UNITED STATES of America, Appellant, v. Webster L. HUBBELL, Suzanna W. Hubbell, Michael C. Schaufele and Charles C. Owen, Appellees.
No. 98-3080.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 21, 1998. Decided Jan. 26, 1999.
Although at first blush the number of levels seems high, the departure made Blackley‘s sentence more closely approximate what would follow for kindred crimes committed by high government officials under provisions such as
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Defendant also claims a violation of Rule 404(b) of the Federal Rules of Evidence, but the claim is too weak to merit discussion. And he argues the sufficiency of the evidence. On that issue he devotes his brief almost entirely to evidence that, if believed and given great weight, might have enabled a jury reasonably to acquit. Perhaps so. But the possible reasonableness of acquittal is not, of course, the test—it is whether a jury could reasonably convict, as here it could.
The defendant‘s conviction and sentence are confirmed.
So ordered.
Kenneth W. Starr, Independent Counsel, argued the cause for appellant. With him on the briefs were David G. Barger, Joseph M. Ditkoff, and Darrell M. Joseph, Associate Independent Counsels. Stephen J. Binhak, Associate Independent Counsel, entered an appearance.
John W. Nields, Jr. argued the cause for appellees Webster L. Hubbell and Suzanna W. Hubbell. K. Chris Todd argued the cause for appellee Michael C. Schaufele. With them on the brief were Laura S. Shores, Wan J. Kim and Drake Mann, counsel for appellee Charles C. Owen.
J. Douglas Wilson, Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States acting through the Attorney General.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed PER CURIAM.*
Separate opinion concurring in Part I filed by Circuit Judge WALD.
Separate opinion dissenting from Part I filed by Circuit Judge TATEL.
Separate opinion dissenting from Part II filed by Circuit Judge WILLIAMS.
PER CURIAM:
All defendants—Webster L. and Suzanna W. Hubbell, Michael C. Schaufele, and Charles C. Owen—moved in the district court to dismiss an indictment charging tax evasion and related crimes on the ground that the indictment was beyond the prosecutorial jurisdiction of Independent Counsel Kenneth W. Starr. In addition, Webster Hubbell moved for dismissal on the theory that prosecution necessarily would depend on evidence produced under compulsion and used in violation of the Fifth Amendment and the immunity granted him under
On August 5, 1994 this court‘s Special Division for the Purpose of Appointing Independent Counsels (“Special Division“), upon request from the Attorney General, appointed Kenneth W. Starr as Independent Counsel. It gave Independent Counsel Starr jurisdiction to investigate
whether any individuals or entities have committed a violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, relating in any way to James B. McDougal‘s, President William Jefferson Clinton‘s, or Mrs. Hillary Rodham Clinton‘s relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc.
as well as
other allegations or evidence of violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, by any person or entity developed during the Independent Counsel‘s investigation referred to above and connected with or arising out of that investigation
and, more specifically,
any violation of
28 U.S.C. § 1826 , or any obstruction of the due administration of justice, or any material false testimony or statement in violation of federal criminal law, in connection with any investigation of the matters described above.
The Special Division also gave the Independent Counsel jurisdiction to seek indictments against and to prosecute
any persons or entities involved in any of the matters described above, who are reasonably believed to have committed a violation of any federal criminal law arising out of such matters, including persons or entities who have engaged in an unlawful conspiracy or who have aided or abetted any federal offense.
Finally, apparently summarizing the above grants, the Special Division ordered that the Independent Counsel have
prosecutorial jurisdiction to fully investigate and prosecute the subject matter with respect to which the Attorney General requested the appointment of independent counsel, as hereinbefore set forth, and all matters and individuals whose acts may be related to that subject matter, inclusive of authority to investigate and prosecute federal crimes (other than those classified as Class B or C misdemeanors or infractions)
that may arise out of the above described matter, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.
These grants of authority were under
The Independent Counsel discovered in 1996 that Hubbell apparently had begun to receive substantial payments as consulting fees in 1994. According to the present indictment, these payments included $100,000 from Hong Kong China Limited (controlled by the Riady family through the Lippo Group) and $62,775 from Revlon.1 Not satisfied that Hubbell had been fully cooperating, the Independent Counsel sought, as he says in his brief, “to determine whether a relation-
After the investigation had progressed considerably, the Independent Counsel sought another
(i) whether Webster L. Hubbell or any individual or entity violated any criminal law, including but not limited to criminal tax violations and mail and wire fraud, regarding Mr. Hubbell‘s income since January 1, 1994, and his tax and other debts to the United States, the State of Arkansas, the District of Columbia, the Rose Law Firm, and others; and
(ii) whether Webster L. Hubbell or any individual or entity violated any criminal law, including but not limited to obstruction of justice, perjury, false statements, and mail and wire fraud, related to payments that Mr. Hubbell has received from various individuals and entities since January 1, 1994.
A federal grand jury indicted Hubbell and the other defendants on April 30, 1998. The indictment alleged conspiracy, mail and wire fraud, and various tax offenses, all concerning attempts to keep Hubbell‘s income—including, in material part, the consulting fees—from creditors and the IRS.
On July 1, 1998 the district court granted defendants’ motion to dismiss the indictment in its entirety as beyond the authority of the Independent Counsel. 11 F.Supp.2d at 27.
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The threshold issue before us is the effect, if any, of the Special Division‘s January 6, 1998 referral order (“the referral“). The Independent Counsel argues that the referral is either unreviewable or is entitled to deference from this court; defendants—and the Department of Justice in its amicus brief—argue that it is irrelevant. No one suggests that the indictment is beyond the scope of the referral.
Referrals from the Special Division are authorized by
The referral here, then, is simply an explicit determination by the Special Division that the original grant of jurisdiction implicitly included the matters referred. See In re Espy, 80 F.3d 501, 507 (D.C.Cir.1996); see also Morrison, 487 U.S. at 685 n. 22, 108 S.Ct. 2597. The Independent Counsel argues for unreviewability of this determination by analogy to what he regards as comparable decisions of the Attorney General. For such unreviewable counterparts he points first to the decisions of the Attorney General and her subordinates to have “Main Justice” prosecute certain cases rather than a local U.S. Attorney‘s Office and second to the Attorney General‘s own referral authority under
At least as applied to the Special Division, however, the analogy does not hold. Although the Supreme Court upheld the independent counsel provisions of the Ethics in Government Act against constitutional challenge in Morrison v. Olson, the Court, in rejecting the attack on the statute‘s grant of powers to the Special Division, saw it as important to say that the
But the independent counsel alternatively asks for deference to the Special Division‘s
Viewed as an agency, the Special Division appears to act quite like one glossing its own regulation—a situation in which we usually grant substantial deference. See Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C.Cir.1997) (deference to agency interpreting its own regulations at least equal to deference under Chevron). Defendants and the Department of Justice as amicus would have us reject deference on the ground that the Division operates without procedures for critique and comment by outsiders, especially by adversely affected parties. But the cases frequently find deference in such safeguard-deprived circumstances. See, e.g., Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (commentary to sentencing guidelines); Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm‘n, 136 F.3d 819 (D.C.Cir.1998) (interpretation implicit in Commission‘s decision to bring enforcement action); National Wildlife Fed‘n v. Browner, 127 F.3d 1126, 1129 (D.C.Cir.1997) (litigating position, as long as it is agency‘s actual and deliberated-upon view); Paralyzed Veterans, 117 F.3d at 581-82 (supplement to DOJ‘s ADA Title III Technical Assistance Manual).
The Department of Justice goes on to characterize its chief, the Attorney General, as the entity actually responsible for the initial grant; from that assumption it reasons that Congress likely intended no deference for the Special Division‘s interpretations of the initial
Morrison, it is true, requires that “the jurisdiction that the [Special Division] decides upon must be demonstrably related to the factual circumstances that gave rise to
Defendants stress additional language in Morrison that, they claim, characterizes the referral power of the Special Division as “essentially ministerial.” 487 U.S. at 681, 108 S.Ct. 2597. This simply misreads the case—the language specifically refers to the provisions listed in its footnote 19: referral is not among them.
The existence of alternative referring agencies, the Attorney General and the Special Division, presents further deference problems. Compare, e.g., Rapaport v. OTS, 59 F.3d 212, 216-17 (D.C.Cir.1995) (no deference in Chevron context if more than one agency given authority) with id. at 220-22 (Rogers, J., concurring in the judgment) (case-by-case determination of deference in such situations). Is a referral by the Attorney General also entitled to deference? We have seen that she would not be interpreting her own grant of jurisdiction—the key issue under Martin—but we do not rule out other possible grounds for deference or even unreviewability. See, e.g., Tucker, 78 F.3d at 1317-19 (legislative history indicates that referrals from Attorney General are not reviewable). Indeed, as Morrison‘s concern about the Special Division‘s power is far less applicable to a
Finally, the claim of zero deference would if accepted render
The search warrant analogy—brought to mind by the defendants’ and the Department‘s stress on the absence of adversary procedures—is also instructive. Although made ex parte and resolving constitutional questions, a determination of probable cause by a federal magistrate or state judge is given “great deference.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (internal quotation omitted). And in this context it is quite plain that neither the allocation of the power to an array of entities nor the possibility of denial by one judge before a grant by another stands in the way of deference to any particular warrant actually granted.
Both analyses lead us to deference, but employ different linguistic formulations. An agency‘s interpretation of its own regulation is upheld unless “plainly erroneous or inconsistent” with the regulation, Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945), while a search warrant is valid if the magistrate had a “substantial basis” for his finding of conformity to the applicable standard (probable cause). Gates, 462 U.S. at 238, 103 S.Ct. 2317. Such formulations do not necessarily conflict: each appears to assume a paradigm case rather different from the Special Division‘s
Although deference to an agency‘s interpretation of its regulations applies where it is simply applying the regulation to a specific set of facts, see, e.g., Consolidation Coal Co., 136 F.3d at 820-21, the deference is plainly focused on the agency‘s norm-defining role. It makes sense to view the referral power thus, at least in part. Unlike a magistrate issuing a warrant, for example, the Special Division is not interpreting a single concept with an elaborate precedential pedigree and fairly well-established outline: even key terms (such as “related to“) are, as terms of art go, still novel and quite ambiguous. Further, just as it is far easier for an agency to develop and maintain a coherent interpretive line if its legal interpretations enjoy deference from the scattered multitude of judges who review its decisions, see Peter L. Strauss, One Hundred Fifty Cases Per Year, 87 Colum. L.Rev. 1093 (1987) (arguing that this value supports the principle of Chevron deference to agency interpretation of statutes), so deference may enable the Special Division to do so, as the thousands of magistrates and state judges who issue warrants obviously cannot.
On the other hand, to the extent these recurring concepts are fleshed out, the grant of referral also entails some of the marshaling and application of facts (or factual assertions) that “substantial basis” seems to assume and “plainly incorrect or inconsistent” may overlook. In fact, this element and the norm-defining element discussed above appear inextricably entwined in the Special Division‘s referral decision.
We could perhaps attempt to articulate some multiheaded standard to govern review of the referral. But this would be a futile exercise of judicial ingenuity. As Judge Posner has noted, there is deference and non-deference, but further multiplication of flavors “reflects the lawyer‘s exaggerated faith in the Word.” United States v. McKinney, 919 F.2d 405, 422 (7th Cir.1990) (Posner, J., concurring); see also NLRB v. Universal Camera Corp., 179 F.2d 749, 753 (2d Cir. 1950) (L. Hand, C.J.), vacated, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). That is to say, we believe that a
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The statute sets a minimum on the scope of the jurisdiction the Special Division is to grant. We do not think the Special Division‘s referral is unreasonable even if compared to this minimum. Indeed, we find the indictments themselves within the statutory minimum jurisdiction even without deference to the referral.
The statute begins by directing the Special Division to “assure that the independent counsel has adequate authority to fully investigate and prosecute the subject matter with respect to which the Attorney General has requested the appointment of the independent counsel, and all matters related to that subject matter.”
The statute continues:
Such jurisdiction shall also include the authority to investigate and prosecute Federal crimes ... that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General‘s request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.
