A sitting Congressman appeals a district court's decision that denied his motion to quash a grand jury subpoena duces tecum, which sought documents from his Chief of Staff, identified as "Doe." The appeal is rooted in the Congressman’s claim of a Fifth Amendment privilege against the production of these documents, arguing that he retained possession of the documents and should be able to invoke this privilege to prevent their disclosure. The court's proceedings were sealed to maintain the confidentiality of grand jury processes, including the identities of the individuals involved.
On August 3, 2005, two grand jury subpoenas were issued in the Eastern District of Virginia: one directed to the Congressman in his role as Custodian of Records for his Congressional Office, and another directed to Doe. Both subpoenas requested ten categories of documents related to the Congressman’s official duties. Following the subpoenas, Doe, alongside two other staff members, prepared the documents deemed responsive to the Custodian Subpoena, acting under the Congressman’s direction via his private counsel and the House General Counsel. The court affirmed the district court's decision, indicating that the factual disputes were resolved and the court found no error in compelling the production of the requested documents.
On August 23, 2005, House Counsel informed the United States Attorney that the Congressman’s staff was identifying and gathering potentially responsive documents. The United States Attorney raised concerns about the integrity and security of these documents, suggesting that 'Bates-numbering' them could address these issues before sharing them with the Congressman’s counsel. House Counsel declined this suggestion, instead providing a single copy of the documents to the Congressman’s counsel. The original documents were secured in a locked cabinet in the Chief of Staff’s office, where only Chief of Staff Doe and one staff member had access to the key. House Counsel later confirmed to the United States Attorney that the documents were secured. On September 28, 2005, the United States Attorney interviewed Doe, who confirmed the documents' secure storage and was subsequently served with a subpoena to testify before the grand jury.
On October 6, 2005, Doe testified about her administrative responsibilities and her role in the document gathering process, stating that two other staff members assisted her in identifying and collecting documents from the Congressman’s private office, her files, and those of other staff. Doe indicated that the Congressman had no involvement in determining the responsiveness of the documents and did not participate in their identification or collection, asserting that the materials were official congressional documents.
On October 21, 2005, House Counsel, representing Doe, objected to the Doe Subpoena's request for documents from the Congressman’s office, claiming that the documents belonged to the Congressman and that Doe lacked the authority to produce them. Consequently, the United States Attorney filed a motion in district court seeking to compel compliance with the Doe Subpoena.
On November 14, 2005, House Counsel notified the United States Attorney that Doe would be leaving her position with the Congressman on November 18, 2005. They discussed the fate of documents in Doe’s locked cabinet, with House Counsel suggesting that Doe simply transfer the key to a staff member without removing the documents. House Counsel argued that the documents were related to the Custodian Subpoena, not the Doe Subpoena, and that Doe's involvement with them was minimal. It was claimed that the documents were secured in Doe’s cabinet merely as a courtesy due to concerns for integrity and security, and that Doe's custodianship would end with her employment termination.
On November 17, 2005, the United States Attorney filed a Motion to Secure the documents pending a judicial decision, aiming to transfer them to the court’s Clerk. Doe opposed this motion, leading to a prompt court hearing where both parties agreed that the documents would be transferred to House Counsel, maintaining that Doe's possessory interest in the documents remained unchanged despite her departure. Consequently, the court deemed the Motion to Secure moot, and the documents were transferred to House Counsel's office, confirmed by a court order.
On December 2, 2005, Doe filed an opposition to the Motion to Compel, accompanied by a Declaration asserting that all official records belonged solely to the Congressman, who was the sole custodian and had exclusive control, with no staff authorized to decide on record disposition. Following further filings and hearings, including Doe's Second Declaration clarifying her limited role in gathering documents, the Congressman intervened to object to the Doe Subpoena and filed a Motion to Quash on January 6, 2006.
On May 4, 2006, the district court ruled on the Motion to Quash and Motion to Compel, granting each in part and denying in part. The court denied the Motion to Compel regarding documents in the Congressman’s private office, computer, or email, but granted it for other materials. Conversely, it granted the Motion to Quash concerning the Congressman’s private documents but denied it for other aspects. Consequently, the court ordered Doe to produce the Doe Materials and Staff Materials to the grand jury while quashing the subpoena for the Congressman’s Materials.
In its opinion, the court noted that the Congressman’s Fifth Amendment privilege allowed for the quashing of the subpoena issued to him as custodian of records but did not extend to quash the subpoena issued to Doe, except for the Congressman’s private documents. The court found that both Doe and the staff members had actual possession of the materials in question, meaning the Congressman did not have exclusive control over them. As Chief of Staff, Doe had the authority to demand these materials from staff. The United States Attorney did not instruct Doe to take possession of the documents after their identification and merely agreed to the decision of House Counsel to secure them in the Chief of Staff’s office.
