In Re: v. Grand Jury Subpoena

• Court: Court of Appeals for the First Circuit
• Decided: August 31, 1992
• Docket: 92-1881
• Status: Published

Opinion

USCA1 Opinion

August 31, 1992

___________________

No. 92-1881

IN RE:

                                 GRAND JURY SUBPOENA.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Albert F. Cullen, Jr., Susan A. Correia and Cullen & Butters
               _____________________  ________________     ________________
          on brief for appellant.
               A.  John Pappalardo,  United  States Attorney,  and Mark  W.
               ___________________                                 ________
          Pearlstein,  Assistant  United  States  Attorney,  on  brief  for
          __________
          appellee.

__________________

                                  __________________

Per  Curiam.   At  issue here  is whether  an individual
                 ___________

            involved in  a Massachusetts  "nominee trust" can  assert the

            Fifth Amendment privilege against self-incrimination in order

            to resist a grand  jury subpoena seeking trust records.   The

            district court  held that no privilege  was available because

            the  trust was a "collective entity."  We agree and therefore

            affirm the order of contempt. 

                                          I.

                 In  December 1986,  appellant John  Doe, along  with his

            brother, created a  nominee trust (the  "Roe trust") for  the

            purpose  of conducting real estate transactions.  Doe and his

            brother designated themselves as  the sole beneficiaries  and

            the  sole trustees.    The  Roe  trust purchased  a  204-unit

            apartment  complex  in  Arlington,  Massachusetts  that  same

            month,  thereafter  converting  it  to condominium  form  and

            offering the units  for sale.1  Subsequently, a federal grand

            jury  commenced  an  investigation  into  whether  fraudulent

            information  had been provided to federally insured financial

            institutions  in connection  with the  sale and  financing of

            these  condominiums.  As part of this inquiry, Doe was served

            on  February  14,  1992,  in his  capacity  as  custodian  of

            records,  with  a  subpoena   duces  tecum  calling  for  the
                                          ____________

____________________

            1.  According to  an FBI  affidavit, the Roe  trust undertook
            similar measures with respect  to a second complex containing
            124  units, and eventually succeeded in selling over half the
            units at each location.

                                         -2-

production  of  various  trust records.    The  scope of  the

            subpoena  was  narrow  and  specific: it  called  for  "[a]ll

            closing documents,  including, but not  limited to,  purchase

            and  sale  agreements,  with  respect  to  the  sale  of [ten

            specified  units at  the Arlington  complex] sold  in January

            1989 to [a specified individual]."

                 Doe refused  to comply with the  subpoena, claiming that

            to  do  so  would  impinge on  his  personal  Fifth Amendment

            privilege.    The  district  court  granted the  government's

            motion to compel, but Doe persisted in his refusal to produce

            the  records at an appearance  before the grand  jury on July

            13.  That same day, the district court held  him in contempt,

            and on  July 29  it  denied his  motion  for a  stay  pending

            appeal.   Doe filed  the instant  appeal on  July 31,  and on

            August 4 we stayed the order of confinement pending appeal. 

                                         II.

                 The collective entity rule  reflects the notion that the

            Fifth  Amendment privilege  against  self-incrimination is  a

            "purely personal" one, Bellis v. United  States, 417 U.S. 85,
                                   ______    ______________

            90  (1974),  which  applies "only  to  natural  individuals,"

            United  States v.  White,  322 U.S.  694,  698 (1944).    The
            ______________     _____

            privilege thus "cannot  be utilized  by or on  behalf of  any

            organization."   Id. at 699.   In particular,  "an individual
                             ___

            cannot rely upon the privilege to avoid producing the records

            of  a  collective entity  which are  in  his possession  in a

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representative   capacity,  even   if  these   records  might

            incriminate him personally."  Bellis, 417 U.S. at 88; accord,
                                          ______                  ______

            e.g.,  Braswell v.  United States,  487 U.S.  99, 109  (1988)
            ____   ________     _____________

            (collective  entity's  custodian  of  records  cannot  resist

            subpoena  on ground  that act  of production,  as opposed  to

            contents of records, would  be personally incriminating).  As

            we  noted  in In  re Grand  Jury  Proceedings (John  Doe Co.,
                          _______________________________________________

            Inc.),  838  F.2d  624  (1st Cir.  1988),  the  "often quoted
            _____

            rationale" for the collective entity rule is that 

                 individuals,  when acting  as representatives  of a
                 collective group,  cannot be said to  be exercising
                 their personal rights and duties nor to be entitled
                 to their purely  personal privileges.  Rather  they
                 assume  the rights,  duties and  privileges  of the
                 artificial entity or association of which  they are
                 agents  or  officers  and  they are  bound  by  its
                 obligations.      In   their   official   capacity,
                 therefore, they  have  no privilege  against  self-
                 incrimination.

