In the circumstances of this case, the custodian of a union's
books and records, who had failed to produce them before a federal
grand jury pursuant to subpoena, could, on the ground of his
privilege against self-incrimination under the Fifth Amendment,
lawfully refuse to answer questions asked by the grand jury as to
the whereabouts of such books and records, and his conviction of
criminal contempt for refusing to answer such questions is
reversed. Pp.
354 U. S.
118-128.
(a) Though the custodian of the books and records of a
corporation or a labor union may not, on grounds of possible
self-incrimination, refuse to produce them pursuant to subpoena, he
cannot lawfully be compelled, in the absence of a grant of adequate
immunity from prosecution, to condemn himself by his own oral
testimony. Pp.
354 U. S.
122-128.
(b) In the circumstances of this case, the questions which
petitioner refused to answer were incriminating. P. 121,
n 2.
234 F.2d 470 reversed and remanded.
MR. JUSTICE BURTON delivered the opinion of the Court.
The issue in this case is whether the custodian of a union's
books and records may, on the ground of his Fifth Amendment
privilege against self-incrimination, refuse to
Page 354 U. S. 119
answer questions asked by a federal grand jury as to the
whereabouts of such books and records which he has not produced
pursuant to subpoena. For the reasons hereafter stated, we hold
that the privilege against self-incrimination attaches to such
questions.
In April, 1956, a special grand jury in the United States
District Court for the Southern District of New York was
investigating racketeering in the garment and trucking industries
in New York City. This investigation followed widespread charges of
racketeering in labor unions, including specific charges that seven
local unions had been recently chartered by a faction of the
International Brotherhood of Teamsters to gain control of the
Teamsters' New York Joint Council, and that these "phantom unions"
were controlled by a group of gangsters, ex-convicts, and labor
racketeers.
Petitioner, Joseph Curcio, the secretary-treasurer of Local 269
of the International Brotherhood of Teamsters, one of the alleged
"phantom unions," was subpoenaed to appear before the grand jury,
and to produce the union's books and records. There were two
subpoenas -- a personal subpoena
ad testificandum and a
subpoena
duces tecum addressed to him in his capacity as
secretary-treasurer of Local 269. On several days, he appeared
before the grand jury but failed to produce the demanded books and
records. He testified that he was the secretary-treasurer of Local
269; that the union had books and records; but that they were not
then in his possession. He refused, on the ground of
self-incrimination, to answer any questions pertaining to the
whereabouts, or who had possession, of the books and records he had
been ordered to produce.
The District Court, after a hearing in which petitioner
attempted to justify his claim of privilege, directed petitioner to
answer 15 questions pertaining to the whereabouts
Page 354 U. S. 120
of the books and records. [
Footnote 1] It ruled that petitioner's claim of privilege
was improper because he had not made a sufficient showing that his
answers might
Page 354 U. S. 121
incriminate him. When petitioner persisted in his refusal to
answer, the District Court summarily adjudged him guilty of
criminal contempt, and sentenced him to six months' confinement
unless he sooner purged himself by answering the questions. This
conviction related solely to petitioner's failure to answer
questions asked pursuant to the personal subpoena
ad
testificandum. He has not been charged with failing to produce
the books and records demanded in the subpoena
duces
tecum.
The Court of Appeals affirmed the conviction. 234 F.2d 470. It
held that petitioner had failed to show that his answers to the 15
questions might incriminate him; that the privilege against
self-incrimination did not attach to questions put to a custodian
relating to the whereabouts of union books; and that petitioner had
been accorded a fair hearing. We granted certiorari to determine
whether petitioner's claim of privilege was properly denied. 352
U.S. 820.
In the courts below, the Government contended that petitioner
had not made a sufficient showing that answering the 15 questions
might tend to incriminate him. The Government no longer so
contends. In its brief, it now says,
"We make no claim that, if petitioner's personal privilege did
apply to questions concerning the union records, he failed to make
an adequate showing of possible incrimination."
There is substantial ground for the Government's concession.
[
Footnote 2]
Page 354 U. S. 122
We turn, therefore, to the remaining issue -- whether
petitioner's personal privilege against self-incrimination attaches
to questions relating to the whereabouts of the union books and
records which he did not produce pursuant to subpoena.
It is settled that a corporation is not protected by the
constitutional privilege against self-incrimination. A corporate
officer may not withhold testimony or documents on the ground that
his corporation would be incriminated.
