United States v. Doe - Oral Argument

ORAL ARGUMENT OF SAMUEL A. ALITO, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in United States against John Doe.

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

Mr. Alito: 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.

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

Mr. Alito: The government never made an offer of statutory immunity for a number of--

Unidentified Justice: Why not?

Mr. Alito: --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.

Unidentified Justice: 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.

Mr. Alito: 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.

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

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

Unidentified Justice: Is that one of your submissions here?

Mr. Alito: 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--

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

Mr. Alito: --We have no interest in using the act of production in evidence or any evidence--

Unidentified Justice: But you are interested in the materials.

Mr. Alito: --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.

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

Mr. Alito: Well, we respectfully disagree with them, but I think--

Unidentified Justice: 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.

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

Unidentified Justice: Why?

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

Mr. Alito: Well, there certainly was a claim, and a colorable claim.

I don't believe--

Unidentified Justice: Here is the United States saying that the predicate for immunity is not present in this case, namely, incrimination, unless you are going to withdraw that.

Mr. Alito: --We don't withdraw that submission, and if the Court wishes to reach that before reaching the issue of immunity--

Unidentified Justice: Wishes.

I would suppose we would have to.

Mr. Alito: --Well, I don't believe that when statutory immunity, for example, is offered, it is necessary to fully adjudicate the legitimacy of the Fifth Amendment claim before immunity can be conferred, and I would suppose--

Unidentified Justice: Do you think the United States is free in the District Court to say, well, we are quite sure that there is no incrimination in this case, but even if there isn't, we will offer statutory immunity?

Mr. Alito: --When there is a Fifth Amendment claim, I believe that is essentially what happens.

Unidentified Justice: Well, I guess the government could say, we are not sure whether there is a Fifth Amendment protection here, but if there is, we offer the immunity under the statute.

Mr. Alito: That is my--

Unidentified Justice: That is fine, but that isn't your submission here.

You are sure there is no incrimination.

That is your submission.

Mr. Alito: --That is our submission.

I think that because the lower courts found the colorable claim, the immunity issue could be reached first, but we have absolutely no objection to the Court reaching the issue of self-incrimination by means of the act of production first, because we firmly believe that that is not self-incriminating, for the same reasons, as in Fisher.

We think that the existence, possession, existence and possession of standard business records is not testimonial, and does not pose a real and substantial danger of self-incrimination in the case of sole proprietorships just as that is true in the case of corporations and partnerships.

Unidentified Justice: You would concede that it could be in some cases, would you not?

Mr. Alito: Certainly, in special circumstances it could, but it is up to the claimant of the privilege to make it appear to the judge that those circumstances are present.

Unidentified Justice: Well, he did.

He did.

Both courts agreed with him.

Mr. Alito: Well, he did, but we would submit that that was incorrect.

Unidentified Justice: I am a little puzzled by one thing.

Three times now you have, perhaps without emphasis, but at least I detected an emphasis, you have referred to the act of production.

Now, are you distinguishing between the act of producing and then the content of what is produced?

Mr. Alito: Yes, we draw a very clear distinction between that--

Unidentified Justice: Of course, the only thing he is interested in protecting is the content of what is produced.

The act of producing doesn't... couldn't possibly incriminate him.

Mr. Alito: --That is our submission, and I think it is crystal clear in these cases that the practical concern of the witnesses is solely the contents of the documents.

Unidentified Justice: But you concede that in some cases where, for instance, merely identifying the person who had the records and was able to produce them might cast suspicion on that person which hadn't existed before, that it is at least abstractly possible that the act of production might incriminate.

Mr. Alito: It is abstractly possible, but I think when you are talking about standard business records, the kind of records that every company has, that it will seldom be the case that the act of production will amount to testimonial self-incrimination.

Unidentified Justice: Well, what of his uncertainty about who owns the company?

Yes.

Maybe you don't... The subpoenas themselves are not in the record.

At least I haven't seen them, I don't think.

Are they?

Mr. Alito: The subpoenas are in the appendix to the petition.

Unidentified Justice: And do they identify the name of the person and the names of the companies?

Mr. Alito: They do in their original form.

They are redacted in the petition.

Unidentified Justice: Suppose the government knows there is a silent partner involved in some shady enterprise but doesn't know who it is.

They know it may be one of ten people, and they know that the silent partner is reputed to have the records, so they simply issue subpoenas for the records to each of the ten suspects.

