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IN RE TRADER ROE

August 14, 1989

IN THE MATTER OF TRADER ROE, A WITNESS BEFORE THE SPECIAL JANUARY 1989 GRAND JURY


The opinion of the court was delivered by: GRADY

 JOHN F. GRADY, UNITED STATES DISTRICT JUDGE

 The January 1989 Grand Jury is investigating possible violations of federal law by persons associated with the Chicago Board of Trade. Trader Roe ("Roe"), *fn1" a member of the Board of Trade, has been subpoenaed by the grand jury to produce his trading cards and any other records of transactions with other traders for the period January 1, 1983 to the present time. He has moved to quash the subpoena on the ground that the compelled production of the records would violate his privilege against self-incrimination.

 "PRIVATE PAPERS"

 Roe argues that his trading records are "private papers" which enjoy Fifth Amendment protection. He relies upon Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524, 3 A.F.T.R. (P-H) 2488 (1886), which is frequently cited by grand jury witnesses who object to producing documents. Roe's motion provides the first occasion we have had for commenting on the "private papers" doctrine in a formal opinion.

 We begin the analysis with a discussion of Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), and United States v. Doe, 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984), which expressly held that the contents of voluntarily prepared records are not protected by the Fifth Amendment. Fisher involved IRS summonses for accountants' papers and other tax records; Doe involved a grand jury subpoena for telephone records, bank statements, and business records of various companies. Both Fisher, 425 U.S. at 409-10, and Doe, 465 U.S. at 610-12, held that, because the Fifth Amendment is addressed only to testimonial compulsion, it does not apply to records that are voluntarily prepared. However, because the documents sought by the government in both of those cases were business records, witnesses frequently argue that Fisher and Doe did not abrogate the Fifth Amendment protection accorded "private" or "personal" records. The source of this claimed separate protection is the language of the Court in Boyd, to the effect that ". . . a compulsory production of the private books and papers of the owner of goods sought to be forfeited . . . is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution." 116 U.S. at 634-35.

 The only paper involved in Boyd was an invoice prepared by a seller of plate glass imported into the United States. The government brought a forfeiture action, alleging that the proper duty had not been paid on the glass. The purchaser of the glass, who intervened in the action, was ordered to produce the invoice, failing which the government's allegations would be taken as true. The purchaser produced the invoice, lost the case, and then appealed on the ground that the production order violated his Fifth Amendment privilege. The purchase of thirty-five cases of plate glass is obviously a business transaction, and, just as obviously, the invoice covering the transaction was a business record. Therefore, the language of the Boyd court about "private" papers cannot reasonably be interpreted as carving out a privilege for "private" records as distinguished from business records. The actual holding of the case -- that the invoice was protected by the Fifth Amendment -- seems clearly overruled by Fisher and Doe, which held that the contents of voluntarily prepared records are not covered by the privilege. If the holdings of Fisher and Doe are more narrowly construed, to mean simply that the kind of voluntarily prepared records in those cases -- voluntarily prepared business records -- are not protected, Fisher and Doe still overrule Boyd, since that was the very kind of record involved in Boyd.

 Another problem with the Boyd case is that the invoice was not only voluntarily prepared, but it had been prepared by someone other than the party asserting the privilege. How the contents of the invoice prepared by the glass company could be regarded as compelled testimony by the purchaser of the glass is something the Court did not explain. It seems clear the Boyd Court thought the mere possession of documents gave the possessor a Fifth Amendment privilege as to their contents. Such a proposition is clearly inconsistent with Fisher and Doe.

 Although the Court stated in Fisher that ". . . the prohibition against forcing the production of private papers has long been a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give 'testimony' that incriminates him," 425 U.S. at 409, 48 L. Ed. 2d 39, 96 S. Ct 1569 and in Doe that, "if the party asserting the Fifth Amendment privilege has voluntarily compiled the documents, no compulsion is present and the contents of the document are not privileged," 465 U.S. at 612 n.10, neither decision expressly overruled Boyd. While this court is obliged to follow binding Supreme Court precedent, that very obligation requires us to determine whether, in light of Fisher and Doe, the remarks of the Court in Boyd can mean that the contents of personal or private papers, as distinguished from business records, are protected by the Fifth Amendment. We conclude that this would not be a reasonable interpretation of Boyd, Fisher, and Doe, read together, and hold that the Fifth Amendment does not protect the contents of any voluntarily prepared records, regardless of their nature. *fn2"

 We suspect the reason for the paucity of cases dealing with genuinely "private" or personal records, such as diaries or personal letters, is that there is rarely an occasion to subpoena documents of that kind. The government is usually in search of documents which will prove tax fraud or some illegal business operation. Records which are strictly "personal" would usually have no relevance to the conduct of a business operation, or to its tax liability. Thus, the "private" papers language of Boyd usually does not apply to the facts of cases in which it is invoked; the claim of privilege is defeated simply on the basis that, regardless of the status of private or personal records, business records are not protected. The government suggests that this case could be treated on the same basis, and perhaps it could, but Roe argues that the subpoenaed records, ". . . if they exist and are in [Roe's] possession, are his own personal 'private' records held by him in an individual capacity," and are thus covered by Boyd rather than by Fisher and Doe. Memorandum In Support of Motion to Quash, p. 9. We do not see how Roe's trading records can be regarded as anything other than business records within the meaning of Fisher and Doe, nor does Roe offer any inkling as to what distinction he sees. In any event, we hold that the contents of the trading records have no Fifth Amendment protection.

 THE ACT OF PRODUCTION

 Fisher and Doe do, of course, make clear that, although the contents of the records are not protected, there is a privilege as to any testimonial aspects of the act of producing them. The government has offered the usual act of production immunity, but Roe says this is not sufficient to comply with United States v. Porter, 711 F.2d 1397, 1404 (7th Cir. 1983), where the court noted that:

 
the grant of use immunity alone may not be adequate to fully protect Beligratis' Fifth Amendment privilege, for there is nothing in the statutory "use immunity" concept which would prohibit the government's reference to (as opposed to evidentiary "use" of) Beligratis' having produced the documents; indeed, permitting such reference is the ...

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