Hale v. Henkel,
201 U. S. 43. Nor
may the custodian of corporate books or records withhold them on
the ground that he personally might be incriminated by their
production.
Wilson v. United States, 221 U.
S. 361;
Essgee Co. v. United States,
262 U. S. 151.
Even after the dissolution of a corporation and the transfer of its
books to individual stockholders, the transferees may not invoke
their privilege with respect to the former corporate records.
Grant v. United States, 227 U. S. 74;
Wheeler v. United States, 226 U.
S. 478. The foregoing cases stand for the principle 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.
In
United States v. White, 322 U.
S. 694, this principle was applied to an unincorporated
association, a labor union. Stating that the privilege against
self-incrimination had the historic function of "protecting only
the natural individual from compulsory incrimination through his
own testimony or personal records" (
id. at
322 U. S.
701), the Court held that
"the papers and effects which
Page 354 U. S. 123
the privilege protects must be the private property of the
person claiming the privilege, or at least in his possession in a
purely personal capacity"
(
id. at
322 U. S.
699).
"But individuals, when acting as representatives of a collective
group, cannot be said to be exercising their personal rights and
duties nor to be entitled to their purely personal privileges.
Rather, they assume the rights, duties, and privileges of the
artificial entity or association of which they are agents or
officers and they are bound by its obligations. In their official
capacity, therefore, they have no privilege against
self-incrimination. And the official records and documents of the
organization that are held by them in a representative, rather than
in a personal, capacity cannot be the subject of the personal
privilege against self-incrimination, even though production of the
papers might tend to incriminate them personally."
Id. at
322 U. S.
699.
The Government now contends that the representative duty which
required the production of union records in the
White case
requires the giving of oral testimony by the custodian in this
case. From the fact that the custodian has no privilege with
respect to the union books in his possession, the Government
reasons that he also has no privilege with respect to questions
seeking to ascertain the whereabouts of books and records which
have been subpoenaed but not produced. In other words, when the
custodian fails to produce the books, he must, according to the
Government, explain or account under oath for their nonproduction,
even though to do so may tend to incriminate him.
The Fifth Amendment suggests no such exception. It guarantees
that "[n]o person . . . shall be compelled in any criminal case to
be a witness against himself. . . ." A custodian, by assuming the
duties of his office, undertakes
Page 354 U. S. 124
the obligation to produce the books of which he is custodian in
response to a rightful exercise of the State's visitorial powers.
But he cannot lawfully be compelled, in the absence of a grant of
adequate immunity from prosecution, to condemn himself by his own
oral testimony.
In the
Wilson case,
supra, which is the
leading case for the proposition that corporate officers may not
invoke their personal privilege against self-incrimination to
prevent the production of corporate records, Mr. Justice Hughes,
speaking for the Court, drew the distinction sharply. He said,
"They [the custodians of corporate records] may decline to utter
upon the witness stand a single self-criminating word. They may
demand that any accusation against them individually be established
without the aid of their oral testimony or the compulsory
production by them of their private papers."
221 U.S. at
221 U. S. 385.
In the
White case,
supra, the Court was careful
to point out that "[t]he subpoena
duces tecum was directed
to the union and demanded the production only of its official
documents and records" (322 U.S. at
322 U. S.
704), that "[h]e (White, the custodian of the union's
records) had not been subpoenaed personally to testify"
(
id. at
322 U. S.
695-696), and that "there was no effort or indicated
intention to examine him personally as a witness" (
id. at
322 U. S.
696). And, in
Shapiro v. United States,
335 U. S. 1,
335 U. S. 27,
holding that the privilege against self-incrimination did not apply
to records required to be kept by food licensees under wartime OPA
regulations, the Court said, "Of course all oral testimony by
individuals can properly be compelled only by exchange of immunity
for waiver of privilege." There is no hint in these decisions that
a custodian of corporate or association books waives his
constitutional privilege as to oral testimony by assuming the
duties of his office. By accepting custodianship of records he "has
voluntarily assumed a duty which overrides his claim of
Page 354 U. S. 125
privilege" only with respect to the production of the records
themselves.
Wilson v. United States, 221 U.
S. 361,
221 U. S.
380.