Mr. Alito: I think this is possible in certain cases, but there is no question in this case about who owns these companies.

When this case was first argued in District Court, respondent came in and said, these are my companies, and they are sole proprietorships, and the government and the District Court accepted that for purposes of argument.

So there is no issue here about who owns the companies and who is in control of the records.

Unidentified Justice: But if he produces them, if he produces them and you want to use them at trial, would you have to further authenticate them?

Mr. Alito: Yes, if--

Unidentified Justice: Why would you?

He produced them.

And isn't the inference that they are his records, and were prepared under his authority?

Mr. Alito: --Well, I believe they could easily be authenticated by numerous other means.

Unidentified Justice: That is not my question.

Would you have to offer further authentication?

Mr. Alito: We would have to authenticate them in some way at trial.

Unidentified Justice: Well, would it be enough to say he produced them in response to our subpoena?

Mr. Alito: It would be sufficient to authenticate them.

It would not--

Unidentified Justice: Exactly.

It would.

Mr. Alito: --It would not necessarily be sufficient for their admission as an exception to the hearsay rule.

Unidentified Justice: Well, that is another question.

Typically, that would be stipulated to, if it has been produced under a subpoena.

You don't go through a long formality about authentication, do you?

Mr. Alito: No, I don't believe you do.

I think that is just our point.

Authentication is not a substantial barrier under modern law to the admission of standard business records, and it is essentially a fiction to argue that the unprivileged contents of these records should be blocked, that the grand jury's access to these unprivileged contents should be blocked based upon this largely academic argument that the act of production would amount to tacit authentication, and would result in self-incrimination of the sole proprietorship.

Unidentified Justice: Well, if it is largely academic, why don't you just tender him immunity for any use of the act of production?

Mr. Alito: Well, that's what we attempted to do, Justice Stevens.

Unidentified Justice: Well, you didn't attempt to do it.

You made no tender in a formal way.

You didn't ask for statutory--

Mr. Alito: We did not ask for statutory--

Unidentified Justice: --What in the record supports what you are telling me, that you actually made a clear... The district judge, as I read it, was trying to figure out what the government was willing to do and never got a clear, unambiguous statement.

Mr. Alito: --The district judge felt that our immunity offer was insufficient because he believed that incrimination in the eyes of the grand jury was sufficient to invoke the Fifth Amendment privilege.

We disagree with that, and for that reason, he disagreed with the entire concept.

Unidentified Justice: But you never offered immunity from that particular exposure.

You thought it was unnecessary.

You may be right, but... If your position is that this is all academic, it seems to me you can solve the problem by giving him statutory immunity.

Mr. Alito: If the Court were to make it clear that we could do that on remand, we would be entirely satisfied.

We believe that non-statutory immunity here is appropriate because of the special circumstances of act of production, but if the court were to make it clear that statutory immunity would obviate respondent's Fifth Amendment claims, that would be wholly satisfactory to us.

Unidentified Justice: But why wouldn't it?

I mean, in a direct Fifth Amendment case, doesn't that solve the problem?

Mr. Alito: I think it--

Unidentified Justice: I just don't understand the position at all, I confess.

Do you think the District Court... As I understand your submission, even if you had formally offered statutory immunity, the District Court would not have required the records to be produced because the immunity wouldn't effectively replace the privilege.

Is that right?

Mr. Alito: --That was certainly the logic of his position.

Unidentified Justice: It was the logic, except that he didn't have to rule on that against the... in the face of an offer of statutory immunity.

Mr. Alito: Well, we did not offer statutory immunity.

Unidentified Justice: That's right.

Mr. Alito: We did not offer it in large measure because it was unclear that either of the courts below would have construed an offer of statutory immunity as limited to the act of production, because both courts felt that there were serious problems with the concept of act of production immunity.

Unidentified Justice: Wouldn't it have been easier to have offered it and had it refused?

Mr. Alito: In retrospect, Justice Marshall, it might have been.

It might have been easier.

We didn't--

Unidentified Justice: Well, you want us to retrospect you back and give you another bite.

On this question of the act, you say that simply because these are ordinary business records, the act of production doesn't involve anything?

Mr. Alito: --I think that's correct, Justice Marshall.

Unidentified Justice: Well, do you know of any IRS cases that were decided solely on regular business records?

I mean, how many millions, do you think?

