Tax cases are document-intensive cases. As any white-collar criminal defense attorney knows all too well, summonses and grand jury subpoenas routinely seek documents. And there is a good reason why. If the government cannot get the requested documents, it often cannot make a case. It is for this reason that the seminal issue in document production cases is whether the taxpayer has a Fifth Amendment privilege with respect to documents that he possesses.
Ordinarily, the Fifth Amendment applies to the live testimony of a witness in a judicial proceeding. But live testimony is not all that the Fifth Amendment protects. It also protects the compelled production of business records when certain conditions exist.
The case that expanded the reach of the Fifth Amendment to subpoenaed business records was Boyd v. United States, 116 U.S. 616 (1886). In Boyd, the Supreme Court of the United States held that “a compulsory production of the private books and papers of the owner of goods sought to be forfeited is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the constitution.”
The classic Fifth Amendment argument raised in opposition to turning documents over to the government is that the documents themselves – i.e., their very contents – are privileged. For example, business records that show that the taxpayer’s actual net income is far greater than the income reported on his return would tend to incriminate the taxpayer even though it does not compel oral testimony. As logical an argument as that is, as we shall see, it was shot down by the Supreme Court of the United States.
A subtle, but more compelling argument centers on the mere act of producing subpoenaed or summoned documents to the government. Consider the following hypothetical. You represent John. John has just received a subpoena ordering him to produce potentially incriminating documents. You begin to review the documents to decide whether he must produce them. Could the Fifth Amendment provide protection for John and allow him to avoid handing these documents over to the government? In other words, can John disregard the subpoena altogether, citing the privilege against self-incrimination?
In Fisher v. United States, the Supreme Court of the United States held that the act of producing evidence in response to a subpoena has communicative aspects of its own, wholly aside from the contents of the papers produced. 425 U.S. 391, 410 (1976). For example, by turning over documents in response to the subpoena, John would be conceding – albeit silently – that the documents exist and that they are in his possession. Similarly, production would also convey John’s belief that the documents produced are those described in the subpoena, a fact that the government may use to authenticate them.
To receive protection under the “act of production” doctrine, John’s act of producing the documents must be (1) compelled, (2) testimonial, and (3) incriminating. Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451, 2460 (2004). As we shall see, these are terms of art.
(1) The Contents of Voluntarily-Created Documents Are Not “Compelled”
Unfortunately for John, the contents of his documents are not protected by the Fifth Amendment, no matter how incriminating they might be and even if John wrote them himself. This issue was settled by the Supreme Court of the United States in Fisher v. United States, 425 U.S. 391 (1976).
In Fisher, the issue was whether a taxpayer’s documents, within the possession of his attorney, were subject to the Fifth Amendment privilege? The Court held that the privilege did not apply. The facts consisted of the IRS issuing a summons to the taxpayer’s attorney for tax records while the attorney was still actively engaged in representing the taxpayer.
The Court made four distinct holdings. First, testimony must be “compelled” in order to receive Fifth Amendment protection. In other words, documents created voluntarily – which, of course, are not compelled – are not protected. Second, the production of documents in response to a subpoena involves compulsion. Third, to the extent that compulsion is present, the Fifth Amendment protects a person only against being incriminated by his own compelled testimonial communications, and not those of a third party, such as his lawyer or accountant. Finally, the Fifth Amendment protects only the act of producing subpoenaed evidence and not the evidence itself.
With respect to the third holding, the court reasoned that it was the attorney who received the IRS summons. As such, the attorney was required to produce these documents, not the taxpayer. The attorney’s work papers are not the taxpayer’s. Indeed, they were not prepared by the taxpayer, nor did they contain any testimonial declarations by him. Therefore, the taxpayer himself did not engage in any testimony whatsoever.
With respect to the first holding, the court reasoned that these documents were prepared voluntarily. And because they were prepared voluntarily, they did not contain compelled testimonial evidence, either of the taxpayer or of his attorney.
But the Court did not stop there. Recognizing that there was a more vexing question lurking beneath the shadows that could not be ignored, it addressed whether the privilege would have applied if a summons or subpoena was served directly on the taxpayer.
The Court readily acknowledged that the production of documents in response to a subpoena unquestionably involves compulsion. But not the type of compulsion contemplated by the Fifth Amendment. For example, it does not compel oral testimony. Nor does it compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the mere fact that a document’s contents might incriminate the taxpayer does not rise to the level of a Fifth Amendment violation.
