Braswell v. United States – Oral Argument – March 01, 1988

Media for Braswell v. United States

Audio Transcription for Opinion Announcement – June 22, 1988 in Braswell v. United States

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William H. Rehnquist:

You may proceed whenever you are ready, Mr. Fawer.

Michael S. Fawer:

Mr. Chief Justice, and may it please the Court:

The issue in this case, stated simply, is whether the principal of a one-man corporation, simply by virtue of the fact that his status as its records custodian, can be compelled to make self-incriminatory, tacitly testimonial disclosures; or is he, like the custodian in U.S. v. Doe, to be afforded the limited act of production privilege secured to all natural persons under the Fifth Amendment?

The facts of the case are quite simple: the Internal Revenue Service and the United States Attorney in the Southern District of Mississippi began a grand jury investigation, criminal tax investigation, of Randy Braswell.

He was the target of that investigation, and there is no issue as to that.

In August 1986, during the course of that investigation, the subpoena duces tecum was served upon Mr. Braswell as President of his corporation, of the one-man corporation that he has called Worldwide Purchasing.

It was a broad-based subpoena virtually identical to the one that is before Your Honors in U.S. v. Doe.

It is found at pages 6 and 7 ver batem in our Joint Appendix.

In response, we filed a Motion to Quash, asserting our act of production privilege.

The Government opposed, stating that no corporate custodian has any act of production privilege; with that issue joined, there was a brief evidentiary hearing before the court in that district, and the court found that Mr. Braswell did, in fact, conduct his business as close to a sole-proprietorship, as one could see.

Nevertheless the court held, as the Government had contended, that the act of production was not available to any corporate custodian under the Fifth Amendment; and that they relied on the case, the Lincoln case in the Fifth Circuit, which so-held.

We, at that time refused to produce before the grand jury… we had a contempt citation against us; there was a stay of the commitment under the contempt citation; and the Fifth Circuit affirmed on the same grounds as had the ruling of the D.C. Circuit… a D.C. court, excuse me.

They did, of course, note in that context that there was a split in the circuits as to whether or not the Bellis decision of this Court was limited to the contents of records of a corporation; as opposed to the testimonial… the tacitly testimonial aspects of the act of production.

Our position is quite simple.

We feel that we are entitled… that Mr. Braswell is entitled to the same production with respect to his records, the corporate records, as is the records custodian in Doe.

The only distinction between the two is Braswell, Inc. chose to do business under the corporate framework.

William H. Rehnquist:

Well, that distinction has been recognized since the time of Hale v. Henkel, hasn’t it, in 1906.

The Court said it is a distinction of constitutional significance.

Michael S. Fawer:

It is true, Your Honor, I think it is fair to say, as this Court has said on… at least, I believe this Court has said, that they were addressing the question of whether or not the contents of corporate records, as opposed to the testimonial aspects of the Fifth Amendment, were in fact to be privileged?

We do not dispute, nor did we dispute below, that the Government has an absolute right to the contents of the records of Mr. Braswell’s corporation.

We do not in any way deny that, nor do we think it would be proper.

That proposition has been established at least as early as Hale right through the Bellis decision.

And I believe Fisher and Doe do nothing to undercut it.

Our position is simply that, as to anything testimonial, of whatever nature it may be; whatever form it may take, this Court has always protected that type of disclosure.

And Mr. Braswell, although he is a representative of corporation, is at the same time a person of flesh-and-blood, and he has the right with respect to his testimony to claim protection of the Fifth Amendment.

William H. Rehnquist:

And your claim here is that, by the act of producing the records, the fact that he was the one who produced them and not someone else would have had a tendency to incriminate him?

Michael S. Fawer:

That is correct.

Byron R. White:

I would suppose your position would apply to any corporation… or to any person who is the custodian of the corporate records of anybody?

Michael S. Fawer:

That is correct.

Byron R. White:

Of any corporation?

Michael S. Fawer:

That is exactly our position.

To put it another way–

Byron R. White:

So it’s the one-man corporation has nothing to do with this case?

Michael S. Fawer:

–That is true, Your Honor.

We happened to be a one-man corporation; and in fact, below we candidly made the argument that a one-man corporation should not under the doctrine of Bellis and–

Byron R. White:

Well, let me… your client was forced to produce these records?

Michael S. Fawer:

–Yes.

Byron R. White:

And if he hadn’t… and if he hadn’t produced them, but a third person had, the fact that they were corporate records and had been authenticated, could be used against him?

Michael S. Fawer:

Yes, in fact–

Byron R. White:

If he hadn’t produced them; if somebody else had?

Michael S. Fawer:

–Yes, if he was not involved in any way in making those records available.

And they had somebody… if the records, for example were… if they had issued that–

Byron R. White:

Well, I know, but all the… authentication does is to authenticate the fact that they are corporate records?

Michael S. Fawer:

–Other people could authenticate… well, theoretically, could authenticate corporate records.

Byron R. White:

Well, he isn’t any worse off if he has to authenticate them.

All that’s been authenticated is that these are corporate records.

Michael S. Fawer:

It seems to me, Your Honor–

Byron R. White:

These are corporate records?

Michael S. Fawer:

–Yes.

But we are not… I don’t think the Court should look to whether or not the test under the Fifth Amendment is not whether or not the Government to have an independent means of being able to do it here to prove this fact; in this instance, if you make him produce, then he will be using his tacit admission against him.

And that this Court has always condemned.

Byron R. White:

Well, you’re going to be using the fact that these are corporate records against him?

Michael S. Fawer:

We’re going to be using the fact that he produced a particular record.

We don’t know which record this would apply to, because in the court below, we did not have a hearing on the particular applicability of the act of production doctrine in this case.

Because once the Government… excuse me, Judge Barber ruled that it was not available to a corporate custodian, that was the end of the matter.

We have asserted, and nobody has denied, that we are… we would be, incriminated by the production in this case.

William H. Rehnquist:

You’re asking us to overrule a case that’s some 80 years old, and I’m interested in just what sort of incriminating… to get into how a corporate custodian of a one-man corporation would incriminate himself by producing, or simply authenticating corporate records?

Michael S. Fawer:

Two points on that, Your Honor.

I must… just might first point out… I assume the case you are referring to is Hale v. Henkel, when you said a case that is–

William H. Rehnquist:

Hale v. Henkel; Wilson in 1911; White in 1943–

Michael S. Fawer:

–But it is important to note when you look at Hale that technically what was done in Hale–

William H. Rehnquist:

–I’m not so much interested in the hypothesis; that is, the introduction of my question itself; and that is, how in this case, does a corporate custodian incriminate himself by simply authenticating corporate records?

Michael S. Fawer:

–When Randy… if Randy Braswell… the direct response to your question is, if Randy Braswell didn’t bring in records, when he turns those records over he is representing these are the records that you’ve asked for.

That is in itself a representation which has testimonial implications: he has… this man has no financial records other than the corporate records.

William H. Rehnquist:

So he might incriminate himself because he’s lying about whether those are all the corporate records–

Michael S. Fawer:

That’s one possibility.