United States v. Austin-Bagley Corp., 31 F.2d 229, and
cases following it [
Footnote 3]
are relied upon by the Government. Those cases, holding that a
corporate officer who has been required by subpoena to produce
corporate documents may also be required, by oral testimony, to
identify them, are distinguishable and we need not pass on their
validity. The custodian's act of producing books or records in
response to a subpoena
duces tecum is itself a
representation that the documents produced are those demanded by
the subpoena. Requiring the custodian to identify or authenticate
the documents for admission in evidence merely makes explicit what
is implicit in the production itself. The custodian is subjected to
little, if any, further danger of incrimination. However, in the
instant case, the Government is seeking to compel the custodian to
do more than identify documents already produced. It seeks to
compel him to disclose, by his oral testimony, the whereabouts of
books and records which he has failed to produce. It even seeks to
make the custodian name the persons in whose possession the missing
books may be found. Answers to such questions are more than
"auxiliary to the production" of unprivileged corporate or
association records. [
Footnote
4]
Page 354 U. S. 126
The Government cites but one federal case,
United States v.
Field, 193 F.2d 92, as directly supporting its position.
[
Footnote 5] In that case, the
trustees of a bail fund were held in contempt for failure to
produce records of the fund pursuant to a subpoena. After affirming
the convictions on that ground, the Court of Appeals for the Second
Circuit went on to consider, by way of dictum, other contentions
raised by the trustees. One of their contentions was that questions
about the location and production of records were improper. The
court, relying on several cases in which a custodian was compelled
to identify records which he had already produced, said that the
questions pertaining to the location of the records "were
Page 354 U. S. 127
proper under the precedents."
Id. at 97. The cases
cited, however, do not support the court's dictum. [
Footnote 6]
The Government suggests that subpoenaed corporate and
association records will be obtained more readily for law
enforcement purposes if their custodian is threatened with summary
commitment for contempt in failing to testify as to their
whereabouts, rather than with prosecution for disobedience of the
subpoena to produce the records themselves. We need not concern
ourselves with the relative efficacy of those procedures. [
Footnote 7] There is a great
Page 354 U. S. 128
difference between them. The compulsory production of corporate
or association records by their custodian is readily justifiable,
even though the custodian protests against it for personal reasons,
because he does not own the records and has no legally cognizable
interest in them. However, forcing the custodian to testify orally
as to the whereabouts of nonproduced records requires him to
disclose the contents of his own mind. He might be compelled to
convict himself out of his own mouth. That is contrary to the
spirit and letter of the Fifth Amendment.
Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded to the District Court with instructions to
enter a judgment of acquittal.
Reversed and remanded.
[
Footnote 1]
The questions were as follows:
"I am going to ask you certain questions, including some that
were put to you on Thursday, which you declined to answer.
Referring to the books and records of Local 269 of the
International Brotherhood of Teamsters, have you at any time been
in custody of those books and records? . . ."
"Mr. Curcio, have you ever had possession of the books and
records of this local? . . ."
"Did you have custody and control of these records last
Thursday? . . ."
"Do you have possession of those records or any of them today? .
. ."
"Do you have custody and control of any of those records today?
. . ."
"Where are any of those records today, if you know? . . ."
"Who has any of those records today, if you know? . . ."
"Where were any of these records or all of these records a week
ago Thursday? . . ."
"Where were any or all of these records a week ago Saturday? . .
."
"Where were any or all of these records a week ago last Monday?
. . ."
"Where were any or all of these records yesterday? . . ."
"Where are any or all of these records today? . . ."
"Who, if you know, had any or all of these records a week ago
last Saturday? . . ."
"Who had any or all of these records a week ago yesterday? . .
."
"Who has any or all of these records today? . . ."
The above questions were selected by the Government from 225
that were asked petitioner before the grand jury. He was directed
by the foreman of the grand jury to answer these 15, and, upon his
refusal to do so under claim of his privilege against
self-incrimination, the District Court advised him that it proposed
to ask him those questions itself, and that his failure to answer
them would constitute contempt of court. The District Judge
thereupon asked petitioner these questions in open court in the
presence of the grand jury. Petitioner refused to answer each of
them, and stated that he refused to do so because his answers might
tend to incriminate him.
[
Footnote 2]
The grand jury was investigating union racketeering. The
newspapers had featured charges that petitioner's union was one of
seven "phantom locals" of the International Brotherhood of
Teamsters, and that it was dominated by gangsters and racketeers.
Petitioner conceded that he had a prison record, and it was charged
that the president of Local 269 was Johnny DioGuardia, allegedly
one of the key figures in union racketeering in the New York area.
In this context, the questions were incriminating.
See 18
U.S.C. ยงยง 1503 and 1951.