(2) The Act of Production Must Be “Testimonial”
By simply producing documents to the Government, John acknowledges three facts: first, that the documents exist; second, that they are in his possession or control; and third, that they are authentic. However, these messages are not necessarily “testimonial” for Fifth Amendment purposes. Fisher, 425 U.S. at 410-11.
To be “testimonial,” “an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988). To determine if the messages conveyed by an act of production are sufficiently testimonial, courts must analyze all of the facts and circumstances of the production. Fisher, 425 U.S. at 410.
To the extent that the government already knows the existence and location of the documents and can independently authenticate them, the act of production is not protected by the Fifth Amendment.
A. Existence and Possession: the “Foregone Conclusion” Test
The Fifth Amendment does not apply if (1) the “existence and location” of subpoenaed documents are a “foregone conclusion” and (2) the taxpayer “adds little or nothing to the sum total of the government’s information by conceding that he in fact has the [documents].” Id. at 411. Under these circumstances, the “question is not of testimony but of surrender.” Id.
In Fisher, for example, the Supreme Court addressed whether a taxpayer’s compelled production of an accountant’s work papers would be testimonial under the Fifth Amendment. In that case, the government already knew that the accounting records existed and where they were located. As such, “the government [was] in no way relying on the ‘truth-telling’ of the taxpayer to prove the existence of or his access to the documents.” Id.
Because the Court considered the existence and location of the work papers to be a “foregone conclusion,” it held that the taxpayer’s act of producing them was not sufficiently testimonial to receive Fifth Amendment protection. Id. at 411-12.
The test for determining whether the existence and location of documents is a “foregone conclusion” is relatively simple. First, courts must examine what the government knew before it issued the subpoena. To the extent that the government can establish with “reasonable particularity” that it knew – before issuing the subpoena – that (1) the documents existed and (2) that the taxpayer possessed them, the taxpayer’s production of the documents will be considered a “foregone conclusion.” In that case, the act of producing the documents is not sufficiently testimonial. Therefore, it will not receive Fifth Amendment protection.
B. Authentication: The Requirement of “Independent Verification”
Let’s return to the hypothetical at the beginning of this article. By tacitly communicating that the produced documents are what they purport to be – that is, the documents called for by the subpoena – John’s act of producing them may also serve to authenticate them. Like the messages of existence and possession, this tacit message may be entitled to Fifth Amendment protection if it is sufficiently “testimonial.”
However, as you might have already guessed, independent verification by the government that the documents are indeed authentic will eviscerate any Fifth Amendment protection. In other words, even though John’s act of producing these documents may implicitly authenticate them, the fact remains that no matter how great this authenticity message is, it will not be considered “testimonial” (for Fifth Amendment purposes) if the government could do the same thing on its own.
How can the government authenticate the documents? In a number of different ways. For example, it could compare them to other documents in its possession or rely on handwriting analysis. See In Re Grand Jury Subpoena, 383 F.3d 905, 912 (9th Cir. 2004).
Suppose that the subpoena requires John to sort through numerous documents and produce those requested. How does this fact impact the authenticity analysis?
In Grand Jury Subpoena, the government’s subpoena sought all documents in Doe’s possession that related to memory chips, “including, but not limited to, handwritten notes, calendars, diaries, daybooks, appointment calendars, or notepads, or any similar documents.” Id. at 912. As the Ninth Circuit observed, this subpoena “required [Doe] to discriminate among the many documents he might possess, requiring him specifically to identify and produce to the grand jury those that related to the production or sale of [the memory chips].” Id.
Before the trial judge, the government represented that it would be able to authenticate Doe’s documents through an independent source. Not good enough, said the Ninth Circuit. In order to negate the authenticity message conveyed by Doe’s act of production – in other words, to establish that it was not testimonial – the government had a higher burden.
And that burden was to show that it could independently authenticate the documents broadly described in the subpoena “without the identifying information that Doe would provide by using his knowledge and judgment to sift through, select, assemble, and produce the documents.” Id. at 913; see also In re Grand Jury Proceedings, 41 F.3d 377, 380 (8th Cir. 1994) (“The act of turning over documents in response to a broad-sweeping subpoena may involve discretionary judgments about the documents themselves.”).
(3) The Act of Production Must Be Incriminating
To receive protection under the Fifth Amendment, John’s act of producing the documents must be incriminating as well as testimonial. He must have a “real or appreciable fear” that the testimony would be used to incriminate him, or that it would “furnish a link in the chain of evidence needed to prosecute him.” Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451, 2460-61 (2004).