Mr. Alito: I am not sure I understand the question.

Unidentified Justice: Many IRS cases are decided solely on payrolls, for example.

Mr. Alito: That's true.

Unidentified Justice: So the act of production does incriminate you, doesn't it?

Mr. Alito: Well, perhaps I am not making--

Unidentified Justice: I mean of producing ordinary records.

Mr. Alito: --The act of producing certain documents in certain situations may well be incriminating.

Our position is I think essentially what you said in concurrence in Fisher.

You said that the existence of corporate records is not in doubt, and therefore conceding the existence and possession of those records is not testimonial, and the same must be true of partnership records in light of Bellis, and we would argue the same would be true of the standard business records of a sole proprietorship.

There simply is not a rational basis for drawing a distinction between these forms of business units on this ground.

If it is a foregone conclusion that corporations have general ledgers, for example, it is equally a foregone conclusion, I would submit, that a sole proprietorship has such document, and the logic of that position means that in the case of a subpoena for standard business records, regardless of the form of company involved, this... the act of production would not amount to testimonial immunity... it would not amount to testimonial self-incrimination.

Unidentified Justice: Well, it wouldn't be necessary to prove that it had some general ledgers, but it would be necessary to show that these were the particular general ledgers that this company had.

Quite a difference, it seems to me.

Mr. Alito: But in honoring the subpoena, the witness is not vouching for the accuracy of the contents of the documents.

He is simply saying, I have these documents--

Unidentified Justice: Well, he is saying, these are the documents described in the subpoena, and then up until now they have been in my custody.

That is what he is saying.

So you are not going to argue about that after the documents are produced.

Mr. Alito: --If there is some question about whether he has possession of the documents, then I suppose the act of production would be incriminating, but in the case of standard business records, where it is a foregone conclusion that the company has those records, I don't think it amounts to testimonial self-incrimination.

But in any event, that was not the point that I intended to press here this morning.

The point that we want to make clear is... that we would like the Court to address is that a person in respondent's position has no basis for asserting a Fifth Amendment claim based on the act of production when act of production immunity is tendered.

Now, if that argument is self-evident, that--

Unidentified Justice: I take it you hope that this is the only trouble we are going to have with your submission.

Mr. Alito: --I certainly hope so.

Unidentified Justice: Well, you don't need the Supreme Court of the United States to tell you that.

Mr. Alito: Well, many of the lower courts have had difficulty with that problem.

In this case, the Court of Appeals held that the contents of these documents were privileged.

Unidentified Justice: That is the major issue here, I take it.

And that is really what you want reversed, isn't it?

Mr. Alito: That is the principal thing that we want reversed.

Unidentified Justice: I guess we should let you argue that.

Mr. Alito: All right.

0 [Generallaughter.]

On the question of the contents, whether the contents of the records are privileged, we are really asking the Court to do nothing more than follow its reasoning and its holding in Fisher.

The Fifth Amendment, the Court has held, applies only when a witness is compelled to make a testimonial communication that is incriminating.

As the Court made clear in Fisher, when a document is voluntarily prepared before a subpoena is issued, obviously, no one compels the production of the document.

A subpoena that is later issued for the document may compel the witness to turn over the document, but it does not compel the witness to restate or reaffirm the contents of the document, and therefore the contents of the document as distinct from the act of production do not constitute compelled testimony, and they fall outside the privilege.

Now, I would quickly add that there are undoubtedly certain highly personal documents... a diary is perhaps the best example... that may well be protected by other provisions of law, the Fourth Amendment or the First Amendment, but not by the Fifth Amendment privilege against self-incrimination, which applies only when a witness is compelled to make a testimonial communication that is incriminating.

The Court of Appeals and respondent attempted to distinguish Fisher on two grounds, authorship and ownership of the papers, and we think neither of these distinctions make sense either under Fisher's reasoning or under a protection of privacy rationale taken from Boyd.

Under Fisher, of course, what matters is whether the documents were voluntarily created, not who created them and not who owned them.

Fisher expressly rejected the idea of authorship as a distinguishing factor, and the idea of ownership as a sufficient basis for claiming the privilege had earlier been rejected in Couch, where the Court wrote,

"To tie the privilege against self-incrimination to a concept of ownership would be to draw a meaningless line."

"It would make the privilege turn on fine distinctions of property law."