            Id.  at 625 (quoting White, 322 U.S. at 699).2  See generally
            ___                  _____                      _____________

            Braswell, 487 U.S. at 104-09 (reviewing evolution of rule).
            ________

                 Whether an organization is  properly deemed a collective

            entity has little to do  with its size.  "It is  well settled

            that  no  privilege  can  be  claimed  by  the  custodian  of

____________________

            2.  See  also Bellis,  417  U.S.  at  90  ("In  view  of  the
                _________ ______
            inescapable  fact that an  artificial entity can  only act to
            produce  its  records  through  its  individual  officers  or
            agents, recognition of  the individual's  claim of  privilege
            with  respect to  the financial  records of  the organization
            would substantially undermine the unchallenged rule  that the
            organization  itself  is  not  entitled to  claim  any  Fifth
            Amendment   privilege,   and  largely   frustrate  legitimate
            governmental regulation of such organizations.").

                                         -4-

corporate records, regardless  of how  small the  corporation

            may be."   Bellis, 417 U.S.  at 100 (applying  rule to three-
                       ______

            person  partnership).     Indeed,  Braswell   held  the  rule
                                               ________

            applicable  to a  one-person corporation.3   See 487  U.S. at
                                                         ___

            101;  accord, e.g.,  United States  v. Lawn  Builders of  New
                  ______  ____   _____________     ______________________

            England,  Inc.,  856  F.2d  388,  394  (1st  Cir. 1988)  (per
            ______________

            curiam).   Rather,  in defining  the nature  of  a collective

            entity, the Court has emphasized 

                 the   existence  of   an   organization  which   is
                 recognized as an independent  entity apart from its
                 individual members.   The group  must be relatively
                 well  organized and  structured, and  not merely  a
                 loose, informal  association  of individuals.    It
                 must  maintain a  distinct  set  of  organizational
                 records,  and recognize  rights in  its  members of
                 control and access to them....   [I]t must be  fair
                 to say that the records demanded are the records of
                 the   organization  rather   than   those  of   the
                 individual ....

            Bellis,  417 U.S.  at 92-93.   See,  e.g., 1  W. LaFave  & J.
            ______                         ___   ____

            Israel, Criminal  Procedure   8.12(b), at  695 (1984) (entity
                    ___________________

            exception  not inapplicable  "simply because  an organization

            embodie[s] a combination of personal and group interests; the

            presence  of an  organizational structure  serving  the group

            interest [is]  sufficient").  The crucial  factor, the Bellis
                                                                   ______

____________________

            3.  At  the  same time,  the  Braswell  Court held  that  the
                                          ________
            government  could  make  no  evidentiary use  of  the  act of
            production  against  the  custodian  in  his  individual  (as
            opposed to representative) capacity.   487 U.S. at 118  n.11.
            It also  left open the  question whether the  privilege might
            apply "when the  custodian is able  to establish, by  showing
            for example  that he is the sole  employee and officer of the
            corporation, that the jury  would inevitably conclude that he
            produced the records."  Id.
                                    ___

                                         -5-

Court  indicated,  was  whether  the   organization  has  "an

            established   institutional   identity  independent   of  its

            individual [constituents]."   417 U.S. at 95.  See  In re Two
                                                           ___  _________

            Grand  Jury Subpoenae Duces Tecum,  793 F.2d 69,  72 (2d Cir.
            _________________________________

            1986) (describing this as the "critical issue").  