As we noted, there is an ambiguity in just what the core jurisdiction is. The Attorney General‘s initial application to the Special Division described the subject matter of the appointment as “whether any violations of federal criminal law were committed by James B. McDougal or any other individual or entity relating to Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc.” Application for the Appointment of Independent Counsel (1994) (emphasis added). It appears unusual in defining the original “core” as criminal activity “relating to” the narrowly conceived subject—Whitewater.6 One could argue that the “related to” phrases compound: the Independent Counsel would thus be entitled to investigate and prosecute crimes “related to” any crimes “relating to” Whitewater (or, under the second statutory sentence, “aris[ing] out of the investigation” of crimes “relating to” Whitewater).
We think in fact such piling on adds little. “Relating to” and “arise out of” are themselves such amorphous phrases as to make their addition (or multiplication) virtually meaningless.
Rather we think the minimum statutory space must be read, as we have said in the past, in accord with the purposes of the statute. Its “central purpose ... is to permit the effective investigation and prosecution of high level government and campaign officials.” United States v. Wilson, 26 F.3d 142, 148 (D.C.Cir.1994) (emphasis added). Discussing the “related to” language of
More concretely, the jurisdiction to look into matters “related to” the core areas of initial inquiry must allow the Independent Counsel enough leeway to investigate and prosecute such matters as are appropriate for him to effectively carry out his mandate. We think such effectiveness cannot be secured unless the Independent Counsel is at least able to pursue crimes ancillary to the commission or concealment of crimes in the core area.
The rationale for jurisdiction in this case is the same under either the “related to” or “arising out of” phrases in the statute. If payments Hubbell received beginning in 1994 were indeed hush money to secure Hubbell‘s silence vis-a-vis Whitewater, the possible obstruction of justice therein would certainly be a crime “relating to” Whitewater, for it would be an attempt to cover up the wrongdoing afterward. Both the Department of Justice and the defendants admit as much. They nevertheless argue that the tax charges here, as well as wire fraud and mail fraud aimed at keeping the income from the IRS and others who would have resulting claims, are not like the “arising out of” crimes specified in
The dissent, disputing these concerns, first argues that the Riady and Revlon payments were in fact disclosed in Hubbell‘s 1994 tax return. See Dissent at 593. This appears correct. But it does not seem unreasonable to believe that the other, unenumerated, “consulting fee” payments—made that year and after—were of a piece with the specifically detailed ones.9 Further, the dissent‘s apparent belief that no one “could have foreseen” Hubbell‘s tax evasion scheme, Dissent at 594, is hard to grasp. Surely Hubbell could have anticipated the advantages of sheltering any hush money from the IRS. And at every point where he faced a choice (presumably continuously), he could weigh the benefits of remaining silent with those of speaking up. Tax evasion, both in anticipation and execution, would amplify the expected benefits of silence and thereby increase the chances that the underlying truth—if in fact something was hidden—would remain buried.
Indeed, the history of “aris[ing] out of” indicates a rather liberal view as to the prosecution of downstream matters. The Watergate Special Prosecutor, acting under jurisdiction granted by regulation to pursue offenses “arising out of” the Watergate burglary or “offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility,”10 obtained con-
The defense, of course, argues that we cannot consider the hush money hypothesis at all. Unlike Watergate, the prosecutor has not yet charged anyone named in this indictment with the suggested first-level obstruction of justice. Seeming to regard non-indictment as the equivalent of true and complete exoneration (i.e., better than acquittal, which is consistent with a case from which the jury could have found guilt), defendants effectively claim that unless the bridge crime is charged (i.e., the obstruction of justice which is invoked by the Independent Counsel), and presumably then proven at least in the sense of a case on which reasonable jurors could find guilt, it must be assumed completely non-existent.
This requires too much. It is true that if the Independent Counsel had no evidentiary grounds at all for believing that the payments were obstructive—or, indeed, if the evidence clearly showed that the payments were not obstructive—he could not rely on such a jurisdictional theory. But defendants’ claim is implausible. The Department of Justice itself has recognized that prosecution of a pure non-disclosure crime is suitable when it lacks enough evidence to prosecute. Its Manual, for example, allows prosecutors to use
That does not mean, of course, that the Independent Counsel is bound by the specific provisions of various executive branch manuals. The dissent faults the Independent Counsel for failure to comply with a provision of the DOJ Manual requiring IRS approval as a predicate to tax cases. See Dissent at 596. The dissent rests this complaint on
Thus, while the Independent Counsel is differently situated, other agencies’ views on the links between crimes provide useful guidance. It is unreasonable that the Independent Counsel should be hamstrung by the need to prove every proposition necessary for jurisdiction by the exacting standards suggested by the defense. If he were, even his investigations would be severely limited, for the statute gives no linguistic hook for requiring a lower standard of proof for investigatory jurisdiction. Furthermore he, unlike every other prosecutor, would be unable to use a prosecution of an easily proved derivative offense as a substitute for prosecution of another, hard-to-prove offense. For the Independent Counsel, a reasonable belief that the linking crime has been committed should suffice.
We are not confronted here with a situation where the money at issue is clearly untainted by possible underlying obstruction. The timing, sources, and extent of the payments make the belief that they were hush money reasonable. That suffices.
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The Supreme Court upheld the constitutionality of Congress‘s independent counsel arrangements in Morrison v. Olson. It is not for lower court judges to undercut that decision by constructions of the Act that prevent this Independent Counsel from performing his duty in a manner reasonably approximating that of an ordinary prosecutor.
II. Immunity
Webster Hubbell invoked his Fifth Amendment privilege against self-incrimination in response to a broad-reaching subpoena duces tecum issued by the Office of the Independent Counsel (the “Independent Counsel” or the “government“). He delivered the specified documents only after the Independent Counsel had obtained a grant of use-immunity pursuant to
A. Background
In the course of its ongoing investigation into possible criminal activity related to Madison Guaranty Savings & Loan Association and the Whitewater Development Corporation, the Independent Counsel learned that Webster Hubbell had received payments from entities “associated with” President William Jefferson Clinton for consulting work allegedly performed after Hubbell‘s 1994 resignation from his position as Associate Attorney General. See In re Madison Guar. Sav. & Loan Ass‘n, Div. No. 94-1 (D.C.Cir. Spec. Div. filed Dec. 31, 1997) (application for order of referral to Independent Counsel at 3). Through a preliminary investigation undertaken on its own initiative, the Independent Counsel sought to determine whether the payments were related to what it later described as Hubbell‘s “unwillingness to cooperate fully with the [Whitewater] investigation, as his plea agreement obligated him to do.” Id. On October 31, 1996, the federal grand jury in the Eastern District of Arkansas issued a subpoena directing Hubbell to turn over eleven categories of business and income related documents, as well as personal records of his activities and of his family‘s finances, covering the period from January 1, 1993 to the date of the subpoena.12
The Independent Counsel‘s search for evidence into whether Hubbell might have obstructed its Whitewater investigation revealed potential violations of the Internal Revenue Code. Using the contents of the documents Hubbell turned over to the grand jury, the Independent Counsel identified and developed evidence that culminated in the prosecution at issue in this case. On April 30, 1998, a federal grand jury in the District of Columbia issued a ten-count indictment alleging that Webster Hubbell, Suzanna Hubbell, Michael Schaufele and Charles Owen14 had conspired to defraud the United States Department of the Treasury and Internal Revenue Service, the State of Arkansas, the District of Columbia, and the Rose Law Firm of monies owed by Webster and Suzanna Hubbell (collectively, the “Hubbells“).15 The indictment further alleged that all four defendants had endeavored to obstruct and impede the due administration of the revenue laws, in violation of
Substantively, the indictment alleged that Webster Hubbell had received large payments for consulting services, and then conspired to hide this and other income through elaborate financial machinations. Inter alia, the indictment claims that Hubbell underreported his 1994 consulting income by approximately $74,000, and failed to make any payments towards the tax obligations arising out of either the roughly $375,000 he did acknowledge earning or the $178,000 already owed from the willful tax evasion charge to
In a July 1, 1998 Memorandum Opinion, the district court granted Webster Hubbell‘s motion to dismiss the indictment as violative of the order giving him immunity and compelling his response to the grand jury‘s subpoena duces tecum. It found that all of the evidence to be offered by the Independent Counsel at trial derived, either directly or indirectly, from Hubbell‘s immunized response. Beginning with the proposition articulated in Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), that “a grant of immunity must afford protection commensurate with that afforded by the privilege” against self-incrimination, the district court sought to discern the scope of the protection offered by
B. Discussion
1. Hubbell‘s Privilege Against Self-Incrimination
a. The Basic Fifth Amendment Framework for Compelled Document Production
In delineating the proper scope of the Fifth Amendment‘s privilege against self-incrimination, the Supreme Court has crafted a framework that requires the presence of each of three distinct elements for an individual to make out a claim. Whether addressed to oral testimony or to documentary evidence, the doctrine necessitates a showing of: i) the compulsion; ii) of testimony; iii) that incriminates. See Fisher, 425 U.S. at 409, 96 S.Ct. 1569 (“the privilege protects a person only against being incriminated by his own compelled testimonial communications“).
Any discussion of the Fifth Amendment‘s application to the production of documents pursuant to a subpoena duces tecum necessarily begins with Fisher and Doe I. These cases collectively establish the two propositions that structure our inquiry. First, Fisher teaches that the Fifth Amendment does not protect the contents of preexisting, voluntarily prepared documents. Even if written by the hand of the accused, the Fifth Amendment does not extend to writing that was not itself compelled. See Fisher, 425 U.S. at 409, 96 S.Ct. 1569; Doe I, 465 U.S. at 612 n. 10, 104 S.Ct. 1237 (“If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged.“). While the contents of preexisting documents are not protected, the Court has acknowledged that there are testimonial and potentially incriminating communications inherent in the act of responding to a subpoena which may themselves be protected by the Fifth Amendment. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569 (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.“). The enforcement authority that rests behind the issuance of any subpoena provides the requisite compulsion. See id. at 409, 96 S.Ct. 1569.
Specifically, the act of production communicates at least four different statements. It testifies to the fact that: i) documents responsive to a given subpoena exist; ii) they are in the possession or control of the subpoenaed party; iii) the documents provided in response to the subpoena are authentic;20 and iv) the responding party believes
In Fisher, the IRS had issued a summons to a taxpayer‘s attorney to produce documents that had been prepared by the taxpayer‘s accountant. At the time the subpoena issued, the IRS knew a great deal about the requested documents. In each of the two cases jointly considered by the Fisher Court, the IRS had highly specific knowledge as to the existence of the accountant‘s work papers as well as to their location in the hands of the summoned attorney. See id. at 394, 96 S.Ct. 1569 (“In No. 74-18 the documents demanded were analyses by the accountant of the taxpayers’ income and expenses which had been copied by the accountant from the taxpayers’ canceled checks and deposit receipts.“).22 Moreover, as the papers original-ly belonged to the accountant, they could be authenticated independent of the taxpayer‘s communicative act of production. The testimony implicit in responding to the subpoena was essentially empty, as it did not augment the government‘s preexisting knowledge perceptibly. In these circumstances—where the “existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government‘s information by conceding that he in fact has the papers,” and where “the Government is in no way relying on the ‘truthtelling’ of the taxpayer to prove the existence of or his access to the documents,” id. at 411, 96 S.Ct. 1569—the Court held that the Fifth Amendment‘s protections were not implicated. See id.
Doe I provides an illustrative counterpoint, as the government there knew little about the documents it subpoenaed. As part of its investigation into corruption in the awarding of municipal contracts, a grand jury issued five separate subpoenas to the respondent that collectively sought a wide range of business records from his various solo proprietorships. In the proceedings below on his motion to quash, the district court had concluded that “enforcement of the subpoenas would compel respondent to admit that the records exist, that they are in his possession, and that they are authentic.... The government argues that the existence, possession and authenticity of the documents can
Against this settled backdrop, the case at bar presents a series of unsettled questions. Our sister courts have yet to reach agreement on the particular elaboration and proper application of the Fisher and Doe I framework. The degree to which a communication must be testimonial, what the Doe I Court described as its “testimonial value,” 465 U.S. at 613, 104 S.Ct. 1237, before it will invoke the Fifth Amendment‘s protections necessarily falls somewhere in between the poles represented by Doe I and Fisher. Precisely where on this continuum a given document production crosses the rubicon remains undetermined. The same can be said for the requisite quantum of incrimination. Finally, since Webster Hubbell produced the subpoenaed documents under a grant of immunity, we must also determine the extent of the protection afforded by
b. Testimonial Communications
The court below found that Hubbell‘s compelled act of production required him to make communications as to the authenticity, possession, and existence of the documents. See Hubbell, 11 F.Supp.2d at 35.23 Sidestepping this conclusion, the Independent Counsel argues that the Fifth Amendment‘s protection should not attach because Hubbell‘s response to the subpoena had insufficient testimonial value. In its view, the documents’ existence was what Fisher described as a “foregone conclusion.” Accordingly, the actual act of production itself—the only compelled communication involved in the case of a document subpoena—did not rise to a level of communication that would merit the Fifth Amendment‘s protection. We disagree.
