RANDY BRASWELL, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-3

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
Fifth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      The custodian of a corporation's records may not
      resist a subpoena for those records on the ground
      that his act of producing them would violate his
      personal privilege against compulsory
      self-incrimination
      A. The collective entity rule remains valid and
         applies to this case
         1. The collective entity rule is an important and
            well-established principle of Fifth Amendment
            law
         2. The rationale supporting the collective entity
            rule remains sound and applies fully to cases in
            which the Fifth Amendment claim is based on the
            incriminatory character of an act of production
      B. Although this Court should not reach two other
         issues discussed in petitioner's brief, petitioner's
         analysis of those issues is flawed
         1. Petitioner's claim that he would be incriminated
            by the act of producing corporate documents
            improperly rests on the contents of those
            documents
         2. Petitioner's claim that a court may not require
            that someone else be designated to produce the
            corporate documents is incorrect
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (J.A. 19-25) is reported at 814
F.2d 190.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 31, 1987.
 A suggestion for rehearing en banc, which the panel treated as a
petition for rehearing, was denied on April 30, 1987 (Pet. App.
4a-5a).  The petition for a writ of certiorari was filed on June 26,
1987, and was granted on October 5, 1987.  The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   Whether the custodian of a corporation's records may resist a
subpoena for those records on the ground that his act of producing
them would violate his personal privilege against compulsory
self-incrimination.

                               STATEMENT

   1. Petitioner is the president and sole shareholder of Worldwide
Machinery Sales, Inc., and Worldwide Purchasing, Inc. (J.A. 19).  From
1965 to 1980, petitioner conducted his business, which includes the
sale and purchase of equipment, oil and gas interests, and land and
timber, as a sole proprietorship.  In 1980, he incorporated Worldwide
Machinery, a Mississippi corporation, and began conducting his
business through that entity.  In 1981, he incorporated Worldwide
Purchasing, also a Mississippi corporation, out of concern that the
name "Worldwide Machinery" did not adequately reflect the variety of
his pursuits.  J.A. 20.

   Petitioner funded Worldwide Purchasing with the stock he held in
Worldwide Machinery, and he retained ownership of 100 percent of the
stock of Worldwide Purchasing.  Both companies are active
corporations, maintaining a current status with the State of
Mississippi, keeping current corporate books and records, including
financial records and minutes, and filing corporate tax returns.  J.A.
20.  The corporations employ at least one person other than petitioner
-- a secretary, who is petitioner's sister-in-law (Pet. Br. 5).
Petitioner, his wife, and his mother are directors of both
corporations.  According to petitioner, however, neither his wife nor
his mother has any authority over the business affairs of the
corporations, although they are secretary-treasurer and vice-president
of the corporations, respectively (J.A. 20-21).

   2. On August 20, 1986, a federal grand jury sitting in the Southern
District of Mississippi subpoenaed the books and records of Worldwide
Purchasing and Worldwide Machinery.  /1/ The subpoena permitted
delivery of the subpoenaed documents to the agent serving the subpoena
(J.A. 21) and thus did not require petitioner to testify.

   Petitioner moved to quash the subpoena, arguing that the act of
producing the subpoenaed records would incriminate him in violation of
his Fifth Amendment privilege against compulsory self-incrimination.
The district court denied the motion (J.A. 10-14, 15-16).  Relying on
the Fifth Circuit's decision in In re Grand Jury Subpoena (Lincoln),
767 F.2d 1130 (1985), the court held (J.A. 12-14) that the custodian
of records of a collective entity, such as a corporation, has no Fifth
Amendment privilege to refuse to comply with a subpoena for those
records.  The court rejected petitioner's contention that the
so-called "collective entity rule" should not apply here because
petitioner's business was a purported one-man operation (J.A. 12).

   Petitioner subsequently appeared before the grand jury but refused
to produce the subpoenaed documents.  On motion of the government, the
district court held petitioner in contempt and ordered him committed
to the custody of the United States Marshal until he complied with the
court's order (J.A. 17-18).  The district court, however, stayed the
commitment pending appeal (Pet. App. 12a).

   3. The court of appeals affirmed (J.A. 19-25).  The court followed
its prior decision in Lincoln, although it noted (J.A. 24-25) the
existence of a conflict among the circuits on the issue of whether a
custodian of corporate records may resist a subpoena for those records
on Fifth Amendment grounds.  Relying on Bellis v. United States, 417
U.S. 85, 100 (1974), the court rejected petitioner's argument based on
the size of his corporations.  The court stated (J.A. 23) that
"corporations, no matter how small, are collective entities." On June
10, 1987, Justice White entered an order staying the mandate of the
court of appeals pending the disposition by this Court of the petition
for certiorari (Pet. App. 1a).

