Albert J. Wild v. Bennett Y. Brewer, Revenue Agent of the Internal Revenue Service
329 F.2d 924
9th Cir.
1964
Check Treatment

*1 PICKETT, Before LEWIS Judges. BREITENSTEIN, Circuit

PER CURIAM. jointly

Appellants were tried represented by coun

but were individual ruling prose The sel. trial court’s cution witnesses could be cross-examined plain but counsel error one constitutes compulsion 52(b)

within of Rule the Federal of Criminal Rules Procedure. Each had defendant non-repetitious cross-examination con ducted his behalf individual Brown, Bain, Brown,, & E. Vlassis Jack required counsel and could not Ariz.,. Allsworth, Phoenix, and Arthur P. questions pertaining particular in to his McLane, Mc- & Lee and McLane W. through terests channeled his co-defend Thaddeus; Lane, Jr., Phoenix, Ariz., and ant’s counsel. Rojek, C., appellant. Washington, D. opinion of court heretofore filed, Oberdorfer, Atty. Gen.,. 307 F.2d is withdrawn and Louis F. Asst. judgments severally Jackson, Joseph Howard, A. reversed with Lee M. grant Justice,, Berkley, Attys., Dept, Bui-ton directions new trials. *2 Washington, C., Muecke, A. D. and Carl an seizure, unreasonable search and Atty., Gormley, rights U. S. and Richard C. violation of his under the Fourth Ariz., Atty., Phoenix, ap- Asst. U. S. for to the Constitution. He pellee. Conditioning Supply stated Air Company, though it was a MERRILL, Judge, Before Circuit per by was himself, owned 100 cent and MADDEN, Judge Claims, of of the Court completely was controlled and directed KOELSCH, Judge. and Circuit him. was, Brewer’s summons to Wild Rehearing On face, pursuant showed issued to KOELSCH, MERRILL and Circuit Section Internal of Revenue Code Judges: U.S.C., ed., 7602. Sec- § gives appropriate tion 7604 United Judgment authority affirmed on the power, upon States District Court the (1912) of Grant United States application by Secretary the of the Treas- and ury delegate, or his to an attach- issue (1911) Wilson v. United States against neglecting person ment a or re- 55 L.Ed. 771. fusing obey to issued summons § under contempt. as for Brewer made an MADDEN, Judge (dissenting) : application to the United States District respectfully dissent from the decision of the District Arizona. That explain of the court. In order to the attachment, court issued the held a hear- my dissent, reasons for I state the facts ing at which evidence was taken and ar- of case. the guments heard, were and thereafter Brewer, agent Secretary of findings of made of fact and stated conclu- Treasury, served Wild a sum- sions of law to effect that against mons addressed self-incrimination and un- reasonable and search seizure cannot be Wild, Albert J. President corporation; claimed rec- Conditioning Company Supply Air requested property ords of Air were the requiring appear Conditioning Wild to before Brewer Company, Inc.; and that give relating testimony tax get Brewer was entitled to the records. liability tax the collection appear The court Wild ordered and/or before liability person" above named “the specified produce at the court and time bring produce him records. examination books and records certain brought appeal from the instant Wild specified in All the summons. .of Court. The that order of District specified books and records were books bank, placed in escrow records were Conditioning Supply and records of Air granted stay pending this and a Company. appeal issue, then, appeal. The pursuant appeared, V/ild sum- might Wild, incrim- is whether mons, but refused to the books written the docu- inated what was for in the summons. records called for in the sum- ments gave as He the reason his refusal the circumstances, mons, could, in refuse fact that the books and documents over to the Govern- to turn the might him tend incriminate ment. compel him, case, and thus in a criminal guaranteed Fifth against be a witness viola- rights Amendment, against tion of his under Fifth the Government Amend- any “in criminal case" ment to Constitution of the United compel compelled witness and that him to against self, the books and one’s available records would amount to

$26 cited on Judi- Justice McKenna Bentham but to in criminal trials to defendants proceed- Evidence, page kind of official vol. et cial