Even under a protection of privacy rationale taken from Boyd, these ideas of authorship and ownership don't make sense.

A person may well have a far greater privacy interest in a document he did not write than in one he did write.

A letter written by a relative or close friend may be far more private to the witness than a cancelled check that he himself wrote to pay last month's gas bill.

Unidentified Justice: Would there be anything left of Boyd for a diary or private letter?

Mr. Alito: We believe that certain highly private documents might well be protected by other provisions of law, but not by the Fifth Amendment, and insofar as Boyd stands for the proposition that private papers voluntarily created are protected by the Fifth Amendment, there would be nothing left of that... of that rule, which, as we tried to argue in our brief was never the rule of Boyd in the first place.

The same thing that is true for authorship is true for ownership.

One does not necessarily have a greater privacy interest in something that one owns than in something else.

A diary belonging to a relative or close friend may be far more private than a document of a relatively trivial nature belonging to the witness himself.

And even if the Fifth Amendment privilege did protect private papers, as Justice Brennan argued in his concurrence in Fisher, it is abundantly clear that most of the documents in this case are not private papers.

They are papers of a wholly business, non-personal nature, and they are not papers that respondent kept private.

They are papers that were exposed to other persons at various times.

Unidentified Justice: May I ask you a question about... I must confess, I had some difficulty following part of the government's brief.

I just don't read the Court of Appeals as having held, as I think you seem to assume, that these business records are protected themselves.

There were no testimonial act in the producing of them.

Do you think that they held that all of these documents are protected by the privilege?

Mr. Alito: I think they did, Justice Stevens.

If you--

Unidentified Justice: Where in the opinion do you find that?

As I understood them, they were rejecting the argument that a private sole proprietor is totally outside the Fifth Amendment just as a representative of a corporation or partnership is, and that's all they held.

Mr. Alito: --On 14A of the Appendix, Gould, which is one of their prior cases, then stands for the proposition that an individual's business papers cannot be subpoenaed by a grand jury.

Unidentified Justice: I am sorry, 14A?

Mr. Alito: Fourteen A of the Appendix, the last sentence of the first partial paragraph at the top of the page.

The Appendix of the petition.

Unidentified Justice: They are describing what they think Gould--

Mr. Alito: Gould is one of their prior cases.

Gould stands for the proposition that an individual's business papers as well as his personal records cannot be subpoenaed by a grand jury, and there is a footnote in which they discuss--

Unidentified Justice: --But that is in the section of the opinion in which they are addressing the question whether the act of production is a testimonial act.

That is in Part B of the opinion.

Mr. Alito: --I don't think that's true, Justice Stevens.

Unidentified Justice: You don't think it's in Part B of the opinion?

Mr. Alito: They are continuing to discuss their holding in the Johansen case, which held that the contents of an office diary were protected by the privilege, and they extend that--

Unidentified Justice: Well, there they are talking about whether the act of producing those papers is protected, I respectfully submit.

Mr. Alito: --Well, if they held that the contents are privileged, we would argue that they are wrong.

Unidentified Justice: Yes, if they held that, they would obviously be wrong.

Mr. Alito: If they did not hold that, then I think it was certainly not clear to us--

Unidentified Justice: If they didn't hold it, there isn't anything we need to decide.

That is all I am suggesting.

Mr. Alito: --Well, I think that it is unclear, and certainly respondent believes that they held that the contents are privileged, so--

Unidentified Justice: If I were respondent, I would be so arguing, of course.

Mr. Alito: --In any event, our position is then that the contents are not privileged, and the only issue remaining is whether our offer of act of production immunity was sufficient.

We believe that non-statutory act of production immunity here was adequate, and I believe that our position finds support in Murphy versus Waterfront Commission, which held that testimony given under a state grant of immunity may not be used in any other jurisdiction, including in federal court.

This means in effect that state courts are empowered to give non-statutory federal use immunity.

No federal statute confers upon them the authority to do that, and their state statute, I would think, could give such authority.

They compelled the witness over objection to testify, and his testimony thereafter is automatically immunized.

We think it would be appropriate for the federal courts to do this in the limited area of act of production immunity.

On the government's motion, the courts would order witnesses to produce documents over objection if the act of production would be incriminating, and the act of production thereafter would be immunized.

This would be essentially what takes place now, when state courts grant immunity under their own statutes or procedures.

Unidentified Justice: Why wouldn't the government feel it had to follow the statutory procedure?