                          SUMMARY OF ARGUMENT

   A. Petitioner explicitly disclaims any argument that the Fifth
Amendment protects against disclosure of the contents of corporate
records.  He argues, however, that an individual in possession of
corporate documents may interpose his own personal Fifth Amendment
privilege to resist producing those documents on the ground that the
individual's act of production would be both incriminatory and
testimonial in nature.  Petitioner asks this Court to overrule the
"collective entity rule," which holds that a custodian may not block
access to corporate documents on the basis of his personal privilege.
That rule was established in 1911 and has been reaffirmed repeatedly,
most recently in Fisher v. United States, 425 U.S. 391 (1976).  The
collective entity rule, which is of enormous importance in the
investigation and prosecution of white-collar crime, complements the
undisputed principle that the corporation itself has no privilege
against incriminating itself or its officers or employees.

   The collective entity rule is as valid today as it has been
throughout the past 75 years.  It precludes Fifth Amendment privilege
claims based on the allegedly incriminating nature of the act of
producing documents as well as Fifth Amendment privilege claims based
on the allegedly incriminating contents of the documents.  The rule is
best explained by the recognition, prominent in this Court's past
decisions, that a corporate custodian acts as the agent of the
corporation and not as an individual when he produces documents;  his
freedom from compelled self-incrimination does not protect him against
incrimination by the corporation's act of producing documents.
Consistent with that rationale, the government may be precluded from
treating the act of production as an individual rather than a
corporate act in any subsequent proceeding.  The government may,
however, make use -- even against the corporate custodian -- of the
corporation's act of production to show the authenticity of the
documents, their existence, and their possession by the corporation.

   B. This Court should not reach two issues discussed in petitioner's
brief but not decided by the courts below:  whether the "facts and
circumstances" of this particular case show a realistic likelihood of
incrimination through the act of production and, if so, whether it
would be permissible to require the corporations to find or appoint
someone other than petitioner to produce the records.  If, as we
contend, the court of appeals correctly held that the collective
entity rule precludes petitioner from asserting any personal Fifth
Amendment privilege in this case, then this Court need not reach those
two issues in order to affirm.  If this Court were instead to disagree
with the court of appeals, then the issues discussed in petitioner's
brief would become relevant, but those issues should in that event be
addressed in the first instance by the lower courts on remand, not by
this Court.

   Although we do not believe that this Court should address those two
issues, we do note some critical flaws in petitioner's analysis of
them.  Petitioner's claim that he would be incriminated by the act of
producing corporate documents improperly rests on the contents of
those documents and not on what the act of producing them would tell
the government.  And petitioner's claim that a court may not require
that someone else be designated to produce the corporate documents is
contrary to the view of every federal court of appeals and would in
effect overturn the rule that corporations have no Fifth Amendment
privilege against compulsory self-incrimination.

                               ARGUMENT

 THE CUSTODIAN OF A CORPORATION'S RECORDS MAY NOT RESIST A SUBPOENA
FOR THOSE RECORDS ON THE GROUND THAT HIS ACT OF PRODUCING THEM WOULD
VIOLATE HIS PERSONAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION

   The issue in this case is whether the Fifth Amendment protects
petitioner from being required to produce the records of Worldwide
Purchasing and Worldwide Machinery.  Petitioner explicitly "does not
claim that the Fifth Amendment protects against the disclosure of the
contents of (the) records" of Worldwide Purchasing and Worldwide
Machinery (Pet. Br. 7;  see also id. at 12).  Such a claim would be
unavailing in view of this Court's decisions holding that the Fifth
Amendment does not protect the contents of business records
voluntarily prepared before the subpoena for them was issued.  United
States v. Doe, 465 U.S. 605 (1984);  Fisher v. United States, 425 U.S.
391 (1976).  Rather, petitioner argues that the Fifth Amendment
forbids compelling his act of producing the subpoenaed documents
because that act would incriminate him, in that it would implicitly
acknowledge the existence of the subpoenaed documents, their
authenticity, and his possession and control of them.  That argument,
however, is foreclosed by this Court's decisions that have repeatedly
held that a custodian of corporate records such as petitioner has no
Fifth Amendment privilege to refuse to comply with a subpoena for
those records.  Petitioner suggests that this Court has implicitly
abandoned that line of authority, and that in any event that line of
authority does not extend to a case in which the basis of the Fifth
Amendment claim is that the act of production is self-incriminatory.
Neither suggestion is convincing.