William H. Rehnquist:

–That would be a defense to anyone responding to a subpoena: I may incriminate myself because I may not be producing everything the subpoena calls for.

Michael S. Fawer:

That’s true.

William H. Rehnquist:

That would be an astounding doctrine.

Michael S. Fawer:

Well, I don’t know.

It seems to me, Your Honor, that everybody… the only individual that I know of right now where there is an issue as to whether or not there is an act… there is an exception, with respect to the act of production privilege, is the corporate custodian.

The inferences that can flow, in a Tax Court case particularly, from the fact that you possess certain records; that you don’t produce all the records; or that you have possession… or that certain records do or do not exist; are the kind of facts that are used every day in a tax court prosecution.

Thurgood Marshall:

How would the Tax Court get these records?

Michael S. Fawer:

How would the… excuse me.

Your Honor?

Thurgood Marshall:

How could they get it other than the way in this case?

Michael S. Fawer:

Very simply.

The way you get records any time there is a privilege raised: you immunize, statutorily immunize the man who has the privilege.

Thurgood Marshall:

Why should he be immunized?

Michael S. Fawer:

Why you’re immunized, remember–

Thurgood Marshall:

Why?

Michael S. Fawer:

Because the Fifth Amendment protects him from not incriminating himself testimonially.

Thurgood Marshall:

Would that apply to any secretary of any corporation?

Michael S. Fawer:

If that is to whom the subpoena–

Thurgood Marshall:

Well, how would you get them otherwise if you didn’t want to immunize?

Michael S. Fawer:

–You still get the records.

Thurgood Marshall:

How?

Michael S. Fawer:

You can get somebody else.

Thurgood Marshall:

Who?

Michael S. Fawer:

Somebody else in the corporation who would not–

Thurgood Marshall:

Who?

Michael S. Fawer:

In this corporation, I don’t know that there is anybody else.

Thurgood Marshall:

That’s what I thought.

Well, all right, that’s what I thought.

Michael S. Fawer:

But the same is true in Doe.

The exact same question would be raised by Your Honor in Doe.

Thurgood Marshall:

Well, what would be about General Motors?

Michael S. Fawer:

General Motors–

Thurgood Marshall:

The same rule would apply?

Michael S. Fawer:

If you use the direct–

Thurgood Marshall:

Would you want the same rule apply?

Michael S. Fawer:

–Yes.

Thurgood Marshall:

To General Motors?

Michael S. Fawer:

If you think–

Thurgood Marshall:

So you couldn’t get the records intact?

How would you get any corporate records?

Michael S. Fawer:

–So we understand… you have a right to those records; the Government has a right to the contents of those records.

Thurgood Marshall:

But you can’t get them.

Michael S. Fawer:

You can get them in two ways: you can get them either by immunizing… that narrow immunization as to the testimonial implications of the production on the person you served your subpoena on; if that’s who you insist produces them, or you find somebody else who does not have such a claim.

And you analyze it.

In the Doe case, it wasn’t a corporation.

One man happened to have a larger business entity than does Randy Braswell.

Thurgood Marshall:

Why, that isn’t even interesting.

Michael S. Fawer:

Excuse me?

Thurgood Marshall:

You don’t even interest me at all.

Michael S. Fawer:

The point, I think, Your Honor, that we’re talking about, in Fifth Amendment protection, it is not limited to solely someone who has a sole proprietorship.

I would think that someone like Randy Braswell would be of interest to Your Honor in the sense that he has a Fifth Amendment privilege with respect to any kind of testimony, no matter what type it may be.

And we all acknowledge… I think this Court has acknowledged clearly in Doe; in Fisher; in Curcio; and you would go back into any… way before that… that the cases make clear that testimonial, tacit testimonial admission is protected under the Fifth Amendment.

And the only real question here is why should we not afford that same privilege to someone who happens to be doing business or holding corporate records.

That’s all.

Michael S. Fawer:

That’s the very narrow focus here.

And what we’re saying is, if you don’t afford Randy Braswell the privilege, then you are going to deny him the right to say,

“I shouldn’t have to incriminate myself by producing these records. “

And we are not asking in any way, in any doctrine or revision of what the Court has done.

William H. Rehnquist:

You are, in a sense.

Because Doe would cover your case if this weren’t a corporation.

At least I take it that is what you say.

Michael S. Fawer:

That is correct.

William H. Rehnquist:

The Court has in the privilege against self-incrimination has always drawn a line between an individual and a corporation.

Michael S. Fawer:

It has always drawn that line, but I believe, I think it was Justice Brennan has indicated in a number of cases, the line was always drawn with respect to access to contents, not testimony.

The line was drawn because of what Boyd had to say, and the unhappiness of the Court over the past century of Boyd’s protection… potential protection, of contents.

And then everything… the collective entity doctrine was a response to the contents, the privacy rationale underlying Boyd.

From Hale to Bellis, that’s what you have: consistent attacks; or a consistent doctrine that says,

“If it’s corporate, we are not going to protect the contents. “

“The Government has a right to them. “

What Fisher and Doe, but basically Fisher, does, it says,

“The nature of the entity makes no difference. “

We are not going to protect the contents of business records at any rate.

Sandra Day O’Connor:

Well, Mr. Fawer, Fisher specifically made reference to the collective entity rule, and I thought in a way which indicated an attempt to preserve it.

The Government says to us that it may not make evidentiary use of the fact that a particular individual within the corporation performed the physical act of production.

If that’s true, I don’t see how you should be concerned about any testimonial aspect; the Government says it has a right to use the corporation’s act of production to incriminate the individual; but not to use the fact that a particular individual responded to the subpoena.

So why do you have a problem?

Michael S. Fawer:

I have a problem because I think that what the Government is asking you to do is to engage in a pure fiction.

We have no problem that in a–

Sandra Day O’Connor:

Well, the use of the corporations is a legal fiction–

Michael S. Fawer:

–Truly.

Sandra Day O’Connor:

–and this is a result of that.

Michael S. Fawer:

But I do not know why this Court should want to be party to using a patent fiction to deny a natural person his rights under the Fifth Amendment.

Now why do I say it’s a fiction?

Byron R. White:

The problem really is that the contents of these records may be very incriminating.

Michael S. Fawer:

We suggest to Your Honor, they may be.

But we have no right to hide behind those contents.

You have a right to… I say, the Government has a right to those contents.

Anthony M. Kennedy:

I take it that part of the immunity you would want is that it is unlawful for the Government to use the act of production to show that he knew the documents existed?

Michael S. Fawer:

That is part of it, Your Honor, yes.

Anthony M. Kennedy:

So in the case of any corporation, the officer who produces the documents, under your rule, cannot be charged with knowledge of their existence in any prosecution?

Michael S. Fawer:

He cannot be charged with knowledge of the existence of the document, but what the document contains can be used against him.

Byron R. White:

Well, not until they’re authenticated.

Michael S. Fawer:

Authenticated by him or someone else?