                 Doe acknowledges that ordinary  trusts have been held to

            fall  within this definition.   See Watson v. Commissioner of
                                            ___ ______    _______________

            Internal Revenue,  690  F.2d 429,  431 (5th  Cir. 1982)  (per
            ________________

            curiam); United States v. Harrison, 653 F.2d 359, 361-62 (8th
                     _____________    ________

            Cir. 1981);  In re  Grand Jury Proceedings  (Hutchinson), 633
                         ___________________________________________

            F.2d  754, 756-57 (9th Cir. 1980); In re Grand Jury Subpoena,
                                               _________________________

            No.  91-10708-Z  (D.  Mass 1991)  (non-nominee  Massachusetts

            realty trusts).   He contends, however,  that a Massachusetts

            nominee  trust is not an  ordinary trust.   Indeed, he argues

            that it  should not be regarded in  this context as a "trust"

            at  all,  but rather  as  something  "comparable  to  a  sole

            proprietorship" or "similar to a  joint tenancy or a  tenancy

            by the entirety."  Brief at 11.  We agree that  the Roe trust
                               _____

            (in  common with  all nominee  trusts) possesses  some unique

            characteristics,  but  we  disagree  that  these  suffice  to

            exclude it from the definition of collective entity.

                 A nominee trust is  a "form of ownership of  real estate

            which is  in considerable  use in  Massachusetts as  a title-

            holding  device," Penta  v.  Concord Auto  Auction, Inc.,  24
                              _____      ___________________________

            Mass. App. 635,  639 (1987), "one  which affords certain  tax

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[and  other]  advantages," Apahouser  Lock  &  Sec. Corp.  v.
                                       ______________________________

            Carvelli, 26  Mass.  App.  385,  388  (1988).    Its  typical
            ________

            features   are  the   following:   (1)  the   names  of   the

            beneficiaries are filed with  the trustees, rather than being

            publicly disclosed; (2) a trustee may serve simultaneously as

            a beneficiary; (3) the  trustees lack power to deal  with the

            trust property except as directed by the beneficiaries; (4) a

            third  party may rely  on the  disposition of  trust property

            pursuant to  any instrument  signed by the  trustees, without

            having to inquire as  to whether the terms of  the trust have

            been complied  with; and (5) the  beneficiaries may terminate

            the trust at any  time, thereby receiving legal title  to the

            trust property as  tenants in common  in proportion to  their

            beneficial interests.   See  Birnbaum & Monahan,  The Nominee
                                    ___                       ___________

            Trust in  Massachusetts Real  Estate Practice, 60  Mass. L.Q.
            _____________________________________________

            364, 364-65 (1976).4  The third listed feature 

                 is the  key  to the  nominee nature  of the  trust.
                 Unlike in a "true trust," the trustees of a nominee
                 trust  have no power, as such, to act in respect of
                 the  trust  property,  but  may  only  act  at  the
                 direction  of   (in  effect,  as  agents  for)  the
                 beneficiaries.

            Id. at  365.  See, e.g., Johnston  v. Holiday Inns, Inc., 595
            ___           ___  ____  ________     __________________

            F.2d 890, 893 (1st Cir. 1979) (trustees of nominee trust have

____________________

            4.  See  also  Cohen, Massachusetts  Estate Tax  Planning for
                _________         _______________________________________
            Non-Massachusetts Residents  Owning  Real Estate  Located  in
            _____________________________________________________________
            Massachusetts, 70  Mass. L. Rev. 124,  126-29 (1985); Partan,
            _____________
            Nominee  Trusts: Refresher  Course, 14  Mass. Law.  Wkly. 850
            __________________________________
            (Feb. 24,  1986); MCLE,  Forms and Tax  Consequences of  Real
                                     ____________________________________
            Estate Ownership, 193-205, 221-32 (1986).  
            ________________

                                         -7-

"only perfunctory duties"); Apahouser,  528 Mass. App. Ct. at
                                        _________

            135  ("trustees  are  frequently   seen  as  agents  for  the

            principals' convenience  rather than as trustees  in the more

            familiar fiduciary sense").  

                 The declaration of trust creating the Roe trust contains

            each of  the features described  above.   In particular,  the

            discretionary   authority   of  the   trustees   is  narrowly

            circumscribed.     They  are  directed  to   hold  the  trust

            principal, receive the income therefrom, and distribute it to

            the beneficiaries at least annually.  And they are authorized

            to  open and close bank accounts, deposit and withdraw funds,

            and sign checks.   Apart from these  functions, "the Trustees

            shall  have no  power to  deal in  or  with the  Trust Estate

            except  as directed  by the  beneficiaries."   Declaration of

            Trust   3.

