Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 GJ 2227 James B. Parsons, Judge.
Pell, Bauer, and Tone, Circuit Judges. Tone, Circuit Judge, concurring.
This is an appeal from an order of the district court dated January 15, 1976, adjudging appellant, an attorney, in civil contempt and ordering him to be remanded to the custody of the Attorney General "until such time as he shall purge himself of this contempt or the discharge of the January 1976 Grand Jury, whichever comes first." The appeal raises questions concerning the scope of the Fifth Amendment testimonial privilege and the standing of an attorney to invoke that privilege on behalf of his clients, and the scope of the attorney-client privilege. Other claimed violations of constitutional rights are asserted.
On December 30, 1975, between 9:00 and 9:30 A.M., the Bellwood Savings and Loan Association of Bellwood, Illinois, was robbed of approximately $6,120.00 by a man and a woman. Investigators from the Federal Bureau of Investigation uncovered information leading to the identification of two suspects, Paul Bijeol and Sharon Kay Holloway, and a complaint and warrant were sworn and issued on December 31, 1975, naming these two suspects.
Investigation and interview disclosed that Bijeol had been in the employ of Edward Genson, attorney at law, prior to the commission of the robbery. Investigation also disclosed that Bijeol and his alleged female accomplice were in the Chicago office of Mr. Genson and one of his associates, Mr. Barry Goodman, between 10:00 A.M. and 12:00 noon on December 30, 1975, approximately one to three hours after the commission of the robbery. Further, Government investigators learned that the male suspect had transferred $200.00 in cash to Mr. Goodman at this time. It was also learned that Bijeol met with Genson at approximately 1:30 P.M. and again at approximately 5:30 P.M. on the day of the robbery.
At approximately 10:00 A.M. on December 31, 1975, Genson was notified by an agent of the FBI that any monies which he had received or would receive as fees for his legal services for the two suspects might constitute proceeds of the robbery. In response to an inquiry of an FBI agent, Genson stated that he received "something" from the male suspect, but he refrained from disclosing what the "something" was. In response to a subsequent inquiry whether he had in fact received any monies or any firearms from either of the two suspects at the time of or subsequent to their meetings on the day of the robbery, Genson asserted the attorney-client privilege as a basis for refusing to respond to the questions.
On January 7, 1976, Genson was served with a subpoena duces tecum requesting the production of
"any and all monies paid or delivered to you or into your care, custody, and control by Paul Bijeol or Sharon K. Holloway, . . . or their agents, subsequent to 9:00 A.M. on Tuesday, December 30, 1975."*fn1
On January 9, 1976, Genson filed a motion to quash the subpoena. On January 15, 1976, after memoranda had been filed and arguments heard, Chief Judge Parsons denied the motion to quash and ordered Genson to appear before the grand jury and to comply with the subpoena. On that afternoon, Genson appeared before the grand jury and refused to comply with the subpoena or to answer a question pertaining to his receipt of monies from Bijeol.
The grounds for this refusal were the assertion of an attorney-client privilege, the Fifth Amendment privilege against self-incrimination on behalf of a client, the Fifth Amendment right to due process, the Fourth and Ninth Amendment right to privacy, the Fourth Amendment right prohibiting unlawful searches and seizures, and the Sixth Amendment right to counsel. The Government then petitioned for an order to compel testimony and to produce evidence. The witness again appeared before Chief Judge Parsons, who ordered him to proceed forthwith to the place of meeting of the Grand Jury, to answer the questions which he was asked in regard to the monies, and to produce said monies as required of him, if in his possession, without further assertion of the attorney-client privilege, the self-incrimination privilege of his client, or his client's Sixth Amendment right to counsel.
The appellant then returned to the grand jury, where he again refused to comply with the subpoena or the order of the court. After this second refusal, the Government moved for a rule to show cause why Genson should not be held in contempt. The court held a hearing, entered a finding of contempt, and ordered Genson confined.*fn2 Execution of the sentence was first stayed until January 22, 1976, and a subsequent order stayed execution of the sentence pending this appeal.