Remember that it is the message conveyed by the act of production, and not the contents of the documents, that must be incriminating. See Butcher v. Bailey, 753 F.2d 465, 470 (6th Cir. 1985). As illustrated by the two cases below, courts will not automatically accept a taxpayer’s promise that the act of production would be incriminating. Instead, they will evaluate all of the facts and circumstances to determine the legitimacy of the taxpayer’s claim.
In the first case, a United States District Court rejected a witness’s attempt to excuse himself from producing documents, holding that the witness failed to “tender some credible reason why [his production of documents] would pose a real danger of incrimination.” Bear Stearns & Co. v. Wyler, 182 F. Supp. 2d 679, 684 (N.D. Ill. 2002).
In that case, a businessman received a summons in a civil case requesting bank, wire transfer, and telephone records. He refused to produce the documents. In doing so, he argued that his act of producing them would be self-incriminating. The court rejected this argument and ordered that the documents be produced.
Although the businessman did not need to establish that he was the target of a pending criminal investigation, the court emphasized that he had to do a lot more than just assert a hollow fear of incrimination. As the court noted, “it is not a crime to make a wire transfer, use the phone, or possess corporate records.”
Because the businessman was unable to explain what was so incriminating about producing bank, wire transfer, and telephone records, the court was left “with the distinction impression that it was the content of the documents that might be incriminating, as opposed to the testimonial aspects of the production of those documents.” Id. (emphasis supplied). And the content of documents is not entitled to Fifth Amendment protection.
In contrast, the incriminating nature of the act of production was blatantly obvious in United States v. Hubbell, 530 U.S. 27 (2000). Webster Hubbell was the target of an Independent Counsel Investigation relating to the Whitewater Development Corporation. Hubbell entered into a plea agreement with the government, requiring him to provide the Independent Counsel with “full, complete, accurate, and truthful information” about matters relating to the investigation. 530 U.S. at 30. Pursuant to the agreement, Hubbell provide the Independent Counsel with information relating to Whitewater.
While Hubbell was serving a prison sentence (as a result of his guilty plea), the Independent Counsel launched a second investigation. Out of that second investigation came yet another subpoena that was served on Hubbell. The second subpoena requested eleven different categories of documents, the purpose of which was to determine if Hubbell had met his obligation to provide the information that was required by his plea agreement.
Relying on the Fifth Amendment, Hubbell refused to turn over the requested documents. In response, the Independent Counsel obtained a court order granting Hubbell immunity “to the extent required by law” and ordering him to respond to the subpoena. Id. at 38. This immunity is referred to as “derivative use immunity,” meaning that, if the government subsequently prosecutes the person, it must show that the prosecution is based on information other than the testimonial information obtained by the grant of immunity.
Hubbell then turned over 13,000 pages of documents, the very production of which was incriminating. Why? As a preliminary matter, the production conveyed that Hubbell possessed these documents. And second, the production amounted to an incriminating admission that he had not complied with the earlier plea agreement. See id. at 42. That, of course, was a “no-no.”
From the documents produced, the special prosecutor wasted no time in indicting Hubbell for tax crimes and mail and wire fraud. However, the government conceded that it could not prove that, absent the compulsion, it knew of the documents with reasonable particularity. Based on that admission, the Supreme Court dismissed the indictment.
That the court viewed the very act of production as being incriminatory and being the trigger that sparked a chain of events culminating in Hubbell’s indictment is underscored by its ruling: “the testimonial aspect of [Hubbell’s] act of producing subpoenaed documents was the first step in a chain of evidence that led to [a subsequent] prosecution [for other crimes].” Id.
Conclusion
As you can see, your client faces significant hurdles to obtaining Fifth Amendment protection when the government seeks to compel him to produce documents. Where do these cases leave us? The answer is not entirely clear. As the court of appeals in Hubbell stated, applying the act of production doctrine is an “admittedly abstract and under-determined area of the law.” Hubbell, 167 F.3d at 570, 334 U.S. App. D.C. 315 (1999), aff’d, 530 U.S. 27 (2000).
However, we can rely on the following principles. First, protection is available only to individuals, and only covers the testimonial aspect of the production itself, not the contents of the documents. Second, the privilege applies only to compelled testimony. In other words, voluntarily prepared documents are generally not privileged.
Third, production is not testimonial if the government can show that the “testimony” conveyed by the act of production would be a “foregone conclusion.” And finally, your client’s production will be entitled to protection only if the production itself – i.e., gathering, identifying, and authenticating documents – would tend to incriminate him. Despite these hurdles, the act of production doctrine is a handy tool to have in your toolbox, especially in cases where the government has served your client with an overly-broad subpoena.
