Applicant was held in civil contempt, despite his claim of Fifth
Amendment privilege, apparently on the ground of the corporate
records doctrine, for his refusal following denial of immunity from
prosecution to answer questions before a grand jury and produce
corporate records. He made emergency application for bail to the
Court of Appeals and applied to the Circuit Justice for the same
relief. Applicant is released on his own recognizance pending
disposition of his appeal by the Court of Appeals. The
circumstances here warrant departure from the usual practice of
denying relief where a request for the same relief has not been
ruled on by the court below,
viz., the corporate records
doctrine can be invoked only against a custodian of the records but
no evidence appears here that applicant was the custodian or
connected with the corporations; no substantial risk was shown that
applicant would not appear at further proceedings, and applicant
assertedly has no criminal record.
MR. JUSTICE MARSHALL, Circuit Justice.
Applicant was held in civil contempt by the United States
District Court for the Northern District of Illinois on October 7,
1969, and was immediately confined to the Cook County jail. On the
same day, the District Court denied him bail pending appeal. On
October 8, applicant filed a notice of appeal to the United States
Court of Appeals for the Seventh Circuit from the contempt order,
and made an emergency application for bail. The Court of Appeals
ordered the United States Attorney to respond to that application
by October 13, next Monday. On October 9, the present application
was made to me in my capacity as Circuit Justice. Though it is our
usual practice to deny such requests
Page 396 U. S. 1230
when the courts of appeals have not yet ruled on an application
for the same relief, I am constrained by the unusual circumstances
of this case to depart from that practice.
Applicant was subpoenaed to appear before a federal grand jury
in Chicago and to bring with him certain corporate records. Prior
to his appearance before the grand jury, applicant requested, but
was denied, immunity from prosecution. Before the grand jury, he
was asked if he was an officer of the corporations involved. To
this and other questions, applicant declined to answer, invoking
his privilege against self-incrimination. He was taken before the
District Judge, who overruled his claim of Fifth Amendment
privilege, apparently on the ground of the corporate records
doctrine,
Wilson v. United States, 221 U.
S. 361 (1911). When applicant persisted in refusing to
answer, the court ordered him jailed for civil contempt.
Curcio v. United States, 354 U.
S. 118 (1957), raises serious questions concerning the
validity of the contempt order. In that case, a union official,
admittedly the custodian of the union's records, refused on Fifth
Amendment grounds to reveal their whereabouts to the grand jury.
This Court upheld the assertion of the privilege, holding that the
corporate records exception applied only to the records themselves,
not to testimony concerning them, and reiterating the established
principle that "all oral testimony by individuals can properly be
compelled only by exchange of immunity for waiver of privilege."
Id. at
354 U. S. 124,
citing
Shapiro v. United States, 335 U. S.
1,
335 U. S. 27
(1948).
It is true that applicant here, unlike
Curcio, was
cited for failure to produce the subpoenaed records, as well as for
failure to testify. But the rule permitting compelled production of
corporate records by their custodian may be invoked only against a
party who is in fact, the
Page 396 U. S. 1231
custodian of the records in question. Yet there appears no
evidence in the record of this case that applicant is the custodian
of the documents subpoenaed, or indeed that he has any connection
with the corporations. Applicant thus argues that he has been
jailed in the absence of any evidence supporting an essential
element of the finding that he is in contempt.
Cf. Thompson v.
Louisville, 362 U. S. 199
(1960).
Nothing in the record suggests any substantial risk that
applicant will not appear at further proceedings in his case. As
far as appears, he has complied with previous orders to appear;
indeed, he interrupted his honeymoon in Mexico to be present at the
grand jury hearing. According to his affidavit, he has no criminal
record. Given the imposition of a contempt order for an explicit
assertion of the Fifth Amendment privilege, and the other
circumstances of the case, I am ordering applicant released on his
own recognizance pending disposition of his appeal to the Court of
Appeals.