The Independent Counsel glosses over what we consider to be an essential component of any inquiry into the testimonial value of a given act of production—the quantum of information possessed by the government before it issued the relevant subpoena. Instead, it makes two separate assertions as to why the documents’ existence should be deemed a foregone conclusion. First, the Independent Counsel claims that the most natural reading of Fisher counsels against recognizing a testimonial value in the production of ordinary income, financial, and business records like those subpoenaed here. Since people generally possess such records, and since the government cannot be expected or required to know with exactitude the documents that any individual suspected of wrongdoing might have at a given time, the
The other cases relied upon by the Independent Counsel are equally ineffectual in bolstering its assertions. In United States v. Rue, 819 F.2d 1488 (8th Cir.1987), cited for the proposition that courts should assess the testimonial value of document production by reference solely to a document‘s category, the Eighth Circuit did not hold—as the Independent Counsel claims—that affixing a label of “financial” or “business” to characterize a set of records would be sufficient to make their existence, possession or authenticity a foregone conclusion. While the court did speak in terms of categories of documents, it did so because the subpoena itself had sought four separate categories of documents in the same way that the subpoena here sought eleven categories (or contained eleven paragraphs). In Rue, before the contested subpoena even issued IRS agents had actually been permitted to examine monthly and year-end statements relating to Dr. Rue‘s dentistry practice, forms containing individual patient treatment information used to produce those financial statements, and appointment books. See Rue, 819 F.2d at 1490. As to these three categories, the government had first-hand knowledge of the documents’ existence and their whereabouts. As to the fourth—patient records detailing services rendered and accompanying charges—Dr. Rue‘s repeated admissions that the documents existed and the capacity for independent authentication by other witnesses supported the conclusion that any testimony rendered through production was a foregone conclusion. See id. at 1493-94.
United States v. Fishman, 726 F.2d 125 (4th Cir.1983), similarly defies the characterization that the Independent Counsel tries to give it; that generalized knowledge about particular occupations can make the existence of documents a foregone conclusion.25 In support of this contention, the Independent Counsel cites language in the Fourth Circuit‘s opinion that “[b]eing business records of Dr. Fishman, their existence in the circumstances of this particular case and his possession or control are self-evident truths, and hardly need to be proven through resort by the Government to the act by the owner in turning them over.” Id. at 127. However, this sentence comes from a paragraph discussing the question of potential incrimination, and is immediately preceded by the statement that “it is difficult to contemplate how mere existence, possession or control of the documents amounts to incriminating evidence.” Id. (emphasis added). Moreover, in discussing the testimonial value of the act of production, independent from the question of incrimination, the Fishman opinion expressly disavows the reading that the Independent Counsel attempts to place upon it here. Rejecting the contention that Dr. Fishman had implicitly admitted the existence and his possession of the documents, the court noted that Dr. Fishman‘s “generalized reference to the subpoenaed records acknowledges the existence of a category, but does not make any representation or admission as to what documents fall into it, or whether any particular document is in existence.” Id. at 127 n. 4. We agree with the Fourth Circuit that mere reference to a category of records, and the accompanying belief that certain individuals should maintain them, cannot and does not eliminate the testimonial value inherent in the act of production. The government‘s knowledge must have greater depth, and a substantiation that goes beyond mere conjecture. See Fox, 721 F.2d at 37 (rejecting argument from revenue agent‘s experience as to whether physician likely maintains records sought via subpoena).
i. The Legal Standard
To formulate an appropriate legal standard as to the degree of prior knowledge needed to render the existence, possession or authenticity of documents a foregone conclusion, it is necessary to return to first principles. See Doe v. United States, 487 U.S. 201, 209, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (describing Fisher and Doe I as applying “basic Fifth Amendment principles” articulated in general terms) (Doe II). As the Supreme Court moved away from the doctrine articulated in Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (“a compulsory production of the private books and papers of the owner of goods sought to be forfeited ... [compels] him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution.“), and towards a more literal interpretation of the privilege against self-incrimination, see Fisher, 425 U.S. at 401, 96 S.Ct. 1569 (“We cannot cut the Fifth Amendment completely loose from the moorings of its language ...“), it jettisoned the personal privacy justification in favor of a rationale tied far more directly to the nature of government compulsion.
The core idea can be traced back at least to Justice Holmes’ decision in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), in which the Court rejected a Fifth Amendment challenge to a witness’ testimony establishing that the defendant had donned and fit into a blouse worn in a murder for which he was being tried. Dismissing what he characterized as an “extravagant” allegation, Justice Holmes explained that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Id. at 252-53, 31 S.Ct. 2. Justice Holmes thereby drew a fundamental distinction between government action that extorts communication—such action falls within the umbrella of protection afforded by the Fifth Amendment—and government action that merely utilizes the body of the accused as a form of evidence—that kind of action falls outside the Amendment’s particular orbit. Subsequent cases echo and develop this focus upon the
The dissent misreads the letter and logic of Fisher and Doe I because it fails to grasp the significance of the Supreme Court’s distinction between compulsion which uses the body as evidence and that which operates upon the mind by compelling communicative acts. Instead, our colleague attempts to dissect the testimonial and non-testimonial elements of providing blood, voice and handwriting samples. He argues that in giving blood, a person implicitly says, “This is my blood“, Dissent at 598; in providing a handwriting sample, the accused admits his ability to write and that the exemplar is his. See id. at 4, 93 S.Ct. 764. But because in both these cases, it will require another witness to identify the accused’s voice as that of a bank robber, or DNA testing to match the accused’s blood with stains left at a crime scene, the giving of blood or an exemplar will not be considered protected testimony. See id. at 3, 93 S.Ct. 764. While undoubtedly true, the point is ultimately tangential to the proper inquiry. The real question at issue in Holt, Schmerber, Wade, and Gilbert was whether the government had merely used the accused’s body as a form or piece of evidence, or whether the government had to compel communicative testimony to obtain the evidence it needed. Justice Holmes’ Holt opinion likened trying on a blouse to simply sitting before the jury and allowing them to compare your features to that contained in a photograph of the perpetrator. See 218 U.S. at 253, 31 S.Ct. 2. While it can be argued that the accused implicitly testified about something in each of the cases cited by the dissent—that this is my blood containing my unique DNA, that this is my face with all of
The dissent cites to Holt, Schmerber, Wade, and Gilbert for the proposition that where the government can draw a link between evidence and the accused, independent of the accused’s testimony, the Fifth Amendment does not apply. See Dissent at 597-599, 602. None of these cases, read individually or taken together, however, stands for this general proposition. All of the cases focused on whether the act in question was communicative or noncommunicative—whether it relied upon the individual’s mental faculties and truthtelling capacity or merely used the body as a source of physical evidence—and not on whether the prosecution could link evidence to the accused without relying on his testimony.27 In each, the Supreme Court concluded that there had been no testimony; accordingly, the Fifth Amendment did not apply. See, e.g., Schmerber,
The rationale underlying the act of production trilogy—Fisher, Doe I, and Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988)28—with its emphasis on compelled truthtelling, emerges directly out of this focus upon whether the state operates upon a reluctant witness’ mental faculties to compel testimony. See Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (rooting the Fifth Amendment privilege inter alia in “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt ...“); South Dakota v. Neville, 459 U.S. 553, 563, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (same); Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957) (forcing custodian of union records who lacks possession to testify as to their whereabouts “requires him to disclose the contents of his own mind.... That is contrary to the spirit and letter of the Fifth Amendment.“). That is, the act of producing documents in response to a subpoena potentially involves the Fifth Amendment’s protections precisely because the subpoenaed party is forced to undertake some communicative act in answering. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569; Doe I, 465 U.S. at 612, 104 S.Ct. 1237. Each of the four potential statements that adhere to the act of production—existence, possession, authenticity, and the belief that the produced documents match the subpoena’s terms—can merit protection because they entail “the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind....” Doe II, 487 U.S. at 211, 108 S.Ct. 2341 (internal citations omitted).29 In terms of the dichotomy articulated in Holt and its progeny, they fall on the side of the communicative and testimonial.
In assessing the testimonial value of an act of production, it makes sense to reference the anti-extortion principle which has become the motivating force of self-incrimination doctrine. In light of Fisher, Doe I, and Doe II, we conclude that the testimonial value varies directly with the quantum of information that the government seeks to extract through compelling the expression of the contents of an individual’s mind and inversely with the quantum of information in the government’s possession at the time the relevant subpoena issues.30 Cf. Muniz, 496
In those cases in which our sister circuits have declined to recognize the existence of a Fifth Amendment privilege, the government has usually had extensive information regarding the documents it subpoenaed. While the act of production would still force an individual to communicate knowledge and to reveal the contents of his mind, the government would in no way be relying upon the communication inherent in the act. It is only in those instances where the gap separating the government’s knowledge with respect to the existence, possession, location or authenticity of documents from that of the subpoenaed party is wide that our sister circuits have recognized a testimonial value sufficient to merit the Fifth Amendment’s protections.
In re Steinberg, 837 F.2d 527 (1st Cir. 1988), and United States v. Clark, 847 F.2d 1467 (10th Cir. 1988) also fall within the pattern of cases in which the government’s knowledge is nearly on par with that of the subpoenaed individual. In Steinberg, the government sought a series of notebooks maintained by members of Lyndon LaRouche’s security staff in which they detailed the progress of a federal investigation into LaRouche’s 1984 Presidential campaign as well as the staff’s internal planning measures. As a government witness had testified to the existence and contents of the notebooks, as well as to Steinberg’s possession, the court found that the subpoena did not implicate the Fifth Amendment. Steinberg, 837 F.2d at 530. In Clark, an IRS summons sought accountant’s work papers and the personal records that the taxpayer had given his accountant, both of which were known to have subsequently been given to the taxpayer’s attorney. Finding the existence of the work papers to be a foregone conclusion, and that the underlying records would be reflected therein, the Tenth Circuit refused to recognize a Fifth Amendment privilege. See 847 F.2d at 1472-73. See also United States v. Stone, 976 F.2d 909, 911 (4th Cir. 1992) (in Department of Energy investigation into relationship between department employees and owner of business receiving DOE contracts, where government knew that appellant owned a beach house and had sufficient knowledge that he rented the house out between 1983 and 1989 to request a list of renters, subpoena seeking utility bills and rental records targets documents whose existence and possession are a foregone conclusion); In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87 (2d Cir. 1993) (where defendant has testified before SEC as to possession and use of diary, and has previously turned over a copy in which government suspects adulteration, subpoena for original does not implicate Fifth Amendment).
