An application for stay, pending consideration of a petition for
certiorari, of the Court of Appeals' order committing applicant,
the president of a corporation under investigation by a federal
grand jury for involvement in an allegedly fraudulent funding
scheme, for civil contempt for refusing on the basis of his
privilege against self-incrimination to answer questions before the
grand jury regarding records maintained by the corporation, is
denied where the inquiry was of a very general nature -- a
description of the type of records kept by the corporation.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicant requests that I stay, pending consideration of his
petition for writ of certiorari, the order of the United States
Court of Appeals for the Ninth Circuit committing him for civil
contempt. This petition arises out of a grand jury investigation
currently being conducted in the District of Oregon. According to
the petition, the grand jury is investigating an allegedly
fraudulent funding scheme involving Allstates Funding, Inc., of
which applicant is president. Pursuant to a subpoena
duces
tecum, applicant appeared before the grand jury and refused to
answer questions regarding corporate records maintained by
Allstates Funding on the ground that he might incriminate himself.
The United States District Court for the District of Oregon ruled
that applicant could not invoke his Fifth Amendment privilege
against self-incrimination with regard to the nature of records
that were maintained by Allstates Funding. A unanimous Court of
Appeals panel affirmed, noting that "[t]he privilege against
compulsory self-incrimination protects against real dangers, not
remote and speculative possibilities." Applicant claims that, if he
testifies regarding the existence
Page 440 U. S. 1309
of corporate records he confronts a Hobson's choice which will
inevitably result in self-incrimination.
"[I]f the Government learns from the testimony of Petitioner in
response to question number seven, and its various subparts, that
no corporate records were ever maintained in the first instance,
the Petitioner will have provided the government with very strong
circumstantial evidence of criminal intent and wrongdoing in his
connection with the corporation. By the same token, if the
Petitioner testifies that certain records that have not been
produced under subpoena were in fact maintained, the Petitioner
will have provided the government with equally strong
circumstantial evidence of criminal intent and consciousness of
criminal wrongdoing by their likely destruction or surrepticious
[
sic] transfer to third parties."
Pet. for Cert. 8-9.
Applicant places his principal reliance on
Curcio v. United
States, 354 U. S. 118
(1957). In
Curcio, this Court held that the contempt
sanction cannot be used to compel a custodian of records to
disclose the whereabouts of books and records which he has failed
to produce if he claims that disclosure of their location will
incriminate him. The
Curcio Court recognized that the
privilege does not extend to all oral testimony about the records.
Certainly the custodian can be compelled to "identify documents
already produced,"
id. at
354 U. S. 125,
for the touchstone for evaluating the appropriateness of the
privilege must be the "incriminating tendency of the disclosure."
Wilson v. United States, 221 U. S. 361,
221 U. S. 379
(1911). The Ninth Circuit relied on
Zicarelli v. New Jersey
Investigation Comm'n, 406 U. S. 472,
406 U. S. 478
(1972), for the proposition that the self-incrimination privilege
"protects against real dangers, not remote and speculative
possibilities." A court contemplating a contempt citation must look
to circumstances and context and gauge whether there is a real
possibility that a responsive answer will incriminate the
witness.
Page 440 U. S. 1310
Given the very general nature of the inquiry in this case -- a
description of the type of records kept by the corporation
* -- I think that
the courts below properly struck the balance, and that it is
accordingly unlikely that four Members of this Court will vote to
grant certiorari. The application for stay of the order of
commitment is denied.
* The petition does not relate the precise wording of the
question, and to that extent is deficient under this Court's Rule
23.