The panel of this court hearing this case was in entire agreement as to the result to be reached in the case but was not in similar accord as to the reasons for reaching the result. The opinion following represents the views of Judge Pell supporting the result reached. Judges Tone and Bauer have set forth their views of the supportive reasons for the result reached in a separate concurring opinion which insofar as it is in conflict with Judge Pell's opinion represents the majority view of the court. The somewhat unorthodox method of handling the disposition has been necessitated by the need for an early disposition of the case.
II. THE FIFTH AMENDMENT TESTIMONIAL PRIVILEGE
The major issue in this appeal is whether a subpoena duces tecum requiring an attorney to produce for a grand jury investigation monies turned over to him by his clients and believed to be proceeds of a bank robbery infringes his clients' Fifth Amendment privilege against compelled self-incrimination. Both the appellant and the Government admit that there is little case law exactly on point, possibly because the fruits of bank robberies, if recovered at all, are usually retrieved either pursuant to a valid search warrant or a search incident to a lawful arrest. Although there is judicial language in the decisions that bears upon the narrow issue in this appeal, it essentially is a question of first impression.
The Fifth Amendment privilege against self-incrimination does not merely encompass evidence which may lead to a criminal conviction, but also includes information which would furnish a "link in the chain of evidence" that could lead to prosecution as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Maness v. Meyers, 419 U.S. 449, 461, 42 L. Ed. 2d 574, 95 S. Ct. 584 (1975); Accord, Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 71 S. Ct. 814 (1951). One of the important policies underlying the testimonial privilege is the protection of an individual's "private enclave," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). In order to promote the basic policy objectives which it was believed the framers sought to achieve, the Supreme Court has recognized that the Fifth Amendment privilege respects a private inner sanctum which "necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication. . . ." (Emphasis supplied); Bellis v. United States, 417 U.S. 85, 91, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974). Accord, United States v. White, 322 U.S. 694, 698, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944).
A series of recent Supreme Court decisions has established, however, that compulsion which makes a suspect or accused the source of real or physical evidence does not violate the testimonial privilege. E.g., United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973); United States v. Mara, 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774 (1973); Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); Schmerber v. California, 384 U.S. 757, 764, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). The Government relies upon this series of decisions to bolster its contention that Genson's production of the monies, which it characterizes as mere physical evidence, would not be equatable with any self-incriminatory disclosures of a testimonial or communicative nature.
More precisely, the Government contends that Genson's compliance with the subpoena duces tecum would not represent an impermissible authentication of the physical evidence. The only arguable testimonial disclosure which would accompany Genson's production of the subpoenaed monies would be the implied admission that the currency had been transferred to him from one or both of his clients.*fn3 The appellant meets this argument by observing that the challenged subpoena seeks not just items, but items that were allegedly obtained from the attorney's clients after a specified time on a specified day. Appellant thus argues that because the wording of the subpoena contains references to the "who" and the "when" of the alleged transfer of monies, it necessarily involves assertive conduct which, as such, might well be interpreted to constitute an admission by Genson's clients.
The question of whether the monies constitute mere physical evidence or represent a testimonial utterance is not one to be categorically or easily answered. At oral argument, the appellant insisted that he stood in such a special relationship to his clients that the Government could not enforce a subpoena duces tecum against him. In sum, the Government could demand from Genson only what it might legitimately demand from his clients. Appellant insists that no one could fail to agree that the Government could not enforce a subpoena duces tecum against the robbery suspects demanding production of the monies. In response, the Government again underscored its view of the monies as physical evidence by arguing, without authority, that the grand jury has the power to subpoena the unrecovered proceeds of a bank robbery directly from the suspected clients.*fn4
The other members of the panel in this appeal are of the opinion under the assumed facts of this case that even in the case of the suspects, compliance on their part with the subpoena would not possess sufficient aspects of testimonial character to activate the protective mantle of the Fifth Amendment. The author of the opinion is less certain as there would seem to him to be an implied assertion whereby the monies so produced ...