 A. The Collective Entity Rule Remains Valid and Applies to this Case

 1. The Collective Entity Rule Is an Important and Well-Established
Principle of Fifth Amendment Law

   a. Petitioner argues that a custodian of corporate documents may
refuse to produce those documents on the ground that the testimonal
component of the act of production would incriminate him.  This Court,
however, has repeatedly upheld subpoenas against the custodians of
documents belonging to corporations or other collective entities.  The
Court has done so in the face of claims that the documents will
incriminate the custodian, and "despite the fact that producing the
documents tacitly admits their existence and their location in the
hands of their possessor." Fisher, 425 U.S. at 411-412.  That
"collective entity rule" applies directly to this case, for the Court
has stated in the clearest possible terms that it applies to
corporations such as Worldwide Purchasing and Worldwide Machinery:
"It is well settled that no privilege can be claimed by the custodian
of corporate records, regardless of how small the corporation may be."
Bellis v. United States, 417 U.S. 85, 100 (1974);  see Grant v. United
States, 227 U.S. 74 (1913) (applying collective entity rule to records
of a defunct corporation that at all times had only one shareholder).
/2/

   This Court has often stated the collective entity rule in terms
similar to those employed in Bellis:  "no privilege can be claimed by
the custodian of corporate records" (417 U.S. at 100).  Petitioner,
however, seeks to engraft onto all such statements a limiting
construction under which they mean only that no privilege can be
claimed by the custodian of corporate records as to the contents of
those records.  If he succeeds, there will be nothing left of the
collective entity rule, for Fisher and Doe make it clear that,
entirely apart from the collective entity rule, no one may claim a
privilege as to the contents of voluntarily prepared business records.
 Thus, by arguing that the "act-of-production" doctrine should be
extended to corporate custodians, petitioner is in effect asking this
Court to overrule the collective entity rule altogether.

   The step that petitioner asks this Court to take is a large one
indeed.  The collective entity rule dates back to 1911, when the Court
recognized the rule in the seminal case of Wilson v. United States,
221 U.S. 361 (1911).  Since that time, the Court has reaffirmed the
collective entity rule "time and again" (Fisher, 425 U.S. at 411).

   The predicate for the collective entity rule is the even older rule
that the privilege against compelled self-incrimination extends only
to natural persons, not to corporations.  That rule, first articulated
in Hale v. Henkel, 201 U.S. 43 (1986), is as settled as any principle
of Fifth Amendment law.  See Bellis, 417 U.S. at 90;  United States v.
Kordel, 397 U.A. 1, 7 & n.9 (1970);  George Campbell Painting Corp. v.
Reid, 392 U.S. 286, 288-289 (1968);  Wheeler v. United States, 226
U.S. 478, 489 (1913).  /3/ Because a corporation cannot invoke the
privilege on its own behalf, and because the privilege may be involved
only by the party who is subject to incrimination (Hale v. Henkel, 201
U.S. at 69-70), it is clear that a corporation cannot invoke the Fifth
Amendment to protect against the incrimination of any natural person,
including the corporation's officers and employees.

   What remained to be decided after Hale was whether an individual
could refuse to produce corporate records on the ground that he would
incriminate himself.  In Wilson and its companion case, Dreier v.
United States, 221 U.S. 394 (1911), the Court held that he could not.
The Court stated in Wilson, 221 U.S. at 384:  "The appellant held the
corporate books and records subject to the corporate duty.  If the
corporation were guilty of misconduct, he could not withhold its books
to save it;  and if he were implicated in the violations of law, he
could not withhold the books to protect himself from the effect of
their disclosures." Summarizing Wilson, the Court added in Dreier (221
U.S. at 400):  "Dreier was not entitled to refuse the production of
the corporate records.  By virtue of the fact that they were the
documents of the corporation in his custody, and not his private
papers, he was under obligation to produce them when called for by
proper process."

   The collective entity rule has become firmly entrenched in this
Court's jurisprudence.  Since Wilson, this Court has reaffirmed the
rule on at least 11 occasions, and not a single Justice has questioned
the rule.  /4/ As recently as 1976 -- in the very case that petitioner
claims demonstrates that "(a)any determination of the availability of
a Fifth Amendment privilege which is a function of the entity whose
records are sought * * * is simply unworkable" (Pet. Br. 39-40) -- the
Court reaffirmed that "neither a (collective entity) nor the
individual (representatives of the entity) are shielded from compelled
production of * * * records (of the entity) on self-incrimination
grounds" (Fisher, 425 U.S. at 408).  /5/

   b. Besides being well established, the collective entity rule is
extremely inportant.  Grand jury subpoenas for corporate documents
provide invaluable assistance in the detection and prosecution of
whitecollar crime, which has been called "the most serious and all
pervasive crime problem in America today." /6/ As this Court has
recognized, "(t)he 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." White, 322 U.S.
at 700.  "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" (ibid.; accord Bellis, 417
U.S. at 90-91).  "If * * * an officer or employe of a corporation * *
* could refuse to produce the (corporation's) books and documents * *
* it would result in the failure of a large number of cases where the
illegal combination was determinable only upon the examination of such
papers" (Hale, 201 U.S. at 74).  /7/

