UNITED STATES OF AMERICA, PETITIONER v. JOHN DOE

   No. 82-786

   In the Supreme Court of the United States

   October Term, 1983

   On writ of certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional provision involved
   Statement
   Summary of argument
   Argument:
      The Fifth Amendment privilege against self-incrimination
      may not properly be invoked by a sole proprietor in
      response to a subpoena for preexisting business records
      I. The contents of a sole proprietorship's preexisting
          business records are not privileged under the Fifth
          Amendment
      II. Any testimonial self-incrimination inherent in
          the act of producing standard categories of
          business records held by a sole proprietorship
          is cured by prohibiting the introduction
          in subsequent proceedings of proof of the act
          of production
          A. The act of producing standard categories of
             business records held by a sole proprietorship
             generally does not constitute testimonial
             self-incrimination
          B. When a documentary subpoena is resisted on
             the ground that the act of production would
             constitute testimonial self-incrimination,
             Fifth Amendment rights are fully protected
             and interference with grand jury
             investigations is minimized by requiring
             production but excluding evidence of the
             act of production in future proceedings
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-21a) is reported
at 680 F.2d 327.  The opinion of the district court (Pet. App.
23a-27a) is reported at 541 F. Supp. 1.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 10, 1982.
A petition for rehearing was denied on August 10, 1982.  On October 1,
1982, Justice Brennan extended the time for filing a petition for a
writ of certiorari to and including November 8, 1982.  The petition
was filed on that date and was granted on May 2, 1983.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                   CONSTITUTIONAL PROVISION INVOLVED

   The Fifth Amendment provides in pertinent part:

   No person * * * shall be compelled in any criminal case to be a
witness against himself * * * .

                          QUESTIONS PRESENTED

   1. Whether the Fifth Amendment privilege against compelled
self-incrimination may be properly invoked by a sole proprietor in
response to a subpoena for preexisting business records, many of which
were not prepared by him and are of a type kept by virtually all
businesses.

   2. Whether a person may properly resist compliance with a subpoena
duces tecum on the ground that the act of production would be
self-incriminating, despite the availability of use immunity with
respect to the act of production.

                               STATEMENT

   1. In the fall of 1980, a federal grand jury in Newark New Jersey,
was investigating corrpution in the awarding of county and municipal
contracts, as well as related tax violations.  The investigation
focused in part on the activities of respondent John Doe /1/ and
several companies (organized as sole proprietorships) through which he
did business with units of local government.

   In November and December 1980, the grand jury caused five subpoenas
to be served on respondent calling for the production of numerous
business records relating to his various companies (Pet. App.
28a-36a).  The first two subpoenas demanded the production of the
telephone toll records of several of his companies, as well as "all
records including but not limited to bank statements, cancelled
checks, check stubs and deposit tickets, for the period January 1,
1977 to present," for four bank accounts held by respondent or his
companies (id. at 28a-312).

   The third subpoena required respondent to produce "any and all
records as per the attached Schedule A for (one of respondent's
companies) for the period January 1, 1976 to present" (id. at
32a-33a).  Schedule A listed 28 categories of common business records
(id. at 33a).  /2/

   The fourth subpoena demanded production of a similar list of
business records belonging to another company (id. at 34a-35a).  The
final subpoena required respondent to testify and produce "all bank
statements and cancelled checks for the period January 1, 1976 to
present" for accounts" at the Royal Bank of Canada, Georgetown, Grand
Cayman Islands" belonging to two other companies (id. at 36a).

   Respondent moved to quash all five subpoenas on Fifth Amendment
grounds, and the district court granted his motion except with respect
to those documents required to be kept by law /3/ (id. at 22a).  In
its opinion, the court seemingly accepted the government's argument
that the documents' contents were themselves not privileged (see id.
at 25a).  The court wrote, however, (id. at 25a-26a;  emphasis in
original):

         (T)he relevant inquiry is * * * whether the act of producing
      the documents has communicative aspects which warrant Fifth
      Amendment protection.  Fisher v. United States, 425 U.S. 391
      (1976).  * * *

                      * * * * *

         With few exceptions, enforcement of the subpoena would compel
      (respondent) to admit that the records exist, that they are in
      his possession, and that they are authentic.  These
      communications, if made under compulsion of a court decree,
      would violate (respondent's) Fifth Amendment rights.

   The district court reached this conclusion even though the
government had represented on the record that no subsequent use would
be made of respondent's act of production and had suggested that
respondent be given the "functional equivalent of use immunity" with
respect to the act of production (J.A. 25, 28-29, 34-35;  C.A. App.
75a-76a;  Memorandum in Support of Motion for Reconsideration at
21-22).

   2. The court of appeals affirmed (Pet. App. 1a-21a).  The court
first rejcted the government's argument that a sole proprietor, like
an officer of a corporation or unincorporated association or a member
of a partnership, should not be permitted to assert the Fifth
Amendment privilege when served with a subpoena for the records of his
business or organization.  The court nevertheless acknowledged that
"the Government's position has considerable analytic appeal" (id. at
6a) and that permitting a sole proprietor to assert the Fifth
Amendment privilege "'only because of the form of business
organization'" he has chosen results in "'an irrational hole in the
constitutional system of regulation of crime detection'" (id. at 6a
n.3, quoting In re Grand Jury Proceedings (Martinez), 626 F.2d 1051,
1056 (1st Cir. 1980)).

   The court next concluded that respondent was entitled to resist the
subpoenas at issue here on Fifth Amendment grounds.  The court stated
flatly that "an individual's business papers, as well as his personal
records, cannot be subpoenaed by a grand jury" (Pet. App. 14a).  The
court began by noting the rule, derived from Boyd v. United States,
116 U.S. 616, 630 (1886), that the Fifth Amendment protects an
individual against the compelled production of his private papers
(Pet. App. 8a).  The court acknowledged that Fisher v. United States,
425 U.S. 391 (1976), had "seemingly diverged from" that rule by
concluding that "the fifth amendment, rather than existing to shield
certain private writings from discovery by the Government, 'applies
only when the accused is compelled to make a testimonial communication
that is incriminating'" (Pet. App. 9a, quoting Fisher, 425 U.S. at
408).  The court of appeals nevertheless asserted (Pet. App. 11a n.7)
that "lower federal courts, including this Court, have continued to
recognize Boyd's protection-of-private-papers principle."

   The court of appeals also concluded that respondent was entitled to
invoke the Fifth Amendment privilege because, in the court's view, the
act of producing the documents amounted to a potentially incriminating
communication (Pet. App. 14a-17a).  The court distinguished Fisher,
where a similar argument was rejected, on the ground that there
"'(t)he existence and location of the papers (was) a foregone
conclusion'" (id. at 15a, quoting Fisher, 425 U.S. at 410), whereas in
this case there was "nothing in the record that would indicate that
the United States knows, as a certainty, that each of the myriad
documents demanded by the five subpoenas in fact is in (respondent's)
possession or subject to his control" (Pet. App. 15a;  emphasis
added).

   The court added that enforcement of the subpoenas would require
respondent to authenticate the documents sought (Pet. App. 15a).
Observing that "many (although certainly not all) of the subpoenaed
records * * * most likely were prepared by the appellee," the court
stated (ibid.) that "(t)he record contains no explanation by the
United States as to how documents of this sort could be authenticated
without the appellee's explicit or implicit participation."

   The court next held (Pet. App. 18a-19a) that respondent was
entitled to rest upon a blanket assertion of the Fifth Amendment
privilege with respect to all the documents sought by the subpoenas,
including those that respondent had not prepared.  The court relied
(id. at 18a & n.17) upon the government's acknowledgment that the
contents of the documents sought might tend to incriminate respondent.

   Finally, the court held that respondent could assert the Fifth
Amendment privilege despite the government's representation that the
act of producing the documents would not be used against him and
despite the government's request that he be afforded the functional
equivalent of use immunity with respect to the act of production,
because the immunity proposal was not described with sufficient
specificity (Pet. App. 19a-20a).  /4/

                          SUMMARY OF ARGUMENT

   This case presents the question whether a sole proprietor served
with a subpoena duces tecum for his company's standard business
records may properly resist compliance by asserting the Fifth
Amendment privilege.

                                  I.

   It is clear that the Fifth Amendment does not protect the contents
of business records voluntarily prepared before a subpoena for them is
issued.  The Fifth Amendment's provision that "(n)o person * * * shall
be compelled in any criminal case to be a witness against himself" was
intended to preclude the practice of forcing suspects "to admit guilt
from their own lips." Andresen v. Maryland, 427 U.S. 463, 470 (1976),
quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974).  The privilege
therefore applies only when the government compels an individual to
make a self-incriminating testimonial communication.

   When an individual voluntarily prepares, collects, or maintains
documents, no compulsion is present, and the Fifth Amendment privilege
does not apply.  If the individual is subsequently served with a
subpoena duces tecum seeking those documents, he is compelled by the
subpoena to produce them but not "to restate, repeat, or affirm the
truth of the contents of the documents sought.  Therefore, the Fifth
Amendment would not be violated by the fact alone that the papers on
their face might incriminate the (individual), for the privilege
protects a person only against being incriminated by his own compelled
testimonial communications." Fisher v. United States, 425 U.S. 391,
409 (1976)).  In short, the Fifth Amendment privilege does not shield
the contents of documents that were voluntarily prepared, collected,
and maintained, because the contents of such documents are not the
product of proscribed government compulsion.  This broad principle
obviously applies whether or not the person upon whom the subpoena is
served is the author or owner of the documents.

   In holding that the contents of a sole proprietorship's business
records are privileged even though created without government
compulsion, the court of appeals relied upon Boyd v. United States,
116 U.S. 616 (1886), which the court interpreted as creating a zone of
privacy shielding "private papers," including the standard business
records of companies doing business as sole proprietorships.  In fact,
however, Boyd was not based upon a "protection-of-private-papers
principle" (Pet. App. 11a n.7) but upon a series of rules long since
"washed away" (Fisher, 425 U.S. at 409).  Most notably, Boyd rested
upon the proposition that the government could not search for or seize
"mere evidence" but only fruits or instrumentalities of crime.  That
rule, which drew no distinction between papers and other forms of
property, was overturned in Warden v. Hayden, 387 U.S. 294 (1967).

   Granting privileged status to the contents of a sole
proprietorship's records is also inconsistent in policy with a long
line of decisions of this Court holding that the Fifth Amendment
provides no grounds for resisting subpoenas demanding the records of
corporations, partnerships, and unincorporated associations even if
production of the records could incriminate their custodian.  As far
as the Fifth Amendment is concerned, there is no principled reason for
treating the records of sole proprietorships any differently.  The
difference between a corporation or partnership and a sole
proprietorship is often nothing more than a legal formality and does
not inherently reflect the size, structure, activities, or longevity
of the businesses.  It simply makes no sense to hold that the records
of a large company doing business as a sole proprietorship are
protected by a zone of personal privacy, while the records of a
one-person corporation are held in representative capacity and are
thus outside the scope of Fifth Amendment protection.