I guess that's what I don't understand.

Mr. Alito: We don't have serious objections to following the statutory procedure, but we don't think it is necessary.

We think the non-statutory procedure is more convenient since subpoenas for documents are an everyday occurrence, unlike requests for testimonial immunity.

Unidentified Justice: Will you refresh my recollection, Mr. Alito, on the source and nature of non-statutory immunity?

Is it just the right of every assistant U.S. Attorney to tell the judge that is trying the case that the government won't use this person's testimony if he is ordered to testify over the claim of privilege?

Mr. Alito: I think that the executive has the authority to seek the admission of relevant evidence.

I don't think there is anything in the immunity statute that rules out non-statutory act of production immunity.

Unidentified Justice: Why did you ever need a statute?

Mr. Alito: I think--

Unidentified Justice: The reason was, I suppose, that the courts kept excluding the evidence, absent a grant of immunity.

Mr. Alito: --I think there were two reasons for the long string of statutes for immunity for actual testimony.

One was that when these first started to be enacted beginning, I think, in 1863, most of the questions that have now been answered about immunity were still unanswered, about the scope of immunity, the circumstances in which a witness was required to claim the Fifth Amendment privilege, and so forth, and so the statutes were an attempt to address those questions, and of course it took a long time to sort out the answers.

The other reason is that in the case of immunity for testimony, at least the procedures that have almost invariably been built into the statute worked to protect the government, because of the serious taint problems that can arise when immunity is given for testimony.

The statutes require--

Unidentified Justice: It certainly leaves the witness in some quandary, doesn't it?

Mr. Alito: --I don't see--

Unidentified Justice: If he doesn't have to be offered immunity, and he just has to guess whether his testimony could be used against him in a criminal case?

Mr. Alito: --I don't think he is in any more uncertainty than he is when a state court orders him to testify under a state immunity.

Unidentified Justice: So the government really wouldn't object if a judge just said, don't worry, Mr. Witness, I guarantee you that any of these... any of your testimony or none of these papers can be used against you in a criminal--

Mr. Alito: We would have serious objection in that case, because--

Unidentified Justice: --I would think you would.

I would think you would.

Mr. Alito: --it was not done upon our motion.

Unidentified Justice: I would think you would want to be in control on immunity issues.

Mr. Alito: We are equally in control whether we request non-statutory immunity or statutory immunity.

Unidentified Justice: You say a judge can't do it on his own without the government requesting it.

Mr. Alito: No, this is not a case like Goldsbury versus Convoy last term, where immunity... where the court was asked to give immunity without the government's participation.

We asked for it here.

There is no question of--

Unidentified Justice: Well, would that estop him from changing--

--So if a judge says, I am not going to pay any attention to you, Mr. Attorney General, until you... if you come up here and offer statutory immunity, that is another question.

That may be all right.

But--

Mr. Alito: --Well, District Court judges generally do not require the Attorney General to appear in person to--

Unidentified Justice: --No, I know that, but I can call the U.S. Attorney the Attorney General if I want to.

Mr. Alito: --No, but my point, Justice White, was that this is purely a matter of internal management in the Justice Department.

In any event--

Unidentified Justice: There is quite a difference between granting the immunity and accepting a U.S. Attorney's prediction that this testimony would not be admissible.

Mr. Alito: --I would submit it is not a prediction if the judge orders the witness to testify over a Fifth Amendment objection, and I think it is settled, and I think you said it more clearly than anyone else in Manness versus Meyers, that the testimony thereafter may not be used.

In fact the term "functional immunity" was taken from your concurring opinion in Manness versus Meyers.

Unidentified Justice: Yes.

Mr. Alito: We felt that under Third Circuit precedent especially statutory immunity was not necessary here, but as I said, and can't make too clear, we think the important question is the principle of act of production immunity, and if the Court were to make it clear that that is sufficient in a case like this, that would be wholly satisfactory.

I would like to reserve the rest of my time.

Chief Justice Burger: Mr. Philips.

ORAL ARGUMENT OF RICHARD T. PHILIPS, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Philips: Mr. Chief Justice, and may it please the Court, I would submit that this case boils down to an impermissible attempt by the government to use investigative techniques that are not constitutionally sanctioned.