   Detection of white-collar crime often depends not only on obtaining
access to documents, but also on comparing large numbers of facially
innocuous documents to discern a pattern that gives rise to an
inference of illegal behavior.  /8/ Accordingly, broad subpoenas for
large and sometimes general categories of documents -- exactly the
kind of subpoenas that courts have been reluctant to enforce over a
claim of act-of-production privilege -- are often the only means by
which crime can be detected.  /9/ In sum, the abolition of the
collective entity rule, and the recogniztion of a privilege on the
part of custodians of corporate documents, would have a devastating
impact on one of the most important areas of law enforcement.

   c. In seeking to justify abolition of the collective entity rule, a
few commentators and one court have asserted -- contrary to the
foregoing analysis -- that the recognition of an act-of-production
privilege for corporate custodians "would not * * * markedly frustrate
the Government's investigation of possible criminal offenses or its
enforcement of criminal provisions" (In re Sealed Case, 832 F.2d 1268,
1282 (D.C. Cir. 1987), (footnote omitted)).  Petitioner briefly echoes
this theme (Pet. Br. 35-36).  The argument is based on two premises:
that the government's ability to obtain the corporate records by
immunizing the custodian's act of production under the federal
immunity statute, 18 U.S.C. 6002-6003, is a fully adequate substitute
for the unimmunized compulsion of production, and that the
government's ability to obtain the corporate records merely by
addressing the subpoena to the corporation also serves all of the
government's legitimate interests (see In re Sealed Case, 832 F.2d at
1281-1282).  /10/ Both premises founder against the reality of
subpoena practice.

   Grants of immunity could have a severe impact on the government's
ability to detect and prosecute corporate crime.  Act-of-production
immunity might not be troublesome if it meant only that the government
could not make evidentiary use of the custodian's tacit acknowledgment
that the documents produced under a grant of immunity existed, were in
his possession, and were the documents described in the subpoena.  Use
immunity, however, normally involves a much more sweeping prohibition:
 it bars the government from making any derivative use of immunized
testimony in its investigation of crime.  Kastigar v. United States,
406 U.S. 441, 460 (1972);  see also Pillsbury Co. v. Conboy, 459 U.S.
248, 255 (1983).

   Because of the difficulties of proving at trial that immunized
testimonial conduct was not directly or indirectly used in the
investigation, it has been noted that "the prohibition against
derivative use may have disastrous consequences for the prosecution"
(Alito, Documents and the Privilege Against Self-Incrimination, 48 U.
Pitt. L. Rev. 27, 63 (1986)) and that "this alternative may preclude
prosecution of the claimant" (Heidt, supra, 49 Mo. L. Rev. at 482
n.172).  See also Mosteller, Simplifying Subpoena Law:  Taking the
Fifth Amendment Seriously, 73 Va. L. Rev. 1, 40 (1987) (arguing that
act-of-production immunity "is broad and far-reaching").  For example,
when an immunized witness produces documents, but the documents do not
show on their face that they are the documents described in the
subpoena, the witness has made a tacit statement concerning the nature
of the documents.  That "statement" may be a valuable investigative
lead.  /11/ Yet, if the corporate representative must be granted
act-of-production immunity, including derivative immunity, in exchange
for compelling him to produce corporate documents, the government may
be foreclosed from following up on that investigative lead unless it
is willing to forgo using subsequently uncovered evidence against the
immunized witness.  See Alito, supra, 48 U. Pitt. L. Rev. at 63-64.
As a consequence, the price of obtaining corporate records, when the
records are in the possession of a corporate representative who is
suspected of involvement in criminal conduct, may be to exempt the
corporate representative from prosecution, or at least to make
investigation and prosecution of such a representative even more
difficult than it has been in the past.  /12/

   The other argument sometimes advanced to show that abolition of the
collective entity rule will not harm the investigation of crime is
that the government can always obtain corporate records merely by
addressing the subpoena to the corporation rather than to an
individual because the corporation "must find some means by which to
comply because no Fifth Amendment defense is available to it (In re
Sealed Case, 832 F.2d at 1282 n.9;  see also id. at 1278).  Therefore,
the argument runs, the government always has a means to obtain
corporate records without granting anyone use immunity -- it need only
allow the corporation to select the individual who will physically
produce them.  Although we agree with the unanimous view of the courts
of appeals that this is a constitutionally valid way for the
government to obtain records, /13/ we do not share the District of
Columbia Circuit's optimism that it will always be an effective way.

   Consider, for example, the case of a defunct corporation (or a
corporation disbanded in anticipation of or in response to a
subpoena).  It generally will not be possible to address a subpoena to
that disbanded legal entity, as opposed to some natural person holding
its records.  Yet the traditional collective entity rule permits the
government to obtain corporate records in that situation by directing
the subpoena to the individual who had been the corporation's sole
shareholder.  Bellis, 417 U.S. at 88 ("no Fifth Amendment privilege
could be claimed with respect to corporate records even though the
corporation had previously been dissolved.")

