In Re Grand Jury Subpoena. Two Grand Jury Contemnors v. United States
826 F.2d 1166
2d Cir.
1987
Check Treatment

*2 direction of a Jury Subpoena Grand Duces NEWMAN, Before MINER and Tecum.” Judges. ALTIMARI, Circuit 8, 1987, appellants On June filed motions quash to the subpoenas, arguing inter alia ALTIMARI, Judge: compelled execution of the directives Appellants, two witnesses before the would their fifth violate amendment rights. grand jury, appeal from orders of Unit- hearing After a on June the dis- for the Southern ed States District Court trict court denied their quash motions to (Vincent District of New York L. Broder- after it found that execution of di- Judge), which held ick, them in civil con- by appellants rectives would not involve tempt refusing for to directives autho- communications, and thus cre- rizing foreign to re- financial institutions ated no basis for fifth amendment viola- and to lease documents information tions. The district court ap- then ordered government, ordered them confined un- and pellants appear grand to jury before the they signed til directives. U.S.C. sign the directives. 1826(a). Appellants contend inter alia § appellants’ of objections to some directives, compelled execution of the language directives, contained in written, as violate their fifth amend- would however, the district court modified them privilege against ment by changing the title from Di- “Consent right process and due law. Because “Directive,” rective” to specifying and here, find no fifth amendment violation they being were in compliance executed we affirm. order, compli- with a court rather than in grand ance with the direction jury FACTS and BACKGROUND subpoena. The provided district also court May grand jury On 28 and that the directives could not used as an subpoenas to appel- against appellants issued duces tecum any admission in subse- required trial, which to sign quent lants them “consent and it inserted time limitation that, directives” were in modified, which attached to sub- the directives they so as poenas. provided The directives authorized disclosure of information and i.e., signator, appellants, dating both authorized back to 1980. foreign financial institutions to disclose to appellants appeared On June government information and doc- grand jury before the and refused to relating uments to accounts maintained the directives as modified the district appellants, their corporations, or the for- court, despite being ordered to do so eign financial institutions. The directives grand jury day, foreman. On the same and acknowledge did not in accounts for- hearing, after a the district court found eign financial institutions were in existence appellants contempt, and civil ordered they by appellants. or that were controlled they them until time incarcerated as Nor did the directives indicate doc- whether executed modified directives. U.S.C. any relating uments other information 1826(a). hearing, At the district § foreign present finan- again court stated that it no found testimo- institutions, assuming cial that such ac- implicated by nial communications the exe- counts did exist. directives, cution noted if and provided they directives, directives should had executed the respect be “construed as consent” with “to have barred from been and all confidentiality using any them as admission subse- laws addition, appar- quent stated that state nation.” trial. The district court that, ently excluding although make it clear it did feel its order the admis- consent, directives were to be construed sion of the directives into evidence amendment, being by required by nevertheless were the fifth invitation, precedent pellants’ and we write here to Second Circuit response clarify meaning prior for such exclusion. of our decisions. provided appellants’ court then denied The district claim. Self-incrimination appeal of stay pending for a or bail motion provides The fifth amendment orders, but contempt and confinement shall be ... “[n]o stay apply limited granted them *3 against to any criminal case a witness be pending appeal. On June stay for a court Despite himself.” U.S. Amend. V. Const. 