United States v. Doe

PETITIONER: United States
LOCATION: U.S. District Court for the Western District of Oklahoma

DOCKET NO.: 82-786
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 465 US 605 (1984)
ARGUED: Dec 07, 1983
DECIDED: Feb 28, 1984

Samuel A. Alito, Jr. - on behalf of the petitioner -- rebuttal
Richard T. Philips - on behalf of the Respondent

Facts of the case


Media for United States v. Doe

Audio Transcription for Oral Argument - December 07, 1983 in United States v. Doe

Warren E. Burger:

We will hear arguments first this morning in United States against John Doe.

Mr. Alito, you may proceed whenever you are ready.

Mr. Chief Justice, and may it please the Court, this case concerns the application of the Fifth Amendment privilege against compelled self-incrimination when a subpoena is issued for the standard business records of a sole proprietorship.

A federal grand jury in Newark, New Jersey, was investigating corruption in the awarding of county and municipal contracts.

The grand jury issued five subpoenas for the records, the standard business records of sole proprietorships operated by respondent.

These documents included records such as general ledgers, bank statements, telephone toll records, vouchers, invoices, in other words, wholly business records, and the sort of records kept by virtually every business, no matter what its size or form of organization.

When respondent argued that the act of producing these records would tend to incriminate him, the government offered in exchange for receiving the records not to use the act of production against him in any way in any subsequent criminal case.

Sandra Day O'Connor:

Mr. Alito, did the government ever explain to the court that it would give the statutory kind of use immunity?

The government never made an offer of statutory immunity for a number of--

Sandra Day O'Connor:

Why not?

--For at least two principal reasons, Justice O'Connor.

First of all, both of the lower courts in this case rejected the very concept of act of production immunity.

The district court held that even if such immunity were given and the evidence could not be used in any way against respondent in a criminal trial, he would nevertheless inevitably be incriminated in the eyes of the grand jury.

Sandra Day O'Connor:

Well, as I read the record, the government was just never clear at all that it would give statutory use immunity, and I wondered whether your position is that that's the appropriate way to proceed, if it is covered, if the act of production is covered at all.

Well, Justice O'Connor, our position is that the non-statutory constructive act of production immunity that was offered in this case is sufficient, but we also believe that statutory immunity would be available for the act of production and would also be sufficient in this area, and if the Court were to make clear in deciding this case that such statutory immunity would obviate any Fifth Amendment objection, then I think we would have no serious objection to such a holding.

Byron R. White:

Mr. Alito, is one of your submissions that production wouldn't incriminate at all in this case?

We believe that here, as in Fisher, the act of producing the documents would not amount to testimonial self-incrimination.

Byron R. White:

Is that one of your submissions here?

That is one of our submissions, but, Justice White, we are not interested and never have been interested in the act of production, and therefore we are quite happy to give respondent immunity from any use--

Byron R. White:

What do you mean, you weren't interested in the act of production?

--We have no interest in using the act of production in evidence or any evidence--

Byron R. White:

But you are interested in the materials.

--We are interested in the materials, and we are interested in the issue of act of production only if it helps us get the materials.

Byron R. White:

Well, both courts below thought the act of production would incriminate in this case.

Well, we respectfully disagree with them, but I think--

Byron R. White:

Well, we have to decide that issue here, don't we, whether it would incriminate or not?

We can't decide that you must offer statutory immunity unless it is incriminating.

--I don't believe it's necessary to reach that issue.

Byron R. White:


Doesn't the statute require that there be some threat of self-incrimination before the government can grant immunity or some claim made?