   It is also illogical to hold that the Fifth Amendment protects the
contents of preexisting business records when they are sought by
subpoena, since the Court held in Andresen that the contents of seized
papers are not privileged under the Fifth Amendment.  To be sure, a
subpoena compels production of the documents whereas a search does
not, explain why the privileged status of the documents' contents
should differ.

   While it is our submission that the Fifth Amendment does not
protect the contents of any papers created without government
compulsion, the "zone of privacy" rationale in any event does not
support recognition of the privilege in a case like this.  The
subpoena called only for common types of business records such as bank
statements, vouchers, invoices, and payroll records.  It did not seek
records like diaries, or personal letters that touch upon more
intimate aspects of an individual's life.  The possibility remains
that other constitutional guarantees may regulate the power to compel
production of such documents.

                                 II.

                                  A.

   While Fisher made clear that the contents of preexisting business
records are not privileged under the Fifth Amendment, it left open the
possibility that the act of producing such documents might be
considered testimonial, either because it concedes their existence,
possession, and control or because it indicates the witness's belief
that the papers produced are those described in the subpoena (see 425
U.S. at 410).  We submit, however, that where the documents sought are
standard business records, the act of production generally does not
rise to the level of testimonial self-incrimination.  By producing
such records, a sole proprietor may tacitly admit that they exist and
are in his possession.  But since such documents are kept by virtually
every business from the smallest family concern to the largest
conglomerate, these tacit assertions "add() little or nothing to the
sum total of the Government's information" (Fisher, 425 U.S. at 411)
and are thus not sufficiently testimonial to implicate the Fifth
Amendment.  Furthermore, the fact that a sole proprietorship possesses
the sort of documents maintained by virtually all other businesses (as
distinct from the contents of the document) is hardly incriminating.

   The act of producing documents might also be considered testimonial
insofar as it authenticates them.  But in the vast majority of cases,
such tacit authentication of standard business records is neither
sufficiently testimonial nor sufficiently incriminating to justify
assertion of the Fifth Amendment privilege.  Authentication is a
narrow, technical requirement for the admissibility of evidence at
trial.  While a sole proprietor's act of producing documents in
response to a subpoena should, if not privileged, suffice for
authentication, the burden on the government of authenticating
standard business records by other means is slight, and the
testimonial value of the sole proprietor's tacit authentication is
correspondingly small.

   By the same token, any tacit authentication inherent in the act of
production is unlikely to be incriminating.  By producing documents in
response to a subpoena, an individual merely expresses his belief that
they are those described in the subpoena.  The individual does not
vouch for the truth of their contents.  Furthermore, tacit
authentication is not alone sufficient for admission of business
records, since other requirements, most notably the hearsay rule, must
also be satisfied.

   In special circumstances, the act of producing business records
might constitute testimonial self-incrimination, but unless the
individual asserting the privilege can make the requisite showing in a
particular case, his claim should be denied. Here, the courts below
erroneously permitted respondent to make a blanket assertion of the
privilege without any concrete showing of how the production of any of
the requested documents, many of which were generated by others or
were self-authenticating, could incriminate him.

                                  B.

   Whether in particular circumstances the act of producing documents
amounts to testimonial self-incrimination is admittedly not always an
easy question.  Litigation concerning this issue is burdensome for the
judiciary and often delays and consequently interferes with important
grand jury investigations.  Yet this question is of little intrinsic
importance to the parties, except for its potential utility in
thwarting the investigation.  It is hotly contested in many cases only
because its resolution often dictates whether the grand jury will gain
access to the documents' unprivileged contents.  In reality both the
government and the individual resisting the subpoena are generally
concerned only with access to contents and not with any tacit
assertions implicit in the act of production.

   The simple and obvious solution to this problem is to require
compliance with subpoena for standard business records but to
recognize that the compulsion inherent in the subpoena leads to
conferral of automatic constructive use immunity on the witness who
has invoked his privilege, precluding the introduction against him in
any subsequent criminal proceedings of evidence of the act of
production.  This procedure obviates the need for unproductive
litigation, permits prompt grand jury inspection of the documents'
unprivileged contents, and fully protects the Fifth Amendment rights
of the person served with the subpoena, since he is assured that any
testimony inherent in the act of production will not be used against
him.  Much the same result may be achieved by a formal grant of
immunity with respect to the act of production, but we see no reason
why this more burdensome procedure need be employed.

   In the present case, the government gave binding assurances that
the act of production would not be used against respondent and
suggested that respondent be given corresponding immunity.  There was,
accordingly, no valid reason for quashing the subpoenas in this case.

                               ARGUMENT

 THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION MAY NOT
PROPERLY BE INVOKED BY A SOLE PROPRIETOR IN RESPONSE TO A SUBPOENA FOR
PREEXISTING BUSINESS RECORDS

   The court of appeals affirmed the quashing of the subpoenas duces
tecum in this case on essentially two grounds:  first, that the
contents of a sole proprietorship's business records are privileged
under the Fifth Amendment;  and, second, that respondent's act of
producing those documents would necessarily amount to compelled
testimonial self-incrimination.  As we discuss in Point I, logic and
precedent establish that the contents of preexisting business records
are not privileged under the Fifth Amendment.  We also show (Point
IIA) that the act of producing standard business records does not
ordinarily rise to the level of testimonial self-incrimination and has
not been shown to do so here.  In Point IIB we argue that even if the
act of producing the documents implicated respondent's Fifth Amendment
rights, he was not entitled to resist the subpoenas because of the
availability of use immunity with respect to the act of production.

 I. The Contents Of A Sole Proprietorship's Preexisting Business
Records Are Not Privileged Under The Fifth Amendment

   A. The Fifth Amendment provides that "(n)o person * * * shall be
compelled in any criminal case to be a witness against himself." As
the Court often has noted, the development of this protection was in
part a response to certain historical practices, such as
ecclesiastical inquisitions and the proceedings of the Star Chamber,
"'which placed a premium on compelling subjects of the investigation
to admit guilt from their own lips.'" Andresen v. Maryland, 427 U.S.
463, 470 (1976), quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974).
 This constitutional prohibition "demands that the government seeking
to punish an individual produce the evidence against him by its own
independent labors, rather than by the cruel, simple expedient of
compelling it from his own mouth." Miranda v. Arizona, 384 U.S. 436,
460 (1966).

   Consistent with the language and history of the Fifth Amendment,
this Court has repeatedly indicated that the privilege against
self-incrimination applies only when the accused is compelled to make
an incriminating statement.  See, e.g., Andresen, 427 U.S. at 477;
Fisher v. United States, 425 U.S. 391, 399 (1976);  Olmstead v. United
States, 277 U.S. 438, 462 (1928).  As the Court stated in Andresen
(427 U.S. at 477), "unless incriminating testimony is 'compelled,' any
invasion of privacy is outside the scope of the Fifth Amendment's
protection."

   This Court has also consistently held that the privilege applies
only when the accused is forced to make a testimonial communication
that is incriminating and not when he is forced to become the source
of "real or physical" evidence.  See Gilbert v. California, 388 U.S.
263, 265-267 (1967);  United States v. Wade, 388 U.S. 218, 222-223
(1967);  Schmerber v. California, 384 U.S. 757, 764 (1966);  Holt v.
United States, 218 U.S. 245 (1910).

   It follows from these principles that the Fifth Amendment does not
protect an individual against use by the government of incriminating
documents voluntarily prepared by him, and that a subpoena for such
documents may not be resisted soley because of the self-incriminatory
potential of their contents.  Although the act of turning over a
document pursuant to subpoena is most assuredly compelled, it involves
no testimony about the contents of the document, /5/ but merely their
physical delivery.  /6/ And to the extent that the document itself is
testimonial in nature, the Fifth Amendment is inapplicable because the
creation of the document did not spring from the compulsion of the
subpoena.  As one leading authority has stated (E. Cleary, McCormick
on Evidence Section 128, at 269 (2d ed. 1972)), preparation of such
documents

      may or may not have been testimonial, depending upon whether
      (the author) intended that the transcription serve the function
      of communicating his thought to another individual, but in any
      event authorizing the use of such transcriptions would not
      encourage police to exert the types of coercion that the
      privilege historically protected against, because by definition
      these transcriptions would have been made before the opportunity
      for coercion existed.

   B. Any doubt that the contents of preexisting business documents
are not privileged under the Fifth Amendment is dispelled by this
Court's decision in Fisher v. United States, supra.  There, taxpayers
under investigation by the Internal Revenue Service retrieved papers
from their accountants and delivered them to their attorneys (425 U.S.
at 394).  None of the documents was prepared by the taxpayers, but the
documents contained information taken from the taxpayers' books and
records (ibid.).  The Court held that the attorneys could not resist
an IRS summons on the ground of attorney-client privilege because the
Fifth Amendment would not have prevented compelled disclosure of the
documents if they had remained in the taxpayers' possession.  The
Court explained (id. at 409):

      A subpoena served on a taxpayer requiring him to produce an
      accountant's workpapers in his possession without doubt involves
      substantial compulsion.  But it does not compel oral testimony;
      nor would it ordinarily compel the taxpayer to restate, repeat,
      or affirm the truth of the contents of the documents sought.
      Therefore, the Fifth Amendment would not be violated by the fact
      alone that the papers on their face might incriminate the
      taxpayer, for the privilege protects a person only against being
      incriminated by his own compelled testimonial communications.

   The Court went on to stress that the Fifth Amendment does not
protect any privacy interest in the contents of documents even when
written by the person asserting the privilege (425 U.S. at 410 n.11).
/7/ Rather, the Court observed, the privilege applies only when the
accused is compelled to make a testimonial communication that is
incriminating (id. at 399, 408), and therefore "unless the Government
has compelled the subpoenaed person to write the document * * * the
fact that it was written by him is not controlling with respect to the
Fifth Amendment issue" (id. at 410 n.11).  The Court recognized (id.
at 410), however, that in some circumstances the compelled act of
producing a document pursuant to subpoena might be considered the
equivalent of incriminating testimony -- either because the act
concedes "the existence of the papers demanded and their possession or
control by the taxpayer" or because it serves to authenticate them.

   It is thus clear from Fisher that although the act of producing a
document might arguably constitute a testimonial act within the
protection of the privilege, a person cannot avoid compliance with a
documentary subpoena based soley upon the contents of the document.
See United States v. Schlansky, No. 82-5200 (6th Cir. June 16, 1983,
slip op. 5;  United States v. Namer, 680 F.2d 1088, 1092 & n.8 (5th
Cir. 1982);  United States v. Doe, 628 F.2d 694, 695 (1st Cir. 1980);
In re Grand Jury Proceedings (Martinez), 626 F.2d 1051, 1055 (1st Cir.
1980);  United States v. Bray, 546 F.2d 851, 855 (10th Cir. 1976).
This is so because the writing of the document was not itself
compulsory and its production does not require the person asserting
the privilege "to restate, repeat or affirm the truth of (its)
contents * * * " (Fisher, 425 U.S. at 409).  See also Andresen, 427
U.S. at 477 ("the statements seized were voluntarily committed to
paper before the police arrived to search for them");  In re Grand
Jury Empanelled (Markowitz), 603 F.2d 469, 476-477 (3d Cir. 1979);  In
re Grand Jury Empanelled (Colucci), 597 F.2d 851, 860-861 & n.24 (3d
Cir. 1979);  United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir.
1977).