Anthony M. Kennedy:

But knowledge of the documents is highly relevant in most criminal prosecutions, we know that.

Michael S. Fawer:

Yes, it is.

Anthony M. Kennedy:

And that would apply to General Motors, because some officers may have confidential knowledge of a very secret transaction, and the only people that know about the transaction are the ones that are producing the documents, and your rule would require immunity from the use of the production of the documents to show they knew they existed.

Michael S. Fawer:

My rule–

Anthony M. Kennedy:

That’s your rule, isn’t it?

Michael S. Fawer:

–If he is the only person… if you need to have him produce it.

Antonin Scalia:

Now, wait.

If he’s the only one or not.

All your rule would exclude is showing that he knew of it from the fact of his production of it.

Michael S. Fawer:

Exactly.

Antonin Scalia:

You would still be able to show that he knew of it in other fashions.

Michael S. Fawer:

Exactly.

Wouldn’t you?

You’d be able to show… what about your being able to show that his signature was on it?

That you could show by the testimony of other people that they were kept in his home; all sorts of things, right?

Every other inference; every other piece of direct proof would be available.

All you would be limiting it to, the only thing you couldn’t do is from the mere fact that this person had brought them into court, that brought them into the grand jury, that fact couldn’t be used against him.

Byron R. White:

But until they’re properly authenticated by somebody the records are not admissible against him at all.

Michael S. Fawer:

That is true, but they’re are very–

Byron R. White:

Contents or otherwise, they have to be authenticated.

Michael S. Fawer:

–Someone has to authenticate them.

Michael S. Fawer:

But to take the typical case, I mean, surely in General Motors, we really shouldn’t be worried that in General Motors there’s not going to be anyone else but one person who could authenticate the documents?

Byron R. White:

Yes, but–

Michael S. Fawer:

But in Tax Court–

John Paul Stevens:

–maybe only the representatives of corporations know which ones they are and can pick out the one who needs the immunity best.

And how does the Government know before they see the documents?

Michael S. Fawer:

–I do not think–

John Paul Stevens:

And in this case, you talk about alternates, why couldn’t your client have designated somebody else to produce the documents on behalf of the corporation and gotten the same protection?

Michael S. Fawer:

–We would have no problem should all–

John Paul Stevens:

Shouldn’t the Government have accepted that?

Michael S. Fawer:

–The Government, I think, would have accepted that; but they might not have accepted at this point.

They have insisted that he produce.

Do I know whether they would have accepted the third party bringing them in?

I don’t know.

But I would suggest, Your Honor, that if a third party were to… if you were to follow that mechanism, you’d still have to afford him the protection.

John Paul Stevens:

Well, but say he hired his lawyer and his lawyer produced the documents, says,

“I represent the corporation; I made the search commanded by the subpoena; and here are the documents. “

Why wouldn’t that protect your client?

Michael S. Fawer:

Justice Stevens, if I were Mr. Braswell’s private attorney at that point, and some other lawyer, I would tell Mr. Braswell he should still assert his privilege and not rely on the possibility that that other lawyer would assert an attorney-client privilege of some sort to protect Mr. Braswell.

John Paul Stevens:

You mean you assume the attorney would not act in his proper–

Michael S. Fawer:

I don’t assume that, but I don’t want to assume the contrary either.

I have a right not to incriminate myself, and if the Government can bring that attorney in, and if that attorney decides for one reason or another, that he is free to make that disclosure–

John Paul Stevens:

–Well–

Michael S. Fawer:

–then I have lost.

John Paul Stevens:

–I don’t buy that.

I think I presume lawyers act as professionals.

They’re not going to run around violating their client’s confidences.

Michael S. Fawer:

But I do not… I normally… and do at this point make the same assumption that Your Honor does.

But we’re dealing here with a constitutional privilege of some magnitude in this case.

There is no question from our perspective that the records that the tacit testimonial implications of production could be meaningful to putting Randy Braswell in jail.

That’s what’s at stake here.

Michael S. Fawer:

And because of that, I’m not going to make any assumptions such as,

“if there is an attorney, he may not be called to the witness stand to testify. “

Or if a third party surrogate should be appointed by the court, all we ask is that very narrow ability to be able to assert the Fifth Amendment, preferably by means of a grant of immunity, because that’s… then we don’t have to rest on anyone’s assurances that they won’t use it.

Antonin Scalia:

Does your grant of immunity say that the Government will not be able to use this Defendant’s production of the fact of the production for any purpose, is that it?

Michael S. Fawer:

The fact of the act of production, and that any fact or any inference growing from the act of production cannot be used against him in the court.

Byron R. White:

So to the extent that the act of production amounts to authentication, it may not be used against him.

They’re going to have to authenticate by some other way.

Michael S. Fawer:

Absolutely.

Absolutely, Your Honor.

William H. Rehnquist:

Well, why does the Government’s concession that it cannot use it, in sum, why does that fall short in your view?

Michael S. Fawer:

Your Honor, if you look at it, if you read pages… I ask the Court to carefully read pages 34 and 35 of the Government’s brief.

I don’t know.

It’s a cross between Alice in Wonderland and Kafka.

They are saying… and they admit they can’t use… they cannot… when Randy brings them in, if he should bring them in… they could not go into court in the prosecution and prove that Randy Braswell produced them.

But they say,

“Aha, he acted in a representative capacity; and therefore, we can introduce that a nameless individual brought them in… wait, a nameless individual… because he acted in a representative capacity, we can still use it against him individually. “

I don’t understand the distinction.

The potential incriminating aspect of it is the same.

Byron R. White:

In a corporation, would you be making the same argument if the subpoena had run against the corporation?

Michael S. Fawer:

I would make the–

Byron R. White:

And the corporation sent up a representative and the representative said,

“This is going to violate my Fifth Amendment? “

Michael S. Fawer:

–What, the representative said that?

If the representative had a right for whatever reason to claim the Fifth Amendment–

Byron R. White:

Well, he’s a custodian.

Michael S. Fawer:

–I have no problem with that custodian making that assertion and claiming the Fifth Amendment.

Byron R. White:

Well, you subpoenaed the corporation and the corporation says,

“Well, anybody that we send up has a Fifth Amendment claim. “

Michael S. Fawer:

I don’t think the corporation can simply say that.

The corporation… one thing is clear… the corporation does not have the Fifth Amendment privilege.

Byron R. White:

Oh?

But anybody they send up will?

Michael S. Fawer:

Well, that’s for them to say.

I don’t think a court should simply accept a corporation.

Byron R. White:

Well, if they send up somebody… what if, in response to this subpoena a man arrives… a hooded man arrives with a mask on?

And no name or anything else?

And he says,

“Here are the corporate records. “

“The corporation has sent me up to deliver these records in response to the subpoena. “

Michael S. Fawer:

And the Government takes them?

Byron R. White:

Sure.

Michael S. Fawer:

I have no problem, because I cannot see–

Byron R. White:

Are they authenticated?

Michael S. Fawer:

–No.

At that point?

By whom?

I mean a hooded… some hooded… if they can subpoena, they know who that name is.