   Suppose, however, that that rule were abolished, as petitioner
suggests it should be.  The government would no longer be able to
address the subpoena to the custodian of records of the defunct
corporation.  And, if a subpoena were addressed instead to the
(non-existent) corporation and were disobeyed, threats of contempt
could not induce compliance with the subpoena, for the corporation
would have no assets against which to impose coercive fines and no
officers to threaten with incarceration.  If the collective entity
rule were replaced with a rule that required the government to address
its subpoenas for corporate documents to the entity itself rather than
its custodian of records, it would surely become a standard ploy to
disband small corporations used for shady dealings as a way of
protecting the records of those corporations against the grand jury's
legitimate exercise of its subpoena power.

   A variation on the same theme is the argument that the government
should subpoena corporate records from an individual but should find
one who is not subject to potential incrimination.  That, too, is not
a practical answer.  It is often the case that only the subjects of an
investigation know the location of the corporate records most
pertinent to the criminal investigation.  In the case of small
entities, every qualified custodian may be subject to potential
criminal liability, or the person subject to potential liability may
try to exclude his colleagues from any access to the records (see,
e.g., Bellis, 417 U.S. at 99).  Petitioner argues that a corporate
employee asserting his Fifth Amendment privilege should have no duty
to assist an appointed corporate custodian in locating the corporate
records that are the subject of the subpoena (Pet. Br. 47).  If that
rule is adopted, the threat of a contempt sanction against corporate
employees for failing to comply with subpoenas to the corporation will
be meaningless.  In that setting, it is not difficult to imagine how
often incriminating documents will lose their way between the
corporation's files and the grand jury room.

   Thus, the proposed substitutes for the collective entity rule are
inadequate.  In spite of petitioner's claim to the contrary, abolition
of the collective entity rule, as petitioner proposes, would have a
devastating impact on enforcement of the laws against white-collar
crime.  Petitioner has offered no reason to doubt the truth of this
Court's observation in 1974 that "recognition of the individual's
claim of privilege with respect to the financial records of the
organization" would "largely frustrate legitimate governmental
regulation of such organizations" (Bellis, 417 U.S. at 90).

 2. The Rationale Supporting the Collective Entity Rule Remains Sound
and Applies Fully to Cases in Which the Fifth Amendment Claim Is Based
on the Incriminatory Character of an Act of Production

   Petitioner challenges the reasoning that has supported the
collective entity rule through the years (see Pet. Br. 31-40),
concluding that each justification provided for the rule either is
wrong or is inconsistent with the Court's Fifth Amendment analysis in
Fisher and Doe.  We submit that the reasons this Court has given to
support the collective entity rule remains sound, and that there is
nothing in either Fisher or Doe that undercuts them.

   a. The Court has set forth four related justifications for the
collective entity rule.  First, the Court has stated that a custodian
of corporate documents is deemed to waive his Fifth Amendment
privilege by accepting custody of the corporation's property.  See
Curcio, 354 U.S. at 124-125 ("By accepting custodianship of records
(the custodian) 'has voluntarily assumed a duty which overrides his
claim of privilege' * * * with respect to the production of the
records themselves.");  Wilson, 221 U.S. at 380.

   Second, as we have touched on above, the Court has reasoned that
the corporation, having no privilege of its own, should not be given a
de facto privilege by recognizing a personal privilege in the
custodian of its documents.  See Bellis, 417 U.S. at 90;  see also
Wilson, 221 U.S. at 384-385 ("The reserved power of visitation would
seriously be embarrassed, if not wholly defeated in its effective
exercise, if guilty officers could refuse inspection of the records
and papers of the corporation.").

   Third, the Court has noted that the collective entity rule is
essential to law enforcement and has only a minimal impact on Fifth
Amendment values.  As the Court explained in White, 322 U.S. at 700,

      (t)he 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 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 governmental
      regulations.

   See also Bellis, 417 U.S. at 90-91;  8 J. Wigmore, Evidence Section
2259b, at 360-361 (J. McNaughton rev. ed. 1961);  Alito, supra, 48 U.
Pitt. L. Rev. at 69-70;  Meltzer, Required Records, the McCarran Act,
and the Privilege Against Self-Incrimination, 18 U. Chi. L. Rev. 687,
705-706 (1951);  Developments in the Law -- Corporate Crime:
Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L.
Rev. 1227, 1283 (1979);  cf. Note, supra, 54 Fordham L. Rev. at
950-951 & nn.118 & 120.