AUTHOR: Michael DeBlis III, Esq.
Copyright DeBlis & DeBlis
More information about DeBlis & DeBlis
The case that expanded the reach of the Fifth Amendment to subpoenaed business records was Boyd v. United States, 116 U.S. 616 (1886). In Boyd, the Supreme Court of the United States held that “a compulsory production of the private books and papers of the owner of goods sought to be forfeited is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the constitution.”
The classic Fifth Amendment argument raised in opposition to turning documents over to the government is that the documents themselves – i.e., their very contents – are privileged. For example, business records that show that the taxpayer’s actual net income is far greater than the income reported on his return would tend to incriminate the taxpayer even though it does not compel oral testimony. As logical an argument as that is, as we shall see, it was shot down by the Supreme Court of the United States.
A subtle, but more compelling argument centers on the mere act of producing subpoenaed or summoned documents to the government. Consider the following hypothetical. You represent John. John has just received a subpoena ordering him to produce potentially incriminating documents. You begin to review the documents to decide whether he must produce them. Could the Fifth Amendment provide protection for John and allow him to avoid handing these documents over to the government? In other words, can John disregard the subpoena altogether, citing the privilege against self-incrimination?
In Fisher v. United States, the Supreme Court of the United States held that the act of producing evidence in response to a subpoena has communicative aspects of its own, wholly aside from the contents of the papers produced. 425 U.S. 391, 410 (1976). For example, by turning over documents in response to the subpoena, John would be conceding – albeit silently – that the documents exist and that they are in his possession. Similarly, production would also convey John’s belief that the documents produced are those described in the subpoena, a fact that the government may use to authenticate them.
To receive protection under the “act of production” doctrine, John’s act of producing the documents must be (1) compelled, (2) testimonial, and (3) incriminating. Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451, 2460 (2004). As we shall see, these are terms of art.
(1) The Contents of Voluntarily-Created Documents Are Not “Compelled”
Unfortunately for John, the contents of his documents are not protected by the Fifth Amendment, no matter how incriminating they might be and even if John wrote them himself. This issue was settled by the Supreme Court of the United States in Fisher v. United States, 425 U.S. 391 (1976).
In Fisher, the issue was whether a taxpayer’s documents, within the possession of his attorney, were subject to the Fifth Amendment privilege? The Court held that the privilege did not apply. The facts consisted of the IRS issuing a summons to the taxpayer’s attorney for tax records while the attorney was still actively engaged in representing the taxpayer.
The Court made four distinct holdings. First, testimony must be “compelled” in order to receive Fifth Amendment protection. In other words, documents created voluntarily – which, of course, are not compelled – are not protected. Second, the production of documents in response to a subpoena involves compulsion. Third, to the extent that compulsion is present, the Fifth Amendment protects a person only against being incriminated by his own compelled testimonial communications, and not those of a third party, such as his lawyer or accountant. Finally, the Fifth Amendment protects only the act of producing subpoenaed evidence and not the evidence itself.
With respect to the third holding, the court reasoned that it was the attorney who received the IRS summons. As such, the attorney was required to produce these documents, not the taxpayer. The attorney’s work papers are not the taxpayer’s. Indeed, they were not prepared by the taxpayer, nor did they contain any testimonial declarations by him. Therefore, the taxpayer himself did not engage in any testimony whatsoever.
With respect to the first holding, the court reasoned that these documents were prepared voluntarily. And because they were prepared voluntarily, they did not contain compelled testimonial evidence, either of the taxpayer or of his attorney.
But the Court did not stop there. Recognizing that there was a more vexing question lurking beneath the shadows that could not be ignored, it addressed whether the privilege would have applied if a summons or subpoena was served directly on the taxpayer.
The Court readily acknowledged that the production of documents in response to a subpoena unquestionably involves compulsion. But not the type of compulsion contemplated by the Fifth Amendment. For example, it does not compel oral testimony. Nor does it compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the mere fact that a document’s contents might incriminate the taxpayer does not rise to the level of a Fifth Amendment violation.
(2) The Act of Production Must Be “Testimonial”
By simply producing documents to the Government, John acknowledges three facts: first, that the documents exist; second, that they are in his possession or control; and third, that they are authentic. However, these messages are not necessarily “testimonial” for Fifth Amendment purposes. Fisher, 425 U.S. at 410-11.