Byron R. White:

The corporation has sent up the records.

And everybody agrees that the corporation did it.

They set up their records.

Michael S. Fawer:

Two things: one, in a prosecution of the corporation, it would make no difference whether… it would not affect Randy Braswell.

The corporation has no Fifth Amendment privilege.

Secondly, I don’t see how that hypothetical, how under those facts, anything could be used testimonially against Mr. Braswell.

I mean, I’d be happy if some faceless person brought them into court, how is the Government… what courtroom is the Government going to be able to ask a judge or a jury to infer anything testimonial against Mr. Braswell?

Byron R. White:

How can they use it?

How can they use it if they subpoena Mr. Braswell, and he brings up… he just comes and delivers the records?

He’s just responding to a subpoena; he isn’t testifying.

Michael S. Fawer:

But this Court has always said that that is testimony.

Byron R. White:

All right, but that’s all he’s done.

Now how’s the Government going to use those records?

Byron R. White:

They’re going to come into court and say, “These are the corporate records”?

Michael S. Fawer:

No, they’re going to have the records.

He, they cannot authenticate it through him.

There’s an accountant… the Government happens in this case to know that there was an account.

Byron R. White:

I thought you said that the act of production may authenticate the records?

Michael S. Fawer:

But I… I assumed, I thought we were operating on the assumption that we would not… we were giving him… we would assert the privilege and that you would have an immunity as to that.

If not, then it could not be used against him.

I thought you were saying–

William H. Rehnquist:

Well, the one-man corporation, how are you going to get anybody to produce records if this doctrine is applied?

Michael S. Fawer:

–Your Honor, my position is, this case on its facts, in terms of its practical difficulties, is no different than Doe, none whatsoever.

William H. Rehnquist:

Well then, maybe Doe was wrong?

Michael S. Fawer:

I think Doe was right in that sense.

I mean, I think the act of production–

William H. Rehnquist:

If you can’t explain… I’m only one of nine, but if you can’t explain how a corporation… how a one-man corporation’s documents can be subpoenaed and authenticated under this doctrine, you know, and I daresay, you’ll lose more than one person.

Michael S. Fawer:

–Well, let me explain it to you and still keep some rebuttal time at the same time, Your Honor.

There is an accountant in this case.

It’s not on the record.

I’m representing, as in almost every corporation, even a one-man corporation… has an accountant.

Randy Braswell brings him in and he’s immunized so that we can’t use the act of production against him; the contents can be used against him; they get the accountant to say,

“Are these the records you saw during the years in question? “

“Yes, these are the records were shown to me in the corporation’s office. “

And there’s your authentication.

End of story.

John Paul Stevens:

Maybe the accountant doesn’t have authority to produce them if he’s–

Michael S. Fawer:

He only has to authenticate.

John Paul Stevens:

–No, no, no.

See, what I’m saying, they’re subpoenaing the records.

What if the accountant doesn’t have custody of the records?

Michael S. Fawer:

No, I’m saying you subpoena it from Randy Braswell.

John Paul Stevens:

With immunity?

Michael S. Fawer:

With immunity.

John Paul Stevens:

Oh, oh, oh.

Michael S. Fawer:

With immunity… you gave him the immunity.

William H. Rehnquist:

You don’t know that he didn’t even look at the records.

Michael S. Fawer:

Look, he has the immunity, and he’s still prosecuted a week later; a month later.

Within the year, he’s indicted.

He’s now in court in Southern Mississippi, and they called, you know, CPAX… and they say

“CPAX, you handled… your name is on the tax returns for the years 1982 through 1985; did you look at the general ledger? “

“Yes”.

“I show you Exhibit A. “

“Is this the general ledger? “

“Yes it is”.

Your Honor, I submit that it’s authenticated.

End of story.

And you have protected Randy Braswell, at least in terms of the authentication issue that’s been raised.

I would like at this point to preserve at least a few minutes for rebuttal.

Thank you.

William H. Rehnquist:

Thank you, Mr. Fawer.

We will now hear from you, Mr Elglert.

Roy T. Englert, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

This case does involve corporate documents, not the documents of an individual or a sole proprietorship.

The law, with respect to corporate documents, has been settled for more than 75 years.

Not only Hale v. Henkel in 1906, but more important for our purposes, the Wilson and Dreier cases, decided in 1911, made it clear that an individual may not interpose his personal Fifth Amendment privilege as a basis for resisting a subpoena for corporate documents.

That holding has been reaffirmed by this Court in case after case in succeeding years.

Anthony M. Kennedy:

Is that true even if production of the documents would incriminate the person in a trial against that person without reference to the corporation?

Roy T. Englert, Jr.:

Yes, Your Honor.

The Court has so-stated regularly.

Anthony M. Kennedy:

So that you are willing to try the case on the assumption that Braswell might well incriminate himself by reference to the knowledge or the existence of the documents?

Roy T. Englert, Jr.:

We’re willing to submit the case to this Court on that assumption.

Anthony M. Kennedy:

And you can use the fact that he produced these documents against him to prove those matters?

Roy T. Englert, Jr.:

Yes and no.

That’s what page 34 of your brief says: “yes and no”.

Anthony M. Kennedy:

And I can’t understand it.

Roy T. Englert, Jr.:

All right: I think Justice White’s rather colorful hypothetical is helpful in understanding the difference between what we say cannot be used, and what we say can be used.

The corporation produces these records; we are entitled, and we think this Court’s case is quite clear that we are entitled, to make evidentiary use of the fact that worldwide Purchasing Corporation; and Worldwide Machinery Corporation produced these records, for whatever evidentiary significance that may have for authentication or anything else, we can use that fact.

What we can’t do is say

“Not only did Worldwide Corporation… Worldwide Purchasing and Worldwide Machinery produced these records; but Randy Braswell was the person who handed them over. “

Now it may be that we can infer on that basis–

Anthony M. Kennedy:

What is it that prevents you from using that?

You haven’t given him statutory immunity.

Roy T. Englert, Jr.:

–It’s not an immunity question, Your Honor.

It flows, we think, logically–

Anthony M. Kennedy:

You’re saying you can’t use it.

Why can’t you use it, what protection can you offer to Braswell’s counsel that you will not introduce that fact?

Roy T. Englert, Jr.:

–We think it flows logically from the rationale of the White case decided in 1944, a rationale that’s been reiterated many times.

Anthony M. Kennedy:

You mean you’re telling us that if Mr. Braswell’s attorney in a subsequent prosecution objects to this evidence, that it will be… the objection must be sustained?

Roy T. Englert, Jr.:

If he objects to the evidence that it was Randy Braswell who personally produced the records, yes.

Anthony M. Kennedy:

So that he does have the Fifth Amendment privilege?

Roy T. Englert, Jr.:

I don’t think it’s a Fifth Amendment privilege, Your Honor.

Anthony M. Kennedy:

What kind of privilege is it, then?

Roy T. Englert, Jr.:

I think it’s simply a question of holding the Government to the underlying theory on which it gets these documents.