   C. In holding that the contents of respondent's business records
were privileged under the Fifth Amendment, the court below relied
(Pet. App. 11a n.7;  see also id. at 8a, 13a-14a) upon a
"protection-of-private-papers principle" derived from this Court's
decision nearly a century ago in Boyd v. United States, 116 U.S. 616
(1886).  As this Court has pointed out, however, Boyd was built upon
legal foundations that have long since been obliterated (Fisher, 425
U.S. at 408-409), and if Boyd ever embodied a
"protection-of-private-papers principle," that principle has no place
in modern Fifth Amendment jurisprudence.

   In Boyd, a partnership was believed to have fraudently evaded
paying the tariff on imported plate glass.  The penalty for this
offense was forfeiture of the imported goods, and therefore the
government seized the glass and instituted forfeiture proceedings.
Pursuant to statute, the district court ordered production of invoices
that the government alleged would establish fraudulent nonpayment of
duties.  This same statute provided that failure to comply with such
an order would be treated as an admission of the government's
allegations.  The partners complied under protest, and judgment of
forfeiture was entered.  116 U.S. at 616-618.

   This Court reversed, holding that the order and statute violated
the Fourth and Fifth Amendments.  The opinion began by stating that
the order requiring production of the invoices constituted a search
and seizure within the meaning of the Fourth Amendment "because it is
a material ingredient, and effects the sole object and purpose of
search and seizure" (116 U.S. at 622).  Turning to the question
whether this search and seizure was "unreasonable," the opinion looked
to the common law to determine whether a search for the invoices would
have constituted a trespass (id. at 622-633).  Relying principally
upon the English case of Entick v. Carrington, 19 How. St. Tr. 1029
(C.P. 1765), it concluded that a search and seizure were unreasonable
unless the government's title to the items seized was superior to that
of the person from whom they were taken.  Thus, the government could
search for and seize stolen property, since the possessor did not have
title (116 U.S. at 624).  Likewise, the government could search for
and seize goods on which duty was owed, because "the government has an
interest in them for the payment of the duties thereon" (ibid.).  But
the government could not search for and seize mere evidence because
property law did not give the government title to such items (id. at
624-633).

   Having concluded that the order compelling production of the
invoices had violated the Fourth Amendment, the Court still faced the
question whether their admission in the forfeiture proceeding had been
erroneous, since the exclusionary rule for Fourth Amendment violations
would not be adopted until 31 years later in Weeks v. United States,
232 U.S. 383 (1914).  Noting (116 U.S. at 633) "the intimate
relation(ship) between" the Fourth and Fifth Amendments, the Court
held that the admission into evidence of books and papers obtained in
violation of the Fourth Amendment constituted a violation of the Fifth
Amendment.  It stated (116 U.S. at 633):  "(W)e have been unable to
perceive that the seizure of a man's private books and papers to be
used in evidence against him is substantially different from
compelling him to be a witness against himself."

   What is perhaps most remarkable about Boyd is how little of its
reasoning has stood the test of time.  As the Court noted in Fisher,
although the Boyd rule that "a person may not be forced to produce his
private papers has * * * often appeared as dictum in later opinions of
this Court" (425 U.S. at 408), the foundations for the rule "have been
washed away" (id. at 409).  Today it is well established (a) that a
partnership such as the Boyd firm may not resist production of its
records on Fifth Amendment grounds (Bellis v. United States, 417 U.S.
85 (1974));  (b) that an order compelling production of invoices is
not a search or seizure because there can be no reasonable expectation
of privacy in such documents, which are knowingly exposed to the
public (see United States v. Miller, 425 U.S. 435, 440-443 (1976);
Katz v. United States, 389 U.S. 347, 351-352 (1967));  (c) that, even
assuming such an order constituted a search and seizure, the Fourth
Amendment permits the seizure of "mere evidence" (Warden v. Hayden,
387 U.S. 294 (1977));  (d) that, again assuming that such an order was
a search and seizure, the Fifth Amendment was not violated because no
testimonial communication was compelled (Andresen v. Maryland, supra);
 and (e) that the introduction of evidence obtained in violation of
the Fourth Amendment does not violate the Fifth Amendment (see, e.g.,
United States v. Calandra, 414 U.S. 338, 348 (1974)).  "In
consequence," the Court observed in Fisher (425 U.S. at 409) "the
prohibition against forcing the production of private papers has long
been a rule searching for a rational consistent with the proscriptions
of the Fifth Amendment against compelling a person to give 'testimony'
that incriminates him."

   We recognize that at the conclusion of its opinion in Fisher this
Court stated (425 U.S. at 414):

      Whether the Fifth Amendment would shield the taxpayer from
      producing his own tax records in his possession is a question
      not involved here;  for the papers demanded here are not his
      'private papers,' see Boyd v. United States, 116 U.S. at
      634-635.

   Although Fisher thus refrained from expressly deciding the question
presented by this case, its reasoning indisputably reflected
disapproval of the view expressed in Boyd that the contents of an
individual's papers are protected from compulsory production by the
Fifth Amendment.  Indeed, the court below acknowledged as much,
stating that "(b)efore Fisher * * * the prevailing rule was that 'the
Fifth Amendment privilege against compulsory self-incrimination
protects an individual from compelled production of his personal
papers and effects as well as compelled oral testimony'" (Pet. App.
8a;  citation omitted), but that "(i)n Fisher the majority seemingly
diverged from these precedents * * * " (id. at 9a).  See also United
States v. Namer, supra, 680 F.2d at 1092 & n.8;  In re Grand Jury
Proceedings (Martinez) supra, 626 F.2d at 1055;  United States v.
Bray, supra, 546 F.2d at 855 (Boyd "laid to rest" by Fisher).
Nevertheless, the court below brushed off this Court's "divergence" in
Fisher and stated that it "continued to recognize Boyd's
protection-of-private-papers principle (Pet. App. 11a n.7).

   As our previous discussion makes clear, however, the decision in
Boyd was not based upon a "protection-of-private-papers principle."
Boyd did not rest upon the special status of books and records as
opposed to other forms of property but upon the fact that the
government did not have superior title to and consequently could not
seize mere evidence.  /8/ As this Court stated in Gouled v. United
States, 255 U.S. 298, 309 (1921) (emphasis added), which reaffirmed
Boyd and applied it to a traditional search and seizure conducted
pursuant to a facially valid warrant:

         There is no special sanctity in papers, as distinguished from
      other forms of property, to render them immune from search and
      seizure, if only they fall within the scope of the principles of
      the cases in which other property may be seized, and if they be
      adequately described in the affidavit and warrant.  Stolen or
      forged papers have been so seized, * * * and lottery tickets,
      under a statute prohibiting their possession with intent to sell
      them * * * and we cannot doubt that contracts may be so used as
      instruments or agencies for perpetrating frauds upon the
      Government as to give the public an interest in them which would
      justify the search for and seizure of them, under a properly
      issued search warrant, for the purpose of preventing further
      frauds.

   During the era when Boyd held sway, seizures of incriminating
papers were consistently upheld in cases such as Marron v. United
States, 275 U.S. 192 (1927);  United States v. Lefkowitz, 285 U.S.
452, 465-466 (1932);  and Abel v. United States, 362 U.S. 217, 238
(1960), subject only to the then-prevailing requirement that the
papers constitute instrumentalities of crime rather than "mere
evidence." All these cases refute the notion that Boyd conferred
special status upon papers either for Fourth or Fifth Amendment
purposes.

   D. In attempting to distinguish Fisher, the court below relied upon
the fact that the documents at issue in that case were neither written
nor owned by those asserting the privilege (Pet. App. 10a, 11a n.7).
See also United States v. Miller, 660 F.2d 563, 567 (5th Cir. 1981);
United States v. Davis, 636 F.2d 1028, 1043 (5th Cir.), cert. denied,
454 U.S. 862 (1981).  Conceivably these factors may have some bearing
upon the question whether the act of producing subpoenaed documents is
sufficiently testimonial to invoke Fifth Amendment protection, but we
fail to see what relevance these factors can possibly have with
respect to whether the documents' contents are privileged.  Fisher is
based upon the principle that the Fifth Amendment prohibits the
government from compelling an individual to make a self-incriminating
statement.  When preexisting records are sought by subpoena, the
person upon whom the subpoena is served is not compelled to affirm the
truth of the records' contents -- and this is true whether or not that
person is the author or owner of the papers.

   Indeed, the opinion in Fisher leaves no doubt that a person may not
resist a subpoena or summons on Fifth Amendment grounds simply because
he prepared or wrote the incriminating papers sought.  The Court there
stated (425 U.S. at 410;  emphasis added):  "The taxpayer cannot avoid
compliance with the subpoena merely by asserting that the item of
evidence which he is required to produce contains incriminating
writing, whether his own or that of someone else." The Court added
(id. at 410 n.11):  "The fact that the documents may have been written
by the person asserting the privilege is insufficient to trigger the
privilege."

   Moreover, it is apparent that many of the documents sought by the
subpoena in this case -- such as telephone toll records, bank
statements, and bank deposit tickets -- were prepared by persons other
than respondent.  The court of appeals itself conceded (Pet. App. 16a)
that "certainly not all * * * of the subpoenaed records * * * were
prepared by (respondent)." Thus, even if authorship of the documents
had some bearing upon the privileged status of their contents, that
factor could not justify the court of appeals' decision.

   As for ownership, while the Fisher Court assumed that the taxpayers
did not have title to the accountants' workpapers, the taxpayers
undoubtedly paid to have those papers prepared, and they readily
obtained possession of the papers from their accountants after
learning of the IRS investigation.  Thus, if ownership of the papers
had been the determinative fact in Fisher, the result in that case
would have been difficult if the taxpayers had purchased the papers
from their accountants for nominal consideration or if the accountants
had relinquished possession with donative intent.  We do not believe
that the decision in Fisher was based upon any such fine distinction
of property law totally divorced from the policy of the Fifth
Amendment.  To read Fisher in that way would mark a return to the
discredited reasoning of Boyd, under which the extent of the
protection afforded by the Fifth Amendment depended upon the common
law of property and trespass.  As the Ninth Circuit stated in
rejecting a similar interpretation of Fisher (In re Fred R. Witte
Center Glass No. 3, 544 F.2d 1026, 1028 (1976) (emphasis in
original)):

         We read Fisher as resting on a broader principle.  It permits
      compulsion by way of a summons or subpoena to produce documents
      when their production does not "ordinarily compel the taxpayer
      to restate, repeat or affirm the truth of the content of the
      documents sought." Mere ownership of an accountant's work papers
      does not convert the production of such papers into an
      affirmative of the truth of their contents.