By contrast, those cases in which our sister courts have recognized a Fifth Amendment privilege consistently reveal a gross information asymmetry between the government and the subpoenaed party, which can be bridged only by getting at the contents of the latter’s mind. In United States v. Fox, 721 F.2d 32 (2d Cir. 1983), the IRS issued a wide ranging subpoena seeking an expansive array of personal, financial and business records of Dr. Martin Fox. At the time, the IRS had copies of his 1979-1981 tax returns and a transcript of third-party payments to the Foxes during 1979. Rejecting the government’s contention that the testimonial value of producing the subpoenaed documents would be minimal, the court reasoned that in seeking all of the books and records of the Fox’s sole proprietorship, the government had attempted “to compensate for its lack of knowledge by requiring Dr. Fox to become the primary informant against himself.” Id. at 38. Since the IRS could establish neither the existence nor the authenticity of the records sought, its subpoena implicated the Fifth Amendment’s protections. In re Grand Jury Proceedings on February 4, 1982, 759 F.2d 1418 (9th Cir. 1985) involved a similarly broad subpoena, demanding personal journals, files related
Although the fit is by no means perfect, the cases assessing the testimonial value of an act of production form a pattern that correlates strongly with the government’s need to draw from the mental faculties of the responding party. Where the information asymmetry is large, and where the government’s prior knowledge is minimal, the act of production will likely communicate either the existence, possession or authenticity of the subpoenaed documents.
ii. Assessing the Government’s Knowledge
The case at bar highlights a further doctrinal ambiguity, which is again tied to elaborating the extent of knowledge that the government must have in order to justify a conclusion that the communicative aspects of the act of production are a “foregone conclusion” under Fisher and Doe I. Rehearsing an argument discussed above, the Independent Counsel contends that government knowledge of the existence and possession of documents should be assessed solely through examining categories or classes of documents. While it thus argues that the court should measure whether the information sought through a subpoena is a foregone conclusion at a high degree of abstraction—speaking in generalized terms of business, financial and tax records—the Independent Counsel provides no support for its contention. Moreover, any instruction to filter review of the government’s knowledge through categories is inherently an empty one, for it fails to address the recurring level of generality problem. See generally, Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990) (discussing the malleability and outcome-determinative nature of levels of generality); Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (discussing the appropriate level of generality at which to define fundamental rights). While a useful method of sorting information, categories do not present themselves as Platonic forms with inherent shape or universal meaning. Rather, defined by reference to their particular applications, they can be abstracted upwards or downwards (through varying levels of generality) in order to embrace or reject concrete instances. See generally Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., 3d ed. 1968) at §§ 137-242 (general concepts do not dictate their concrete applications, but rather are defined through them). As Doe I well illustrates, the government cannot simply subpoena business records and then claim the requisite knowledge for purposes of the Fifth Amendment by pointing to the existence of a business.33
The Independent Counsel’s assertion that its knowledge of Hubbell’s status as a consultant and a taxpayer carried with it a concomitant awareness of the existence and possession of his consulting and tax records similarly falls short. The Fifth Amendment’s proscription against compelled self-incrimination does not hinge on tautology.
The basic problem with the Independent Counsel’s contention is that it fails to recognize that there are no essential classes or categories of information. While the Independent Counsel attempts to argue that ordinary business, financial and tax records are the appropriate categories through which to assess Hubbell’s act of production, other courts have utilized those terms in a different capacity. The Eighth Circuit in Rue, for example, used the term to reference the various paragraphs of the subpoena in question, see Rue, 819 F.2d at 1490, while the Sixth Circuit has utilized it as an open-ended device for classifying different levels of government knowledge. See Butcher v. Bailey, 753 F.2d 465, 470 (6th Cir. 1985) (inviting the district court to break its assessment of the government’s knowledge down into whatever document categories it sees). The level of generality problem arises precisely because these questions “do not lend themselves to categorical answers” and “may instead depend on the facts and circumstances of particular cases or classes thereof.” Fisher, 425 U.S. at 410, 96 S.Ct. 1569; Doe I, 465 U.S. at 613.
Recognizing that the inquiry will always be highly contextual and fact-intensive, we agree with the Second Circuit that the government must establish its knowledge of the existence, possession, and authenticity of subpoenaed documents with “reasonable particularity” before the communication inherent in the act of production can be considered a foregone conclusion.34 See In re Grand Jury
In the proceedings below, the court’s Fisher/Doe I analysis led it to conclude that Hubbell’s compelled act of production required him to make communications as to the existence, possession and authenticity of the subpoenaed documents. However, when articulating these factual findings as to the Independent Counsel’s knowledge of the documents’ existence—as is proper under Fisher and Doe I—the district court improperly conflated this Fisher/Doe I inquiry with the conceptually separate and temporally subsequent Kastigar inquiry.35 See Hubbell, 11 F.Supp.2d at 36 (“The assertion of counsel does not begin to show that the independent counsel’s knowledge of the documents or their contents was a ‘foregone conclusion’“); id. at 37 n. 15 (“The ‘existence’ prong of the Fisher analysis goes to the existence of the information contained in the documents, not to the fact that the witness keeps records.“). Since the Fifth Amendment only touches the testimonial aspects of a subpoena response, the district court should have independently examined the extent of the government’s knowledge as to the existence, possession or control, and authenticity of the subpoenaed documents—i.e., the testimonial components of the act of production. The inquiry should have focused upon whether the government knew that the documents existed at all, and not upon whether the government knew of the existence of the information contained therein. See id. at 35 (“The independent counsel does not claim that he knew any of the facts relevant to the charges in this indictment at the time of the subpoena“) (emphasis in original). Only the former is communicated through the act of production itself.
As the district court’s fact findings relevant to the Fisher/Doe I inquiry are inextricably linked with its assessment of the government’s substantive knowledge of the alleged offenses, we cannot decide on the record before us whether Hubbell’s act of production had sufficient testimonial value to invoke the Fifth Amendment’s protections. The subpoena speaks in vague terms, and the detail with which it goes through the possible forms that the information sought could take, see supra note 12, at the very least hints that the government had no knowledge as to whether Hubbell maintained comprehensive records of the way he allocated his time. Moreover, it is unclear how the Independent Counsel became apprized of the Pulaski bank account, the three trust accounts, the Bridgeport Group, the check swap, and Hubbell’s early withdrawals from his IRA accounts, each of which figure prominently in the indictment.36 See discussion supra p. 566. The
Bridgeport Group had not been organized, its account at the Pulaski Bank had not been opened, and Hubbell had neither signed a book contract with William Morrow and Company, Inc., nor received his advance on the day the subpoena issued. The extent of the Independent Counsel’s knowledge of Hubbell’s recordkeeping practices is also uncertain. On remand, the district court should hold a hearing in which it seeks to establish the extent and detail of the government’s knowledge of Hubbell’s financial affairs (or of the paperwork documenting it) on the day the subpoena issued. It is only then that the court will be in a position to assess the testimonial value of Hubbell’s response to the subpoena. Should the Independent Counsel prove capable of demonstrating with reasonable particularity a prior awareness that the exhaustive litany of documents sought in the subpoena existed and were in Hubbell’s possession, then the wide distance evidently traveled from the subpoena to the substantive allegations contained in the indictment would be based upon legitimate intermediate steps. To the extent that the information conveyed through Hubbell’s compelled act of production provides the necessary linkage, however, the indictment deriving therefrom is tainted.
c. The Question of Incrimination
Under the third prong of the Fisher and Doe I analysis, compelled testimony must be incriminating before it merits Fifth Amendment protection. See Fisher, 425 U.S. at 409, 96 S.Ct. 1569 (“the privilege protects a person only against being incriminated by his own compelled testimonial communications“). The mere assertion of the privilege by the party whose testimony the government seeks is insufficient; “his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). With respect to a subpoena for documents, the privilege cannot be invoked merely because the subpoenaed items contain incriminating information; the act of production must communicate and incriminate. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569. To have “an incriminating effect,” Doe I, 465 U.S. at 612, 104 S.Ct. 1237, the party claiming the privilege must be “confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” Id. at 614 n. 13, 104 S.Ct. 1237 (citations omitted). See also Butcher v. Bailey, 753 F.2d at 470 (showing that document production would incriminate “will be sufficient if the court can, ‘by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution’“) (quoting In re Morganroth, 718 F.2d 161, 169 (6th Cir. 1983)).
Breaking the act of production down into its individual testimonial components, the Independent Counsel argues that an admission of either the existence or possession of “ordinary” business and financial records can almost never be incriminating. Similarly, the implicit authentication of documents would only incriminate were a subpoena to be phrased in such a way as to expressly request production of the instruments of criminality. We disagree, as both logic and Supreme Court precedent rebut the claims of any such niggardly interpretation. First, the Fifth Amendment’s protections cannot depend upon such trivial semantic distinctions that the government can sidestep its application by requesting “all income records” instead of “all incriminating income records.” Artful phrasing does not suffice. Moreover, Doe I and Doe II belie such a narrow reading of the Fifth Amendment’s protections. In Doe I, the Supreme Court found, on the basis of the findings presented, that Doe faced a “real and substantial” risk of incrimination were he to produce the documents sought in the government’s subpoena—a subpoena seeking ordinary business records, not “incriminating” business records. See 465 U.S. at 614 n. 13, 104 S.Ct. 1237. As the government had no independent knowledge of the existence or his possession of the documents listed in the subpoenas at issue, and since the act of production would tacitly admit their
Doe II’s discussion of the incrimination requirement reinforces our conclusion. Although the decision in Doe II turned on the question of whether signing a general release form involved an assertion of fact, the Court also discussed the proper shape of the incrimination inquiry. The Kastigar Court, it argued, “implicitly concluded that the privilege prohibits ‘the use of compelled testimony, as well as evidence derived directly and indirectly therefrom.’” 406 U.S. at 453, 92 S.Ct. 1653. The prohibition of derivative use is an implementation of the ‘link in the chain of evidence’ theory for invocation of the privilege, pursuant to which the ‘compelled testimony’ need not itself be incriminating if it would lead to the discovery of incriminating evidence.” Doe II, 487 U.S. at 208 n. 6, 108 S.Ct. 2341.
In the present case, it appears that Hubbell’s testimony likely involved both direct and indirect incrimination. Acknowledging the existence of an interest-bearing checking account the income from which the subpoenaed party had failed to report on his tax returns would directly incriminate; it would inform the government of a known source of unreported income. See United States v. Argomaniz, 925 F.2d 1349, 1354 (11th Cir. 1991) (where defendant failed to file tax returns for a series of years, admitting the existence of documents relating to income through production would establish essential elements of criminal failure to file a tax return). If Hubbell had records of that account in his possession or control, that fact could further incriminate. See Smith v. Richert, 35 F.3d 300, 304 (7th Cir. 1994) (as the mere turning over of 1099s and W-2s in response to a subpoena could eliminate defense of lack of knowledge or possession, it is incriminating). Similarly, in acknowledging the existence of the Bridgeport Group and its bank account at Pulaski Bank, Hubbell provided a link in the chain of evidence used by the Independent Counsel to substantiate the criminal charges against him—an instance of indirect incrimination.
Given the procedural posture of this case, it would be premature for us to review the incrimination question any further at this juncture. Until the district court determines on remand precisely what testimony Hubbell provided through his act of production, focusing on the extent of the government’s knowledge as of the date of the subpoena and on whether Hubbell’s testimony added “to the sum total of the government’s case against him,” United States v. Edgerton, 734 F.2d 913, 921 (2d Cir. 1984) (quoting Fisher, 425 U.S. at 411, 96 S.Ct. 1569), it cannot make the appropriate fact findings as to what extent that testimony is incriminating. See Doe I, 465 U.S. at 614, 104 S.Ct. 1237 (whether a compelled act of production is incriminating is a question of fact). In conducting this inquiry, the district court should be guided, as the Supreme Court counseled in Hoffman v. United States, 341 U.S. at 487, 71 S.Ct. 814, by its particular perceptions of the specific and unique facts of the case.
d. The Upshot of Immunity
A grant of statutory immunity under
Intervening in this case, the United States, acting through the Attorney General, has proffered a particular reading of the Fifth Amendment’s intersection with compelled production which we believe merits some discussion. Like the Independent Counsel, the United States draws a sharp distinction between the testimonial components of the act of production and the contents of those documents, essentially ruling out the possibility that the prohibition on the direct or indirect use of a party’s compelled testimony could extend to reach the contents of the documents he turns over. Instead, it invites the court to compare what the government learns from the act of production with what it would know if the documents in question just appeared on its doorstep. That intellectual exercise, it argues, separates the information conveyed through the act of production with what could be deciphered from the records themselves. See Intervenor’s Br. at 42; Dissent at 602. Since Kastigar instructs that the government can introduce the fruits of immunized testimony provided that it can meet “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources,” 406 U.S. at 461-62, 92 S.Ct. 1653, the documents themselves can serve as that independent source of the information communicated by their production. Provided that the government does not mention the mechanics through which it obtained those documents, and that the documents are sufficiently self-explanatory and self-referential to establish their own nexus with the defendant, the government would be free to use the subpoenaed documents in making its case against the defendant.37 We disagree.