Anthony M. Kennedy:

What case do you cite for that proposition?

Roy T. Englert, Jr.:

For the underlying theory, I cite primarily the White case decided in 1944.

Well, since it’s quoted at pages 21-22 of our brief, that’s a passage that was repeated in the Curcio case; in the Bellis case; it’s the underlying theory, Your Honor… the individual acts as agent of the corporation, and not as an individual when he produces the documents… that’s what the Court has said over and over.

And to the extent we’re conceding anything, we’re conceding what we think is the logical consequence of that underlying theory.

Anthony M. Kennedy:

Well, I just want to make it clear: you are conceding that he does have a privilege against his own incrimination; and you are conceding that these documents may not be used against him for that purpose?

Roy T. Englert, Jr.:

Your Honor, I wouldn’t phrase it that way, no.

Anthony M. Kennedy:

Well, what protection does he have?

Roy T. Englert, Jr.:

If the Government at trial asked the question,

“Isn’t it true, Mr. Process-server, that Randy Braswell was the man who handed you these documents? “

Roy T. Englert, Jr.:

And defense counsel objected, I think the Court would have to sustain that objection.

It’s a ground derived from this Court’s Fifth Amendment decisions, to be sure, but it’s simply, Justice White, it’s simply holding the Government to the underlying theory that this Court–

William H. Rehnquist:

But that… I don’t really see your point.

It’s… how is the Government held to its underlying theory by doing that?

Roy T. Englert, Jr.:

–Well, I think the best I can do is to ask the Court to look at the quotation on pages 21 and 22 of our brief from the White case.

In that case, the Court said,

“Individuals acting as a representative of a collective group cannot be said to be exercising their personal rights and duties; nor to be entitled to their purely personal privileges, et cetera, in their official capacity where they have no privilege against self-incrimination. “

The point of that passage–

Anthony M. Kennedy:

But this is the constructive immunity doctrine that we declined to adopt in Doe.

Roy T. Englert, Jr.:

–I don’t think so, Your Honor.

I think this is considerably less than constructive immunity.

Constructive immunity would mean that we couldn’t use the act of production… anyone’s act of production; the corporation’s act of production.

What we’re conceding is something much more limited.

We want to use the corporation’s act of for whatever it’s worth.

We think we’re entitled to it.

Anthony M. Kennedy:

But you haven’t followed the statutory procedures for immunity.

That’s an extra statutory immunity that you’re now offering us… or offering Braswell.

Roy T. Englert, Jr.:

Your Honor, I must respectfully disagree.

I simply don’t think it’s the same thing as immunity.

I think it’s like the cases in which the Court has said the violations of the Fifth Amendment can’t be exploited.

It’s something that flows from the underlying doctrine.

William H. Rehnquist:

What case from this Court… you’ve just cited us to this language from White and now I’ve read it over again.

It seems to me it says, the individual producing records may incriminate himself personally, but if it’s corporate records, it doesn’t make any difference.

I mean, that’s in favor of the Government; not against it.

You’re saying something, the Government has to concede.

What case is it from this Court that requires that concession by the Government?

What specific case?

Roy T. Englert, Jr.:

No case, Your Honor.

William H. Rehnquist:

Well then, why do you concede it?

Roy T. Englert, Jr.:

We think it flows logically.

Roy T. Englert, Jr.:

If we’re mistaken, I’m sure the Court will tell us so.

Anthony M. Kennedy:

But it seems to me it flows logically because Braswell has a privilege.

Suppose the issue in the case is whether or not Braswell has ever seen the invoice?

“Mr. Braswell, have you ever seen this invoice? “

Can he decline to answer that?

Or can you use the fact that he produced the documents against him; and if not, why not?

Roy T. Englert, Jr.:

Again, our position, Your Honor, is that we can use against Braswell the fact that Worldwide Purchasing and Worldwide Machinery–

Anthony M. Kennedy:

No.

You stick with my hypothetical:

“Mr. Braswell, have you seen this document? “

“Are you aware of its existence? “

“Have you ever seen it before? “

Can you use the fact that he produced that document to impeach him in the answer to that question?

And if not, why not?

Roy T. Englert, Jr.:

–The fact that he personally produced the documents, the answer, I believe, is “no”.

I believe–

Anthony M. Kennedy:

But on what theory?

Roy T. Englert, Jr.:

–On the theory that–

Anthony M. Kennedy:

That he has a Fifth Amendment privilege: that must be your only theory.

Roy T. Englert, Jr.:

–Well, Your Honor, again, I would respectfully disagree.

The theory is that it is not Randy Braswell who performed that act of production; that it is the corporation that performed that act of production.

Antonin Scalia:

How do you verify it?

I mean, you have to get some warm body up there to establish that the corporation produced it; and who is going to say these are the corporation’s records if you don’t put Braswell up there?

I don’t understand how you prove it?

Roy T. Englert, Jr.:

The process server can verify that.

Antonin Scalia:

I don’t know how you get Braswell on the stand.

Can’t you claim the Fifth Amendment privilege to just not get on the witness stand?

Roy T. Englert, Jr.:

Sure.

William H. Rehnquist:

Is he a defendant in this action?

Roy T. Englert, Jr.:

Well, of course, this is a grand jury matter, Your Honor.

John Paul Stevens:

I mean, you’re assuming he’s going to be indicted, but I don’t think you can put him on the witness stand if he doesn’t voluntarily go on the witness stand, he waives his Fifth Amendment privileges.

Roy T. Englert, Jr.:

That’s correct.

If, in Justice Kennedy’s hypothetical, he were on the witness stand, we might well be able to ask those questions.

William H. Rehnquist:

Yes, but what if he decides, “I’m not going to testify”, he says, “Under the Fifth Amendment”.

Then how do you authenticate?

Roy T. Englert, Jr.:

The process-server, certainly.

Byron R. White:

Well, there was a response to the subpoena… there was a response to the subpoena that the corporation sent its records up in the response to the subpoena.

That’s exactly right.

That’s the testimony we can put on.

Can you use that to show that he knew of the documents?

Roy T. Englert, Jr.:

To the extent that’s a fair inference from the fact that the corporation produced the records, yes.

Anthony M. Kennedy:

Suppose he’s on trial, and the question is whether he knew of the documents?

Can you use that?

Can you introduce the process-server?

Roy T. Englert, Jr.:

Yes, as long as what the process-server says is only that the corporation produced them.

That is the typical situation, Justice Kennedy, in which this Court has addressed the precise question whether we can compel an individual to produce these documents.

In part of the Bellis opinion, I believe it was in a footnote, the Court, responding to Justice Douglas’ dissent, said

“Justice Douglas says this is the target. “

“That’s typical. “

“It is the usual situation in which the documents are subpoenaed from a target of the investigation. “

He may or may not end up a defendant, but there is obviously some contemplation that he may end up a defendant, and the longstanding doctrine is that the Government is entitled to those records.

Antonin Scalia:

Well, if what you’ve said is true, I don’t see that there is very much ground between you and the Petitioner here.