25, 1987, stay of confine- continued the we language, however, this broad the fifth heard on an the matter could be ment until proscribe amendment does not the com basis, argument on and at expedited oral of pelled production every sort of incrimi 14, 1987, stay until July we continued nating evidence. Fisher v. United appeal. For the reasons disposition of this 1569, 1579, 425 U.S. 48 below, district court affirm the stated we (1976). Historically, privi L.Ed.2d 39 holding appellants contempt, and orders interpreted lege protect has been a wit of stay execution accordingly, lift the of being compelled ness from to make self-in the confinement orders. “communications, criminating whatever Schmerber v. they might form take[.]” DISCUSSION 763-764, California, 384 U.S. 757, 7, 763 n. 1826, 7, 86 1832 n. 16 L.Ed.2d S.Ct. 908 expedited appeal, appellants In this (1966)(refusing adopt Wigmore’s formu present challenges to the district several privilege covered only lation sign the requiring them to court orders disclosures”). “testimonial assert, Appellants directives at issue. however, has since been limit first, their fifth the orders violated ed, “applies only and it now when the ac privilege against compelled amendment compelled cused is make a self-incrimination; second, and that absent incriminating.” communication that is indicating language in the directives Fisher, 408, 425 U.S. 96 S.Ct. at 1579 signed protest and appellants them under contrast, (emphasis original). In confinement, they threat of under compelling does not bar an ac sign being compelled false documents. provide, making or him the cused to source challenges Appellants also raised other Schmerber, of, evidence, physical real or merit, find are and thus which we without 764-765, 1832, 384 U.S. at 86 S.Ct. at even summarily reject we them. though may the accused respect to the self-incrimination With Wade, 388 speak, United States v. claim, recognize precedent 1929-1930, 218, 222-223, 1926, 87 18 S.Ct. approved has the com this Circuit (1967), write, Gilbert v. 1149 L.Ed.2d pelled execution of in the face of directives 266-267, 263, California, 388 U.S. 87 S.Ct. In Re N.D. challenges, fifth amendment (1967), provid 18 L.Ed.2d 1178 Subpoena, Jury N. Y. Grand 811 F.2d 114 speech writing exemplar that his ed is (2d Cir.1987), and United v. States sought purposes, for identification and not (2d Cir.1985), F.2d 1025 contend 767 knowledge he to “disclose that those cases conflict with the Wade, 222, 388 have.” U.S. at 87 S.Ct. at United States v. decision in Court's 605, 104 465 U.S. S.Ct. (1984), purportedly to the extent To establish a fifth amendment vio lation, appellants demon relied on a de facto use to obvi must therefore 1) Appel problems. fifth the existence of three elements: ate amendment strate 2) prior compulsion, lants thus invite us to our testimonial communica reverse 3) conflict, tion, of that decisions in and hold and nature re N.D.N.Y. Grand communication. execution of the directives Jury Subpoena, 811 116 Cir. violates their fifth amendment 1987). compulsion clearly is against ap- element sef-incrimination. We decline