Although the Fisher Court observed that “[t]he ‘implicit authentication’ rationale appears to be the prevailing justification for the Fifth Amendment’s application to documentary subpoenas,” 425 U.S. at 412 n. 12, 96 S.Ct. 1569, the Court explicitly and repeatedly acknowledged that the act of production also communicates existence and possession. See id. at 412, 96 S.Ct. 1569; Doe I, 465 U.S. at 613, 104 S.Ct. 1237; Doe II, 487 U.S. at 209, 108 S.Ct. 2341; Braswell, 487 U.S. at 103, 108 S.Ct. 2284. The analytic tool offered by the United States, however, reads both of these testimonial components out of existence. While the government may be able to establish the authenticity of the documents independently, whether in terms of their own self-reference or the testimony of a witness familiar with them, the magical appearance of the documents obviates the need for prior knowledge that the documents actually exist. Yet ”Kastigar does not prohibit simply ‘a whole lot of use,’ or ‘excessive use,’ or ‘primary use’ of compelled testimony. It prohibits ‘any use, direct or indirect.’” United States v. North, 910 F.2d 843, 861 (D.C. Cir. 1990). Once the documents appear and are examined, such that their existence enters the consciousness of the prosecutor, the United States has offered no means through which the government can establish that its evidence “is not directly or indirectly derived from such testimony” as to their existence. United States v. North, 920 F.2d 940, 946 (D.C. Cir. 1990) (emphasis in original).
The intellectual exercise suggested by the Justice Department and embraced by our dissenting colleague, see Dissent at 602, essentially eviscerates the act of production doctrine, as well as the Fifth Amendment protection it secures. To offer a counter-hypothetical, assume that the government
Now suppose a variation of our hypothetical, in which the police discover a victim’s body in the basement of a large apartment building, and an autopsy establishes stabbing to be the cause of death. Lacking any clues, a grand jury issues a subpoena to every resident in the building, asking each to produce “all knives and other forms of cutlery that are now, or in the preceding month have been, in your possession or control.” The residents object en masse, asserting inter alia their Fifth Amendment privilege against self-incrimination. After the prosecutor obtains an order compelling production and granting immunity to the maximum extent allowed by law, the residents comply with the subpoena. Among the recovered knives, the police discover the murder weapon. The prosecutor indicts its owner for murder. The defendant moves to dismiss the indictment, claiming that his immunized subpoena response testified to the existence, his possession, and the authenticity of the knife he produced. Having handed the government the murder weapon, and provided the explicit link between it and himself, can the accused nevertheless be prosecuted consistent with the Fifth Amendment provided that the government finds some independent way to link him with the knife? If our protagonist has once again left behind fingerprints and traces of his blood, could they be used as evidence, together with the knife, so long as no one testified as to the means of recovery? In the scenario we paint, where the government had no evidentiary knowledge independent of that derived, directly and indirectly, from testimony communicated through compelled production, Fisher, Doe I, Doe II, Kastigar and Braswell clearly repudiate any attempt to do so. They collectively teach
In a case such as the present one, in which the government’s knowledge of the existence or possession of the extensive documentation sought via subpoena appears scant at best, the United States’ hypothetical about finding the papers on its doorstep fails to capture the true nature of the Fifth Amendment’s protection against the government probing the mind of an accused in order to ascertain evidence it can use to convict him. Where the testimonial value of document production is high, and the government obtains a large quantum of information directly from the witness’ mental faculties, the government labors under “a heavy burden of proving that all evidence it seeks to introduce is untainted by the immunized act of production.” In re Sealed Case, 791 F.2d 179, 182 (D.C. Cir. 1986) (internal citations omitted). If the government did not have a reasonably particular knowledge of subpoenaed documents’ actual existence, let alone their possession by the subpoenaed party, and cannot prove knowledge of their existence through any independent means, Kastigar forbids the derivative use of the information contained therein against the immunized party. See 406 U.S. at 453, 92 S.Ct. 1653 (“Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, ... prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.“). Accordingly, should the Independent Counsel prove unable to meet the requisite evidentiary burden, the contents of those documents will be inadmissible. See Sealed Case, 791 F.2d at 182 (“Thus, if in fact appellee’s privilege in the act of production cannot be protected without excluding the contents of the tapes (a point on which we express no opinion) the District Court has the authority to prevent the government from referring to or introducing those contents.“).
“The decision to seek use immunity necessarily involves a balancing of the Government’s interest in obtaining information against the risk that immunity will frustrate the Government’s attempts to prosecute the subject of the investigation.” Doe I, 465 U.S. at 616, 104 S.Ct. 1237. Unless the Independent Counsel can establish its knowledge of the existence and possession of the documents sought in the subpoena with greater detail and particularity, it will have to live with the consequences of its decision to compel production.
III. CONCLUSION
For the reasons above, we vacate the district court’s judgment and remand for further proceedings in light of this decision.
So ordered.
WALD, Circuit Judge, concurring in Part I:
I believe that a reasonable construction of the original mandate shows that it is “demonstrably related” to the tax evasion and asset concealment prosecutions in dispute here. That, however, is only because, as the panel opinion makes clear, at least some of the consulting monies Hubbell received in the years 1994-1997 may have been tainted as hush money. “The timing, sources, and extent of the payments make the belief that they were hush money reasonable.” Panel Opinion (“Panel Op.“) at 20. Thus, manipulation of all monies received during that period may have been related to the concealment of any tainted money—money, that is, received in return for obstructing the Independent Counsel’s Whitewater investigation. Panel Op. at 15-18. In the face of these circumstances, I disagree with the dissent’s conclusion that the Independent Counsel’s failure to bring an indictment on the hush money allegations, either first or contemporaneous with the tax violations, means that no “credible evidence” of any wrongdoing exists. Dissenting Opinion (“Diss. Op.“) at 594-595.
The simple fact that no prior or simultaneous indictment for obstruction was brought down specifically alleging that monies were received as a quid pro quo for noncooperation in the main Whitewater mat-
Finally, while I do believe that some deference is due the Special Division’s interpretation of these prosecutions as related to the original one, I would not find it necessary under the facts here to decide if the appropriate level of deference is substantial, Panel Op. at 7, or only due deference. I do not find the agency analogy particularly persuasive, but on the other hand I believe that the responsibilities of the Special Division under the statute to define the Independent Counsel’s jurisdiction initially, and subsequently to assess requests for the referral of related matters, strongly militate toward some deference; the degree of deference due will likely depend on the circumstances of each case. The extent of that deference might shift according to whether the Special Division’s relatedness determination is grounded particularly on facts made known to it by the Independent Counsel or the Attorney General or on a legal or conceptual conclusion that the offenses or persons are sufficiently related to the original mandate. At any rate, I think the relatedness requirement is satisfied here under either standard of deference.
TATEL, Circuit Judge, dissenting from Part I:
This court today concludes that the indictment of Webster Hubbell for failing to pay taxes on income earned in Washington, D.C., in 1994 “arises out of” or “relates to” the Independent Counsel’s investigation of various Arkansas land transactions in the mid-1980s known as Whitewater. Because this result expands independent counsel authority at the expense of the Executive Branch, I believe it violates the constitutional principle of separation of powers. By deferring to the Special Division and by adopting virtually limitless theories of “relatedness,” the court fails to police the boundaries that Morrison v. Olson deemed essential to the constitutionality of the independent counsel statute. See 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Mindful of these boundaries, which guarantee political accountability for the prosecutorial function, and of “the duty of federal courts to construe a statute in order to save it from constitutional infirmities,” id. at 682, 108 S.Ct. 2597, I would find that the tax indictment is not “demonstrably related to the factual circumstances that gave rise to the Attorney General’s ... request for the appointment of the independent counsel,” id. at 679, 108 S.Ct. 2597. I would therefore
I
Vesting the executive power in the President of the United States, the Constitution directs that “he shall take Care that the Laws be faithfully executed.”
The Ethics in Government Act of 1978 carved a narrow exception to the Attorney General’s power to enforce federal criminal law. In the wake of the “extraordinary sequence of events” of the Watergate scandal—in particular, the firing of special prosecutor Archibald Cox—Congress saw the need for “the appointment of an independent temporary special prosecutor for certain limited cases where the Department of Justice may have a conflict or interest with respect to a particular investigation.” S.REP. NO. 95-170, at 6, 34 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4222, 4250. Aware of the constitutional implications of creating an independent prosecutorial function outside the Executive Branch, Congress adopted an elaborate array of procedures controlling the appointment, powers, and jurisdiction of independent counsel. See
In Morrison, the Supreme Court found these constraints essential to the statute’s constitutionality. Without them, the Court could not have characterized the independent counsel as an “inferior officer” under the Appointments Clause of the Constitution. See 487 U.S. at 670-77, 108 S.Ct. 2597. Once an independent counsel investigates or prosecutes matters beyond the jurisdiction ceded by the Attorney General, the independent counsel sheds his “inferior” status and becomes a “principal officer” requiring Presidential appointment and Senate confirmation. See Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Although “the power to appoint inferior officers such as independent counsel is not in itself an ‘executive’ function in the constitutional sense,” Morrison, 487 U.S. at 695, 108 S.Ct. 2597, the power to appoint principal officers surely is. See
Morrison expressed similar constitutional concerns about the role of the Special Division of this court. The statute allows the Special Division to appoint an independent counsel only after the Attorney General makes a preliminary investigation, determines that further investigation is warranted, prescribes a subject matter for investigation and potential prosecution, and “applies” to the Special Division for an appointment. See
[to] assure that the independent counsel has adequate authority to fully investigate and prosecute the subject matter with respect to which the Attorney General has requested the appointment of the independent counsel, and all matters related to that subject matter. Such jurisdiction shall also include the authority to investigate and prosecute Federal crimes ... that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General’s request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.
[Congress] may vest the power to define the scope of the office in the [Special Division] as an incident to the appointment of the officer pursuant to the Appointments Clause. That said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel’s jurisdiction. In order for the Division’s definition of the counsel’s jurisdiction to be truly “incidental” to its power to appoint, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel in the particular case.
487 U.S. at 679, 108 S.Ct. 2597 (second emphasis added). To be sure, the statute also provides that the Special Division may, upon a request by an independent counsel, “refer to the independent counsel matters related to the independent counsel’s prosecutorial jurisdiction.”
Thus, the Attorney General’s “initial suggestion of jurisdiction,” Majority Opinion (“Maj. Op.“) at 557—or more precisely, as Morrison put it, “the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel,” 487 U.S. at 679, 108 S.Ct. 2597—serves as the ultimate baseline for assessing the legality of any definition of jurisdiction by the Special Division as well as any exercise of authority by an independent counsel. Constitutionally required, this baseline reconciles the principle of separation of powers with the vesting of prosecutorial authority in an official independent of the Executive Branch. See id.
II
In her June 30, 1994 application to the Special Division, the Attorney General prescribed the subject matter of the Independent Counsel’s jurisdiction as follows:
whether any individuals or entities have committed a violation of any federal criminal law, ... relating in any way to James B. McDougal’s, President William Jefferson Clinton’s, or Mrs. Hillary Rodham Clinton’s relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc.
Application for Appointment of Independent Counsel, In re Madison Guar. Sav. & Loan Ass’n (June 30, 1994). The application also authorized prosecution of any conduct obstructing the investigation of this core subject matter. See id. Exercising its power under
The second referral arose from an application in which the Independent Counsel stated:
In the course of its investigation, this Office received information regarding payments to Mr. Hubbell from individuals and entities associated with the Clinton Administration. These payments were made starting in 1994, when Mr. Hubbell was publicly known to be under criminal investigation. This Office initiated a preliminary investigation into whether these payments might be related to Mr. Hubbell’s unwillingness to cooperate fully with the investigation, as his plea agreement obligated him to do. The grand jury has heard evidence related to the payments, including evidence that Mr. Hubbell may have committed fraud and tax crimes in connection with them.
Application for Order of Referral, In re Madison Guar. Sav. & Loan Ass’n (Dec. 31, 1997), at 3-4. In response, the Special Division’s referral authorized investigation and prosecution of crimes, including tax offenses, associated with Hubbell’s income since 1994, as well as other crimes such as obstruction of justice and perjury “related to payments that Mr. Hubbell has received from various individuals and entities” since 1994. Order Granting Application for Order of Referral, In re Madison Guar. Sav. & Loan Ass’n (Spec. Div. D.C. Cir. Jan. 6, 1998). The Independent Counsel then brought a 10-count, 42-page indictment detailing an elaborate tax evasion scheme allegedly undertaken by Hubbell and his wife, along with their lawyer and accountant.
We now face the following question: Under sections
Before addressing this issue, this court holds that the Special Division’s January 1998 referral is entitled to deference—“substantial” deference, according to Judge Williams; at least “due” deference, according to Judge Wald. Either way, I disagree.