                 As Doe correctly  notes, the fact that a nominee trust's

            beneficiaries retain  control over  the trustees has  led, in

            other  contexts,  to the  "trust"  status being  disregarded.

            See, e.g., Druker  v. State  Tax Comm'n, 374  Mass. 198,  201
            ___  ____  ______     _________________

            (1978) ("extreme degree of control exercised by beneficiaries

            ... vitiates the creation  of a trust for purposes  of [state

            income]  taxation").5     Doe  relies  particularly  on   two

            bankruptcy cases: In re Village  Green Realty Trust, 113 B.R.
                              _________________________________

____________________

            5.  As  it was unnecessary to its  decision, the Druker Court
                                                             ______
            avoided deciding whether the nominee trust should be regarded
            as a partnership.  374 Mass. at 202 n.1.  

                                         -8-

105 (Bankr. D. Mass. 1990), and In re Medallion Realty Trust,
                                            ____________________________

            103 B.R.  8 (Bankr. D. Mass.  1989), aff'd, 120  B.R. 245 (D.
                                                 _____

            Mass. 1990).  Both  courts held that nominee trusts  were not

            "business   trusts"  within   the  meaning  of   the  federal

            bankruptcy statute.   More important, in  determining how the

            entities should  be characterized, they each  disregarded the

            trust  status and  inquired into  the relationship  among the

            beneficiaries.  The Village Green court, for example, stated:
                                _____________

Since the beneficiaries  of the nominee  trust
                 have the  exclusive power to direct  the activities
                 of  the  trustee,  it   makes  sense  to  view  the
                 beneficiaries as the owners of the trust res and to
                 look  to  their  relationship  to  each  other  for
                 bankruptcy purposes.  In other words, it is not the
                 nominee trust  itself that engages in  business; it
                 is   the   principals   who  engage   in   business
                 activities, using the device of a nominee trust and
                 the  assistance  of   their  trustee/agent.     The
                 relationship   of  the   beneficiaries  may   be  a
                 partnership,   corporation,  co-tenancy   or  other
                 entity.

            113 B.R. at  114; accord  Medallion Realty, 103  B.R. at  12.
                              ______  ________________

            After examining Massachusetts law, the Medallion Realty court
                                                   ________________

            determined  that  the  "trust"   was  properly  viewed  as  a

            partnership.   Id.  at 12-14.   The  Village Green  court, by
                           ___                   _____________

            contrast, simply dismissed the  petition, putting the onus on

            the  beneficiaries to refile under a proper format.  113 B.R.

            at 114-15.

                 By  analogy, Doe  contends that  we should  overlook the

            trust  status of the Roe  trust.  He  further argues, without

-9-

elaboration,  that  construing the  "trust" as  a partnership

            (which  would keep it  within the definition  of a collective

            entity)  is precluded  inasmuch as  the declaration  of trust

            fails to define  the relationship between  the beneficiaries.

            He  concludes,  accordingly,  that  he  holds  title  to  the

            property as co-tenant or  sole proprietor, that the documents

            sought are his personal  records, and that he can  resist the

            subpoena on personal Fifth Amendment  grounds.  This line  of

            reasoning falters on several grounds.  

                 Were we to disregard  the Roe trust's nominal  status as

            requested and attempt  a redefinition under state law,  it is

            safe to say we would not end up with  a sole proprietorship.6

            Doe, after all, is not the sole beneficiary.  And we think it

            unlikely  that  we would  end up  with  a tenancy  in common.

            Something  more  than  joint   ownership  would  seem  to  be

            involved; through the vehicle  of the Roe trust, Doe  and his

            brother  over   several  years  engaged   in  the   purchase,

            conversion, and attempted sale of over 300 condominium units,

            presumably for profit.7  Yet we  are disinclined to undertake

____________________

            6.  A   sole  proprietor   (unlike  the   sole  owner   of  a
            corporation) is  not subject  to the collective  entity rule.
            See, e.g., Braswell, 487 U.S. at 104, 111 n.5.
            ___  ____  ________