To be “testimonial,” “an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988). To determine if the messages conveyed by an act of production are sufficiently testimonial, courts must analyze all of the facts and circumstances of the production. Fisher, 425 U.S. at 410.
To the extent that the government already knows the existence and location of the documents and can independently authenticate them, the act of production is not protected by the Fifth Amendment.
A. Existence and Possession: the “Foregone Conclusion” Test
The Fifth Amendment does not apply if (1) the “existence and location” of subpoenaed documents are a “foregone conclusion” and (2) the taxpayer “adds little or nothing to the sum total of the government’s information by conceding that he in fact has the [documents].” Id. at 411. Under these circumstances, the “question is not of testimony but of surrender.” Id.
In Fisher, for example, the Supreme Court addressed whether a taxpayer’s compelled production of an accountant’s work papers would be testimonial under the Fifth Amendment. In that case, the government already knew that the accounting records existed and where they were located. As such, “the government [was] in no way relying on the ‘truth-telling’ of the taxpayer to prove the existence of or his access to the documents.” Id.
Because the Court considered the existence and location of the work papers to be a “foregone conclusion,” it held that the taxpayer’s act of producing them was not sufficiently testimonial to receive Fifth Amendment protection. Id. at 411-12.
The test for determining whether the existence and location of documents is a “foregone conclusion” is relatively simple. First, courts must examine what the government knew before it issued the subpoena. To the extent that the government can establish with “reasonable particularity” that it knew – before issuing the subpoena – that (1) the documents existed and (2) that the taxpayer possessed them, the taxpayer’s production of the documents will be considered a “foregone conclusion.” In that case, the act of producing the documents is not sufficiently testimonial. Therefore, it will not receive Fifth Amendment protection.
B. Authentication: The Requirement of “Independent Verification”
Let’s return to the hypothetical at the beginning of this article. By tacitly communicating that the produced documents are what they purport to be – that is, the documents called for by the subpoena – John’s act of producing them may also serve to authenticate them. Like the messages of existence and possession, this tacit message may be entitled to Fifth Amendment protection if it is sufficiently “testimonial.”
However, as you might have already guessed, independent verification by the government that the documents are indeed authentic will eviscerate any Fifth Amendment protection. In other words, even though John’s act of producing these documents may implicitly authenticate them, the fact remains that no matter how great this authenticity message is, it will not be considered “testimonial” (for Fifth Amendment purposes) if the government could do the same thing on its own.
How can the government authenticate the documents? In a number of different ways. For example, it could compare them to other documents in its possession or rely on handwriting analysis. See In Re Grand Jury Subpoena, 383 F.3d 905, 912 (9th Cir. 2004).
Suppose that the subpoena requires John to sort through numerous documents and produce those requested. How does this fact impact the authenticity analysis?
In Grand Jury Subpoena, the government’s subpoena sought all documents in Doe’s possession that related to memory chips, “including, but not limited to, handwritten notes, calendars, diaries, daybooks, appointment calendars, or notepads, or any similar documents.” Id. at 912. As the Ninth Circuit observed, this subpoena “required [Doe] to discriminate among the many documents he might possess, requiring him specifically to identify and produce to the grand jury those that related to the production or sale of [the memory chips].” Id.
Before the trial judge, the government represented that it would be able to authenticate Doe’s documents through an independent source. Not good enough, said the Ninth Circuit. In order to negate the authenticity message conveyed by Doe’s act of production – in other words, to establish that it was not testimonial – the government had a higher burden.
And that burden was to show that it could independently authenticate the documents broadly described in the subpoena “without the identifying information that Doe would provide by using his knowledge and judgment to sift through, select, assemble, and produce the documents.” Id. at 913; see also In re Grand Jury Proceedings, 41 F.3d 377, 380 (8th Cir. 1994) (“The act of turning over documents in response to a broad-sweeping subpoena may involve discretionary judgments about the documents themselves.”).
(3) The Act of Production Must Be Incriminating
To receive protection under the Fifth Amendment, John’s act of producing the documents must be incriminating as well as testimonial. He must have a “real or appreciable fear” that the testimony would be used to incriminate him, or that it would “furnish a link in the chain of evidence needed to prosecute him.” Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451, 2460-61 (2004).
Remember that it is the message conveyed by the act of production, and not the contents of the documents, that must be incriminating. See Butcher v. Bailey, 753 F.2d 465, 470 (6th Cir. 1985). As illustrated by the two cases below, courts will not automatically accept a taxpayer’s promise that the act of production would be incriminating. Instead, they will evaluate all of the facts and circumstances to determine the legitimacy of the taxpayer’s claim.