The court ruled that Doe’s possession of the materials necessitated her obligation to produce them to the grand jury, irrespective of the Congressman’s Fifth Amendment privilege. The Congressman has appealed the portion of the order that denied the complete quash of the Doe Subpoena, with Doe allowed to participate as amicus curiae. The court confirmed its jurisdiction over the appeal, noting that typically, a person served with a subpoena cannot appeal without first resisting it and being held in contempt. However, due to the specific circumstances, the Congressman may contest the order compelling Doe's partial compliance with the subpoena concerning his Fifth Amendment privilege.
The appeal will be reviewed for abuse of discretion, with legal rulings assessed de novo and factual findings examined for clear error. The review for factual determinations will adhere to the clearly erroneous standard, while the decision to quash the subpoenas will be scrutinized for abuse of discretion.
A finding of fact is deemed clearly erroneous if there is a definite conviction that a mistake has occurred upon reviewing the evidence. The grand jury, a vital part of constitutional law inherited from common law, serves dual functions: authorizing criminal prosecutions when probable cause exists and protecting citizens from unfounded prosecutions when it does not. Its authority to subpoena witnesses and documents, established in the 1972 Supreme Court case Branzburg v. Hayes, is critical to its investigative role. While grand jury powers are extensive, they are not unlimited and are subject to judicial oversight. The public's right to evidence is generally upheld, except where constitutional or statutory privileges apply.
In this appeal, the focus is on the Congressman’s assertion of a Fifth Amendment act of production privilege, specifically regarding the Doe Subpoena, with no claims of privilege from Doe involved. The Custodian Subpoena directed at the Congressman has been quashed by the district court. The requested records under both subpoenas are materially identical, making any distinction based on the Custodian Subpoena irrelevant. The Congressman contends that the district court incorrectly ruled that Doe's production of certain materials does not violate his Fifth Amendment rights. The resolution hinges on whether the privilege applies to the materials in question; if it does, Doe cannot produce them; if it does not, Doe must comply.
The burden to establish the application of the Fifth Amendment privilege lies with the party claiming it. This privilege is personal and applies solely to individuals, not to collective entities or custodians of their records. Citing Bellis v. United States, the Supreme Court clarified that organizational records are not protected under the Fifth Amendment, meaning custodian individuals cannot resist subpoenas based on potential self-incrimination. However, a sole proprietor may assert this privilege to protect personal business records under appropriate conditions.
A congressman is contesting a grand jury subpoena for records from his congressional office, arguing that he should be able to invoke his Fifth Amendment privilege to prevent their production. He likens his office to a sole proprietorship, claiming the records fall under his privilege. The United States Attorney counters that a congressional office operates more like a collective entity, and thus the congressman cannot successfully use the Fifth Amendment to quash the subpoena. The court does not need to decide whether the congressional office is a sole proprietorship or a collective entity, as it finds that even in the former case, the congressman cannot bar the production of documents.
The court aligns with the district court's view that a congressional office exhibits traits of both entity types. Citing precedent from Couch v. United States, the court highlights that a sole proprietor cannot invoke the Fifth Amendment to prevent the production of documents that are in the possession of a third party, such as an accountant, since the principle of personal compulsion does not apply when the documents are not directly possessed by the individual. The Couch ruling allows for a narrow exception where an individual retains constructive possession of documents, but this only applies in cases where the individual has merely temporarily relinquished actual possession while retaining the right to access them. In this case, the courts have generally denied the application of this exception when the individual shares control or creation of documents with others, such as employees. Examples include a ruling where a lawyer could not prevent a secretary from producing subpoenaed documents she had prepared, reinforcing that shared responsibility negates the privilege claim.
A sole proprietor cannot invoke Fifth Amendment privilege to quash a subpoena served on an employee who has prepared or had full access to documents. However, the Fifth Circuit acknowledges an exception, allowing a sole proprietor to assert this privilege if the employee has not prepared, filed, or maintained the requested documents. In a relevant case, the proprietor maintained exclusive control over the documents, justifying the privilege against employee production.
In the case discussed, the district court found that although the Congressman had constructive possession of certain materials, he shared this possession with his Chief of Staff, Doe. The court determined that Doe had actual possession of the materials relevant to the subpoena, as she was responsible for preparing and maintaining them. Furthermore, Doe had constructive possession of additional materials due to her supervisory role, which became actual possession when they were locked in a cabinet in her office. The court concluded that other staff members also had actual possession of the materials due to their responsibilities.
The evidence supported the district court's findings, showing that Doe and the staff had actual possession of the documents. Concerns from the U.S. Attorney regarding document security were addressed by House Counsel, who decided to secure the documents without government intervention. Overall, the court found no clear error in its factual determinations regarding possession and control of the documents.
Doe actively engaged with the files maintained by Staff Members 2 and 3, which she was required to utilize for her work. The district court's findings regarding Doe's involvement were upheld, as there was no compelling evidence of error. The Fifth Amendment's act of production privilege, as established in Couch, cannot be invoked by the Congressman to prevent Doe from producing materials, since she had possession of both her own materials and those of the staff. The court affirmed the May 4, 2006 order compelling Doe to produce these materials to the grand jury.