At the outset, I think it important to clarify that, as a procedural matter, we are not directly reviewing the Special Division’s referral. The statute nowhere authorizes appeals from Special Division referrals. Courts of appeals and the Special Division play different institutional roles under the independent counsel statute. They act at different stages of the investigation, and they have different documents before them. Although the Special Division made an implicit determination of “relatedness” in its referral, it did so in the context of a request for investigative and prosecutorial authority. That investigation has now progressed beyond mere allegations and has evolved into an indictment. Our task, like the district court’s before us, is to resolve a specific dispute whose parameters have crystallized: We must decide whether the April 30, 1998 indictment, in all its concreteness and particularity, is “related to” the original scope of the Independent Counsel’s prosecutorial jurisdiction. The Special Division did not resolve this question, nor could it.
In support of giving the referral deference, Judge Williams accepts the view that the Special Division “act[ed] quite like [an agency] glossing its own regulation” when it exercised its referral power. Maj. Op. at 557. However, the Special Division possesses none of the characteristics of agencies that entitle their legal judgments to judicial deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In making “related to” determinations, the Special Division exercises no special or technical expertise that circuit and district courts lack. The Special Division has no political accountability through either executive or congressional oversight, and its members are neither appointed by the President nor confirmed by the Senate for their role. No provision of law allows for direct judicial review of its decisions. Unlike administrative agencies—and unlike even the U.S. Sentencing Commission, see
Morrison left no doubt that in both form and function, the Special Division is a court, not an agency. The opinion consistently refers to the Special Division as a “court“: “The court consists of three circuit court judges or justices appointed by the Chief Justice of the United States,” 487 U.S. at 661 n. 3, 108 S.Ct. 2597; “we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court,” id. at 676, 108 S.Ct. 2597; “there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court,” id. at 683, 108 S.Ct. 2597; “once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel,” id. at 695, 108 S.Ct. 2597. Were this language not clear enough, Morrison explicitly held that the Special Division’s functions fall within the range of powers assigned to federal courts by the Appointments Clause, see id. at 673-77, 108 S.Ct. 2597, and by Article III, see id. at 677-85, 108 S.Ct. 2597.
Because the Special Division’s January 1998 “related to” determination amounts to a legal judgment, we owe it no deference. We typically apply de novo review to decisions of other courts (except the Supreme Court) on questions of federal law, see Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) (questions of law must be resolved de novo on appeal), and “[w]hen de novo review is compelled, no form of appellate deference is acceptable,” Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). No one contends that the Special Division, as part of the D.C. Circuit, creates binding circuit precedent through its decisions. In relation to this court, the Special Division’s legal determinations resemble those of our sister circuits, whose conclusions of law we review neither directly nor deferentially.
Acknowledging that referrals could be characterized as judicial acts, Judge Williams says that referrals most closely resemble the issuance of search warrants by federal magistrates or state judges, whose determinations of probable cause, “[a]lthough made ex parte and resolving constitutional questions,” are accorded “great deference” under settled law. Maj. Op. at 559 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In Gates, however, the Supreme Court made clear that the deferential standard of appellate review applicable to search warrants stems directly from the intensely fact-bound nature of an issuing magistrate’s probable-cause determination. See 462 U.S. at 232, 103 S.Ct. 2317 (“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.“); id. at 241, 103 S.Ct. 2317 (“[P]robable cause deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.“) (citation omitted). Unlike a magistrate, the Special Division does not “make a practical, common-sense decision” about probabilities when it considers requests for referrals. Id. at 238, 103 S.Ct. 2317. Rather, it compares two legal documents—the independent counsel’s referral request and the original grant of prosecutorial jurisdiction—and then determines whether the former is “related to” the latter within the meaning of the statute. Like a court evaluating a complaint on a motion to dismiss, the Special Division finds no facts, weighs no evidence, and makes no credibility determinations. It simply decides a question of law. Given the interpretive nature of this task, deference cannot be justified on the grounds “that the [Special Division] is ‘better positioned’ than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine.” Salve Regina College, 499 U.S. at 233, 111 S.Ct. 1217.
It is true that a referral under the independent counsel statute presents a situation “[w]here ... the relevant legal principle can be given meaning only through its application to the particular circumstances of a case.” Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). But the Supreme Court has directed that in such situa-
I disagree that referrals will have no real function under the statute unless we defer to the Special Division. See Maj. Op. at 559. For one thing, the Special Division’s referral authority provides independent counsel, sensitive to both the limitations on their office and the ethic of self-restraint honored by federal prosecutors, with an avenue for seeking independent and impartial confirmation of their authority. Immune from direct judicial review, a referral gives legitimacy to an independent counsel’s investigation even if a federal court later determines that a specific indictment exceeds the prosecutor’s jurisdiction. This legitimacy provides a level of protection against any attempt by the Attorney General to remove or by Congress to impeach an independent counsel on the ground that he has overstepped his authority. See
For all of these reasons, I would hold that this court owes no deference to the Special Division’s related to determination. In assessing the legality of this tax indictment, our review should be de novo.
III
This court’s conclusion that the Independent Counsel has authority to proceed with this indictment stems from its view, flawed in my judgment, that we would undercut Morrison were we to construe the independent counsel statute in ways that prevent this Independent Counsel from performing his duty in a manner reasonably approximating that of an ordinary prosecutor. Maj. Op. at 563. Insisting on affording the Independent Counsel the same leeway, id. at 561, given to every other prosecutor, id. at 563, the court ignores the basic premise critical to the constitutionality of the statute: Independent counsel do not and cannot have the powers of ordinary prosecutors. If they did, the office would impermissibly undermine the powers of the Executive Branch. Morrison, 487 U.S. at 695, 108 S.Ct. 2597 (citation omitted). Among other constraints, it is the limited jurisdiction of independent counsel that give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. Id. at 696, 108 S.Ct. 2597. That an ordinary federal prosecutor might have authority to indict Hubbell for tax evasion therefore tells us nothing about whether this Independent Counsel—constrained by the statute and the separation of powers principle—may bring the same indictment. Nor do we learn anything from the authority possessed by the Watergate Special Prosecutor, see Maj. Op. at 561-562, for the full scope of his authority flowed directly from the Attorney General, thus presenting no separation of powers concerns.
Reviewing the record de novo, I would find that the indictment of Hubbell for tax evasion was not demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel. Morrison, 487 U.S. at 679, 108 S.Ct. 2597. Hubbell’s alleged failure to pay taxes on fees for work from 1994 to 1997 in Washington, D.C., is unrelated to whether, almost
[A]n offense cannot be related within the meaning of [the statute] solely because an independent counsel discovers it during a legitimate phase of his investigation. That interpretation of the statute would allow an independent counsel to prosecute offenses that bear no relationship to his original grant of jurisdiction.
Amicus Br. for United States at 32. The current prosecution, the Attorney General concludes, does not fall within [the Independent Counsel’s] authority directly to investigate the Whitewater/Madison Guaranty matter. Id. at 34.
In reaching the opposite conclusion, this court rests its finding of relatedness on two assumptions: that the fees Hubbell received were payments for his silence, and that his failure to pay taxes on them had an obstructive effect on the Whitewater investigation. In my view, both assumptions are flawed, and each independently undermines the statutory and constitutional constraints on independent counsel jurisdiction.
Assumption of obstructive effect
I begin with the court’s second assumption, i.e., that Hubbell’s failure to pay taxes on alleged hush money had an obstructive effect on the Whitewater investigation. Not limited to Hubbell’s failure to pay taxes on alleged hush money, the indictment’s sheer breadth belies the court’s obstruction theory. The indictment charges Hubbell with nonpayment of taxes on income from a book contract with HarpersCollins Publishers, early withdrawals from an IRA account and pension plan, and sales of his home and a Little Rock warehouse. In addition, by charging Hubbell’s lawyer and accountant for aiding and abetting tax evasion, the Independent Counsel did not limit the indictment to individuals who could have obstructed the Whitewater investigation.
According to my colleagues, any criminal conduct that could hide the hush money ... tends to impede investigation and prosecution of the matter being hushed up. Maj. Op. at 561. The less disclosure of the payments, they say, the less chance that they and their nature will come to light.... Id. But even assuming that Hubbell’s consulting fees were hush money (an assumption not supported by this record, see infra at 594-595), the facts of this case provide no support for the court’s concealment theory. In his 1994 tax return, Hubbell actually disclosed $376,075 in consulting income that the Independent Counsel suspects is hush money. This amount included $100,000 from Hong Kong China Limited and $62,775 from Revlon, the two sources the court highlights, see Maj. Op. at 555 & n.1, en route to finding that [t]he timing, sources, and extent of the payments make the belief that they were hush money reasonable, id. at 563. Acknowledging these disclosures, the court rests its finding of concealment on the fact that Hubbell did not report an additional $77,000 in consulting fees in 1994. See Maj. Op. at 561. But since Hubbell disclosed the lion’s share of the alleged hush money on his 1994 tax return—including the very payments that the Independent Counsel and my colleagues believe have the strongest whiff of obstruction—it seems odd to think that Hubbell chose not to disclose the remaining fraction in order to conceal hush money payments. In any case, nothing in the record (beyond the non-disclosure itself) suggests that the $77,000 was hush money. See infra at 594-595. We thus lack any basis for suspecting that Hubbell’s non-disclosure reflected a concerted effort to hide hush money instead of a general tendency (apparent from the indictment) to ignore the internal revenue laws.
The court’s concealment theory makes much more sense in a case like United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976),
The court next adopts the Independent Counsel’s argument that Hubbell’s failure to pay taxes enhanced the financial or economic effect of the hush money payments. . . . And that contributes to the obstruction of the investigation. Oral Arg. Tr. at 16; see Maj. Op. at 561 ([T]he more value Hubbell can squeeze from hush money . . . , the more chance it will succeed in preventing his cooperation.). But even if we again assume the payments to be hush money, their obstructive effect ended upon Hubbell’s receipt; his subsequent nonpayment of taxes bought his benefactors no further silence. The Independent Counsel never alleged that Hubbell’s benefactors somehow discounted the value of the alleged hush money by the probability that he would not pay taxes. Indeed, who could have foreseen the bizarre nature of the tax evasion scheme detailed in the indictment? Who would have expected that, having reported $376,075 of his $450,010 in consulting income on his 1994 tax return, Hubbell would then, as with his other income, not pay taxes on it?
The court’s economic enhancement theory permits virtually unlimited expansion of the Independent Counsel’s jurisdiction. Had Hubbell used the alleged hush money for profitable but illegal gambling or insider trading, for example, this theory would allow the Independent Counsel to indict him for these crimes simply because they increased the value of the money. Surely this result stretches the concept of relatedness beyond its statutory and constitutional breaking point.
Together, the concealment and economic enhancement theories enable the Independent Counsel to comb through all of Hubbell’s investments and expenditures—including, as the indictment reveals, his purchase of clothes, groceries, and laundry services—until discovering some illegality on which to indict him. By adopting these theories, the court converts the Office of the Independent Counsel from a device for investigating a specific subject matter,
[T]he most dangerous power of the prosecutor [is] that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.
487 U.S. at 728, 108 S.Ct. 2597 (Scalia, J., dissenting) (quoting then-Attorney General Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys (April 1, 1940)) (quotation marks omitted).
Deeply corrosive to the statutory and constitutional limits on independent counsel jurisdiction, the court’s concealment and economic enhancement theories cannot justify a finding of relatedness in this case. In my view, this conclusion in and of itself is enough to sustain the district court’s quashing of the indictment. But because the court’s contrary
Assumption that Hubbell’s fees were hush money
Even if the court’s concealment and economic enhancement theories had merit, they have no applicability to this case for one simple reason: Both depend entirely upon Hubbell’s involvement in an underlying crime of obstruction—a crime unsupported by any credible evidence in the record.
In his brief, the Independent Counsel refers to the possibility that Hubbell might have accepted money as an inducement to obstruct the Madison investigation. OIC Br. at 20 (emphasis added); see also id. (stating that large payments on which Hubbell did not pay taxes may be related to his non-cooperation with respect to Whitewater and Madison-related matters) (emphasis added). Yet the Independent Counsel has chosen not to indict Hubbell for accepting hush money payments or anyone else for making them. Although I agree with my colleagues that the Independent Counsel need not formally charge Hubbell for accepting hush money in order to indict him for tax evasion, I disagree that we may sustain the tax indictment simply because the Independent Counsel is diligently pursuing his investigation of the main allegation that [hush] money was channeled to Hubbell, Wald Op. at 586. Without credible evidence that Hubbell accepted hush money, there can be no demonstrable relationship between Hubbell’s tax crimes and the Independent Counsel’s original grant of jurisdiction. Morrison, 487 U.S. at 679, 108 S.Ct. 2597 (emphasis added).
