UNITED STATES of America, Plaintiff/Appellee, v. Sherman Walter ROACH, Defendant/Appellant.
No. 84-5120
United States Court of Appeals, Ninth Circuit
Decided Oct. 23, 1984
745 F.2d 1252
Argued and Submitted Oct. 3, 1984.
The government here concedes that it cannot compel production of the proprietorship documents from Manges himself. It has not directed its subpoena to him, but to his bookkeeper. At first blush, that fact might seem to be the end of the matter. In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Supreme Court held that a taxpayer‘s records in the hands of his accountant could be subpoenaed without violating the fifth amendment. In so holding, the Court reminded us that the privilege against self-incrimination “is a personal privilege: it adheres basically to the person, not to information that may incriminate him.” Id. at 328, 93 S.Ct. at 616 (emphasis in original).
The Supreme Court went on to say in Couch, however, that
situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact.
Id. at 333, 93 S.Ct. at 618. We take this dictum to mean that possession of records by an employee might be so insignificant or fleeting as to leave essentially unaltered the incriminating testimonial effects the act of production would visit upon the employer. An example might occur were a janitor to move a box of records to clean behind them; a subpoena directed to him while he held the box might command production in a way that would testimonially incriminate his employer who regularly exercised dominion over the records. We need not rule on this or other examples of fleeting possession, however, for nothing of the sort has occurred here.
Robertson was neither a janitor nor a file clerk; her relationship to the proprietorship3 documents was not a matter of bare access or fleeting custody. As bookkeeper, Robertson actively prepared or maintained the journals, account payable ledgers, and formal check registers of the sole proprietorship. Manges, on the other hand, did not exercise dominion over the records. Robertson could not recall a single instance in which Manges personally came to her and asked to see any of the records, nor did she review with Manges the books upon which she regularly made entries. Manges was rarely in the office where the records were kept, and his visits there were unrelated to the records.
Given these facts, Manges had effectively delegated custody and control of the records to Robertson. We therefore fail to see how production of the records by Robertson would involve testimonial incrimination by Manges. The situation is close to that in Couch, and falls within its rule. The subpoena may be enforced. Accord Matter of Grand Jury Empanelled (Colucci), 597 F.2d 851 (3d Cir.1979).
AFFIRMED.
Craig I. DeRoy, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee.
Carlton F. Gunn, Federal Public Defender, Los Angeles, Cal., for defendant/appellant.
Before FARRIS, ALARCON and NORRIS, Circuit Judges.
FARRIS, Circuit Judge:
Probation for Sherman Roach was revoked more than three and a half years after he had requested prompt disposition of the charge that he had violated his pro
We previously considered whether or not the Agreement applies to detainers based on parole violator warrants. Hopper v. United States Parole Com‘n, 702 F.2d 842 (9th Cir.1983). We held that it did not.
We must now decide whether or not the Agreement applies to probation violation charges. Our review would be cursory but for the Third Circuit‘s consideration of this question in Nash v. Jeffes, 739 F.2d 878 (3rd Cir.1984), affirming Nash v. Carchman, 558 F.Supp. 641 (D.N.J.1983). There is an extended discussion of the Agreement‘s legislative history in Nash v. Jeffes. We look first to the language of the act. If it is clear and unambiguous, it should be applied. We will not go beyond the face of the statute to search for “Congressional intent” when that intent is obvious from the language of the act. Consumer Prod. Safety Com‘n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Carlson v. C.I.R., 712 F.2d 1314, 1315 (9th Cir.1983) (“When interpreting a statute, we need not go beyond its language unless it is ambiguous or rendered so by other inconsistent statutory language.“). The Agreement provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer‘s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made
of the indictment, information, or complaint.
The words “indictment,” “information,” and “complaint” are terms of art with well-understood meanings in the law. They refer to documents charging an individual with having committed a criminal offense. Used in a statute, they must be accorded that meaning. Ducey v. United States, 713 F.2d 504, 510 (9th Cir.1983). Probation violation charges do not fall within that definition, and Congress did not express an intention to make the Agreement applicable to probation violation charges. Therefore, the statutory language must be regarded as conclusive. Tulalip Tribes of Washington v. F.E.R.C., 732 F.2d 1451, 1454 (9th Cir.1984).
We have reviewed our holding in Hopper. While one might forge a distinction between parole and probation, neither parole violator warrants nor probation violation charges are covered by the explicit langauge of the agreement. In spite of the Third Circuit‘s rejection of Hopper, we choose to adhere to the settled doctrine that where the statutory language is unambiguous and there is no clearly expressed legislative intention to deviate from the well-settled meaning of that language, it is conclusive.
Affirmed.
NORRIS, Circuit Judge, concurring in the judgment:
I concur in the judgment on the ground that Hopper v. United States Parole Commission, 702 F.2d 842 (9th Cir.1983), is controlling authority. For the purpose of interpreting the Interstate Agreement on Detainers,