1169 present here. See United States rective employed v. at issue language “that (N.D.N.Y. Browne, F.Supp. require[d] disclosure [of records] 1985) (where the court orders individual such accounts.” Id. at ha[d] if refuses, (citations omitted) form after he consent (emphasis in origi met). nal). compulsion Relying element of More trou on the Eleventh Circuit deci blesome, though, question is the of wheth sion in States 732 F.2d (11th er ordering Cir.), the di 814 denied, cert. requiring

rectives—and thus them to (1984), au S.Ct. L.Ed.2d we thorize disclosure informa “executing concluded that directive th[e] tion if any exist—constitutes testimonial would implicate any testimonial com conclude, however, munication,” self-incrimination. We impair and thus would not that it not. appellant’s does fifth rights. amendment F.2d at 117. outset,

At emphasize appel- contend, they argue, lants do not nor could both and In Davis re Y. N.D.N. Grand *4 their fifth amendment Jury Subpoena, ex- adopted we the Eleventh preclude tends to the financial institutions approach Circuit’s resolving toward these producing questions from records or information re- forth set in United States v. garding appellants' transactions. supra. In the Eleventh 1025, 767 States v. F.2d 1039 Circuit was confronted ques with the same Thus, Cir.1985). since presented the directives are tion in the instant appeal. The only the communications which directive at there issue from differed the make, compelled to are the only ones here in respects. minor For ex possible ample, source a fifth amendment viola- directive,” it was entitled “consent “directive,” tion. and, Id. rather than in addition to using language indicating that it was di regard, In approved we have twice rected appellant to bank where had an compelled of the of a in execution directive account, specific bank, it also named a the face of fifth amendment self-incrimina whereas the directives at issue here do not Thus, Davis, tion challenges. in while we any specific name bank or financial institu directive, observed that such as the one tion. issue, may aspects at have had that were nature, 767 1040, in setting communicative F.2d at general After first out fifth rejected we appellant’s nevertheless the principles, amendment the Ghidoni court fifth challenge amendment then we reviewed the directive in of those any potential found that addressing fifth amendment Court decisions the problems were obviated the fact incriminating aspects testimonial and precluded documents, compelled production i.e., district court using the directive as an admission at United States v. not, however, trial. did (1984), Id. We decide in S.Ct. and Fish- aspects Davis whether communicative er v. United S.Ct. (1976). Thus, the directive were either testimonial or L.Ed.2d Ghi- in nature. doni court likened situation before it— compelled where an being individual was to however, Recently, upon we were called i.e., authorize and a third party, direct precise questions address banks, produce documents—to situa- Thus, were left in unresolved in Davis. Fisher, presented tions in Doe and where Subpoena, re Jury N.D.N.Y. Grand produce individual was (2d Cir.1987), considered, F.2d 114 in we documents himself. quite factual context to the similar instant appeal, court, whether accordingly, execution of a The exam- Ghidoni wording nearly directive—whose iden- was ined the to determine whether it directive tical to regard- the one at issue—constituted tes- contained testimonial assertion ing sought timonial communication that was incrimi- from the banks. documents There, nating. the di- The court that the directive was observed concluded response aspects,” 732 records were received to the any testimonial “devoid “nothing subpoena it found and consent form. Would not after at accounts implie[d] that linking [appellant] the directive to the the evidence [bank] re- exist,” no statements that it contained testimonial records be his own admission or control over garding possession of consent? We believe it would. accounts, it could not be used and that Thus, the court found that since the Id. any records obtained. Id. authenticate admitting directive contained a statement The court thus concluded 818-819. consent, statement, alone, standing his of the directive would compelled execution self-incriminating constituted a testimonial privilege against self-incrim- violate court, according- communication. Id. itself was not the directive ination because compelled execution of ly, concluded that up- at 819. in nature. Id. directive violate the fifth amend- of the di- holding compelled execution ment. Id. rective, court further observed only being compelled to defendant we see some merit While [i.e., foreign confi- states’ “waive a barrier approach, First Circuit’s we are constrained pro- dentiality permit laws] precedent in apply here to our N.D.N.Y. which it conclud- duce documents”—an act Subpoena, and Jury follow Grand testimonial assertions. Id. provided ed no We there analysis set forth Ghidoni. 819 n. 12. the directives here fore hold that because assertions, criti- decision is not without no testimonial dis Ghidoni contain questions approach to these compelling appellants cism. Its trict court orders *5 in In recently rejected the First Circuit provide the directives no basis for a (Ranauro), Jury Proceedings re Grand fifth amendment violation. The directives Ranauro, (1st Cir.1987). In 814 F.2d 791 here, Ghidoni, any not contain as do agreed the First Circuit with the Ghidoni by appellants regarding the ex assertions conclusion that the directive itself court’s over, of, foreign istence or control bank exist, any does not assert They authorize disclosure of accounts. appellant has over such ac- control only if ac records and information counts, any or that records obtained agree We also with the counts exist. Ghi authentic. Id. at 793. The court ob- be court’s conclusion that the directives doni however, served, did “ad- that the directive could not used to authenticate consent,” appellant’s] mit and assert [the records obtained. id., that his assertion and thus it concluded here, affirming the district court how- potentially incrimina- of consent could be ever, necessarily clarify must certain we ting, it later be used “to aspects holdings in and In re of our Davis prove the ultimate facts that accounts Appel- Jury Subpoena. N.D.N.Y. Grand [appellant’s] [appel- existed or that name suggest lants that the determination To controlled those accounts.” Id. lant] question in those deci- fifth amendment may illustrate how the directive later be govern- sions rested on fact self-incriminating testimo- used at trial as using the di- precluded ment from posited following hypo- ny, the court against the admission rective at trial as an thetical: con- signator Appellants of the directive. government Suppose that at trial the recognized in those cases tend produced were to introduce bank records the directives were both testimonial response subpoena to a that had been sanctioning a incriminating, and that accompanied by the form and consent precluding admission district court order apparent that it was not from the face evidence, ap- into we were the directives [appellant] the records or otherwise how immunity proving of a de facto use Suppose was linked to them. also that —a practice forbidden United States then introduced the sub- 1237, 1243- 614-17, form, govern- poena and consent and a L.Ed.2d 552 ment witness testified that