At oral argument, the Independent Counsel conceded that we right now, as a matter of public record, don’t know that Hubbell’s consulting income was hush money. Oral Arg. Tr. at 13. Notwithstanding this uncertainty, my colleagues have seen no need either to accept the Independent Counsel’s offer to submit evidence in camera—evidence that he claims shows that the commission of that crime was more likely than not, see id.—or to remand to the district court to consider such evidence. Instead, they accede to his request that we not indulge in the assumption that there is no evidence of obstruction, id., shoring up the Independent Counsel’s innuendo with non-record evidence plus a little innuendo of their own, see Maj. Op. at 555 n.1.
The record in this case is quite unlike the record in United States v. Haldeman, where this court upheld the convictions of H.R. Haldeman, John Ehrlichman, and John Mitchell for conceal[ing] a cover-up in the Watergate affair. Maj. Op. at 562 (emphasis omitted). In that case, the allegations that the defendants paid hush money to the Watergate burglars and then lied about it under oath were supported by vast amounts of credible evidence, primarily consisting of direct testimony and tape recordings of key conversations among the co-conspirators. See Haldeman, 559 F.2d at 55-59 (describing defendants’ commitments to pay the burglars hush money and detailing defendants’ extensive conspiracy to raise, transfer, deliver, and conceal the hush money payments).
My colleagues say that independent counsel should enjoy the same discretion that U.S. Attorneys have to charge defendants with cover-up crimes without charging them for the underlying crimes. See Maj. Op. at 562 (citing Department of Justice guidelines). But as I have pointed out, Hubbell’s tax offenses cannot plausibly be labeled cover-up crimes. See supra at 593-594. Moreover, the court’s analogy is constitutionally flawed. It ignores the critical fact that U.S. Attorneys, unlike independent counsel, never need to prove that a particular crime falls within the jurisdiction ceded to them. They have authority to follow a trail of criminality and (subject to Justice Department procedures described below) to convert an investigation of real estate fraud into a prosecution of tax crimes. If the constitutional separation of powers precludes anything, it precludes the extension of such vast discretion to independent prosecutors who lack the unifying influence of the Justice Department and the perspective that multiple responsibilities provide. 487 U.S. at 732, 108 S.Ct. 2597 (Scalia, J., dissenting).
IV
Finally, in addition to adopting virtually limitless theories of relatedness and assuming that Hubbell accepted hush money, my colleagues discount the constitutionally significant requirement that independent counsel comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws unless to do so would be inconsistent with the purposes of the [Act].
In this case, I see no reason why the Independent Counsel could not have complied with Tax Directive 86-59. My colleagues are willing to assume that requiring such compliance would be inconsistent with the purposes of the independent counsel statute,
V
In sum, I believe that the court’s finding of relatedness—premised on deference to the Special Division, unbounded theories of obstruction of justice, and unsubstantiated suspicions of illegality—undermines the constitutional constraints on independent counsel jurisdiction. Morrison endowed the statute’s jurisdictional controls with constitutional significance because it recognized that the absence of such controls would enable independent counsel to usurp executive power. This case provides reason to worry that the Office of the Independent Counsel indeed functions as a mini-Executive . . . operating in an area where so little is law and so much is discretion. Morrison, 487 U.S. at 732, 108 S.Ct. 2597 (Scalia, J., dissenting). Because the constitutional separation of powers demands greater vigilance, I conclude that this Independent Counsel has exceeded his jurisdiction.
My conclusion would not impair the Ethics in Government Act’s central purpose . . . [of] permit[ting] the effective investigation and prosecution of high level government and campaign officials, United States v. Wilson, 26 F.3d 142, 148 (D.C.Cir.1994), quoted in Maj. Op. at 560-561. This Independent Counsel’s original grant gives him all the authority he needs to prosecute Hubbell and others for obstruction of justice if he has evidence that Hubbell received hush money. See
I respectfully dissent.
WILLIAMS, Circuit Judge, dissenting from Part II:
The commentator who predicted that Fisher and Doe would inevitably lead to metaphysical speculation was apparently all too prescient. See Samuel A. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L.Rev. 27, 59 (1986). The majority opinion supplies some such speculation and demands more from the district court on remand. I would limit the district court’s inquiry about the subpoenaed documents to verifying that the Independent Counsel, in securing Hubbell’s indictment, has only used information that he would have had if the documents had appeared in his office, unsolicited and without explanation.
* * *
It is clear that a prosecutor who has obtained personal documents by subpoena may not, without violating either the Fifth Amendment or a use immunity of equivalent scope granted under
Here the only interesting issue is the existence theory; possession and authentication seem properly outside the case. Hubbell’s prior possession is irrelevant if, as appears to be the case, the Independent Counsel relied on the documents only for the information that they contain, and thus had no occasion to rely on Hubbell’s act of production, or anything else, for evidence that Hubbell at one time had possessed them. Nor does it appear that he used the production for authentication; he never sought to show the grand jury that Hubbell, by delivering the documents in response to the subpoena, had identified them as being ones that matched the descriptive language of the subpoena.
Thus we are left with existence. From the truism that the Independent Counsel could not use the contents of the documents unless they (at some time) existed, and unless he learned of that existence, the majority leaps to the proposition that the Independent Counsel’s awareness of their existence stems from a testimonial aspect of Hubbell’s act of production. Accordingly, it says, the Independent Counsel may use the information in the documents if but only if he can show that he possessed, before securing the subpoena, a knowledge of the documents’ existence sufficiently detailed that his later knowledge, after their delivery, was a foregone conclusion.
But not all aspects of the act of production are testimonial. Where an item of information that the prosecutor receives from a document delivery flows from a non-testimonial aspect, he does not depend on any testimonial aspect. Information as to the existence of the pieces of paper turned over by a subpoenaed party can always be traced to non-testimonial information. I elaborate below.
* * *
Testimonial. Before the Fisher Court introduced the foregone conclusion discussion on which the majority is so focused—and which I discuss below—it observed that the whole issue of whether something is testimonial depends on the facts and circumstances. Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). But what facts and circumstances are relevant?
One possibility might be that all actions from which we can glean information are considered testimonial communications for purposes of Fifth Amendment analysis. But the precedents upon which Fisher relied in more or less rejecting the view of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that the Fifth Amendment protects the contents of subpoenaed documents, appear to rule this out. Those cases involve the government forcing a person to try on a blouse worn by the perpetrator to establish whether it fit the defendant, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), or to give blood samples, Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), voice samples, United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), or handwriting samples, Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). They do not rely on anything like the foregone conclusion rationale; instead, they find that such acts are not testimonial because they fit into the category of compulsion which makes a suspect or accused the source of real or physical evidence. Schmerber, 384 U.S. at 764, 86 S.Ct. 1826.
Nor can these cases be recharacterized as ones where the prosecutor’s grasp of the information obtained was a foregone conclusion. Of course it is true that, for example, it is typically not much to admit that one can speak. But in giving a voice sample, one also admits that one’s voice has various characteristic idiosyncrasies—a non-obvious and incriminating fact that the law allows the prosecutor to secure by compulsion. The prosecutor’s and jury’s access to that information is as dependent on the speaker’s compelled implicit admission of ability to speak as their access to the information on documents is dependent on the subpoenaed party’s implicit admission of the documents’ existence.
One can, of course, discern a communicative element in the giving of a voice sample: a person commanded to speak implicitly says, This is the way I sound when I speak. But that information adds nothing to what a jury learns from its own ears (or from a properly authenticated tape, if that is the way it is done, see, e.g., United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoena requiring suspects to read transcripts into a recording device is consistent with Fifth Amendment)). Similarly, a person giving a blood sample implicitly says, This is my blood. Though there is implicit communication, the prosecutor need not rely on it, so long as he has the blood and a witness to the blood-giving itself.
Foregone Conclusion. The most confusing part of Fisher is the language that the courts have taken to tie foregone conclusion closely to the testimonial analysis and vice versa. 425 U.S. at 411, 96 S.Ct. 1569. The Court said: Surely the Government is in no way relying on the truthtelling of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion.... Id. (citation omitted). In my view, the latter sentence should be read in light of the former. That is, foregone conclusion is only a subset of the broader set: instances where sources independent of testimonial aspects of the compulsion fully account for the prosecutor’s evidence.
This relationship is illustrated in an example used in Fisher: When an accused is required to submit a handwriting exemplar he admits his ability to write and impliedly asserts that the exemplar is his writing. But in common experience, the first would be a near truism and the latter self-evident. Id. The Court here is implicitly referring to Gilbert v. California, 388 U.S. at 265-67, 87 S.Ct. 1951, one of the cases it had just relied upon in more or less overruling Boyd. In Gilbert, the police got the suspect to write out some handwriting exemplars while he was in custody and being questioned. When the Court calls the implicit admission of ability to write a near-truism, the near is critical. Consider a kidnapping, in which a ransom note is a major piece of evidence, but the suspect claims illiteracy. Suppose police, posing as terrorists, frightened him into writing something (the text of which had no bearing on the kidnapping). There might be some sort of due process argument, but in using the handwriting sample the prosecutor
More important is the defendant’s implicit admission that the exemplars are his. This is not, strictly speaking, self-evident; rather, it is supported by evidence (the testimony of the witnessing police officers) of a non-testimonial aspect of the act of production, here the act of writing. But as the Court says, the government is in no way relying on the truthtelling of [defendant] to prove anything: it is relying only on the immediate personal observations of the policemen and on nontestimonial aspects of the defendant’s act to link the handwriting to the defendant. Everything else of evidentiary value, namely the idiosyncrasies of the writing, depends only on the writing itself. As we’ll see more explicitly below, this matches the relation of a prosecutor to documents delivered pursuant to subpoena. The information on the documents stands or falls on its own value, even though (by definition) produced by the defendant’s act of production. Thus: for handwriting, the link to the defendant is established by police witnesses and the testimonial value of the defendant’s act of production is redundant; for documentary information, so long as the prosecutor depends as here only on information in the documents themselves for the link to defendant, the communicative aspect of the act of delivery is equally redundant.
Existence. In light of the above, the only sense of existence that is covered by the Fifth Amendment is that which refers back to the subpoena. The responsiveness of the documents to the subpoena gives knowledge of the existence of the papers demanded, 425 U.S. at 410, 96 S.Ct. 1569 (emphasis added). Yes, these are the records you described in the subpoena. If the government could refer back to the subpoena to identify documents and to clarify relationships that were not clear on their face or by other independent means, then it would be using a testimonial component of the transaction—the witness’s implicit statement that the documents match the subpoena’s description. Hubbell’s claim for blanket exclusion of the contents, by contrast, relies on existence in a quite different sense—the fact that these particular pieces of paper are in being. But this is quite easily confirmed by these papers’ own physical presence, which is self-evident at the time and place of production and so long thereafter as the government maintains proper custody. Existence in that sense is as self-evident as the blood and its characteristics in Schmerber, the voice samples and their characteristics in Wade, and the handwriting and its characteristics in Gilbert.
Some of the language in Fisher and Doe, to be sure, suggests a more sweeping view of existence. Fisher I have discussed above. Doe upholds a decision quashing certain subpoenas, based on trial court findings (endorsed by the court of appeals) that delivery of the documents gave the prosecutor previously absent knowledge of their existence, possession, and authenticity. See United States v. Doe, 465 U.S. 605, 613-14 & nn.11-13, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984). But the implications are quite unclear. The Court relied explicitly and entirely on the two courts rule. Id. While the majority argues that the findings below were structurally applications of law to fact, see Maj. at 570 n.24, the Court’s treatment of them was as simple fact. Second, to the extent that its rehearsing of the arguments embraced in the courts below may suggest the sort of existence theory employed by the majority, the inference is drawn in question by the Court’s reliance on the anticipated use of the act of production for authentication of the documents, i.e., use of an indisputably testimonial aspect of subpoena compliance. See 465 U.S. at 614 n. 13, 104 S.Ct. 1237.