   The effect and clear intent of the court of appeals' decision is to
make Fisher a very narrow exception to Boyd's "prohibition against
forcing the production of private papers." Fisher, 425 U.S. at 409.
Under the court's approach, the bankrupt Boyd rule remains fully in
effect, except presumably in cases involving the same peculiar factual
situation as Fisher, i.e., where the papers sought were not written or
prepared and are not owned by the person upon whom the subpoena is
served.  That situation will arise relatively infrequently and can be
easily avoided simply by transferring title to the documents.
Accordingly, the court of appeals' decision necessarily drains Fisher
of much of its precedential significance and replaces it with a rule
based upon nothing more than the facts of the Boyd case and dictum
taken out of context from a 200-year-old English decision concerning
common law trespass.

   E. The decision below granting privileged status to the documents
of a sole proprietorship is not only inconsistent with settled
principles of Fifth Amendment law as discussed in Fisher, but it is at
odds with a line of pre-Fisher decisions holding that the records of
incorporated and unincorporated organizations are not protected by the
Fifth Amendment.  In Hale v. Henkel, 201 U.S. 43 (1906), the Court
held that a corporate officer may not withhold testimony or documents
on the ground that his corporation would be incriminated.
Subsequently, the Court extended this holding to require the custodian
of corporate books and records to produce them pursuant to a subpoena
even though he personally might be incriminated by their production.
Essgee Co. v. United States, 262 U.S. 151 (1923);  Wilson v. United
States, 221 U.S. 361 (1911).  In time, the Court likewise held that
the Fifth Amendment privilege may not be asserted when the records of
a labor union (United States v. White, 322 U.S. 694 (1944)), political
party (Rogers v. United States, 340 U.S. 367 (1951)), or business
partnership (Bellis v. United States, supra) are sought.

   We submit that there is no substantial basis for treating the
records of corporations, partnerships, or other types of organizations
differently from the records of sole proprietorships.  When a subpoena
is issued for preexisting business records, there is no more
testimonial compulsion on the sole proprietor than there is on the
corporate officer or partner and no greater hazard of personal
incrimination.

   The difference between a corporation and a sole proprietorship is
often nothing more than a legal formality and does not reflect the
size, structure, activities, or longevity of the business.  A sole
proprietorship may, for example, consist of a chain of retail stores
employing numerous persons and doing millions of dollars in business
annually, while a corporation may consist of nothing more than a
single store operated by the corporation's sole stockholder.  See Wild
v. Brewer, 329 F.2d 924 (9th Cir. 1964) (the sole stockholder of a
corporation held not entitled to assert privilege with respect to
corporate records).  In recent years, moreover, thousands of
physicians, lawyers, dentists, and other professionals have
incorporated principally for tax purposes.  It would be anomalous
indeed if the contents of the records maintained by such persons
enjoyed no Fifth Amendment protection, while those of their colleagues
who continued to practice as sole proprietors remained fully
protected.  See United States v. Radetsky, 535 F.2d 556, 568-569 (10th
Cir. (1976) (doctor held not entitled to assert privilege with respect
to records of professional corporation consisting of two doctors).
Similarly, there is no reason why the decision to take a partner
should have such a profound effect for Fifth Amendment purposes.  See
Bellis v. United States, supra (attorney held not entitled to assert
privilege with respect to records of three-partner law firm).

   The court below offered no principled defense of the distinction it
drew between a sole proprietorship and other forms of business
organization.  Indeed, it stated that the distinction was "irrational"
(Pet. App. 6a n.3, quoting Martinez, 626 F.2d at 1056), and that
treating all business organizations in the same way for Fifth
Amendment purposes had "considerable analytic appeal." Nevertheless,
the court felt compelled to reach the result it did because of dictum
in Bellis, 417 U.S. at 87-88, to the effect that the Fifth Amendment
privilege immunizes the business records of a sole proprietor (Pet.
App. 6a-8a).  That dictum, however, was expressly based on the Boyd
interpretation of the privilege that was subsequently disavowed in
Fisher.  /9/

   Respondent seeks to defend the "irrational" distinction between the
scope of protection afforded the records of corporations and
partnerships, on the one hand, and sole proprietorships, on the other,
on the ground that it reflects the difference between an individual
and an arttifical entity or collective group (see Br. in Opp. 9).
However, respondent's argument is untenable because the corporate
officer or partner who may be compelled to produce documents that
incriminate him is not an artificial entity or a collective group.  To
be sure, one of the stated bases for the rule that the privilege
cannot be employed by an individual to avoid production of corporate
or partnership records is that such records are held in a
representative and not in an individual capacity.  See, e.g., Bellis,
417 U.S. at 89.  But that is not the primary basis for the rule, as is
demonstrated by Grant v. United States, 227 U.S. 74 (1913), which held
that the privilege is inapplicable even where the corporation is
defunct and title to its records has passed to its sole stockholder.
See also Bellis, 417 U.S. at 96 n.3;  Wheeler v. United States, 226
U.S. 478 (1913);  United States v. Hankins, 565 F.2d 1344, 1349 (5th
Cir. 1978), cert. denied, 440 U.S. 909 (1979).  Rather, this Court
enunciated the primary basis for the rule when it stated in United
States v. White, supra, 322 U.S. at 700 (citations omitted):

      The scope and nature of the economic activities of incorporated
      and unincorporated organizations and their representatives
      demand that the constitutional power of the federal and state
      governments to regulate those activities be correspondingly
      effective.  The greater portion of evidence of wrongdoing by an
      organization or its representatives is usually to be found in
      the official records and documents of that organization.  Were
      the cloak of the privilege to be thrown around these impersonal
      records and documents, effective enforcement of many federal and
      state laws would be impossible.  The framers of the
      constitutional guarantee against compulsory self-disclosure, who
      were interested primarily in protecting individual civil
      liberties, cannot be said to have intended the privilege to be
      available to protect economic or other interests of such
      organizations so as to nullify appropriate government
      regulations.  /10/

   The particular form a business assumes says nothing about "(t)he
scope and nature of its economic activities." Accordingly, when the
economic activities of a business entity are the focus of
investigation, as is true in this case, the availability of the
privilege should not depend on the technical form of the business's
organization.  See In re Witness Before the Grand Jury, 546 F.2d 825,
827 (9th Cir. 1976).

   F. Insofar as it rests upon the conclusion that revelation of the
contents of documents is itself shielded by the cloak of the Fifth
Amendment privilege, the decision below creates a further anomaly.
Its result is that the contents of a sole proprietorship's records are
privileged when sought by subpoena, but those same records may be
seized and their contents may be examined by police executing a valid
warrant.  Fisher's application with respect to the seizure of
documents was clarified in Andresen, which held that the seizure of
business records and their introduction into evidence at trial does
not violate the Fifth Amendment.  Rejecting the contention that the
contents of such records are protected by the privilege, the Court
stated succinctly (427 U.S. at 473):

      (P)etitioner was not asked to say or to do anything.  The
      records seized contained statements that petitioner had
      voluntarily committed to writing.

   The Court then explained (ibid.) that Andresen had neither turned
over nor authenticated the records and thus had not been compelled to
incriminate himself by performing either of those acts.

   Andresen thus plainly stands for the proposition that the contents
of preexisting business records are not privileged -- as Justice
Brennan expressly acknowledged in his dissent (see 427 U.S. at 486) --
and that such records may be obtained by subpoena unless the act of
production constitutes testimonial self-incrimination.  We of course
recognize that the production of a document pursuant to subpoena
involves an element of compulsion that the seizure of the same
document pursuant to search warrant does not.  But that distinction is
irrelevant to the question whether the contents of the document are
privileged.  Whether preexisting documents are obtained by subpoena or
by warrant, creation of those documents was not compelled, and
therefore their contents are not privileged under the Fifth Amendment.

   The illogic of the result produced by the decision below was
recognized by the Fifth Circuit in United States v. Davis, supra, 636
F.2d at 1042:  "It is difficult to find a logical reason for applying
the Boyd principle to subpoenaed documents and not documents taken in
a search, as in Andresen." See also Andresen, 427 U.S. at 485, 486
(Brennan, J., dissenting);  Martinez, 626 F.2d at 1056.  Nevertheless,
the Fifth Circuit concluded in Davis (636 F.2d at 1042) that, "(h)
owever illogically," its own prir opinions "limit Andresen to
documents taken in a search." But see, e.g., United States v. Namer,
supra, 680 F.2d at 1092 & n.8.

   Not only is the different treatment given seized and subpoenaed
documents illogical, but, if accepted by this Court, it will have an
untoward effect upon privacy by "prevent(ing) the lesser intrusion of
subpoena while permitting the greater intrusion of search and seizure"
(Martinez, 626 F.2d at 1056).  A search is more intrusive on privacy
interests than a subpoena because it almost inevitably entails
disclosure to official view of matters in the home or place of
business beyond those specifically subject to seizure.  This concern
is heightened in the case of document searches, because of the
relatively broad character that such a search must often assume;
thus, this Court has recognized that a search and seizure of a
person's papers presents "grave dangers" not present in a search for
physical objects, because in searches for papers "it is certain that
some innocuous documents will be examined, at least cursorily, in
order to determine whether they are, in fact, among those papers
authorized to be seized." Andresen, 427 U.S. at 482 n.11.  See also
National City Trading Corp. v. United States, 635 F.2d 1020, 1024 (2d
Cir. 1980).  /11/ Although the subject of a search warrant can seek
the return of papers alleged to have been improperly seized, he is
then in the position of "one attempting to close the barn door after
the horses have escaped." United States v. Abrams, 615 F.2d 541, 549
n.2 (1st Cir. 1980).  By contrast, although a subpoena too can be
overbroad, the party whose papers are being sought is in a position to
seek judicial narrowing of the subpoena or a protective order prior to
compliance.  See Fed. R. Crim. P. 17(c);  United States v. Abrams,
supra, 615 F.2d at 549 n.2.  In short, the likely effect of the
disparate treatment of seized and subpoenaed documents endorsed by the
court of appeals will be to encourage the use of search warrants and
to discourage the use of subpoenas, even though the latter are plainly
far less intrusive.

   G. Under the logic of Fisher, reaffirmed in Andresen, the contents
of even the most personal papers would not appear to be privileged
under the Fifth Amendment.  See United States v. Nobles, 422 U.S. 225,
233 n.7 (1975).  Nevertheless, the accountant's workpapers in Fisher
were clearly business papers (see ICC v. Gould, 629 F.2d 847, 859 n.22
(3d Cir. 1980)), and the Court there stated that neither the
"(s)pecial problems of privacy which might be presented by subpoena of
a personal diary" nor "First Amendment values" were at issue (425 F.2d
at 401 n.7).  Similarly, in Andresen, the Court was careful to limit
its holding to searches and seizures of "business records" (427 U.S.
at 465, 475, 477).  And the courts of appeals have repeatedly read
Fisher to apply only to business documents.  See United States v.
Namer, supra, 680 F.2d at 1092 & n.8;  ICC v. Gould, supra, 629 F.2d
at 859 n.22;  United States v. Doe, supra, 628 F.2d at 695;  Martinez,
626 F.2d at 1054-1055 & n.2;  United States v. Abrams, supra, 615 F.2d
at 547;  United States v. Helina, 549 F.2d 713, 716 n.3 (9th Cir.
1977).  But see United States v. Davis, supra, 636 F.2d at 1042.  For
example, in holding that the Fifth Amendment does not apply to the
contents of the business records of a sole proprietor, the First
Circuit emphasized (Martinez, 626 F.2d at 1054 n.2) that

      this case does not involve subpoena of papers more intimate or
      personal than business records.  The applicability of Fisher v.
      United States to non-business, intimate personal papers such as
      private diaries or drafts of letters or essays is an open
      question.  See id. at 401 n.7 * * * .  There may be additional
      sources of protection, such as the First Amendment or the
      personal autonomy component of the due process clause of the
      Fourteenth Amendment, which direct that the Fifth Amendment
      apply to the contents of such writings.