            7.  Moreover,  even if the Roe trust were deemed a tenancy in
            common, we note that, in the  view of one court at least, the
            collective entity  rule would  nonetheless apply.   In  In re
                                                                    _____
            Grand Jury  Proceedings (Shiffman), 576 F.2d  703 (6th Cir.),
            __________________________________
            cert. denied, 439 U.S. 830 (1978), two individuals,  who with
            ____________
            their  spouses owned real estate as tenants in common, opened
            a bank account  under the  name "G&S Investment."   The  sole

                                         -10-

any  such  inquiry.    For  one  thing,  the  present  record

            militates  against   it.     Doe   conveniently  proffers   a

            redefinition of the Roe trust  based exclusively on the terms

            of  the trust  declaration.    It  is  true  that  little  of

            relevance in this  regard can be gleaned  from that document.

            See Birnbaum &  Monahan, supra,  60 Mass. L.Q.  at 373  ("The
            ___                      _____

            declaration of trust which creates a nominee trust creates no

            'association'  among  the beneficiaries  and does  not define

            their  rights inter  se with  respect to  the control  of the
                          _________

            business.").  Yet in order properly to characterize the legal

            status  of the Roe trust, one would need to ascertain whether

            any subsidiary agreements existed between Doe and his brother

            regarding  the  trust's  operations.    Doe  has  offered  no

            evidence in this regard.   As the proponent of  the privilege

            claim, it was his burden to  do so.  See, e.g., United States
                                                 ___  ____  _____________

            v. Wujkowski, 929  F.2d 981, 984 (4th Cir. 1991).  Cf. United
               _________                                       ___ ______

            States v. Bay State Ambulance and Hosp. Rental Service, Inc.,
            ______    __________________________________________________

            874 F.2d 20, 28 (1st Cir. 1989) (attorney-client privilege).

____________________

            purpose  of  that  entity  was  to  receive  income from  the
            property  and disburse it  to the owners  after deducting for
            expenses.  In response to a subpoena  for G&S records, one of
            the owners  interposed a  Fifth Amendment  claim.   The court
            determined  that G&S was  not a partnership  under state law,
            but nonetheless deemed the collective entity rule applicable.
            "Though  there   was  no  organized   institutional  activity
            equivalent to the usual  business activity of the corporation
            or  partnership,  the  records  of  G&S   undeniably  reflect
            transactions which  were not  wholly those of  Dr. Shiffman."
            Id. at  707.  He  was thus held to  possess the records  in a
            ___
            representative, rather than personal, capacity.

                                         -11-

More important, we  think such  an inquiry  unnecessary.

            In In  re Grand Jury Proceedings  (Hutchinson), the condemnee
               ___________________________________________

            argued  that the  IRS  considered her  trust  to be  grantor-

            controlled,  rendering  it  "a  shell  for  purposes  of  the

            analysis set  forth in Bellis."  633 F.2d at 757.  The court,
                                   ______

            while  acknowledging  that  the trust  "may  possess  certain

            characteristics that affect the way it is treated for federal

            tax purposes,"  nonetheless held that "its  treatment for tax

            purposes  is  largely  irrelevant  to  the  determination  of

            whether it is  an organization  separate and  apart from  its

            creator."  Id.   Analogously,  we think that  the Roe  trust,
                       ___

            regardless of  its technical  status under  state law,  has a

            sufficiently "established  institutional identity independent

            of its individual [constituents]," Bellis, 417 U.S. at 95, to
                                               ______

            fall within the definition of collective entity.  

                 "An organization may constitute a collective entity even

            when it  has not taken steps to formalize its status."  In re
                                                                    _____

            Two Grand  Jury Subpoenae, 793 F.2d at 72 (finding collective
            _________________________

            entity rule  applicable to two-person law  firm, despite lack

            of  partnership   agreement  and  lack  of   partnership  tax

            returns).  Here, the Roe trust possesses a formal status, the

            validity of which  is not  questioned under state  law.   See
                                                                      ___

            Penta, 24  Mass. App. Ct. at 639.  It was established in 1986
            _____

            by the execution and filing, with the appropriate registry of

            deeds,  of a  trust declaration  detailing its  structure and

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operation,  and has  remained in  operation since  that time.