H71 holding today, protest” of our it is them “under or “under the threat the fifth amendment would not clear that of incarceration.” to admission of the di stand as bar reject appellants’ arguments. We into evidence trial because the rectives directives, written, require- satisfied the no testimonial assertions directives contain ments set out in In re N.D.N.Y. Grand incriminating, and thus do not that are Jury Subpoena, 811 F.2d at 117-118. But questions. amendment implicate fifth There, long we held that so as a directive Jury Subpoena, In re N.D.N. Y. Grand cf. signed indicated that it protest under note, however, 117. also 811 F.2d at We pursuant order, to a district court it since directives contain no state would not Id. misleading. be considered of, regarding existence or control ments Here, the directives included lan- accounts, over, any they should be exclud guage indicating they signed they ed from evidence because lack pursuant order, to a district court and thus probative value. 732 F.2d at 818 they adequately reflected their coerced na- & n. 9. ture. argue Appellants the district when Affirmed. excluding entered its order the di court evidence, accordingly cre rectives use

ated a de facto for state NEWMAN, JON O. Judge, con- ments made directives. We dis curring: agree. entered When district court its Judge opinion concur in Altimari’s precluding orders admission the di separately write because I do not believe evidence, merely ruling

rectives into it was path prior of our decisions nor the relating evidentiary questions on to materi outcome to lead us in this case relevance, etc., ality, prejudice, all of which quite colleagues so my suggest. clear as could be and were resolved in the sound grand jury subpoena The use of a discretion of the district court. We con compel to “consent” to disclo that, clude here because the directives lack production sure and of bank records con any probative testimonial value on the is cerning very his account is a device of control, *6 sue of existence or origin. recent appellate The first decision proper F.2d at 818 & n. the district court to consider whether this device violates the ly excluded them from evidence. privilege against appears process II. Due claim. to be United v. States F.2d Cir.1984), (11th appeal an from a con Appellants by sign also claim tempt adjudication sign for refusal to the ing being they directives at issue were panel approved “consent.” A divided forced to containing a document false device, concluding signing the “con misleading statements in violation of “ sent” form not a was ‘testimonial commu right process Appel their to due of law. ” id. at 816 nication,’ Fisher v. (quoting lants contend that since were not “au 96 S.Ct. thorizing” “directing” foreign finan (1976)), 48 L.Ed.2d 39 and for anything, except cial institutions to do protected by privi order, that reason was not compliance with a court the di rectives, written, lege. majority The believed that a commu adequately do not indi cate their nication is testimonial when it asserts a Accordingly, coerced nature. “ ” (involves 818), id. they request ‘truth-telling,’ contempt that we reverse fact orders because the directives do and that the “consent” form contained no not state were assertion of fact.2 put quotation leading 1. I the word in marks to acknowl- because “it furnishes a link in the chain edge oxymoronic nature of a procurement of the documents that "consent.” to use to secure Ghidoni’s intends J., (Clark, 732 F.2d at 821 dissent conviction.” 