Judge Gregory concurred with the majority but noted different grounds for affirmation, specifically questioning Doe’s constructive possession of Staff Member 3’s files due to her supervisory role and whether she gained actual possession of those materials after September 16, 2005. The majority opinion outlined facts regarding Doe's relationship with Staff Member 3, highlighting that while Doe supervised her, Staff Member 3 managed budget and scheduling tasks and retained her own records. Doe indicated that Staff Member 3 would assist in gathering documents from various sources, and most relevant documents were located within the files of Staff Members 2 and 3. Staff Members 2 and 3 were identified as the individuals with specific knowledge about the documents, which facilitated their retrieval. Additionally, Doe mentioned the existence of an official archive for document storage, prompting further searches for responsive materials.
Doe was determined to have "constructive possession" of certain Staff Materials due to her supervisory role in the Congressman’s office, particularly regarding the files of Staff Member 2. However, this conclusion is contested concerning Staff Member 3's files, as evidence suggests Doe lacked equivalent or superior access to those documents, and Staff Member 3 served as the Congressman’s executive secretary without direct supervision from Doe. The burden of proof rests with the United States Attorney to establish Doe’s possession, custody, or control of the Staff Materials, which has not been satisfied for Staff Member 3's files.
Control, as defined legally, requires the right to obtain documents upon demand, including access in the ordinary course of business. The majority opinion claims Doe had control based on her grand jury testimony, where she indicated her seniority and regular involvement with other staff’s work; however, this testimony does not support the assertion of her access to Staff Member 3's files. Despite Doe’s characterization of herself as the lead staff member, it is noted that Staff Member 3 reported directly to the Congressman and was responsible for gathering documents, indicating a lack of direct involvement from Doe. Furthermore, Doe was unaware of an off-site archive of materials until Staff Member 3 mentioned it, further undermining the claim of her control over those documents.
The evidence presented indicates that Doe did not routinely supervise or access the files of Staff Member 3, leading to the conclusion that Doe lacked possession, custody, or control over those files. The United States Attorney failed to establish that Doe had access to the files in the ordinary course of business, despite having opportunities to clarify her role and the office's chain of authority during her grand jury testimony. The Congressman challenges a third-party subpoena based on a Fifth Amendment privilege against self-incrimination; however, this privilege only applies if he has a valid right concerning the documents in question. The analysis cites Couch v. United States, indicating that the exception does not apply here, as the responsive materials were in the possession of Doe and Staff Members 2 and 3. There is no evidence that the Congressman restricted access to these documents. The summary references cases where mere access or possession without control did not warrant privilege claims. Staff Member 3 actively gathered responsive documents from various sources, demonstrating that they had significant control and authority over the documents, which extends beyond mere access or possession.
Courts consistently reject the Couch exception when employers do not limit employee access to documents in regular business operations. The Congressman involved lacks a Fifth Amendment privilege concerning the Doe and Staff Materials, as established by cited case law. His standing as an intervenor is based solely on the claim that compelling compliance with a subpoena violates his Fifth Amendment rights. However, since his Fifth Amendment argument is unsubstantiated, he cannot successfully challenge the subpoena. The Congressman also cannot contest the subpoena on grounds that Doe did not possess the requested documents. While he could potentially have standing based on other rights, he has only asserted a Fifth Amendment claim. The majority ruling affirms the district court's decision, concluding that Doe had constructive possession of the Staff Materials due to her supervisory role, and later actual possession following their transfer to her cabinet. The dissenting view argues against determining actual possession based solely on this transfer, suggesting that it mirrors a precedent case where taxpayers placed records with an accountant for convenience.
The Fifth Circuit reversed a district court's order enforcing a summons, determining that records were placed in the accountant's custody primarily for the government's convenience. The court classified the accountant as a "custodial bailee" and a "naked possessor" who had no authority to process or use the records. The ruling emphasized that taxpayers should not be penalized for cooperating with the IRS under reasonable circumstances, as they could have withheld records if aware of a criminal investigation.
In a similar case, Streett v. United States, the IRS commenced a tax audit involving a couple and their veterinary practice. The couple granted power of attorney to their accountant and allowed the IRS audit to occur at the accountant's office to minimize disruption. Unbeknownst to the couple, the IRS issued a summons to the accountant for their records. The district court ruled to quash the summons, stating that while the couple benefited minimally from the arrangement, the government was the primary beneficiary, and thus could not exploit the situation.
In the current case, House Counsel instructed an individual, Doe, to take possession of documents responsive to a grand jury subpoena due to concerns over their security. Although the United States Attorney did not specify where to place the documents, they were stored in the only secure cabinet available. The reasoning from Stuart applies here, as the transfer was primarily for the government’s benefit. Doe's possession was deemed mere and not actual, as she had no additional rights over the documents. The Congressman, having shared possession of the documents with Doe and staff members, could not invoke the Couch exception and had no Fifth Amendment interest concerning the subpoena directed at Doe. The dissent argued that the transfer did not grant Doe actual possession of the documents.