In the first case, a United States District Court rejected a witness’s attempt to excuse himself from producing documents, holding that the witness failed to “tender some credible reason why [his production of documents] would pose a real danger of incrimination.” Bear Stearns & Co. v. Wyler, 182 F. Supp. 2d 679, 684 (N.D. Ill. 2002).
In that case, a businessman received a summons in a civil case requesting bank, wire transfer, and telephone records. He refused to produce the documents. In doing so, he argued that his act of producing them would be self-incriminating. The court rejected this argument and ordered that the documents be produced.
Although the businessman did not need to establish that he was the target of a pending criminal investigation, the court emphasized that he had to do a lot more than just assert a hollow fear of incrimination. As the court noted, “it is not a crime to make a wire transfer, use the phone, or possess corporate records.”
Because the businessman was unable to explain what was so incriminating about producing bank, wire transfer, and telephone records, the court was left “with the distinction impression that it was the content of the documents that might be incriminating, as opposed to the testimonial aspects of the production of those documents.” Id. (emphasis supplied). And the content of documents is not entitled to Fifth Amendment protection.
In contrast, the incriminating nature of the act of production was blatantly obvious in United States v. Hubbell, 530 U.S. 27 (2000). Webster Hubbell was the target of an Independent Counsel Investigation relating to the Whitewater Development Corporation. Hubbell entered into a plea agreement with the government, requiring him to provide the Independent Counsel with “full, complete, accurate, and truthful information” about matters relating to the investigation. 530 U.S. at 30. Pursuant to the agreement, Hubbell provide the Independent Counsel with information relating to Whitewater.
While Hubbell was serving a prison sentence (as a result of his guilty plea), the Independent Counsel launched a second investigation. Out of that second investigation came yet another subpoena that was served on Hubbell. The second subpoena requested eleven different categories of documents, the purpose of which was to determine if Hubbell had met his obligation to provide the information that was required by his plea agreement.
Relying on the Fifth Amendment, Hubbell refused to turn over the requested documents. In response, the Independent Counsel obtained a court order granting Hubbell immunity “to the extent required by law” and ordering him to respond to the subpoena. Id. at 38. This immunity is referred to as “derivative use immunity,” meaning that, if the government subsequently prosecutes the person, it must show that the prosecution is based on information other than the testimonial information obtained by the grant of immunity.
Hubbell then turned over 13,000 pages of documents, the very production of which was incriminating. Why? As a preliminary matter, the production conveyed that Hubbell possessed these documents. And second, the production amounted to an incriminating admission that he had not complied with the earlier plea agreement. See id. at 42. That, of course, was a “no-no.”
From the documents produced, the special prosecutor wasted no time in indicting Hubbell for tax crimes and mail and wire fraud. However, the government conceded that it could not prove that, absent the compulsion, it knew of the documents with reasonable particularity. Based on that admission, the Supreme Court dismissed the indictment.
That the court viewed the very act of production as being incriminatory and being the trigger that sparked a chain of events culminating in Hubbell’s indictment is underscored by its ruling: “the testimonial aspect of [Hubbell’s] act of producing subpoenaed documents was the first step in a chain of evidence that led to [a subsequent] prosecution [for other crimes].” Id.
Conclusion
As you can see, your client faces significant hurdles to obtaining Fifth Amendment protection when the government seeks to compel him to produce documents. Where do these cases leave us? The answer is not entirely clear. As the court of appeals in Hubbell stated, applying the act of production doctrine is an “admittedly abstract and under-determined area of the law.” Hubbell, 167 F.3d at 570, 334 U.S. App. D.C. 315 (1999), aff’d, 530 U.S. 27 (2000).
However, we can rely on the following principles. First, protection is available only to individuals, and only covers the testimonial aspect of the production itself, not the contents of the documents. Second, the privilege applies only to compelled testimony. In other words, voluntarily prepared documents are generally not privileged.
Third, production is not testimonial if the government can show that the “testimony” conveyed by the act of production would be a “foregone conclusion.” And finally, your client’s production will be entitled to protection only if the production itself – i.e., gathering, identifying, and authenticating documents – would tend to incriminate him. Despite these hurdles, the act of production doctrine is a handy tool to have in your toolbox, especially in cases where the government has served your client with an overly-broad subpoena.
AUTHOR: Michael DeBlis III, Esq.
Copyright DeBlis & DeBlis
More information about DeBlis & DeBlis
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