Completely Sealed Case: Twelve Grand Jury Subpoenas
908 F.3d 525
| 9th Cir. | 2018Background
- Appellant is subject to an ongoing grand jury investigation; grand jury issued twelve subpoenas to custodians of records for various corporations/LLCs in which Appellant held interests.
- Appellant, as the records custodian for each entity, refused to produce documents, invoking the Fifth Amendment on the ground production would incriminate him personally (he was often sole shareholder/officer/employee and handled accounting).
- The Government moved to compel; the district court ordered production and then held Appellant in contempt under 28 U.S.C. § 1826 after he continued to refuse.
- Appellant appealed, arguing (1) Braswell v. United States is no longer controlling in light of later Supreme Court decisions, and (2) that the Braswell footnote left open an exception for custodians of small/one-person entities when a jury would inevitably infer the custodian produced the records.
- The Ninth Circuit reviewed de novo whether any exception exists to the rule that a corporate records custodian cannot invoke the Fifth Amendment to refuse production of corporate documents and affirmed the contempt order.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a records custodian of a collective entity can invoke the Fifth Amendment to resist producing corporate/LLC records | Appellant: Braswell should be reconsidered; alternatively, adopt Braswell-footnote exception for one-person/closely held entities where a jury would inevitably infer the custodian produced the documents | Government: Braswell remains controlling; no exception exists for custodians of collective entities regardless of size or ownership structure | Custodian cannot assert Fifth Amendment privilege to resist production of a collective entity’s records; no exception for small or one-person entities; contempt affirmed |
Key Cases Cited
- Braswell v. United States, 487 U.S. 99 (1988) (corporate custodian may not resist subpoena for corporate records on Fifth Amendment grounds)
- Bellis v. United States, 417 U.S. 85 (1974) (Fifth Amendment is a personal privilege; corporations do not possess it)
- United States v. Hubbell, 530 U.S. 27 (2000) (act-of-production doctrine: producing documents may have testimonial aspects)
- Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (cited by appellant in argument about corporate personhood and related precedent)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (cited by appellant as part of argument that Braswell should be revisited)
- United States v. Stone, 976 F.2d 909 (4th Cir. 1992) (held a one-person corporation cannot assert the Fifth Amendment privilege to resist production)