witnesses auspices of ing foregoing. seq., under His own brief for the giving *3 applies It is, reply 'States. response “A would be difficult n oforal testimony, but to the government if had no other concern than incriminating possession of from one’s punishment of crime.” n documents Boyd objects, v. of Palko v. State of In the 1937 case 524, 616, L.Ed. 29 116 U.S. 149, 319, Connecticut, 58 S.Ct. coupled possession '746, is least if the at Cardozo, speak- 288, Mr. 82 L.Ed. Justice right. See minimum of a certain ing obiter, all but for but one of 699, 694, White, 322 U.S. v. States Justices, said: n 64S.Ct. 1248, 1542. 88 L.Ed. jury in- trials and is “What true Fathers the Constitutional Whether also, cases as the dictments is true guar- inserting in wise or not this were immunity compul- show, of from might now, anty 172 in the Constitution Twining sory self-incrimination. regarded .years insertion, its be after supra 78, Jersey, 29 U.S. [211 New when, irrelevant, except a case in 14, This too 53 L.Ed. 97]. S.Ct. one, special circum- .such as the instant might lost, justice still be be may permissible exist, today past Indeed, stances it be inas done. sys- weigh arguments which, penal this in students of our there are n country immunity who look tem England, ad- and in have been benefit, and than a mischief rather against for and vanced destroy scope, its who would limit In the 1911 case of Wilson v. United altogether. No doubt there would at U.S. S.Ct. give protection remain need page Mc- L.Ed. Mr. Justice against torture, physical or mental. dissenting opin Kenna, page Mississippi, supra [297 in a at Brown 80 L.Ed. urging generous strongly U.S. inter ion however, Justice, would 682]. pretation privilege, of the referred subject perish if the accused certain priv critical discussions of the orderly duty respond in- to a legal literature. He said: quiry.” legal “Indeed, eminent names States, 350 U.S. In Ullmann v. United ridicule, criticism, cited in if not be 497, 500, 422, 426, 427, S.Ct. policy expressed 5th said, 511, Mr. Frankfurter Justice Amendment, is, policy of against the Court: protection self-incrimina logi It is to have no tion. declared explicitly “It to define is relevant cal relation to the abuses that are spirit Fifth Amend- in which the it, pre :said to sustain and that the against self-incrim- ment’s it, so far as tense for based approached. This ination should be hardship, an ‘old woman’s Fifth Amendment command of the ‘lawyer’s reason’) (also a reason’ * * * any (‘nor person shall distilled re a ‘double and treble compelled criminal case sentimentality.’ fined far as So * * * ’) against himself a witness unfairness, based on it is called ‘the important registers advance being reason,’ fox hunter’s basis liberty development our —‘one that a criminal and a fox must have great in man’s landmarks of the subsequent escape, chance struggle himself civilized.’ to make pursuit being thereby in made more protection teresting.” has not Time shown against quotes from United States v. 322' from the which this evils safeguard 1248, 1251, was directed is needless L.Ed. statement: unwarranted. This constitutional interpreted protection must not be «(cid:127) (cid:127) (cid:127) papers and effects niggardly spirit. in a Too hostile privilege protects which the must be many, even those who should bet- private property person of the advised, privilege as ter view this claiming privilege, or at least wrongdoers. They too shelter readily p0ssessi0n purely personal those who in- assume capacity.” (Italics added) guilty of crime or voke it are either books, Wilson, course, did not own the claiming perjury commit no:i:’d*d be bave of them in a *4 ilege. a Such does scant honor view purely personal capacity. patriots sponsored to Bill the Rights accept- condition a to corporation A does not the Con ance of rati- the Constitution the privilege against stitutional self-incrim * tying States. cannot, ination. It therefore if its rec subpoenaed, ords are assert Fifth the general is without There Henkel, Hale v. corporation that an officer of doctrine 43, 201 U.S. 26 S.Ct. 50 L.Ed. 652. custody who, officer, of its such has States, Wilson v. United 221 U.S. successfully may to not refuse records may, S.Ct. L.Ed. 771. It response produce to a those records however, complain that is un search corporation subpoena issued to and the reasonable if the demand for custodian, on the him as served ground unjustifiably so broad as to be burden material that the records contain Essgee some. Co. of China v. United would incriminate him. which Wilson States, 151, 156-158, 262 U.S. States, corporation, 67 L.Ed. 917. if a But 55 L.Ed. 771. In that Mr. Justice case though duty under a to its rec Hughes, during period of his earlier serv- pursuant subpoena, to a ords is unable opinion wrote the which ice the because, to do so as in Wilson United directly so result of the deci- held. The States, supra, corporate officer who Wilson, president sion was of the bas of the records will not sur being already corporation, under indict- production, practical vender them for one grand jury ment same which sub- way by pressure obtain to them is on the corporation’s records, poenaed the was officer. That was done Wilson his validly to held contempt have been for sentenced imprisonment contempt, for supply to the refusal grand jury documents would which background applica- with some used to convict him of crimes which doctrine, we return to the situation hie grand jury investigating. was His appellant his circumstantial Wild and contempt sentence was that he be privilege, Constitutional relation ^ committed “until Unit- he delivers fjis not, corporation as such was as we Telegraph Company ed Wireless the said