            The trustees are authorized to act independently on behalf of

            the   trust   in   specific  (albeit   limited)   ways--e.g.,
                                                                    ____

            maintaining  bank accounts;  writing checks.8   Third parties

            are  entitled  to rely  on  actions  taken by  the  trustees,

            without inquiring as to their authority.  The  trustees, even

            if deemed  agents with  respect to  third-party transactions,

            retain fiduciary obligations with regard to the trust itself.

            And,  while the evidence is  unclear in the  instant case, it

            cannot be doubted in general that a nominee trust is held out

            to   the  world  as   being  separate  and   apart  from  its

            beneficiaries; indeed,  one of  the inducements for  creating

            such an entity is to enable the latter to remain anonymous.

                 It is also significant,  of course, that Doe is  not the

            sole beneficiary.  As with his contention that the trust is a

            sole proprietorship, his assertion that the trust records are

            his "personal papers"  flies in the face  of this fact.   The

            other beneficiary  obviously has an equal interest in, and an

            equal  right of access to, such records.   To the extent that

            the collective  entity rule still draws  nurture from notions

            of privacy, Doe  cannot be  said to have  any expectation  of

____________________

            8.  Doe states (without  supporting evidence) that the  trust
            maintains  no   separate  bank  accounts.     Yet  the  trust
            declaration provides therefor.   He similarly states that the
            trust  has filed no separate tax returns.  As just mentioned,
            the same was true in In re Two Grand Jury Subpoenae, 793 F.2d
                                 ______________________________
            at 72, where a collective entity was held to exist.  

                                         -13-

privacy  with respect to such records.   See In re Grand Jury
                                                     ___ ________________

            Proceedings (Shiffman)  576 F.2d  703, 707 (6th  Cir.), cert.
            ______________________                                  _____

            denied,  439 U.S.  830 (1978).   This  consideration, in  any
            ______

            event,  reinforces  the  view  that  Doe  possesses,  and  is

            directed to produce, the  trust records in his representative

            rather than personal capacity.  Finally,  we   might  observe

            that  Doe has  on  occasion  mischaracterized, and  otherwise

            failed to address, the nature of the privilege at stake here.

            To  the extent  that  the  Fifth  Amendment  applies  to  the

            contents of private papers--a matter currently in some doubt,
            ________

            see United States v. Doe, 465 U.S. 605, 610-12 (1984); id. at
            ___ _____________    ___                               ___

            618  (O'Connor, J.,  concurring)--it  does so  "only in  rare

            situations, where compelled disclosure  would break the heart

            of our sense of privacy."  In re Steinberg, 837 F.2d 527, 530
                                       _______________

            (1st Cir. 1988) (quotations omitted).  Yet the  trust records

            here,   pertaining  to  the   sale  of  condominiums,  cannot

            conceivably  be  deemed  "intimate  personal  papers."    Id.
                                                                      ___

            Contrary to Doe's suggestion, therefore, the contents thereof

            are clearly not privileged.  Rather,  the potential for self-

            incrimination arises  only from the act  of production, i.e.,

            from  the tacit  concession that  the records  exist, are  in

            Doe's possession, and  are authentic.   See, e.g., Fisher  v.
                                                    ___  ____  ______

            United States,  425 U.S. 391,  410-11 (1976).   As mentioned,
            _____________

            Braswell held  that the act-of-production  privilege does not
            ________

            apply to  a collective  entity's custodian  of records.   Yet

-14-

were we to accept  Doe's argument that the  collective entity

            rule is  inapplicable,  he would  have  the further  task  of

            demonstrating    a   viable    act-of-production   privilege.

            Curiously, Doe has failed  to address this concern.   We note

            only  that, given  his  concession that  the ten  condominium

            sales in  question occurred,  and given the  specificity with

            which  the subpoena describes the  documents sought, it is by

            no means  clear that  he would  be able  to establish such  a

            claim.   See  id.  at 411  (describing "foregone  conclusion"
                     ___  ___

            exception); accord Doe, 465 U.S. at 614 n.13.  See  also 1 W.
                        ______ ___                         _________

            LaFave &  J. Israel, supra,    8.12,  at 181 n.  25.16 (Supp.
                                 _____

            1991) (noting that communication  of authenticity may be non-

            testimonial  when specificity  of subpoena  obviates need  of

            custodian to discriminate among documents).  

                 The order of contempt is affirmed. 
                 __________________________________

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