9.

Appellants argue that when the district court entered its order excluding the directives from evidence, it accordingly created a de facto use immunity for statements made in the directives. We disagree. When the district court entered its orders precluding admission of the directives into evidence, it was merely ruling on evidentiary questions relating to materiality, relevance, prejudice, etc., all of which could be and were resolved in the sound discretion of the district court. We conclude here that, because the directives lack any probative testimonial value on the issue of existence or control, Ghidoni, 732 F.2d at 818 & n. 9, the district court properly excluded them from evidence.

II. Due process claim.

Appellants also claim that by signing the directives at issue they were being forced to sign a document containing false or misleading statements in violation of their right to due process of law. Appellants contend that since they were not “authorizing” or “directing” the foreign financial institutions to do anything, except in compliance with a court order, the directives, as written, do not adequately indicate their coerced nature. Accordingly, they request that we reverse the contempt orders because the directives do not state that appellants were compelled to sign them “under protest” or “under the threat of incarceration.”

We reject appellants’ arguments. The directives, as written, satisfied the requirements set out in In re N.D.N.Y. Grand Jury Subpoena, 811 F.2d at 117-118. There, we held that so long as a directive indicated that it was signed under protest or pursuant to a district court order, it would not be considered misleading. Id. at 118. Here, the directives included language indicating that they were signed pursuant to a district court order, and thus they adequately reflected their coerced nature.

Affirmed.