"To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why
it cannot be answered might be dangerous because injurious
disclosure could result."
Hoffman v. United States, 341 U.
S. 479,
341 U. S.
486-487.
See also Trock v. United States, 351
U.S. 976;
Emspak v. United States, 349 U.
S. 190;
Singleton v. United States, 343 U.S.
944;
Greenberg v. United States, 343 U.S. 918.
[
Footnote 3]
Pulford v. United States, 155 F.2d 944, 947;
Lumber
Products Assn. v. United States, 144 F.2d 546, 553;
Carolene Products Co. v. United States, 140 F.2d 61,
66-67;
United States v. Illinois Alcohol Co., 45 F.2d 145,
149.
See also, United States v. Lay Fish
Co., 13 F.2d
136, 137.
[
Footnote 4]
The leading case of
United States v. Austin-Bagley Corp.,
supra, 31 F.2d at 233, 234, explains the scope and limitations
of this doctrine. In that case, the secretary-treasurer of a
corporation, who was charged with conspiracy to violate the
National Prohibition Act, was called to the stand by the Government
and compelled to identify the minutes of the corporation. Circuit
Judge Learned Hand, for the Court of Appeals, upheld this
procedure, stating:
"That the production of the books and documents could be
compelled, even if they contained entries incriminating the
accused, is now well settled law. . . . However, the availability
of the documents does not necessarily determine that of the
testimony by which they may be authenticated. Conceivably it might
be possible to force their production, and yet their possessor be
protected from proving by his oath that they were what they purport
to be. . . ."
"While, therefore, we do not disguise tenuous, distinction, we
think that the greater includes the less, and that, since greater
includes the less, and that, since the production can be forced, it
may be made effective by compelling the producer to declare that
the documents are genuine. . . . Hence, it appears to us that the
case
Heike v. United States, 227 U. S.
131, determines that testimony auxiliary to the
production is as unprivileged as are the documents themselves. By
accepting the office of custodian the holder not only exposes
himself to producing the documents, but to making their use
possible without requiring other proof than his own."
[
Footnote 5]
The Government also cites
Bleakley v. Schlesinger, 294
N.Y. 312, 62 N.E.2d 85, holding that a corporation officer who
fails to produce corporate records pursuant to a subpoena must give
a reasonable explanation or suffer the penalty for nonproduction.
But cf. Bradley v. O'Hare, 2 App.Div.2d 436, 156 N.Y.S.2d
533, where questions put to a union official relating to the
whereabouts of union records were held privileged.
[
Footnote 6]
Moreover, prior and subsequent decisions of the same court, in
which two of the same judges participated, contradict the statement
contained in the Field case. In
United States v. Daisart
Sportswear, Inc., 169 F.2d 856, 861-862, the court stated
that
"we do not believe that the principle of the
Austin-Bagley case,
supra, may be projected so
that a corporate officer may be compelled to testify as to any and
all phases of the corporation's activities, without at the same
time obtaining a grant of immunity for the incriminating matter he
is compelled to disclose."
And further, that "the production of records must be
distinguished from oral testimony as to what the records would
contain, had they been produced."
Id. at 862.
Subsequently, in
United States v. Patterson, 219 F.2d 659,
662, the court, in reversing a contempt conviction for refusal to
produce records, approved the trial court's ruling that questions
relating to the whereabouts of the records were privileged.
"The defendant can here legally be jailed only for a contempt in
failing to produce the sought-after books when they are fairly
shown to be presently within his power and control. He cannot
legally be jailed for contempt for invoking his constitutionally
protected privilege not to be a witness against himself."
See also, Lopiparo v. United States, 216 F.2d 87, where
the trial court upheld the custodian's claim of privilege with
respect to oral testimony pertaining to corporate records.
[
Footnote 7]
In this case petitioner might have been proceeded against for
his failure to produce the records demanded by the subpoena
duces tecum. See Nilva v. United States,
352 U. S. 385;
United States v. Fleischman, 339 U.
S. 349;
United States v. White, 322 U.
S. 694;
Wilson v. United States, 221 U.
S. 361.
From a memorandum filed by the Government, it appears that
petitioner later did produce for the grand jury certain books and
records of the union when threatened with a commitment for contempt
for his failure to comply with a subsequent subpoena
duces
tecum issued to him in his representative capacity. The
Government suggested that this subsequent compliance had rendered
this proceeding moot, but we believe that it did not do so because
the order for petitioner's commitment was for criminal, not civil,
contempt.