2. The dissent in Ghidoni rests on the view that argument entirely satisfactory. ing). That is not protected by the “consent" was prob- exceeding his authority, encountered the have been This first since the made Court has it clear following year in v. lem the United States “use” immunity may informally not be (2d Cir.1985). Davis request requires conferred a formal a conviction. One appeal was an Department pursuant of Justice to 18 the use in evi- ground appeal 6002, 6003(1982). U.S.C. United States §§ obtained as a result dence of 616 & n. by the signed of a defendant “consent” 1244 & n. of a court order. compulsion under the interpretation pas From this of the Davis accepted apparently the defend- sage appellants rejected contend that Davis that, premise if the had ant’s “consent” objection the self-incrimination on im compelled in violation the self-in- been permissible and that we basis must now the bank records crimination consider issue of anew the whether the into evi- should not have been admitted protected by “consent” privi directive is had tested the dence. The defendant lege.3 compulsion resisting order the order interpretation second Davis appealing contempt adjudication. Facing passage, Judge adopted by opin- Altimari’s the issue of whether “consent” order ion, panel is that the did Davis not think privilege, the violated the Court conceded Judge that the had District endeavored to “might that the “consent” form have had immunity, confer “use” but had considered own,” aspects of its communicative id. merely evidentiary him have made an rejected possibility 1040. The Court ruling. interpretation, Under this the “con- following passage: sent” did not violate the directive self-in- However, Judge’s] carefully District [the crimination because it contained provided specifically crafted order nothing evidentiary significance. If I could not use the di- Government focusing solely on the two sentences rective as an admission above, have some quoted I would doubts existed, that Davis control accounts had interpretation about that of Davis. How- them, over other purpose. or for ever, my allayed by are doubts citation These on the use of direc- limitations immediately to Ghidoni that follows these any claim testimonial obviate tive] pointed out, explicitly sentences. Ghidoni compulsion. supra. See footnote, in a immunity albeit that “use” Id. conferred, being was not judi- informal subject This passage interpreta- to two prohibited cial “use” One, urged by tions. Doe, supra, and United States v. that the pending Judge appeal, is District deemed “consent” directive was not to be use of Davis had the “con- precluded any proba- “lack[ed] effect, by, sent” directive at trial confer- on the issue of con- tive testimonial value *7 ring occurred, immunity. Had “use” this trol or existence [of records].” out, added). point Judge (emphasis By the at District F.2d 818 n. 9 invoking samples, development highly The privilege normally applies basis for the of "link in the chain” the leads to compulsion when incriminating testimony, the but of plainly answer itself is and the facts privilege. does not violate the such evidence by disclosed the testimonial answer lead to dis 757, 764, California, 384 U.S. See Schmerber v. covery incriminating testimony of or real evi 1826, 1832, 86 S.Ct. States, dence. 479, v. United See 341 U.S. Hoffman (1951); 71 S.Ct. 95 L.Ed. 1118 obliged Though subsequent panel is 3. to fol- 159,

Blau v. United precedents by prior panels low the established (1950); L.Ed. 170 United States v. Circuit, including of decisions that author- this Burr, (C.C.D.Va.1807)(No. 14,692e). 25 F.Cas. 38 itatively apply Supreme and Court de- construe majority If the in Ghidoni is correct that the cisions, by it clear that a subse- is no means is testimonial and for "consent” not not that reason quent panel precedent a Circuit must follow protected by privilege, the it become cannot prior Supreme has not reckoned with a Court so it will lead to evi precedent is in decision with which the evidence, dence. Much such as irreconcilable conflict. handwriting exemplars, fingerprints, and blood Ghidoni, panel citing rights the Davis must have Alexander’s the under fifth amend- aspect of rea- ment.” adopting (emphasis been this Ghidoni’s Id. at 117 original). in soning. Though the matter is not free from doubt, appears it again encountered a “con-