   Fourth, and most impotant, the Court has pointed out that the
individual who produces corporate documents on behalf of the
corporation does not do so in his individual capacity, but rather as
the agent of the corporation, so that the act of production, if
incriminatory, constitutes incrimination of the individual by the
corporation, rather than incrimination of the individual by his own
words or deeds.  /14/ As this Court explained in White, 322 U.S. at
699,

      individuals, when acting as representatives of a collective
      group, cannot be said to be exercising their personal rights and
      duties nor to be entitled to their purely personal privileges.
      Rather they assume the rights, duties and privileges of the
      artificial entity or association of which they are agents or
      officers and they are bound by its obligations.  In their
      official capacity, therefore, they have no privilege against
      self-incrimination.  And the official records and documents of
      the organization that are held by them in a representative
      rather than in a personal capacity cannot be the subject of the
      personal privilege against self-incrimination, even though
      production of the papers might tend to incriminate them
      personally.

   Since the decision in White, that rationale for the rule has been
reiterated on several occasions.  See Curcio, 354 U.S. at 123;
Bellis, 417 U.S. at 90;  Fisher, 425 U.S. at 430 n.9 (Brennan, J.,
concurring in the judgment).

   Taken together, these justifications for the collective entity rule
can be summarized as follows:  A corporation called on to turn over
documents must act through a human being.  Necessarily, then, an
individual who has undertaken to act for the corporation is cloaked
with the corporate mantle when he performs the act of producing
documents.  The corporation may be compelled to produce documents
notwithstanding any incrimination of the corporation or any
individual.  Therefore, when an individual acts as the agent of the
corporation -- as he does whenever he produces corporate documents --
it is the corporation and not the individual who is turning over the
documents, and there is no privilege available for either the
individual or the corporation to claim.

   b. Petitioner attempts to distinguish the cases announcing and
reaffirming the collective entity rule by arguing that the collective
entity rule never applied to the testimonial aspects of the act of
producing corporate records.  If petitioner means to suggest that the
cases announcing the collective entity rule would have been decided
differently if the records custodians had sought to rely on the
incriminating content of their act of producing documents, rather than
the incriminating contents of the documents themselves, petitioner is
mistaken.

   In the first place, this Court's opinions stating the collective
entity rule have regularly expressed the rule as prohibiting the
custodian of records from invoking the Fifth Amendment as a basis for
resisting a subpoena, not just as a restatement of the principle that
the contents of the documents give rise to no Fifth Amendment claim.
/15/ To suggest that the Court would have been impressed in those
cases with an "act-of-production" argument that was not made is to
ignore the unequivocal terms in which the Court repeatedly rejected
the Fifth Amendment argument that was made.  In all of those cases,
the Court assumed that, if the records were personal rather than
corporate records, the custodian would have a valid claim under the
Fifth Amendment's proscription against compulsory self-incrimination;
yet the Court in each case affirmed the right of the government to
compel that incrimination in light of the corporate status of the
records and the collective entity rule.  /16/

   In the second place, this Court reiterated the collective entity
rule as accepted doctrine throughout the opinions in Curcio and
Fisher, cases in which the Court carefully focused on the potential of
testimonial incrimation through the compelled act of production.  /17/
Petitioner's assertion that "this Court has never addressed the
conflict between the Government's right to records, and the right of a
custodian * * * not to incriminate himself through his act of
producing them" (Pet. Br. 31) is thus entirely incorrect.  The Court
in Curcio and Fisher fully understood that the act of production can
incriminate the custodian of records, and the Court made it clear that
the custodian must produce the documents anyway.

   The real question in this case is not whether the collective entity
rule as framed before Fisher and Doe operated to bar an assertion of
an act-of-production privilege:  as we have shown, it plainly did.
The real question in this case is whether Fisher and Doe undermined
the prior cases announcing the collective entity rule.  We submit that
they did not.

   Fisher involved the act-of-production privilege of an individual
taxpayer, and Doe involved the act-of-production privilege of a sole
proprietor, whom the Court treated as having the same rights as an
individual.  Neither case involved an attempt to compel the
representative of a collective entity to produce that entity's
records.  Nonetheless, the Court in Fisher referred to the collective
entity rule as accepted doctrine, and the Court said nothing in Doe to
suggest any disapproval or questioning of the rule.  /18/ In light of
this Court's simultaneous approval of both the act-of-production
doctrine and the collective entity rule in Fisher, petitioner's
position must be that there is some logical inconsistency between the
two that escaped the Court's notice at the time.  We see no such
inconsistency.

   In Fisher, this Court rejected the argument that an individual may
decline to produce his voluntarily prepared business records on the
ground that the contents of those records might incriminate him.
Because the disclosure of the contents of such records is not
testimonial, the Court held, the privilege against compulsory
self-incrimination provides no protection against such disclosure.
When an individual is called on to produce such records, the Court
noted, the only possible source for a claim of privilege is the
testimonial aspect of the act of producing the documents.  Thus, the
Fisher Court held that, when a subpoena seeks the business records of
an individual or a sole proprietorship, the Court will not inquire
into the contents of the records, but will instead inquire whether the
act of production has testimonial, incriminatory aspects (425 U.S. at
410;  see also Doe, 465 U.S. at 612-613).