   The present case too involves business records of the type that are
generally kept in the ordinary course of business, not personal papers
such as diaries or personal correspondence.  As Justice Brennan noted
in his concurrence in Fisher, 425 U.S. at 425-426, business records do
not touch upon "the more intimate aspects of one's life." See also
Andresen, 427 U.S. at 486 (Brennan, J., dissenting).  In Judge
Friendly's words:  "The writings typically sought to be produced (by
subpoena) are not the outpourings of an individual's soul, for which
the first amendment protection against subpoena may be in order, but
rather the books and records of an enterprise that is criminal or has
been unlawfully conducted." Friendly, The Fifth Amendment Tomorrow:
The Case for Constitutional Change, 37 U. Cinn. L. Rev. 671, 703
(1968).  Thus, to the extent that Fisher and Andresen left open the
issue whether personal diaries and letters may be subpoenaed or seized
by the government, that issue is not presented in this case either.
The sort of documents involved here -- such as vouchers, paid bills,
and bank statements (Pet. App. 33a) -- are not "the outpourings of an
individual's soul." /12/

 II. Any Testimonial Self-Incrimination Inherent In The Act Of
Producing Standard Categories Of Business Records Held By A Sole
Proprietorship Is Cured By Prohibiting The Introduction In Subsequent
Proceedings Of Proof Of The Act Of Production

   While this Court in Fisher indicated that the contents of
preexisting documents are not privileged under the Fifth Amendment, it
did acknowledge (425 U.S. at 410) that

      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.  Compliance with the
      subpoena tacitly concedes the existence of the papers demanded
      and their possession or control by the taxpayer.  It also would
      indicate the taxpayer's belief that the papers are those
      described in the subpoena.  Curcio v. United States, 354 U.S.
      118, 125 (1957).  The elements of compulsion are clearly
      present, but the more difficult issues are whether the tacit
      averments of the taxpayer are both "testimonial" and
      "incriminating" for purposes of applying the Fifth Amendment.

   In Fisher, the Court did not attempt to provide a "categorical"
answer to these questions but instead held that the act of producing
the records sought in that case did not amount to testimonial
self-incrimination (425 U.S. at 410-411).  Similarly, in this and the
vast majority of cases involving subpoenas for the standard business
records of sole proprietorships, we believe that the act of production
does not rise to the level of testimonial self-incrimination.  More
important, it seems perfectly clear that any testimonial
self-incrimination inherent in the act of production is at most
slight;  that in virtually every case, the sole objective of the
subpoena is to obtain access to the contents of the documents, which
are not privileged;  and that when compliance with such subpoenas is
resisted on Fifth Amendment grounds the witness's motive for resisting
the subpoena is likewise almost invariably based upon the documents'
contents.  See Doe, 626 F.2d at 1056.  Under these circumstances, it
makes little sense to prevent the grand jury from examining the
records' contents because of the largely theoretical possibility that
the act of production might be used to incriminate the person upon
whom the subpoena is served.  Instead, any basis for Fifth Amendment
objection in cases of this sort may be removed by a rule prohibiting
the use in any subsequent criminal proceedings of proof of the act of
production against the witness who has asserted his privilege at the
subpoena stage.

 A. The Act of Producing Standard Categories of Business Records Held
by a Sole Proprietorship Generally Does Not Constitute Testimonial
Self-Incrimination

   As previously noted, the act of producing documents might be
considered testimonial in two ways:  it may concede the existence and
possession of the papers sought and it may indicate a belief that the
papers produced are those described in the subpoena.

   1. It seems clear that admitting the existence and possession of
standard business records rarely could amount to testimonial
self-incrimination within the protection of the Fifth Amendment.  In
Fisher, after noting that the papers at issue were "the kind usually
prepared by an accountant working on the tax returns of his client,"
the Court concluded (425 U.S. at 411;  citation omitted):

         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.  Under these circumstances by enforcement
      of the summons "no constitutional rights are touched.  * * * "

   This reasoning applies equally to most if not all of the documents
sought by the subpoenas in this case, such as general ledgers,
vouchers, paid bills, and invoices.  Such documents are kept by
virtually every business, from the smallest family concern to the
largest conglomerate, and therefore conceding their existence,
possession, and control "adds little or nothing to the sum total of
the Government's information" (ibid.).  As the court of appeals stated
in Martinez, 626 F.2d at 1055, the facts admitted by honoring such a
subpoena "in most cases will be so trivial that the Constitution is
not implicated." See also, e.g., United States v. Davis, supra, 636
F.2d at 1041;  United States v. Praetorius, 622 F.2d 1054, 1063 (2d
Cir. 1979), cert. denied, 449 U.S. 860 (1980);  United States v.
Authement, 607 F.2d 1129, 1132 (5th Cir. 1979);  United States v.
Osborn, supra, 561 F.2d at 1339.

   An individual claiming the Fifth Amendment privilege must be
"confronted by substantial and 'real,' and not merely trifling or
imaginary, hazards of incrimination." Marchetti v. United States, 390
U.S. 39, 53 (1968);  see also, e.g., Hoffman v. United States, 341
U.S. 479, 486 (1951) (Fifth Amendment "protection must be confined to
instances where the witness has reasonable cause to apprehend
danger");  Rogers v. United States, 340 U.S. 367, 373 (1951) ("real
danger of legal detriment");  Mason v. United States, 244 U.S. 362,
365 (1917) (must be "real danger" and not just "remote possibilities
out of the ordinary course of law").  While their contents may be
inculpatory, the mere admission of possession and control of standard
business records does not itself pose such a substantial realistic
threat.

   2. As noted, the act of producing documents might also be
considered testimonial insofar as it authenticates them.  But where
standard business records are sought, the possibility that tacit
authentication would amount to testimonial self-incrimination is
slight at best and is frequently nonexistent.

   In order to understand the scope of protection furnished in this
context by the Fifth Amendment privilege, it is necessary to keep in
mind precisely what is meant when it is said that production of
documents may "authenticate" them.  Authentication is a narrow,
technical requirement for the admissibility of evidence at trial.
/13/ See E. Cleary, McCormick on Evidence Section 218, at 543-545
(1972 ed).  Evidence presented to a grand jury need not be
authenticated (see Fed. R. Evid. 101, 1101(d)(2);  United States v.
Calandra, 414 U.S. 338, 345 (1974);  Costello v. United States, 350
U.S. 359 (1956)), and therefore any "authentication" inherent in the
production of documents in response to a grand jury subpoena cannot be
said to incriminate an individual with respect to such proceedings.

   Under the Federal Rules of Evidence, authentication is a "condition
precedent to admissibility" that must be "satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims." Fed. R. Evid. 901(a).  While testimony that a
sole proprietor produced certain papers in response to a subpoena for
his business records would ordinarily suffice for authentication, in
the vast majority of cases such records could also be authenticated in
several other ways.  Many business documents maintained by a sole
proprietorship are written by persons other than the owner -- such as
his employees and persons with whom he does business -- and could
therefore be authenticated by the author's testimony.  /14/ If the
author cannot or will not testify, authentication may be accomplished
through the testimony of another person who witnessed the document
being written or who received, typed, delivered, mailed, filed, read,
or otherwise acquired familiarity with it.  /15/ A sole
proprietorship's business ledgers and journals can be authenticated by
any employee, former employee, or other individual who made entries or
saw entries being made;  /16/ such documents and other business
records may also be authenticated by a person who merely had
supervisory authority over or is familiar with the company's
record-keeping procedures.  /17/ Even documents prepared exclusively
by the sole proprietor, kept by him in a private file, and never seen
by any other person may be authenticated by expert or nonexpert
testimony concerning the genuineness of the sole proprietor's
handwriting (Fed. R. Evid. 901(b)(3));  /18/ indeed, the trier of fact
may draw its own conclusion about authenticity after comparing the
documents with a specimen of the sole proprietor's handwriting
(ibid.).  Documents may even be authenticated based upon their
"appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances"
(Fed. R. Evid. 901(b)(4)).  /19/ This rule has been construed to
permit the authentication of a business's correspondence based upon
its letterhead.  /20/ Authentication may also be based upon
distinctive language patterns evident in a document, /21/ and "a
coincidence or 'match' between content and a course of events or
behavior, as established by other evidence, sometimes serves as
circumstantial evidence of authentication." /22/

   A witness need not be absolutely certain of his testimony in order
to authenticate evidence.  /23/ And the showing required for
authentication need not be accomplished by the testimony of any single
witness or by any single type of authentication evidence.  /24/

   In short, the difficulty of authenticating standard business
records at trial is not great and infrequently proves an obstacle to
admissibility.  /25/ It follows that the testimonial value of any
authentication inherent in the act of producing documents is
correspondingly small.

   By the same token, such tacit authentication is unlikely to be
incriminating.  It is important to remember that by producing
documents in response to a subpoena an individual merely indicates his
belief that the documents are those described in the subpoena (Fisher,
425 U.S. at 412-413), and that fact is seldom incriminating.  The
matters disclosed by the documents may well be incriminating, but an
individual who complies with a documentary subpoena does not certify
the truth of their contents.  Nor is such tacit authentication alone
sufficient to permit the documents' admission at trial to prove the
matters asserted therein.  /26/ Since business documents are hearsay
when offered to prove the truth of their contents, they are admissible
only if they fall within an exception to the hearsay rule (Fed. R.
Evid. 801, 802).

   The exception under which such records are usually admitted is that
for regularly kept records.  Rule 803(6) of the Federal Rules of
Evidence, which codifies this exception, requires testimony that the
records were made at or near the time of the events recorded, that
they were made "by, or from information transmitted by, a person with
knowledge," and that "it was the regular practice of that business * *
* to make (such) record(s)." Under the plain language of this
exception, the mere fact that a custodian of business records produced
them in response to a subpoena is not enough.

   In sum, the tacit authentication implicit in the act of producing
standard business records has little if any testimonial value and is
very unlikely to incriminate.  The possibility of incrimination by
tacit authentication is far less a reality than a fiction claimed for
the purpose of preventing grand juries from seeing documents whose
contents are incriminating but are not shielded by the Fifth
Amendment.  Quashing a grand jury subpoena, on the other hand, may
cause great harm.  "(T)he investigation of crime by the grand jury
implements a fundamental governmental role of securing the safety of
the person and property of the citizen * * * " (Branzburg v. Hayes,
408 U.S. 665, 700 (1972)).