Our Court Davis and Alexan- establish, der year Circuit, in In as the sent” directive earlier this re law of this Subpoena a “consent” for Jury #86- disclosure of Grand N.D.N.Y. of (Alexander), bank accounts 811 F.2d 114 Cir. a witness 0351-S have 1987), is communication, not a testimonial appeal contempt adjudica- an that it is rejection consequently protected by tion. self-incrimination self-in- crimination objection perpetuated in un- and that or- Alexander a court Davis, compelling signing der certainty, by created as to whether “con- sent” does relying Circuit was on some not violate the Fifth this form of Amend- judicial ment. These in immunity unauthorized “use” or on conclusions are accord Circuit, with those of the evidentiary considerations. The Eleventh Alexander directive, States v. panel supra, noted that the “consent” and the Fifth Circuit, Davis, in In re Jury unlike the one used “does not United States Grand (Cid), Proceedings (5th may 767 F.2d expressly provide that it not be used Cir. 1985), are not shared pur- as admission Alexander for the First Cir- cuit, In re Nevertheless, Jury Proceedings (Ra- Grand pose.” panel at 117. Id. nauro), (1st Cir.1987). 814 F.2d 791 concluded, “it govern- seems clear that the consistently ment could not so use it with Were the in open Circuit, matter rights. Alexander’s fifth amendment See would deem the extremely issue be permissi- 767 F.2d at 1040.” AId. premise close. of the conclusion re- sentence, reading urged by ble of this jecting a objection seems case, pending is that the to be that a statement is within the scope panel conferring judicial “use” immu- privilege only of the if it asserts a fact. As nity appellate level, something at the it, puts Ghidoni statement must serve least unauthorized as the informal dis- function, a “truthtelling” proscribed trict court “use” Judge Breyer, Ranauro, dissenting sim- Supreme panel Court If Doe. ilarly contends a statement is within use believed that of the “consent” directive privilege only when would have been inconsistent with wit- could, “the kind communication that ness’s self-incrimination principle, for be false.” 814 F.2d at 798. against that reason could not be used These views of the are derived witness, believing there is some for basis largely Supreme from the Court’s decisions appellate preclusion ruling, and Doe. The issue in Fisher those considerations, evidentiary rather than led producing cases whether the act of rejection of objec- the self-incrimination documents, making not itself of a state- However, countervailing tion. there are ment, might priv- nonetheless within the First, panel considerations. explicitly fact, ilege implied anas statement of some upon and, relied like the Davis example, for the fact that the witness has panel, understood, must have as the Ghido- possession or control documents. clear, judi- ni footnote made that informal Because the examined *8 adequate cial “use” was not an implied if production act of to see answer to the objection. fact, assertion of some have drawn the Second, panel, noting the Alexander that that statement does not inference a “requires the “consent” directive disclosure fact not assert a is a testimonial communi- accounts,” the bank has such con- cation. This inference is the inverse of the if signing cluded that the directive “would proposition that all assertions of fact are and, implicate communications, logi- not testimonial communica- impair us, tion” proposition and for that reason “does cians inform an inverse of a not 1174 necessarily content, including not so. See cant because of its possibly