   Fisher's rejection of the proposition that the contents of business
records can ever be the subject of a valid Fifth Amendment claim was a
watershed holding.  But the Court's recognition of the
act-of-production doctrine was not new.  As petitioner concedes (Pet.
Br. 28 n.10;  see also id. at 13), that doctrine actually predates
Hale v. Henkel, supra.  See J. Wigmore, Evidence Section 2264, at 3124
(1904).  /19/ It was mentioned in passing in the Wilson case, 221 U.S.
at 378, and it received explicit judicial acceptance in the 1920s.
People v. Defore, 242 N.Y. 13, 27, 150 N.E. 585, 590 (1926) (Cardozo,
J.);  see also Haywood v. United States, 268 F. 795, 803 (7th Cir.
1920).  In 1957, this Court recognized the doctrine in Curcio, 354
U.S. at 125.  Justice Marshall discussed the act-of-production theory
in his dissenting opinion in Couch v. United States, 409 U.S. 322,
346-347 (1973), just one Term before writing the opinion for the Court
in Bellis, which once again reaffirmed the collective entity rule.
See generally Alito, supra, 48 U. Pitt. L. Rev. at 65-66.

   Fisher put an end to the argument that a claim of privilege could
be tied to the contents of the records;  it left only the act of
production as the basis for the privilege.  Doe refined the ruling in
Fisher that the act of production was the only basis on which an
individual or sole proprietor could ground his Fifth Amendment claim.
Neither case in any way expanded the act-of-production doctrine as a
basis for asserting the privilege.  That doctrine attained prominence
after Fisher and Doe not because it was given more vitality, but
because it was the only ground for resistance that was left.  See
generally Note, supra, 54 Fordham L. Rev. at 946-949.  The elimination
of the principal ground on which corporate custodians for six decades
had unsuccessfully sought to defeat subpoenas for corporate documents
did not suddenly promote the subsidiary act-of-production doctrine
into a convincing rebuttal to the collective entity rule.  /20/

   This Court has for years recognized the coexistence of the
act-of-production doctrine and the collective entity rule, and there
is not, as petitioner contends (Pet. Br. 31-40), any logical
inconsistency between the two doctrines.  First, the act-of-production
doctrine does not in any way undermine the agency theory on which the
collective entity rule principally rests.  If the individual producing
corporate documents is not acting in his individual capacity, but only
as an agent of the corporation, he cannot complain about being
incriminated by the corporation's act of producing the documents any
more than he can complain about being incriminated by the contents of
the documents that the corporation discloses.  Petitioner's attempt to
refute this underlying rationale for the collective entity rule (Pet.
Br. 37-39) rests in no part on Fisher and Doe but instead boils down
to an assertion that this Court was simply wrong to employ this
rationale in Wilson in 1911, Essgee in 1923, White in 1944, Curcio in
1957, and Bellis in 1974.

   We disagree with petitioner's assertion that this Court has
repeatedly erred by differentiating a corporate agent's production of
documents from the production of documents by an individual acting in
a nonrepresentative capacity.  Unless Hale v. Henkel is to be
overturned and corporations are to be given Fifth Amendment
privileges, it must be the case that some natural person can be
compelled to act as the corporation's agent in order to fulfill the
corporation's duty to produce documents.  And, as we have shown,
allowing the corporation rather than the government to select that
person will frustrate legitimate government efforts to obtain
documents and will predictably result in the nondisclosure of
documents to which the government has every right.

   Petitioner apparently regards the "agency" rationale for the
collective entity rule as a fiction that is both unjustified (Pet. Br.
38-39, 48) and without logical limit, as it could be used to compel
even oral testimony before the grand jury (id. at 39).  The answer to
the latter point is that this Court's decision in Curcio places a
logical limit on the use of the "agency" rationale:  it may not be
used as a basis for compulsion of oral testimony before the grand jury
except, perhaps, when that oral testimony does nothing more than
identify or authenticate previously produced documents (354 U.S. at
125);  but it may be used as a basis for compulsion of the production
of documents (id. at 123).