      "When the grand jury is performing its investigatory function
      into a general problem area . . . society's interest is best
      served by a thorough and extensive investigation." Wood v.
      Georgia, 370 U.S. 375, 392 (1962).  A grand jury investigation
      "is not fully carried out until every available clue has been
      run down and all witnesses examined in every proper way to find
      if a crime has been committed." United States v. Stone, 429 F.2d
      138, 140 (C.A. 2 1970).  * * *

   Id. at 701;  see also Calandra, 414 U.S. at 344.  It would be
grossly disproportionate to block a grand jury's access to
unprivileged evidence that may be highly probative and important
simply because of the largely theoretical possibility that the act of
production might be used as incriminating authentication evidence in a
subsequent trial.  Quashing a subpoena in such a situation "provides
the individual with a remedy far exceeding the scope of his Fifth
Amendment privilege." Martinez, 626 F.2d at 1056.

   3. While we think it clear that the act of producing standard
business records does not generally rise to the level of testimonial
self-incrimination, special circumstances might dictate a different
conclusion.  But it is up to the individual asserting the privilege to
"show a realistic possibility that his answer will be used against
him." Pillsbury v. Conboy, No. 81-825 (Jan. 11, 1983), slip op. 3 n.1
(Marshall, J., concurring).  See also, e.g., In re Grand Jury Subpoena
Duces Tecum, 697 F.2d 277, 279 (10th Cir. 1983);  In re Grand Jury
Empanelled (Markowitz), 603 F.2d 469, 477 (3d Cir. 1979);  United
States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976).  True,
the witness is not required "to prove the hazard in the sense in which
a claim is usually required to be established in court," because he
would thereby by "compelled to surrender the very protection which the
privilege is designed to guarantee" (Hoffman v. United States, supra,
341 U.S. at 486).  But it must be evident from the facts brought to
the court's attention that furnishing the requested document would
create a real and substantial threat of self-incrimination.  Ibid.;
Marchetti v. United States, supra, 390 U.S. at 53;  United States v.
Reynolds, 345 U.S. 1, 9 (1953).  When no special circumstances are
evident, a subpoena for standard business records should be enforced.
As the Tenth Circuit wrote recently in rejecting a bare assertion of
Fifth Amendment privilege similar to respondent's (In re Grand Jury
Subpoena Duces Tecum, supra, 697 F.2d at 279):

         Whether the act of producing documents in responses to a
      subpoena is both testimonial and incriminating is a difficult
      issue whose resolution depends "on the facts and circumstances
      of particular cases or classes thereof." (Fisher, 425 U.S.) at
      411 * * * ;  see also id. at 414-30 * * * (Brennan, J.,
      concurring).  Our review of this question here is rendered
      impossible by the (witnesses') failure to specify * * * the
      origin of each document * * * .  We cannot determine to which
      documents the Fisher analysis may be applicable.  We will not
      speculate or render what is in essence an advisory opinion.

         The burden of establishing the applicability of a privilege
      rests on the party seeking to assert it.  * * * The (witnesses')
      broad declarations simply do not meet this burden.  /27/

   4. When the principles just outlined are applied to the present
case, it is apparent that the courts below erred in holding that
respondent was entitled to resist production of all of the records
sought by the five subpoenas.

   Most, if not all, of those documents were standard business records
of the type maintained by virtually every business, and their
existence, location, and control in respondent's hands were thus a
"foregone conclusion" (Fisher, 425 U.S. at 411).  The court of appeals
attempted to refute this argument by observing that there is "nothing
in the record that would indicate that the United States knows, as a
certainty, that each of the myriad documents demanded by the five
subpoenas in fact is in (respondent's) possession or subject to his
control" (Pet. App. 15a;  emphasis added).  However, the government
seldom if ever knows "as a certainty" that subpoenaed documents exist
and are subject to a witness's control.  Even if the government has
incontrovertible evidence that the witness had possession and control
of the documents in the very recent past, the possibility will always
exist that the documents were subsequently removed or destroyed.  In
Fisher itself, there was nothing to suggest that the government knew
"as a certainty" when it issued the summons that the taxpayers had
kept control of the papers at issue rather than transferring them to
someone else or destroying them.

   The court of appeals likewise erred in concluding that respondent
was entitled to resist compliance with the subpoenas on the ground
that the tacit authentication resulting from the act of production
would automatically constitute meaningful testimonial
self-incrimination.  Without requiring respondent to show that tacit
authentication posed a realistic threat of testimonial
self-incrimination or even to make a particularized claim of
privilege, the court permitted him to rest upon a blanket assertion of
Fifth Amendment privilege with respect to every document sought by the
subpoenas except for those required to be kept by law.  The court
wrote (Pet. App. 16a):  "Here * * * many (although certainly not all)
of the subpoenaed records * * * most likely were prepared by
(respondent)." But since respondent did not prepare and could not
vouch for the accuracy of all the documents sought, the court of
appeals' reasoning was directly contrary to Fisher, where this Court
found (425 U.S. at 413) that any tacit authentication resulting from
production of subpoenaed papers did not invoke Fifth Amendment
protection because

      (t)he taxpayer did not prepare the papers and could not vouch
      for their accuracy.  The documents would not be admissible in
      evidence against the taxpayer without authenticating testimony.
      Without more, responding to the subpoena in the circumstances
      before us would not appear to represent a substantial threat of
      self-incrimination.

   The court of appeals also observed (Pet. App. 16a) that "(t)he
record contains no explanation by the United States as to how
documents (prepared by respondent) could be authenticated without
(respondent's) explicit or implicit participation." But this is odd
reasoning indeed:  respondent may resist production of the documents
on grounds of self-incrimination because the government may be unable
to use those documents against him at any subsequent trial.  Obviously
the government could not tell specifically how, or if, many of the
documents could be authenticated until they were turned over.  And
while "the record" does not contain an abstract discussion of the
various methods of authenticating business documents without the
assistance of their custodian (see Pet. App. 16a), available
alternatives are well known (see pages 33-36, supra), and their likely
application to the documents sought in this case is straightforward.

   For example, of the 28 categories of records sought by the third
subpoena issued in this case, at least 13 /28/ and probably 16 /29/ --
including vouchers, paid bills, invoices, billings, bank statements,
cancelled checks, contracts, bank deposit tickets, tax returns and
telephone toll records /30/ -- consisted of documents that were almost
certainly prepared or read by other persons, and therefore those
persons were potentially capable of authenticating them.  /31/ The
various business journals listed in that subpoena /32/ could be
authenticated by any employee or other person who made entries, saw
entries being made, used those books, had supervisory authority over
them, or was familiar with the company's record-keeping procedures.
And any document that could not be authenticated by one of these
methods might be authenticated based upon handwriting analysis or the
document's own distinctive characteristics.

   Finally, the court of appeals reasonsed (Pet. App. 18a) that
respondent had no obligation to show that the act of producing the
subpoenaed documents might incriminate him because "the Government
already (had) conceded that all of the papers it seeks are potentially
incriminating." However, as previously noted, the mere fact that the
contents of subpoenaed records may be incriminating does not
demonstrate that the act of producing them would constitute
testimonial self-incrimination.

 B. When a Documentary Subpoena Is Resisted on the Ground That the Act
of Production Would Constitute Testimonial Self-Incrimination, Fifth
Amendment Rights are Fully Protected and Interference With Grand Jury
Investigation Is Minimized by Requiring Production but Excluding
Evidence of the Act of Production in Future Proceedings

   1. As previously noted, in virtually every case where a subpoena
for standard business records is resisted on the ground that the act
of production would be self-incriminating, what is really of concern
to both parties is disclosure of the documents' unprivileged contents.
 Furthermore, any testimonial self-incrimination inherent in the act
of production is slight at best.  To block the grand jury's access to
the documents' contents on act-of-production grounds would allow a
small and technical tail to wag a large substantive dog.  Moreover,
litigation concerning whether under particular circumstances the act
of production rises to the level of testimonial self-incrimination --
an issue of little direct importance to either party -- places a
needless burden on the courts and may harmfully delay critical grand
jury probes.

   There are several possible solutions to these problems, but in our
judgment the simplest and best is to require production of the
documents while automatically conferring upon a witness who has
invoked his privilege constructive use immunity with respect to any
future use in a criminal prosecution of the act of production.  The
Sixth Circuit recently employed this procedure in United States v.
Schlansky, No. 82-5200 (June 16, 1983), slip op. 7, where an IRS
summons was enforced over Fifth Amendment objection.  Noting that
"(t)here (was no serious question as to the existence or location of
the documents," the court addressed the contention that the taxpayer
might incriminate himself by means of the tacit authentication
inherent in the act of production (slip op. 7):

         This case does not concern an attempt by the government to
      use the act of production as authentication of the documents.
      If the government should attempt to authenticate the (documents)
      as evidence in subsequent criminal proceedings with proof that
      they were produced by the taxpayer, a Fifth Amendment objection
      could be interposed at that time.  Such proof would seek to add
      testimonial value to the otherwise testimony-free act of
      production.

   This procedure -- requiring compliance with the subpoena over Fifth
Amendment objection but excluding evidence of the act of production --
allows the grand jury access to the contents of preexisting (and
therefore unprivileged) business records;  it avoids in nearly all
cases the need to litigate the largely hypothetical question whether
the act of production constitutes testimonial self-incrimination;  and
it fully protects the witness's Fifth Amendment rights.  If the
government seeks to introduce proof of the act of production against
the witness in a subsequent criminal prosecution, "the witness has a
valid objection to the evidence on the ground that he was coerced by
court order to reveal it and that it is therefore compelled
self-incrimination barred from use by the Fifth Amendment." Manness v.
Meyers, 419 U.S. 449, 474 (1975) (White, J., concurring).  Any
evidence obtained by derivative use of the act of production would
also be excluded, although it seems quite unlikely that the act of
production could be put to such use.  /33/

   This procedure also does not compel the witness to incriminate
himself with respect to the grand jury proceedings.  Since the
existence and control of standard business records are almost
invariably a foregone conclusion, conceding those facts by producing
such records does not amount to testimonial incrimination.  And since
grand jury evidence need not be authenticated, the possibility that
the act of production might supply a needed method of authentication
is not present.  /34/ Finally, any chance that the act of production
might be used against the witness by the grand jury may be negated by
allowing the witness to turn over the documents to a third party --
such as the court or prosecutor -- who would then furnish them to the
grand jury without revealing their origin.  Cf. United States v.
Porter, No. 83-1278 (7th Cir. July 6, 1983), slip op. 14.  /35/

   While the Sixth Circuit has followed the procedure we believe
preferable, the First Circuit has achieved the same end through a
somewhat different approach, illustrated by its decisions in Martinez
and Doe.  In those cases, the court determined that compelling the
possessor of subpoenaed documents to comply with the subpoena would
produce incriminating authentication evidence.  However, rather than
simply quashing the subpoenas and thereby denying the grand jury
access to the records' unprivileged contents, the court attempted to
"(h) armoniz(e) the government's right of lawful access to the
contents of personal business records with the possessor's right not
to have the testimonial implication of his submission used against him
* * * " (Martinez, 626 F.2d at 1056).  Concluding that the federal
immunity statutes, 18 U.S.C. 6002 and 6003, authorize the granting
act-of-production immunity (ibid.), the court remanded the case to the
district court so that the government would have the opportunity to
grant the sole proprietor use immunity with respect to the act of
producing the subpoenaed documents (id. at 1058).  The court in Doe
followed the same procedure (628 F.2d at 697).