privilege. He entitled seen> subpoena, books said and privilege for cor- not claim the impede proc- ceases to obstruct and poration, so. and could have done court, purge of this ess or otherwise jje says e]aims himself, it for contempt.” himself of this The other an(j legal he, aBjr entity, artificial will willing directors of United Wireless were punishment one to suffer if he the they get if obliged to furnish to the Govern- he is plight them from Wilson. sWilson bring ment the which will about evidence unhappy one. itWas because he did his made the same conviction. Wilson refusing not own the books which was he contention, but his contention was re- produce? Appellant jected. Wild in our case regard quotes importance v. With from United which States Wild 694, 701, attach to the fact that the records 322 U.S. S.Ct. belonged corporation were, 1252,88 to a L.Ed. 1542: mere- ly reason, particularly subject for that rather, test, one whether “The made available fairly say all circum- under can confess, deference, the rea- particular type of or- stances that given son in Wilson v. United imper- ganization so has a character 361, 382, membership scope of sonal impliedly viz. the reserved visita- said activities that cannot be power torial of the which state created embody represent purely legal entity, power the artificial personal private of its interests somehow is transferred to the Federal embody constituents, rather but Government, something seems to me to be group common interests their only.” make-weight aof in the cases in which expressed. it has been IAnd think that says Wild he is the sole owner since argument incorporates that one who of his does has business blame if embody “purely private personal thereby rights he forfeits Constitutional *5 [only] constituent(s),” of interests its weight. is not of Constitutional who is Wild himself. deny I think that to this Constitutional many per- If there or or are several privilege Wild, would violate the Su- corpora- haps two stockholders in a even preme Court’s admonition in Ullmann urged by tion, it those who well protection that “This constitutional must part any wrongdoing by had no interpreted niggard- not be or hostile corporation president or secre- ly spirit.” tary had of that who the books rejects The court claim of Wild’s corporation they their privilege against self-incrimination be- damaged by embarrassed cause, in the 1913 of case Grant v. United suppressing officer’s records their belong them, which and which he holds corpora- of a owner one-owner only as custodian for them. That was permitted priv- tion was not to assert the Wilson, supra. situation That regard corporation’s with to the application reason has no whatever papers. Supreme Court in Grant being Wild’s situation. He the sole own- disposed privilege of the claim of of er no one but following language: it, can be what with affected he does served, “Although to it. Before the summons was the merits of the consti- destroyed records, or, he could have us, tutional before thus Indeed, everything corporation require it does not extended discus- owned, anyone. accountability without sion in of view the recent decisions papers of this court. The books and just IWhat said seems leave subpoena called for cor- deny- the Government no reason for * * porate records and documents. ing privilege the Fifth They subject inspection remained Wild, except the reason required by and examination when suppressed belonged corpo- which he ato * * competent authority that, therefore, ration and Wilson other precedents deny him apparent the Constitu- It is that the Court in the Grant tional But his regard differs worthy case did case it of dis- respect was, fact, compelling from Wilson’s in cussion which the Su- it preme thought, in United an individual the sole owner and supra, though careful, possessor incriminating papers, deserved the albeit obiter, expression quoted. ownership papers his hereinabove rested his ownership corporation UNITED America, STATES of Appellee, owned them. The Court’s decision was syllogistic. It stated that had recent- ly decided, in Wilson v. United SISTO, Francis J. DE Defendant- supra, corporation that an officer of a Appellant. successfully could not claim the No. Docket 28342. belonging papers corporation Appeals States Court of officer; but which would incriminate the Second Circuit. papers in Grant were papers; Argued therefore Grant was ruled Jan. 1964. Wilson. Decided March 1964. recently As Justice Cardozo Certiorari Denied June Supreme for the Court in Palko v. Con- See 84 S.Ct. 1885. necticut, supra, speaking for the sympathetically referred the views thought those observers who ilege itself awas rather mischief than a benefit. suggest nothing which the Su-

preme Court has decided said in the

last two decades can be reconciled with dry syllogistic approach view that compel an individual to papers possession own from his own *6 government assist his to convict him of language -crime. The of the Court Ullmann, 1956; supra, that of the White, supra, Court in seems say tome that the will not decide of the constitutional dry syl- an individual on the basis logism such as that General Motors president and its refuse to its records on the (cid:127)ground they might him; incriminate Conditioning Supply Company Air is a

n president, therefore though he is sole owner of the cor- poration records, and its cannot refuse its records. Supreme The recent decisions of the Ohio, a few Mapp of which '367 U.S. 6 L.Ed.2d (1961); Wainwright, Gideon v. L.Ed.2d (1963); National Association for People Advancement of Colored v. But- ton, 9 L.Ed.2d (1963); Massiah v.-

S4 (1964), S.Ct. 1199 seem to me make

"this court’s decision the instant case

anachronistic.