is but those 1952).4 McCall, Logic ed. fact, Basic that contain no assertion of would require some policies consideration of the Court In Fisher and Doe privilege designed is protect. As a purport to announce universal did not Wigmore pointed out, Dean has there are determining privi- test for policies implicated numerous acknowledged by privi- simply lege. It lege, imply agreement asser- and no applies policies to acts that on which It did not have occasion to sufficiently of fact. are tions central to warrant constitu- determining test for when consider the tional vindication. 8 Wigmore, See J. Evi- to oral or commu- privilege applies written (McNaughton 1961). dence rev. § clearly the Court has de- What nications. emphasize policy Some preventing acts, is that cided in earlier cases certain the unfairness that results person when a though incriminating, are not within the must face “the cruel trilemma of self-accu- by privilege. The is not violated sation, perjury contempt,” Murphy or v. compelling person a to furnish a handwrit- Commission, 52, 55, 378 U.S. Waterfront ing exemplar, California, Gilbert v. (1964). S.Ct. L.Ed.2d 678 263, 266-67, S.Ct. Vindicating policy would lead to a re- (1967); lineup L.Ed.2d 1178 to stand in a quirement that a statement must assert the exemplar, furnish a voice United States something truth of in order to be within the 218, 222-23, 1926, Wade, 388 U.S. 87 S.Ct. Ranauro, privilege. supra, See 814 F.2d 1929-30, (1967); provide 18 L.Ed.2d 1149 (Breyer, J., dissenting). at 797 On the oth- sample, California, a blood Schmerber v. hand, many er emphasize policy 757, 763-65, 1826, 384 U.S. 86 S.Ct. 1831- striking appropriate balance between (1966); or to don cloth- power of the state sovereignty and the ing, Holt v. United Griswold, Right of the individual. See 252-53, (1910). 54 L.Ed. 1021 Alone, To Be Let Nw. U.L.Rev. 216 yet What the has not decided is the policy That would be vindicated posed by issue a “consent” directive: Does prohibiting compelling per- the state from privilege apply every written or oral son to furnish oral or written state- statement, might the content of which tend content, ment because of its do not incriminate? Gilbert Wade whether or the statement makes a fac- question. answer that person Even when a policy appear tual assertion. That would particular to utter or write seriously to be undermined the use of handwriting words for use as a voice power compel state to utter or exemplar, resulting oral or written words, signifies write the content of which incriminating only statement is because of anything. “consent” to physical characteristics of the sounds lettering. or the It is not the content of regret I in developing the law of this the statement that creates the risk of in- Circuit we have not confronted directly the crimination. issue whether a communication with in criminating

To decide whether the content privilege applies but without an asser every signifi- oral or written protected by privilege.5 tion of fact is statement Fisher, opinion Justice White’s for the Court 5. Whether the content of the “consent” directive *9 troubling. find that issue Neverthe would

less, I am satisfied that our Circuit has that a written

reached the conclusion com expressing consent to disclo

munication bank records of the witness

sure exist is not within the Obliged accept privilege. that con Circuit, I

clusion as the law this concur opinion affirming adjudication

contempt.6 America, Appellee, STATES of

UNITED GELB, Garfield, Barry

Bernard Computer Systems,

EDP Medical

Inc., Defendants, Computer Systems, Inc.,

EDP Medical

Defendant-Appellant.

Appeal of Norman A. KAPLAN.

No. 87-1349. Appeals,

United States Court of

Second Circuit.

Argued Aug. 1987. Aug. 17,

Decided count, likely more to be true expressly being signed than would be the revised state that it is case without the evidence. See Fed.R.Evid. 401 protest.” thought "under I would have that our (using evidence”). this test to define "relevant supervisory power should be exercised to make hand, bank, On the other evidence from the being signed, clear that the "consent” is necessary which would be records, to authenticate the merely pursuant to court order but also under likely proof would furnish such clear protest. There are some documents a witness, the account is that of the cheerfully pursuant to a court order. arguably evidence of his consent to disclosure ought These witnesses to be able to make clear expose does not him to "realistic threat of that a court has ordered them to a doc- incrimination,” States, supra, Fisher v. United ument would otherwise have refused to 425 U.S. at 96 S.Ct. at 1581. However, sign. agree “pursuant language open, 6. Were the issue court order” is sufficient under the I would have acceded to appellants’ request controlling authority that the "consent” form be of Alexander. notes incriminating, that in that case the Government was "in even if an assertion of way relying ’truthtelling' no required privilege, on the of the tax- fact is not to invoke the is a payer prove Ranauro, dispute. the existence of or his access to matter of fair the First the documents.” 425 U.S. at 96 S.Ct. at chain of Circuit outlined a incrimination in consent, may imply "truthtelling” furnishing 1581. This is a which the followed records, prerequisite again production provide for the bank’s reasoning ground would be on the unsure of an evidence that the records were those of the proposition. Concurring inverse judg- consenting witness. It seems clear that if the Fisher, asserted, ment in Justice Brennan connection of the records to the witness were ”[I]t papers does not disputed, follow that are not ‘testimonial’ the "consent” document would have issue, is, producible and thus materiality contain no some to the it would 422-23, proved, declarations.” Id. at 96 S.Ct. at 1587. make fact to be control of the ac-