   While we believe that the First Circuit was correct in holding that
act-of-production immunity may be granted under 18 U.S.C. 6002 and
6003 /36/ and that such a grant removes any possible basis for
resisting compliance with a documentary subpoena on act-of-production
grounds, this procedure appears to us to be a needlessly burdensome
one that may unnecessarily delay the grand jury's work without
conferring any needed protection on the witness beyond that inherent
in the automatic immunity approach.  In any event, since the grand
jury's objective in such cases is uniformly to secure access to
contents of subpoenaed documents, not to obtain act-of-production
authentication, we believe either method of recognizing the
appropriate limited immunity would be satisfactory.

   2. In the present case, the government urged the court to adopt one
of these approaches.  The government agreed in the district court not
to use respondent's act of production against him in any way (see page
4, supra) and offered several suggestions for implementing that
proposal.  The government suggested that respondent turn over the
documents to a third party, such as the district court or his own
attorney (see J.A. 25;  C.A. App. 74a-75a).  Alternatively, the
government suggested that the court could grant respondent "the
functional equivalent of use immunity" with respect to the act of
production (Memorandum in Support of Motion for Reconsideration at 22;
 see also J.A. 34-35).

   The district court rejected all these suggestions without
explanation, and the court of appeals affirmed, stating that "no
procedure ever was agreed upon and no formal immunization offer under
18 U.S.C. Section 6002 or Section 6003 was advanced" (Pet. App. 19a).

   The court of appeals' reasoning was completely unsound.  Since the
district court rejected all the government's suggestions, the
government can hardly be faulted because "no procedure ever was agreed
upon" (Pet. App. 19a).  And statutory immunity was not sought /37/
because respondent was permitted to rest upon a blanket assertion of
the Fifth Amendment privilege with respect to the contents of all
documents not required to be kept by law, despite the fact that no
valid Fifth Amendment claim could possibly be made on that basis.  It
is well settled that the government need immunize only that portion of
the requested evidence for which a valid claim of immunity has been
raised;  although "a grant of immunity must afford protection
commensurate with that afforded by the privilege, it need not be
broader." Kastigar v. United States, 406 U.S. 441, 453 (1972);  see
also United States v. Apfelbaum, supra, 445 U.S. at 122.  Because
respondent's Fifth Amendment claim was patently overbroad, the
government was given the Hobson's choice of requesting that respondent
be granted immunity to which he was not entitled or of suffering the
consequences of a complete rejection of the subpoena.

   The court of appeals also suggested that a judicial grant of use
immunity with respect to the act of production would "intrude into an
area which should be more appropriately left to prosecutorial
discretion.'" (Pet. App. 20a, quoting In re Grand Jury Matter, 673
F.2d 688, 695-696 (3d Cir. 1982) (concurring opinion), cert. denied,
No. 82-123 (Nov. 15, 1982)).  However, the authority of the federal
courts to create an exclusionary rule such as that adopted by the
Sixth Circuit in Schlansky has strong precedent.  See, e.g., Simmons
v. United States, 390 U.S. 377 (1968) (defendant's testimony at
suppression hearing inadmissible at trial).  Moreover, while we do not
doubt that the prerogatives of the Executive Branch would be
improperly abridged if a court conferred use immunity without the
government's consent (see, e.g., United States v. Thevis, 665 F.2d 616
(5th Cir.), cert. denied, 456 U.S. 1008 (1982);  United States v.
Hunter, 672 F.2d 815, 818 (10th Cir. 1982);  United States v. Drape,
668 F.2d 22, 27 (1st Cir. 1982)), here, the prosecution itself has
chosen to seek compelled production of the documents and is willing to
accept the necessary consequences of conferring act-of-production
immunity.  We fail to see how prosecutorial discretion can be abridged
if the prosecution's own immunity request is granted.

   Even assuming that a formal request for statutory immunity was
necessary, the court below should have followed the same course that
the First Circuit took in Martinez and Doe by vacating the order
quashing the subpoena and remanding so that the appropriate form of
immunity could be extended.  This procedure was especially appropriate
in view of the district court's misconception about the scope of the
immunity to which respondent was entitled.  See Martinez, 626 F.2d at
1058.  Not only did the court of appeals refuse the goverment's
request for such a remand, but the court's holding that the contents
of a sole proprietorship's business records are privileged made it
clear that no form of act of production immunity would have sufficed.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   SAMUEL A. ALITO, JR.

      Assistant to the Solicitor General

   JOEL M. GERSHOWITZ

      Attorney

   AUGUST 1983

   /1/ Because of the ongoing grand jury inquiry, the court of appeals
granted the government's request not to disclose respondent's name or
any details that would identify him (see Pet. App. 2a n.1).  For this
reason, we did not use respondent's name in our petition or the
appendix thereto.  Later and without prior notice to the government,
the district court's opinion, which had originally been marked "not
for publication" (see Pet. App. 23a), was published at 541 F.Supp. 1.
This opinion identifies respondent and his companies.  We have
nevertheless omitted respondent's name and other identifying details
from this brief.

   /2/ These were:

   1. General ledgers.

   2. General journals.

   3. Cash disbursement journals.

   4. Petty cash books and vouchers.

   5. Purchase journals.

   6. Vouchers.

   7. Paid bills.

   8. Invoices.

   9. Cash receipts journal.

   10. Billings.

   11. Bank statements.

   12. Cancelled checks and check stubs.

   13. Payroll records.

   14. Contracts and copies of contracts, including all retainer
agreements.

   15. Financial statements.

   16. Bank deposit tickets.

   17. Retained copies of income tax returns.

   18. Retained copies of payroll tax returns.

   19. Accounts payable ledgers.

   20. Accounts receivable ledgers.

   21. Telephone company statement of calls and telegrams, and all
telephone toll slips.

   22. Records of all escrow, trust or fiduciary accounts maintained
on behalf of clients.

   23. Safe deposit box records.

   24. Records all purchases and sale of all stocks and bonds.

   25. A complete list of all partners, associates and employees,
together with their home addresses.

   26. All W-2 forms of each partner, associate and employee.

   27. Workpapers.

   28. Copies of Tax Returns.

   /3/ Production of such documents is not protected by the Fifth
Amendment.  See Shapiro v. United States, 335 U.S. 1, 33 (1948).

   /4/ Following the quashing of the subpoenas at issue here,
respondent was indicted and convicted of various charges stemming from
the grand jury investigation.  Execution of sentence was suspended,
and respondent was placed on probation and fined.  However, the grand
jury investigation is continuing, production of the requested
documents is still needed, and there remains the possibility that the
contents of the documents would incriminate respondent as to offenses
other than those for which he has already been convicted.
Accordingly, the case is not moot.

   /5/ As we will presently have occasion to discuss, the act of
producing a document might be considered testimonial in other
respects.  See pages 30-38, infra.

   /6/ See also 8 J. Wigmore, Evidence Section 2264, at 380
(McNaughton rev. 1961) (stating that the contents of documents are not
privileged because they are "already in existence and not desired to
be first written and created by a testimonial act or utterance of the
person in response to the process * * * ").

   /7/ That the Fifth Amendment privilege does not exist for the
purpose of protecting personal privacy is manifest from the fact that
it may be overridden by a grant of immunity that fully protects
against prosecutive use.  Kastigar v. United States, 406 U.S. 441
(1972).

   /8/ Dictum in Boyd is frequently cited (see, e.g., Pet. App. 8a) in
an attempt to show that private papers are entitled to special Fifth
Amendment protection.  But the real meaning of this dictum was simply
that the owner's title to these goods was superior to the
government's.  This is the point the Court was making when, after
observing that property rights are "sacred and incommunicable in all
instances where (they have) not been taken away or abridged by some
public law for the good of the whole,'" it wrote (116 U.S. at 627-628
(emphasis added), quoting Entick v. Carrington, supra):  "'Papers are
the owner's goods and chattels;  they are his dearest property * * *
.'"

   /9/ Bellis stated (417 U.S. at 87-88):

         It has long been established, of course, that the Fifth
      Amendment privilege against compulsory self-incrimination
      protects an individual from compelled production of his personal
      papers and effects as well as compelled oral testimony.  In Boyd
      v. United States, 116 U.S. 616 (1886), we held that "any
      forcible and compulsory extortion of a man's own testimony or of
      his private papers to be used as evidence to convict him of
      crime" would violate the Fifth Amendment privilege.  Id., at
      630;  see also id., at 633-635 * * * .  The privilege applies to
      the business records of the sole proprietor or sole practitioner
      as well as to personal documents containing more intimate
      information about the individual's private life.  Boyd v. United
      States, supra * * * .

   /10/ See 8 J. Wigmore, supra, Section 2259b, at 360 ("The reason
why the privilege is not available to the custodian (of records of a
collective group) is that * * * (g)roups frequently are powerful and
their illegal doings frequently are provided only by their records;
and, since economic crimes (as contrasted with common law crimes) are
usually not even discoverable without access to business records, a
rule which privileged the production of such records whenever they
incriminated the custodian would result in many (rather than few) of
the violators going free").

   /11/ Of course, investigators are free to proceed by search rather
than subpoena if they possess probable cause and can secure an
adequately particularized warrant.  Zurcher v. Stanford Daily, 436
U.S. 547 (1978).  The point here is simply that, where a subpoena
would suffice, it makes little sense from the standpoint of protecting
private interest to adopt rules that needlessly encourage the use of
searches.

   /12/ Although the issue thus need not be reached here, it is our
view that it would be unjustified to extend the Fifth Amendment
privilege beyond its traditional role of protecting against compelled
testimonial disclosures, in order to serve privacy interests
associated with particular types of documents.  In the first place, as
we previously noted (page 27 note 11, supra), the privacy-protection
component thereby injected into Fifth Amendment analysis is entirely
incompatible with the settled principle that disclosure can be
compelled through an adequate grant of immunity.  Beyond that, use of
the Fifth Amendment privilege for this purpose is probably
unnecessary.  Certainly it is not immediately apparent why
unreasonable and unjustified official examination of intimately
private documents cannot be adequately controlled through application
of First and Fourth Amendment principles, which after all embody the
relevant policies.  For example, it may be appropriate to require an
exceptionally high showing of need before government officials may
reasonably be permitted to examine the contents of a personal diary,
as a matter of Fourth Amendment law;  but it makes absolutely no
sense, in terms of privacy protection concerns, to make the right to
read the diary turn upon whether it is found during a lawful search of
an automobile or produced pursuant to a subpoena.