What the government has done in this case is rather than go out and do the footwork necessary to conduct an investigation, to secure the documents necessary in the course of that investigation, they have served on the target of the investigation a grand jury subpoena requiring him to produce his personal financial records as well as the financial records of several sole proprietorships which the government intends to use against him at a later date in a criminal trial.

I suggest to the Court that this is impermissible, and the Court should not sanction this type of investigative technique.

These five subpoenas served upon my client were immediately objected to in the District Court by a motion to quash.

In the District Court, the government made several major concessions.

First, they stipulated that my client was a target of the grand jury investigation, and second, they stipulated that the documents that they sought would or may incriminate my client.

The District Court quashed the subpoenas, using the rationale of this Court's decision in Fisher, finding that the subpoenas compelled a testimonial communication--

Unidentified Justice: Mr. Philips, do you have at your fingertips the citation in the record before us to the stipulation of the government as to the incriminating nature?

0....

If you don't have it, I didn't mean to interrupt your argument to that extent.

Mr. Philips: --It is at Page 21 of the Joint Appendix, Your Honor.

Unidentified Justice: Thank you.

Mr. Philips: The court asked the government,

"Do you also concede that the documents which you seek will or may incriminate my client?"

The Assistant United States Attorney answered, "Yes, Your Honor".

So the stipulations that the government made in the District Court, Number One, that my client was a target of the investigation, and Number Two, that the documents sought would or may incriminate him, I suggest to the Court are extremely important.

The District Court quashed the grand jury subpoenas using this Court's rationale in the United States versus Fisher, finding that the subpoenas compelled a testimonial communication that was in fact incriminating.

There was little discussion about compulsion, and little discussion about the incriminating nature of the testimonial communications, since the--

Unidentified Justice: Was the ruling of the District Court, Mr. Philips, based on the notion that the act of production would incriminate as opposed to the contents of the documents?

Mr. Philips: --That is correct, Your Honor.

That was the ruling of the District Court.

When the case got to the Third Circuit, I believe the Third Circuit expanded and discussed the protection of papers rationale as set forth in this Court's opinions from Boyd to the present.

Unidentified Justice: I don't take it the government denies that the contents of the documents would incriminate.

It is just not compulsory.

Mr. Philips: No, I don't believe the government denies that the contents would incriminate.

Unidentified Justice: Exactly.

So the stipulation, I would... if you just ask, will these papers incriminate, I would think you would say yes, which is exactly what the government says.

Mr. Philips: Yes, I believe that's correct.

Unidentified Justice: So you still have the question, though, would it be compulsory self-incrimination, and the government's argument is that when you produce papers pursuant to subpoena that have already long before the subpoena issued been compiled, the subpoena doesn't compel you to record what you record in those papers because you recorded it beforehand.

Mr. Philips: I understand that, but the subpoena does compel you to produce those records, and I don't understand how the government can separate the contents of the records from the act of production.

If we discuss the immunity that the government offers as to the act of production--

Unidentified Justice: Let's go back just a minute to the act of production, because I understood the earlier discussion between Mr. Alito and members of the bench to focus on the idea of the act of production as being a separate incriminating act quite apart from the contents of the papers.

The mere fact that you had these records, whatever the records may have said, might tend to incriminate you.

Now, I gather from what you just said that you look upon the act of production as being able to relate back to the contents of the papers in some way.

Do you?

Mr. Philips: --Yes, I do, Your Honor.

I don't see how you could separate the contents of the papers where the government says the contents are incriminatory.

Unidentified Justice: Under Fisher, that is just not compulsory self-incrimination.

Maybe it is self-incrimination, but it is not compulsory, because the papers were compiled long ago.

Mr. Philips: But it is not the compulsory self-incrimination.

It is the compulsion to produce those records which we object to.

It is the self-incrimination that the government stipulates is contained within the contents of the documents.

Unidentified Justice: Mr. Philips, what if you were given statutory immunity, your client was, that nothing could be... no adverse inference of criminal conduct could be drawn from the act of producing these documents?

Mr. Philips: If statutory immunity were offered in this case, if it were conferred, I believe we would be at a different stage.

First, I would argue... First, I would have no legal objection to the conference of immunity.

The District Court would grant the immunity as requested by the government.

The only objection that possibly could be made is, is the immunity that is being offered under the statute coextensive with my client's Fifth Amendment privilege.

Unidentified Justice: Well, supposing it clearly covered everything relating to the production, but did not cover the government's ability to use what was found within the documents.