Why are you so reluctant to give a grant of immunity, which sounds to me is going no further than what you say ensues anyway by operation of law?

Roy T. Englert, Jr.:

Justice Scalia, I think there’s a world of difference between our position and the Petitioner’s position.

I think Mr. Fawer would not agree with me that we could use the corporation’s act of production and any fair inferences therefrom against Randy Braswell.

He would want Randy Braswell to turn over these documents and then have complete immunity from our taking any inferences from the testimonial content, if any, of that act of production.

And that can make all the difference in the world.

Antonin Scalia:

He wouldn’t allow you to say even that the corporation had produced it, if by the corporation, you mean Braswell.

Whereas you would say you can go and say the corporation had produced it; show by process-server that the corporation responded to the process in this way?

He would not allow that?

Roy T. Englert, Jr.:

That’s how I understand his position.

Justice Kennedy also mentioned the problem of constructive use in that I understand the Petitioner’s position, they would want us to be required to give constructive use immunity.

I’m sorry, not constructive use immunity… statutory use immunity, before we could get these documents.

A long line of cases has allowed us to get documents like these without statutory use immunity and we think the Court should reaffirm those cases.

Antonin Scalia:

If these were private records, you wouldn’t be able to get them by a subpoena, right?

If he was unincorporated?

Roy T. Englert, Jr.:

If he was a sole-proprietorship, for example; and he made an adequate showing of self-incrimination, then we would have to grant statutory use immunity to get them; that is the Doe case.

Antonin Scalia:

It seems very strange, doesn’t it?

Don’t you think that seems strange?

Roy T. Englert, Jr.:

Well, Your Honor, we made the argument in Doe that that was strange; that we should be able to get those records as easily as corporate documents, and the Court rejected it.

There really has been a bright line drawn by the Court’s cases.

Anthony M. Kennedy:

Well, the question is whether or not there is a testimonial incident to the production, isn’t it?

In some cases their testimony incidents that are relevant and others that are not.

Roy T. Englert, Jr.:

Well, Your Honor, we’re submitting this case on the assumption… not the concession… but the assumption, that there could be a testimonial incident to this act of production, as the Court held there was in Doe.

We think we win this case anyway.

The lower courts said we win this case anyway.

Bellis and Fisher and Curcio and Wilson and Dreier, all say we win this case anyway, in my view.

That is what the Court has said, is that, notwithstanding–

Anthony M. Kennedy:

But if that’s true, then your answer to Justice Scalia’s question would be there is no testimonial compulsion when a private person is forced to produce the documents?

Roy T. Englert, Jr.:

–No, Your Honor, I don’t think the doctrine turns on the lack of testimonial compulsion.

The doctrine, again, as we understand it, was best stated in the White case, not saying that the individual… not saying that there is no act of compulsion; not saying that there is no testimony; saying that individuals, when they act as corporate agents, are not exercising their personal rights.

Antonin Scalia:

So the Fifth Amendment is essentially… your argument reads

“Not simply shall be… nor simply compelled in any criminal case to be a witness against himself. “

There’s really a gloss on it;

“Nor shall be compelled in any criminal case as a witness against himself, except when he is testifying in his capacity as an agent of a corporation? “

Roy T. Englert, Jr.:

I wouldn’t put it that way, Your Honor.

A corporation–

Antonin Scalia:

But that’s essentially what your doctrine comes down to, right?

He can’t testify against himself when he’s acting as a secretary of the corporation.

Roy T. Englert, Jr.:

–One could put it that way, but as Justice O’Connor pointed out, corporations are fictional entities.

Roy T. Englert, Jr.:

Somebody… we know from Hale v. Henkel that a corporation–

Antonin Scalia:

Well, Braswell is not a corporate entity and he doesn’t want to testify against himself.

Roy T. Englert, Jr.:

–No, but he wants Worldwide Purchasing Corporation and Worldwide Machinery Corporation to not testify against him by their act of producing documents.

Antonin Scalia:

He’s perfectly content to let them do it if they can do it through some other agent.

He just doesn’t want them to do it through him.

Could you tell me once more why the Government is unwilling to grant use immunity just to the extent of the authentication… production and authentication of the records?

In the typical case?

Roy T. Englert, Jr.:

We’re unwilling to do that, Your Honor, because in some cases at least, there are components to the act of production that are very important to us that we want to use against the individual, not necessarily that Randy Braswell produced the documents; but that the corporation had possession and control of these documents; that they are the corporate records.

Byron R. White:

Of course in most cases, I suppose, you could always just subpoena the corporation?

Roy T. Englert, Jr.:

Well Your Honor, that’s very problematic.

It really is.

In small corporations, often the targets will be the only people who know where the records are.

Byron R. White:

All right, suppose you subpoena a small corporation and you just get no response?

Roy T. Englert, Jr.:

That’s the problem.

Byron R. White:

And then what are you going to do?

Roy T. Englert, Jr.:

That’s the problem.

We can try to hold the corporation in contempt; which may or may not work; they can always just disband the corporation; which would make it awfully hard to hold it in contempt.

We could try to hold the individual in contempt for not cooperating; but of course, his response, if Petitioner prevailed in this case, would be,

“Well, I was just exercising my Fifth Amendment rights. “

“I don’t have any duty to participate in this. “

Antonin Scalia:

But that’s perfectly all right when it’s his diary you’re trying to get.

You just say,

“Well, gee, I guess we just can’t get the diary. “

And it’s also perfectly all right if he hasn’t incorporated.

You just shrug your shoulders and say,

“Well, that’s what the Fifth Amendment says: we can’t make this guy turn it over. “

“We have to find some other way to get it. “

But here, when it’s a corporation… certainly the larger the corporation is, the less likely this problem is to arise, isn’t it?

For General Motors, it’s no real problem.

Roy T. Englert, Jr.:

No, I can’t agree completely with that.

Roy T. Englert, Jr.:

Let’s suppose, just as an hypothetical example, that the president of General Motors, and the president of Chrysler agree to engage in price fixing.

They would surely keep any documentation of that to a minimum and keep it under lock and key… keep it secret from the rest of the corporation.

If we issued a subpoena to General Motors:

“Please give us all records that document discussions of prices with Chrysler Corporation. “

I don’t think the president would give up those records.

He knows we can’t prove that they exist if we don’t get them.

Antonin Scalia:

Well, on that basis, it wouldn’t do any good to subpoena him.

He’d just say… he would just wouldn’t produce them.

You don’t know that they’re there.

Nobody knows it.

Roy T. Englert, Jr.:

At least we have the threat of contempt against him, Your Honor, in that case.

Anthony M. Kennedy:

Would you want us to go so far as to say that, by becoming an officer in a corporation, you simply waive your Fifth Amendment rights as to anything you might ever be asked to produce?

Roy T. Englert, Jr.:

As to any corporate records you may ever be asked to produce?

Anthony M. Kennedy:

Yes.

Roy T. Englert, Jr.:

I think the Court has gone that far many times.