   /13/ The traditional requirement of authentication has been
strongly criticized by commentators.  See, e.g., Broun, Authentication
and Contents of Writings (Law and the Social Order), 1969 Ariz. St.
L.J. 611, 624-634;  Erich, Unnecessary Difficulties of Proof, 32 Yale
L.J. 436, 441-445 (1923);  Levin, Authentication and Content of
Writings, 10 Rutgers L.Rev. 632, 634-641 (1955-1956);  E. Cleary,
McCormick on Evidence, Section 218, at 545 (2d ed. 1972);  Strong,
Liberalizing the Authentication of Private Writings, 52 Cornell L.
Rev. 284 (1967).  The modern trend has been to liberalize the
requirement, if not to dispense with it entirely.  For example, the
provisions of the Federal Rules of Evidence dealing with
authentication have been described as going "as far toward
generalizing the principle of self-incrimination as would be possible
without abandoning altogether the basic premise that some sort of
authenticating proof should be required." 5 D. Louisell & C. Mueller,
Federal Evidence Section 505, at 12 (1981).

   /14/ United States v. Gipson, 609 F.2d 893, 894-895 (8th Cir.
1979);  5 D. Louisell & C. Mueller, supra note 13, Section 507, at 27;
 E. Cleary, supra note 13, Section 220, at 545;  5 J. Weinstein & M.
Berger, Weinstein's Evidence Paragraph 901(b)(1)(01), at 901-21 to
901-22 (1982);  7 J. Wigmore, Evidence Section 2131, at 712 & n.2
(Chadbourn rev. 1978).

   /15/ In re Clifford, 566 F.2d 1023, 1025 (5th Cir. 1978) (witnessed
signing);  McGuire v. Davis, 437 F.2d 570, 573 (5th Cir. 1971)
(received);  5 D. Louisell & C. Mueller, supra note 13, Section 507,
at 27;  E. Cleary, supra note 13;  Section 219, at 545;  5 J.
Weinstein & M. Berger, supra note 14, Paragraph 901(b)(1)(01), at
901-20.

   /16/ See United States v. Helberg, 565 F.2d 993, 997 (8th Cir.
1977);  E. Cleary, supra note 13, Section 219, at 545 & n.12.

   /17/ See, e.g., United States v. Smith, 609 F.2d 1294, 1301-1302
(9th Cir. 1979) (witness familiar with record-keeping procedures);
United States v. Ullrich, 580 F.2d 765, 771-772 (5th Cir. 1978)
(witness familiar with record-keeping procedures);  United States v.
Evans, 572 F.2d 455, 490 (5th Cir. 1978) (witnesses had used records
and were familiar with record-keeping procedures);  United States v.
Colyer, 571 F.2d 941, 947 (5th Cir. 1978) (familiarity), cert. denied,
439 U.S. 933 (1978);  United States v. Reese, 568 F.2d 1246, 1252 (6th
Cir. 1977) (familiarity);  United States v. Page, 544 F.2d 982, 987
(8th Cir. 1976) (familiarity);  Peter Eckrich & Sons, Inc. v. Selected
Meat Co., 512 F.2d 1158;  1159 (7th Cir. 1975) (supervisory
authority);  4 D. Louisell & C. Mueller, supra note 13, Section 446,
at 662-667;  E. Cleary, supra note 13, Section 219, at 545.

   /18/ See Andresen, 427 U.S. at 473 (authentication by expert);
United States v. Dreitzler, 577 F.2d 539, 553 n.24 (9th Cir. 1978)
(authentication by former secretary), cert. denied, 440 U.S. 921
(1979);  United States v. Kilgore, 518 F.2d 496, 498 (5th Cir. 1975)
(authentication by assistant based on initials), cert. denied, 425
U.S. 950 (1976) and 430 U.S. 905 (1977).

   /19/ See, e.g., United States v. Luschen, 614 F.2d 1164, 1174 (8th
Cir.), cert. denied, 446 U.S. 939 (1980);  United States v. Goichman,
547 F.2d 778, 782-784 (3d Cir. 1976);  5 D. Louisell & C. Mueller,
supra note 13, Section 515, at 78;  5 J. Weinstein & M. Berger, supra
note 14, Paragraph 901(b)(4)(01)-901(b)(4)(04), at 901-46 to 901-58.

   /20/ See United States v. Gordon, 634 F.2d 639, 643-644 (1st Cir.
1980);  5 D. Louisell & C. Mueller, supra note 13, Section 512, at
57-58 (same rule should apply to printed business forms);  5 J.
Weinstein & M. Berger, supra note 14, Paragraph 901(b)(4)(02), at
901-53 to 901-54.

   /21/ See Fed. R. Evid. 901(b), advisory committee note.

   /22/ 5 D. Louisell & C. Mueller, supra note 13, Section 515, at

   78.

   /23/ See, e.g., United States v. Johnson, 637 F.2d 1224, 1247-1248
(9th Cir. 1980);  D. Louisell & C. Mueller, supra note 13, Section
507, at 26;  5 J. Weinstein & M. Berger, supra note 14, Paragraph
901(b)(1)(01), at 901-21 to 901-22.

   /24/ D. Louisell & C. Mueller, supra note 13, Section 507, at 26;
5 J. Weinstein & M. Berger, supra note 14, Paragraph 901(b)(1)(01), at
901-22.

   /25/ See D. Louisell & C. Mueller, supra note 13, Section 505, at
12.

   /26/ Fed. R. Evid. 901(b) advisory committee note;  United States
v. One 1968 Piper Navajo Twin Engine Aircraft, 594 F.2d 1040, 1042
(5th Cir. 1979);  Rhoads v. Virginia-Florida Corp., 476 F.2d 82 (5th
Cir. 1973).

   /27/ It is implicit in Hoffman, 341 U.S. at 486-487, that a witness
who claims the Fifth Amendment privilege may not simply refuse to
testify but must assert the privilege in response to particular
questions.  Only then can the judge determine "from the implication of
the question, in the setting in which it is asked," whether an answer
would be incriminating (ibid.).  Thus, contrary to the suggestion in
the opinion below (Pet. App. 18a-19a), the courts of appeals have
almost uniformly held that a witness may not rest upon a blanket
assertion of the Fifth Amendment privilege when called to testify in a
criminal trial or grand jury proceeding.  See, e.g., United States v.
Rodriguez, 706 F.2d 31, 37 (2d Cir. 1983);  United States v. Horton,
629 F.2d 577, 579 (9th Cir. 1980);  United States v. Goodwin, 625 F.2d
693, 701 (5th Cir. 1980);  United States v. Hodgson, 492 F.2d 1175,
1177 (10th Cir. 1974).  While this issue appears to have arisen less
frequently in cases involving document subpoenas, the same rule should
apply in that context.  See In re Grand Jury Subpoena Duces Tecum,
supra, 697 F.2d at 279.

   As previously noted, an individual claiming the Fifth Amendment
privilege has the burden of showing that it is properly asserted.  See
pages 38-39, supra.  If a factual record is required to adjudicate the
claim, an in camera hearing may be held.  See In re Katz, 623 F.2d
122, 126-127 (2d Cir. 1980);  United States v. Goodwin, supra, 625
F.2d at 701;  United States v. Melchor Moreno, 536 F.2d 1042, 1049
(5th Cir. 1976);  United States v. Gomez-Rojaz, 507 F.2d 1213, 1220
(5th Cir.), cert. denied, 423 U.S. 226 (1975);  United States v. Fox,
549 F. Supp. 1362, 1363-1364 (S.D.N.Y. 1982).  Testimony at this
hearing may be made inadmissible in subsequent proceedings.  In re
Katz, supra, 623 F.2d at 127;  In re Grand Jury Empaneled (Markowitz),
supra, 602 F.2d at 474-475.

   /28/ See page 2 note 2, supra, categories 6-8, 10-12, 14, 16-18,
21, 26, 28.  The same is true of the telephone toll records sought by
the first subpoena (see Pet. App. 28a), the bank statements, cancelled
checks, check stubs, and bank deposit tickets requested by the second
and fifth subpoenas (see Pet. App. 30a, 36a), and at least 12 of the
25 categories of documents listed in the fourth subpoena (i.e.,
categories 5-10, 12-13, 15-17, 25).

   /29/ Categories 22-24.  In addition, "financial statements (third
subpoena, category 15;  fourth subpoena, category 14) may have been
prepared by someone other than the sole proprietor and were likely
sent to someone else, such as a bank or creditor.  "Workpapers" (third
subpoena, category 27) and a list of employees (third subpoena,
category 25) would fall under the same rule if prepared or seen by
someone other than the sole proprietor, such as an employee,
bookkeeper, or accountant.  Similarly, "(c)orrespondence and
memoranda" (fourth subpoena, category 24), if sent to the sole
proprietor, could be authenticated by their authors.

   /30/ See page 2 note 2, supra;  Pet. App. 33a.

   /31/ See page 34, supra.

   /32/ Categories 1-5, 9, 19-20.

   /33/ As previously noted, the existence and control of standard
business records are almost always a foregone conclusion even before a
subpoena for such records is issued.  And insofar as the act of
production indicates the sole proprietor's belief that the documents
turned over are those listed in the subpoena, that "testimony" is not
likely to lead to the discovery of other incriminating evidence.
Consequently, excluding evidence of the act of production will almost
always furnish a simple and complete remedy.

   /34/ Moreover, it is well settled that "an indictment valid on its
face is not subject to challenge on the ground that the grand jury
acted * * * on the basis of information obtained in violation of a
defendant's Fifth Amendment privilege." United States v. Calandra, 414
U.S. 338, 344-345 (1974);  see also United States v. Blue, 384 U.S.
251 (1966);  Costello v. United States, supra.

   /35/ In Porter, the court prevented any possibility that the act of
production might be used against the witness by requiring not only use
immunity with respect to the act of production but also "a protective
order forbidding the government from referring in any way before the
grand jury or at trial to the fact that (the witness) produced the
documents" (slip op. 14).  While we believe that such a prohibition
would be implicit in the exclusionary rule we advocate or in a grant
of act-of-production immunity, we would have no objection to the entry
of such a protective order as an additional safeguard of the witness's
rights.

   /36/ The immunity statutes were designed "to restrict the grant of
immunity to that required by the United States Constitution." United
States v. Apfelbaum, 445 U.S. 115, 122 (1980).  Therefore, where the
contents of subpoenaed documents are not protected by the Fifth
Amendment privilege, a statutory grant of immunity may be limited to
the arguably privileged act of production.  See United States v.
Porter, supra, slip op. 12 n.4.

   /37/ The government relied on Third Circuit precedent authorizing
the granting of non-statutory immunity in analogous circumstances.  In
re Grand Jury Empanelled (Markowitz), supra, 603 F.2d at 474 (hearing
on applicability of attorney-client privilege);  In re Grand Jury
Investigation ("A"), 587 F.2d 589, 597-598 (3d Cir. 1978) (hearing on
applicability of speech and debate clause);  United States v. Inmon,
568 F.2d 326, 332-333 (3d Cir. 1977) (hearing on pretrial motion to
dismiss on double jeopardy grounds).