In other words, it would allow them to treat them as though they found them out in the park somewhere.

Mr. Philips: Then I would argue that that is not coextensive with my client's privilege.

Unidentified Justice: And my question is, why not?

Mr. Philips: It is not coextensive with the privilege because I cannot separate the contents of the documents from the act of production.

If the government is seeking to immunize the act of production in a case like this where the existence of the documents has not in any way been demonstrated by the government, the immunity must also extend to the fact that those documents are in existence, and if it extends to the fact that those documents are in existence, it must necessarily extend to the contents of the documents.

I don't understand how the government can separate them.

If the documents are in existence, and if the government has no... if the documents are in existence, the government has no indication that they are in existence, then the immunity must extend to the existence of the documents, which necessarily has to cover the contents.

So therefore--

Unidentified Justice: Isn't it true that the Fifth Amendment only protects compelled testimony concerning the existence of the documents?

There is nothing in the Fifth Amendment about existence of evidence that is protected.

Mr. Philips: --I believe the Fifth Amendment protects compelled production of incriminatory documents, and where the existence of the document is unknown to the government, to immunize only the act of production without immunizing the fact that the documents are in existence is not coextensive with my client's Fifth Amendment privilege.

You must immunize also the contents.

The use and derivative use of the act of production must cover the contents of the documents in order for the immunity to be coextensive with the privilege.

Unidentified Justice: That certainly isn't what Fisher was based on.

I just don't see how you can make that argument.

I don't either.

Mr. Philips: That is my understanding as to the testimonial nature of the act of production as discussed in Fisher.

In Fisher, the Court found that the act of production was non-testimonial, because there the documents were... it was a foregone conclusion that the documents were in existence.

Here there has never been any conclusion or indication that these documents are in existence.

In fact, the Third Circuit found that this is an attempt by the government to link up my client with these proprietorships, and that the government has no indication and has come forward with no evidence that these documents are in existence.

Unidentified Justice: But that shifts over again to the act of production type of self-incrimination compelled that we were talking about during the government's case.

Why don't you go back to Justice Stevens' example of what if the government agreed in this case that all connection between the production and location of these documents and your client would be immunized, but nonetheless the government would be free to use the contents of the documents against your client.

Mr. Philips: Only if they agreed that the existence of the documents, the very existence of the documents would be immunized would I then say that the immunity that they are offering is coextensive with--

Unidentified Justice: Well, why would your client say that the very existence of the documents would tend to incriminate him?

Mr. Philips: --Because of the government's own stipulation that the contents tend to incriminate him.

I cannot separate the contents from existence.

Unidentified Justice: That is just contrary to Fisher, in my view, your position.

Mr. Philips: In any event, the point is that the government never did use the statutory immunity which they had the right to in the District Court, and I suggest to this Court that the reason they did not use that statute was because they themselves were unsure of what was to be immunized.

My argument today, briefly outlined, is that first of all, my client is entitled to the privilege on the protection of papers rationale based on this Court's cases from Boyd through Fisher and including Andresen.

If not under the privacy rationale and the protection of papers rationale of those cases, then the compelled production of these documents in this case would amount to a compelled testimonial communication which is incriminatory as the Third Circuit and District Court found, and that based on that, his Fifth Amendment privilege would be valid.

The government rests their argument completely on Fisher.

They pick and choose language from Fisher and disregard the context that that language is used.

The government ignores the factual background of Fisher that there, the documents that were being sought were being sought from attorneys, they were not the taxpayers' records.

There was no compulsion upon the taxpayer in that case, and in fact the records were not his, but they were the work papers of the accountant.

In numerous cases, this Court has recognized that the privilege belongs to the individual.

In Wilson, the Court held that a corporation had no privilege, but the Court carefully distinguished the situation where an individual was involved.

In White and Bellis, I suggest the same distinction between a separate entity and an individual was made.

In each of those cases, the Court was very careful to distinguish that the rights of an individual not to be compelled to produce incriminating private papers.

I suggest to the Court in those cases the Court was faced with a policy decision of whether there was an overriding governmental interest that the government had to seek access during the course of its investigations to the records of a collective entity.

The Court found that there was because of the scope of the economic activity of a corporation or a labor union or a partnership.

Here, the Court is faced with a somewhat similar policy question, but here, there is no overriding concern or governmental interest to seek the records of a sole proprietor.