Anthony M. Kennedy:

So you think the law is that Braswell has no Fifth Amendment rights because he formed a corporation, as to any documents he might be asked to produce as a corporate officer, even though there may be some testimonial incidents to that production?

Roy T. Englert, Jr.:

Yes, and if Your Honor will indulge me, I’d just like to read a couple of things this Court said in the Curcio case, a case primarily relied on by my opponents, to see just whether the Court has said that.

Their quote in page 17 of our brief at the bottom of page 24,

“The Court said that the books and records of corporations cannot be insulated from reasonable demands of governmental authorities by a claim of personal privilege on the part of their custodian. “

On the next page we quote the passage from page 128 of the Curcio decision,

“A compulsory production… a corporate or association records, by their custodian, is readily justifiable, even though the custodian protests against it for personal reasons. “

Anthony M. Kennedy:

Well, if that’s true, then to go back to the beginning, I don’t understand why you make the concession that you do on page 34 that for some purposes you cant’ use the information?

Roy T. Englert, Jr.:

Well, Your Honor, again, if the concession is unwise, I’m sure the Court will tell us so.

But we do think the concession flows logically from the underlying agency rationale of the doctrine, that the individual, although waiver is one doctrine that’s been invoked, all of the undesirability of a de facto privilege for the corporation has also been invoked, out of practical necessity, has been invoked… the Court has, we think primarily rested on the agency rationale that in individual simply is not acting as an individual when he produces documents.

Corporations have to act through human beings.

That’s what was pointed out by the Court in the opinion in Bellis.

And it is because corporations have to act through human beings, that we have to use what is admittedly a fiction; that Randy Braswell is not “Randy Braswell” when he produces–

John Paul Stevens:

May I interrupt at this point?

Your subpoena was addressed to “Randy Braswell, President”, then the name of the corporation.

The subpoena was served on him in his capacity as a corporate officer rather than as an individual, is that correct?

Roy T. Englert, Jr.:

–Yes.

John Paul Stevens:

Would it have been in compliance with the subpoena for the secretary of the corporation to have brought the documents to court and got on the witness stand and said,

“I’ve made a diligent search of the documents, and I speak on behalf of the corporation, these are what you subpoenaed? “

Roy T. Englert, Jr.:

I don’t think that would have constituted technical compliance.

John Paul Stevens:

Why not?

If basically you’re saying that he is merely an agent of the corporation and the corporation has responded through a different, duly-authorized agent, who is willing to testify under oath that everything commanded by the subpoena has been produced.

Why wouldn’t that be in compliance with the subpoena?

Roy T. Englert, Jr.:

Because the problems of who, within corporations can actually lay his hands on documents?

John Paul Stevens:

Well, he’s prepared to testify that he had the authority.

He’s the custodian.

It’s not often true that the president is the actual custodian of corporate documents.

Usually it’s the secretary.

Roy T. Englert, Jr.:

Justice Stevens, if that actually happened, I think the Government would shout “Hurrah”.

John Paul Stevens:

Well, it happens all the time, I mean, I think often, very often, corporations respond to subpoenas by bringing in some officer other than the particular one that was designated in the subpoena.

Roy T. Englert, Jr.:

Sure and we regularly accept that.

I was only trying to respond to your question.

John Paul Stevens:

And I’m really asking whether you have a duty to accept that?

Roy T. Englert, Jr.:

I think not, Your Honor, because there is a problem with subpoenaing documents from one individual–

John Paul Stevens:

But he’s not an individual under your submission.

Roy T. Englert, Jr.:

–from one corporate officer who may know of documents that are squirreled away somewhere; and as a ploy, has somebody else respond, and truthfully respond that he’s made a diligent search of every place in the corporation where he knows that–

John Paul Stevens:

In other words, what you’re saying is you want to be able to ask the individual whether he has in fact disclosed everything he knows about the corporate documents?

That’s asking an individual rather than an officer of the corporation when you put it that way.

Roy T. Englert, Jr.:

–Well, Your Honor, there we do run into the Curcio case.

We want the right to issue the subpoena to the individual.

We want the right to make that individual comply with the subpoena.

Byron R. White:

On behalf of the corporation?

Roy T. Englert, Jr.:

On behalf of the corporation, We have that right under prior cases.

Antonin Scalia:

Why don’t you call him to the stand on behalf of the corporation: you know, just have the bailiff say,

“Call to the stand the president of Braswell Corporation. “

+ And you put him under oath, ” Do you swear to tell the truth?

Antonin Scalia:

You’re not cross-examining Braswell; you’re cross-examining the president of Braswell Corporation.

Roy T. Englert, Jr.:

Well, Your Honor, we tried that in 1957.

Antonin Scalia:

It didn’t work, did it?

Roy T. Englert, Jr.:

Didn’t work.

The Court drew the line.

Antonin Scalia:

Why is that a rational line, I mean… if you think that people have this bifurcated personality: there is Braswell the person and Braswell the corporation?

Roy T. Englert, Jr.:

Well, Your Honor, as I read the Curcio case, in which we were trying to make the argument that that was not a rational line and the Court disagreed with us, there are pragmatic concerns at work in this area.

Everything flows from Hale v. Henkel; everything flows from the fact that Mr. Fawer admitted many times, that we have a right to these records.

The agency rationale that has built up… the other underlying rationales, which are reiterated throughout the opinion in the Bellis case, all flow from the fact that we have to be able to effectively get these documents.

That has been the Court’s concern in case after case, is making the Government’s power to get these documents effective.

The Government, if you will, got “piggy” in the Curcio case, it didn’t try to make it’s power to get the documents effective; it tried to put somebody on the stand, before the grand jury and disclosure the contents of his own mind, and the Court put its foot down.

Antonin Scalia:

The Fifth Amendment doesn’t strike me as a very effective provision.

I mean, it doesn’t seem to be designed to allow the Government to get effectively all the information it needs.

I mean, you may, to be effective, need to have the testimony of the individual, too.

And what the Fifth Amendment says, is “That’s too bad”.

Roy T. Englert, Jr.:

Well, of course, Your Honor, constitutional doctrines often impede Government effectiveness; limitations on constitutional doctrines regularly aid Government effectiveness.

It’s a pragmatic world out there; and this Court has recognized that in its cases.

And that, I think, is what is going on in the Curcio case and in the various other cases in which the Court has reiterated this well-established doctrine.

Thurgood Marshall:

Mr. Englert, what is the significance at the end of the subpoena where it stated that,

“In the alternative, you are commanded to deliver the subpoena documents to the agent. “

and you don’t have to do any more than that?

Roy T. Englert, Jr.:

Well, that’s of course, very significant, Justice Marshall.

That’s very significant, because it serves to–

Thurgood Marshall:

Well, that’s why you haven’t mentioned it?

That’s why you haven’t mentioned it?

Roy T. Englert, Jr.:

–Well, I’m sorry about that, but the point is, that we’re not seeking to get testimony before the grand jury the way the Government tried to get testimony before the grand jury in Curcio.