Accordingly, the logic of Fisher and Doe, if not every phrase, clearly supports the prosecutor’s right to use information from subpoenaed documents regardless of whether he was previously able to describe them. The particular documents’ existence speaks for itself once they have been delivered; so long as his use of them is independent of any testimonial aspects of the witness’s act of
* * *
The majority confuses the issue with a rather odd distinction: if compulsion acts upon, and requires the exercise of an individual’s mental faculties for communication, it is testimonial; if it merely utilizes the body of the accused as a form of evidence, it is not. Maj. at 572-573.
To the extent that the majority here acknowledges that the bare physical aspects of a production—the meanings that are directly apparent to the senses—are unprotected by the Fifth Amendment, it is correct. But there is no reason to restrict this to the body of the accused.
In fact, the majority fails to explain the cases that fall outside this apparent restriction. Gilbert v. California, approvingly cited by the majority, concerned a handwriting sample that the suspect had to write out and then turn over to the police. But more telling is Baltimore Dept. of Social Servs. v. Bouknight, 493 U.S. 549, 554-55, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990). In that case, a woman was ordered to turn over a child whom she was believed to have abused and who was last seen in her custody. The Court held, among other things, that the woman cannot claim the privilege based upon anything that examination of [the child] might reveal.
Thus in Bouknight it was not the body of the accused that was used as a form of evidence, but the body of another. Documents are exactly analogous: physical objects the examination of which yields evidentiary value or clues. Documents do, of course, represent the concrete embodiment of mental activity, but that is a false lead: these thoughts (the contents of the documents) were, we assume, put to paper quite voluntarily—if they were not, they would unquestionably be protected. See Doe I, 465 U.S. at 610-11, 104 S.Ct. 1237. In Bouknight the Court was obviously indifferent to the necessity that the suspect find and turn over a child whose location was completely unknown to the government; the court here should be equally indifferent to the necessity that Hubbell do the same for documents.
Delivery of the child in Bouknight clearly depended on the suspect’s exercise of her mental faculties; in fact, her intellectual efforts turning up the child were no less then they would have been had the government known its whereabouts in advance. The case thus flatly contradicts the majority idea that self-incrimination occurs whenever the subpoena requires the exercise of an individual’s mental faculties. The majority might say, with internal consistency though not with conformity to the cases, that the government may use the product of forced mental exercise so long the mental exercise is no more than an automaton’s execution of intellection already carried out by the government. But that would take it to the position that a document subpoena must itself set forth whatever descriptive detail is necessary (under the majority’s murky test) about the documents’ character and location. Even the majority evidently recoils at this absurdity.
There are of course non-physical aspects to the production in Bouknight. In another part of that opinion, the Court used a different analysis for the suspect’s implicit communication of control over [the child] at the moment of production, 493 U.S. at 555, 110 S.Ct. 900, saying that although this was arguably an incriminating testimonial assertion, see id., some uses of it might be permissible under the doctrine that the Fifth Amendment may not be invoked to resist compliance with certain types of regulatory regimes, id. at 555-62, 110 S.Ct. 900. Here, of course, the government has no interest in Hubbell’s control of the documents at the moment of production, and seeks to draw no inferences from that control. But the majority’s concern here with information about the documents before their delivery is utterly different from the Bouknight Court’s focus on the moment of production.
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The majority’s confusion is further evident in its attempt to draw some distinction between whether something is testimonial and whether it has testimonial value. See Maj. at 574 n.27, 576 n.31. This dissent, the
Where the government need not rely upon the truthtelling of the witness, because it has prior knowledge of the information that will be communicated through the act of production, no constitutional rights are touched.
Maj. at 576 n.31 (emphasis added) (quoting Fisher). The only disagreement here is the italicized portion: for some reason, the majority believes that possession of prior knowledge is the only circumstance in which the government need not rely upon the truthtelling of the witness. But the majority never explains how, under its theory, there is no testimonial self-incrimination if the government need not rely because it already knows, while there is testimonial self-incrimination if the government has another reason for dispensing with reliance on communicative aspects of the witness’s acts. Nor could any such explanation be consistent with precedent. In Bouknight, which concerned a subpoena to turn over a missing child, the Court found that the target could not assert the privilege upon the theory that compliance would assert that the child produced is in fact [the child sought] because that fact was one the State could readily establish, 493 U.S. at 555, 110 S.Ct. 900, despite the fact that the government could not have made such a finding until after the production.1 Here, too, the government need not rely on any communicative or testimonial aspect of Hubbell’s act of production; once it acquired the documents, their intrinsic value evidently served its purposes quite adequately. The majority imposes a wholly artificial and impermissible limitation on the reasons for which the government need not rely on testimonial implications of the act of production.
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For a district judge, the challenge of the majority’s view is to determine the quantum of relative prosecutorial ignorance that triggers a self-incrimination violation. Prosecutors know that businessmen keep business records (just as they know that living humans have blood and literate persons have handwriting); this is plainly too little information for the majority. But evidently the prosecutor need not have advance knowledge of the details that he is interested in. See Maj. at 580. Somewhere in that range is an imaginary line which, unlike the equator, can never be fixed or defined with clarity. Henceforth, therefore, the operational meaning of the act of production doctrine in our circuit will largely turn on district courts’ discretion in this metaphysical classification of prosecutors’ knowledge.
Though recognizing that no other court has applied its mind/body distinction explicitly, the majority claims that the existing lower-court cases can be lined up to fit. If so, this seems to me only because the factual detail of the cases is so skimpy and the majority’s test so elastic. And to the extent that the cases can fairly be viewed as embracing the majority’s readiness to squeeze production immunity into a simple foregone conclusion analysis, they miss the point. Foregone conclusion is just one species of one part of the doctrinal structure the Supreme Court has set out; the majority’s obsession with that phrase diverts its focus from the key issue, the presence (or absence) of testimonial incrimination.
Let us return to blood and handwriting, the contexts for the key decisions underlying
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Sensibly construed, the act of production doctrine shields the witness from the use of any information (resulting from his subpoena response) beyond what the prosecutor would receive if the documents appeared in the grand jury room or in his office unsolicited and unmarked, like manna from heaven. See DOJ Amicus Br. at 42; Alito, supra, at 59-60. The prosecutor would in such a case not be able to identify, verify someone’s control over, or authenticate the documents except to the extent their own contents—or other sources—did so. He would thus make no use of any testimonial aspect of the act of production. Yet, like DNA and handwriting idiosyncrasies, the contents would themselves be unprotected, except to the extent that deciphering might depend on the context of the subpoena—the information conveyed by the suspect’s implicit matching of them with the subpoena description.
This distinction between contents and production is apparently missed by the majority. Its first hypothetical of the murder weapon claims that this manna from heaven theory would allow the government to compel a suspect to incriminate himself verbally by revealing the location of the murder weapon. But in the majority’s hypo, the weapon is obviously the fruit of poisoned testimony: a revelation under compulsion. A more apt instance would be if a suspect had previously—without compulsion—written down the location in his day planner, and the government subpoenaed the planner. The production of the day planner, like the production of a missing child, is compulsory but non-testimonial. The much more harmful contents are obviously testimonial, but they are not the fruit of any unlawful compulsion (so long as the government’s use is independent of the context of the subpoena).2
On remand the only question should be whether the Independent Counsel complied with the limits set by the above principle. Accordingly, I dissent on this issue.
HARBOR GATEWAY COMMERCIAL PROPERTY OWNERS’ ASSOCIATION, et al., Petitioners
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent
No. 97-1737.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1998.
Decided Feb. 19, 1999.
Notes
The dissent also misreads Baltimore Dept. of Social Servs. v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), conflating its inquiry into whether the state could compel production despite Fifth Amendment objections with a separate and conceptually distinct examination of whether that compelled act of production would communicate testimony. In Bouknight, the Court held that a mother could not refuse a juvenile court order to produce her child, whom social services suspected she abused, by asserting her privilege against self-incrimination. The Court based its decision on the fact that the child—Maurice—had been declared a “child in need of assistance,” id. at 552, 110 S.Ct. 900, a judicial determination asserting jurisdiction over Maurice and assigning oversight responsibilities to the Baltimore City Department of Social Services. Ultimately, the Bouknight Court confronted a single question—whether the state juvenile court could compel Bouknight to produce her child—and held that Maurice’s mother had no choice but to comply. Although the Court concluded that Bouknight could “not invoke the privilege to resist the production order because she has assumed custodial duties related to production and because production is required as part of a noncriminal regulatory regime,” id. at 555-56, 110 S.Ct. 900 (emphasis added), the dissent mistakenly approaches the case as though it rested on a finding that production would not be testimonial. Because it does not, see id. at 561-62, 110 S.Ct. 900 (explicitly referencing Fifth Amendment limitations on using any testimonial aspects of Bouknight’s compelled producing in subsequent criminal proceedings), the dissent’s focus upon parsing the mental from the physical components of any act producing Maurice is irrelevant to our (and any) general Fifth Amendment analysis. See Dissent at 599-601.
In Bouknight, the Court assumed arguendo that compelled production would involve sufficient testimonial incrimination to implicate the Fifth Amendment, see id. at 555, 110 S.Ct. 900—a critical fact our dissenting colleague ignores. In fact, to the extent that the Court did touch upon the testimonial components of the act of production, its minimal discussion reinforces our reading of Fisher and Doe I, and directly refutes the dissent’s. For example, the Court noted that while producing Maurice would implicitly testify to his existence and authenticity, that communication was “insufficiently incriminating.” Bouknight, 493 U.S. at 555, 110 S.Ct. 900. Because the state already knew of his existence, and presumably his social worker could testify as to his identity, both elements were essentially a foregone conclusion. See id. (citing Fisher‘s foregone conclusion analysis). See also discussion infra pp. 575-578. The dissent’s extensive effort to distill contrary principles from Bouknight is misguided and unsubstantiated; Bouknight cannot and does not bear the meaning that the dissent seeks to assign it.
The foregone conclusion analysis, which examines the testimonial value of the accused’s act of production, has nothing to do with the general question of whether the act of producing documents in response to a subpoena is testimonial. Fisher, Doe I, and Braswell all teach that it is. The Court’s discussion of handwriting and blood samples goes only towards answering this prior question. For example, while the Court notes that an accused forced to give a handwriting exemplar implicitly admits that he can write and that the writing produced is his own, it declares the first admission a “near truism” and the second “self-evident.” Fisher, 425 U.S. at 411, 96 S.Ct. 1569. “[A]lthough the exemplar may be incriminating to the accused and although he is compelled to furnish it, his Fifth Amendment privilege is not violated because nothing he has said or done is deemed to be sufficiently testimonial for purposes of the privilege.” Id. (emphasis added). By contrast, the act of production, which is inherently testimonial, may or may not be sufficiently testimonial for purposes of the privilege. The Fifth Amendment will not necessarily apply to all such communications; it “depends on the facts and circumstances of particular cases or classes thereof.” Id. at 410, 96 S.Ct. 1569.
The dissent attempts to differentiate two concepts of existence, only the first of which it claims to be covered by the Fifth Amendment. In the dissent’s view, the existence prong of Fisher refers only to the statement, made in a given act of
Ignoring the text of Fisher, Doe I, and Braswell, the dissent seeks support for its parsimonious definition through a misconstruction of Schmerber, Wade, and Gilbert. It argues that existence qua existence “is as ‘self-evident’ as the blood and its characteristics in Schmerber, the voice samples and their characteristics in Wade, and the handwriting and its characteristics in Gilbert.” Dissent at 599. Our dissenting colleague fails to recognize, however, the legal import of the fact that all humans have blood and that nearly all can speak and write. In each case, the Supreme Court relied upon this self-evident quality to conclude that requiring the accused to provide a sample merely required the use of his body as physical evidence. They were analogous to a “compulsion to submit to fingerprinting, photographing, or measurements ..., to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture,” Schmerber, 384 U.S. at 764, 86 S.Ct. 1826, because in each case they were considered noncommunicative or insufficiently testimonial. See discussion supra pp. 573-575. The Supreme Court relied upon this distinction between “compelling ‘communications’ or ‘testimony’” and compulsion that “makes a suspect or accused the source of ‘real or physical evidence,’” id., in articulating the communicative elements of the act of production. It concluded that a compelled subpoena response testified to existence qua existence. Accordingly, we refuse to join our dissenting colleague’s attempt to overturn the holding articulated in Fisher, and reiterated in both Doe I and Braswell.