There is no mass abandonment of a... or there would be no mass abandonment of the corporate form of doing business or the partnership form of doing business to become a sole proprietor.

There is no large scope of activity of sole proprietors that... The government makes a distinction between business and personal records.

I submit to the Court that that distinction is invalid, that the only distinction that this Court has that finds support in the cases of this Court is the distinction between an individual and a representative of a collective entity.

There can foresee endless litigation over particular documents whether they are business or whether they are personal.

In summary, I would urge this Court to affirm the decision of the Third Circuit.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Alito?

You have three minutes remaining.

ORAL ARGUMENT OF SAMUEL A. ALITO, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Alito: I have just two very brief points.

The first is to emphasize that in this case we are not asking enforcement of the subpoenas.

The subpoenas were quashed below, and if the Court were to vacate that decision or otherwise make clear that we would be free on remand to grant statutory immunity, our interests would be substantially served.

And the second point is just a point of clarification.

We are not pressing the argument of non-statutory immunity in the case of immunity for testimony, but only in the very limited area of act of production immunity, where we think that the argument about the incriminating nature of the act of production is essentially academic, and where there are no serious taint problems.

Unidentified Justice: May I... I am puzzled.

You are not asking for enforcement of the subpoenas?

Mr. Alito: No, the order below... the District Court quashed the subpoenas.

The Court of Appeals affirmed--

Unidentified Justice: And you say... Well, then why isn't the case moot?

Mr. Alito: --The case is not moot because what we are... we are not asking for anyone to be held in contempt.

I suppose that is what I am attempting to say.

Unidentified Justice: Are you asking for enforcement of the subpoenas?

Mr. Alito: We are asking for the judgment to be vacated below, and the judgment below merely quashed the subpoenas.

It didn't enforce them.

Unidentified Justice: Well, if you vacate a judgment but refuse to enforce the subpoena, presumably you have to write something about why you are vacating the judgment, and when you write that, ought the Court to discuss whether the subpoena should have been enforced or not?

Mr. Alito: Yes, and what I am saying is that if it is made clear that on remand a grant of statutory immunity would obviate Fifth Amendment objections, that would satisfy our position, although we continue to maintain that in the limited area of act of production immunity, this non-statutory functional immunity would be sufficient.

Unidentified Justice: It sounds to me like you are asking for an advisory opinion.

What order do you ask us to direct the District Court to enter?

Mr. Alito: To enter an order vacating the quashing of the subpoenas.

Unidentified Justice: And therefore enforcing the subpoenas?

Mr. Alito: Well, my understanding is that those would not be equivalent.

There would still be other procedures that would have to be followed before the subpoenas were enforced.

Unidentified Justice: What you really want is for us to say, you made a mistake, you are not asking for immunity, and we will vacate and send it back so you can do what you should have done before.

Mr. Alito: Well, we are making alternative arguments, Justice Marshall.

We believe--

Unidentified Justice: Are you making that one?

Mr. Alito: --We believe that our offer of non-statutory immunity was satisfactory, but if that... if the Court disagrees and makes clear that an offer of statutory immunity would have sufficed, that would be... that would serve our interests.

Unidentified Justice: Well, how did this case get into the District Court?

You issued some subpoenas, and there was a motion to quash, wasn't there?

Mr. Alito: That's correct.

Unidentified Justice: What if there hadn't been a motion to quash?

Mr. Alito: The witness would have been ordered to comply, I presume, and if he had refused to comply, he might have been held in contempt, but that never occurred.

Unidentified Justice: I know, but did the... What would the government have to do to secure compliance?

Mr. Alito: Well, in--

Unidentified Justice: Suppose there had been no motion to quash, he just didn't... he just didn't produce.

Mr. Alito: --We would have gone to the District Court and asked for an order of enforcement.

Unidentified Justice: That he be ordered to produce.

Now, do you still have to do that?

Mr. Alito: Yes.

Unidentified Justice: Mr. Alito, are you telling us that the government will grant... wishes to grant statutory immunity as to the contents of these documents?

Mr. Alito: No, absolutely not.

Unidentified Justice: So we still have to address that issue, I take it.

Mr. Alito: That's correct.

Absolutely not.

We don't... We do not intend to grant immunity as to--

Unidentified Justice: That is the principal issue, you think, here?

Mr. Alito: --That is one of the principal issues, yes.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.