We’re trying to get these documents; we’re trying to make sure that we can get these documents in an effective way, and our underlying worry in these cases, and the underlying worry that the Court has recognized, is that just addressing a subpoena to a corporation isn’t an effective way.

Again, the argument to which there is force… we’ll admit that.

That there’s nothing different about making the person act as agent when he produces documents, and making the person act as agent before the grand jury, has force; but it’s one that this Court has rejected.

The Court rejected it in Curcio when we advanced that argument, because of pragmatic concerns.

Roy T. Englert, Jr.:

Those pragmatic concerns always had a place in the development of the doctrine in this area; and we think properly so.

A long line of very distinguished Justices have signed on to all these opinions… in 1911; in 1923; in 1944; in 1957; in 1974.

It’s those decisions that we think conclusively settle the issue in the Government’s favor.

And we would ask the Court to reaffirm those decisions once again.

John Paul Stevens:

Let me ask you one more question before you sit down?

In the Doe case, as I remember, there was a district court finding that the act of production would have been incriminating, and the court of appeals agreed with it.

There’s a two court finding and in this Court basically we accept those findings.

Were there any similar findings either way by the district court in this case?

Roy T. Englert, Jr.:

No, Your Honor.

I might say on that subject, Mr. Fawer I think may have misspoken.

He said

“No one has disputed that the act of production would be incriminatory in this case. “

That’s not true.

We dispute that.

But as I said to Justice Kennedy, for purposes of submission to this Court, we’re happy to have the Court assume that there would be incrimination in this case, because we think the issue is, “Does that matter”?

And we think the decisions of the Court say it doesn’t.

William H. Rehnquist:

Well, if the question becomes incrimination in this case, the Government won’t fare well, I suspect, because, you know, you don’t have evidence as to whether or not it will incriminate.

If there’s a colorable claim of incrimination under our cases, the Court has to sustain it.

Roy T. Englert, Jr.:

Well, Your Honor, the Fisher case indicated a fairly narrow scope, I think, for this act of production doctrine.

The claim of privilege was defeated in that case.

And I think much of the underlying logic of Fisher applies here, especially in light of what I understand to be a concession by Mr. Fawer that we could authenticate these records though an accountant or through other means than the act of production.

Of course, that would be an issue to be addressed by the courts below.

John Paul Stevens:

Let me ask one other question, if I may?

There are two ways in which the act of production might be incriminated: one is just the fact of the act of producing; secondly, by what the producing representative of the corporation says when he gets on the witness stand:

“Yes, I made a diligent search. “

and so forth.

Do you contend… concede that both of those are equally incriminating?

Both aspects of the act of production?

You don’t concede it either.

Roy T. Englert, Jr.:

I think that both can be incriminating.

John Paul Stevens:

You concede just the mere physical act of delivering the documents can be incriminating, even if he took them in the office; says, as a note that, as Justice Marshall called your attention to, say you just delivered the documents; just dumped them off in the process-server’s office; and left them.

Didn’t sign anything or no receipt.

Would that be incriminating in your view?

Roy T. Englert, Jr.:

On those facts alone, no.

But it could be with some additional facts.

Byron R. White:

I thought it was only the act of production that we’re talking about in this case.

We’re not talking about testimony on the stand?

Roy T. Englert, Jr.:

That’s correct.

Byron R. White:

You never–

–No, we’re talking about authentication, though, aren’t we?

We’re at least–

–By the act of production.

–that.

By the act of production?

Roy T. Englert, Jr.:

Yes.

Byron R. White:

And we’re talking also about the fact–

–You’re not saying anything about being on the witness stand.

We’re talking also about the fact that he obviously knows of the existence of the document if he produces them, aren’t we?

What if he brings a whole–

Roy T. Englert, Jr.:

Yes, to Justice Kennedy, although with the same kinds of limitations I’ve given in previous answers.

Antonin Scalia:

–What if he brings a whole batch of documents; a whole batch of sets of corporate records and he just plunks them down and he says,

“Among these is the response to your subpoena? “

Roy T. Englert, Jr.:

That’s a typical response and we get that we delighted.

Antonin Scalia:

It’s not much use for authentication, is it?

William H. Rehnquist:

Thank you, Mr. Englert.

Mr. Fawer, you have three minutes remaining.

Michael S. Fawer:

Very briefly, Your Honor, thank you.

Justice Marshall, in response to one thing you said, the Government is not perhaps being totally candid about how it would use that footnote.

They say and maintain that no matter who Randy produces them to, they can call that person to the stand to say that he… that buffer, I will call it; that surrogate; got them from Randy and used that inference against him.

Why do I say that’s their inference?

Michael S. Fawer:

Because Mr. Englert said they would do it in the Sealed case, the case you took this issue on and then the case was mooted and then our Cert petition was granted.

Look at footnote No. 20 in the Government’s brief in the Sealed case: they say just that; that they feel free to use the testimony to put on the stand the surrogate; say,

“Who did you get the records from? “

The surrogate would say, “Randy Braswell”; they could use the testimonial inferences from that against him.

In addition–

William H. Rehnquist:

Did you disagree with that?

Michael S. Fawer:

–Yes, I disagree… I think they should not be permitted to do that.

Byron R. White:

They deny that in their brief right here.

Michael S. Fawer:

Well, I don’t know where they deny that.

I have yet to see a denial in this brief that they could not use the production by Mr. Braswell.

Byron R. White:

The fact that it was Braswell who produced them.

I thought they say they couldn’t use them.

Michael S. Fawer:

There’s… we’re going back to page 34.

What they say there is that, if Braswell produces, that he’s simply producing with his other act, called “representative capacity”, that they can use that act against him although they cannot say on the record that the person, the flesh and blood that walked in with the records, was the… the content was Randy Braswell.

I have tremendous problems understanding why they can’t, except we all know why they can’t.

It’s what Justice Kennedy was asking: the Fifth Amendment says they can’t.

And what you really have here, they are somewhat… it is an unrealistic approach to the realities of what goes on in the courtroom.

John Paul Stevens:

You’re saying if the Fifth Amendment prohibits it, then when Randy Braswell tells his lawyer or other agent to produce the document, he is testifying against himself?

Michael S. Fawer:

If they can put that person on the stand to say that, yes they are doing that.

And… I mean, Randy Braswell wants to voluntarily say to his lawyer, without raising any privilege,

“Here the documents bring them up. “

Then there’s nothing.

There’s been no assertion of the Fifth Amendment claim.

He needs to assert the privilege.

Randy Braswell in this case has asserted that privilege.

Now, I might point out something the Government doesn’t point out: the Federal Rules of Evidence Rule 801(d)(2)… you know that that rule says that it is not hearsay for somebody to testify in a representative capacity and that representative capacity can be used against him in his individual capacity.

How do we deal with that?

What does that do to the fiction that the Government wants to palm off on the Court?

The answer is simple: statutory immunity in this case.

And by the way, it’s not going to… I don’t know of a single… the history… I guess my time is up.

William H. Rehnquist:

Thank you, Mr. Fawer.

The case is submitted.