   Contrary to petitioner's claim (Pet. Br. 34-35), the Curcio case
does not support his contention that there can be no logical
distinction between the compulsion of incriminating oral testimony by
a custodian of records, which is forbidden in some circumstances by
Curcio, and the compulsion of tacitly communicative incriminating acts
of production by a custodian of corporate records, which according to
petitioner must also be forbidden.  See also NACDL Br. 14.  The
argument that there is no such logical distinction is ironic, for two
reasons.  First, the whole point of Curcio is that there is a
distinction between the oral testimony whose compulsion was attempted
in that case and the tacit communications inherent in the act of
producing documents.  The government argued stenuously in Curcio that
the collective entity rule recognized in White applied equally to
compelled production of records and compelled oral testimony about
"the whereabouts of books and records that have been subpoenaed but
not producted" (354 U.S. at 123).  The Court's response was to state
emphatically that compelled production of records and the compelled
oral testimony sought are not the same thing for purposes of the Fifth
Amendment (id. at 123-124, 128).  The very argument that petitioner
now makes against the government is the argument that the Court
rejected when it was advanced by the government.  Second, the Court in
Curcio was careful to limit its holding to forbid only testimony about
the whereabouts of unproduced records and to leave open the question
whether, as had been held in United States v. Austin-Bagley Corp., 31
F.2d 229 (2d Cir. 1929) (L. Hand, J.), "a corporate officer who has
been required by subpoena to produce corporate documents may also be
required, by oral testimony, to identify them" (354 U.S. at 125).
Thus, contrary to petitioner's assertion (Pet. Br. 22), Curcio does
not even stand for the proposition that compelled oral testimony by a
corporate custodian identifying records is impermissible, much less
the proposition that equivalent communications that are tacit in the
act of producing records cannot be compelled.

   Petitioner's challenges to the other justifications that have
historically been cited in support of the collective entity rule are
also unpersuasive.  The implied-waiver theory is no less valid now
than it has been in the past.  Although petitioner suggests that a
waiver of the Fifth Amendment privilege must be knowing, intelligent,
and voluntary, the Court has never required such an express waiver
before applying the collective entity rule in the past, and petitioner
gives no reason to require it now.  In this area of the law, as in
others, /21/ the necessity of government regulation may mean that
one's voluntary choice to do business in a particular way -- without
the need for any "knowing, voluntary, and intelligent" waiver -- leads
to one's having less consitutional protection from government
oversight than one would have enjoyed in another business or by doing
business in a different way.  /22/

   Likewise, the practical considerations that have been cited in
justification of the collective entity rule are at least as compelling
now as they have been in the past.  The law enforcement needs for
access to corporate records are as great now as ever, and, as we have
demonstrated, recognizing an act-of-production privilege for corporate
representatives would seriously impair that interest.  At the same
time, the self-incrimination concerns that must be balanced against
those law enforcement interests are much less compelling now than they
were before Fisher and Doe, now that it has been recognized that there
is no Fifth Amendment interest in shielding the contents of documents,
but only a Fifth Amendment interest in preventing the much more
limited disclosures inherent in the act of production.  /23/

   Because the collective entity rule is based on the fact that the
corporate custodian is acting throughout in his representative rather
than his individual capacity, a court may preclude the government from
treating the custodian's conduct as his individual act for other
purposes.  Thus, because it is not the individual but the corporation
that has turned over the documents, the government may not make
evidentiary use of the fact that a particular individual within the
corporation performed the physical act of production.  That is not to
say that the individual producing the documents may be given
"constructive use immunity" for the act of production -- far from it.
The government has every right to use the corporation's act of
production to incriminate the individual, and any inferences drawn
from the fact that the corporation produced the documents -- as
opposed to inferences drawn from the fact that a particular individual
produced the documents -- are fully available for the government's
use.  Use immunity protects a person who has incriminated himself
against evidentiary or derivative use of the immunized communication
by which he did so.  By contrast, a prohibition against the
government's treating the corporation's act of production as the
individual's act would derive from the fact that the individual, as
individual, is deemed to have performed no such act.  /24/

   Thus, the act of production by a corporate representative, if
properly treated as the act of the corporation, may have testimonial
value at a trial of the representative.  It would authenticate the
records and establish their existence and possession by the
corporation -- evidence that could be used against the representative
because it is the corporation's act and the unprivileged contents of
the documents that incriminate him.  The basis for the collective
entity rule is not that the act of production is without testimonial
value.  In fact, the Fisher Court recognized the testimonial value of
that act even while reaffirming the collective entity rule (425 U.S.
at 411-412).  The rule is instead based on the proposition that the
testimony is the corporation's, not the representative's.  Because the
act of production is the corporation's, there is no reason it may not
be used against the representative for whatever purpose the government
chooses.  The only thing the government may not do is to assert that
the act of production was the personal testimonial act of the
representative.  /25/

   In sum, the collective entity rule rests on a solid foundation, and
we submit that the Court should reaffirm its holding that a corporate
custodian is acting on behalf of the corporation, and not as an
individual, when he produces corporate records.  The individual's
privilege against compelled self-incrimination can be fully protected
by forbidding the government to treat the act of production as
something that it is not:  an individual act.  The individual's desire
not to have the corporation incriminate him is not protected, because
the Fifth Amendment provides no such protection.

 B. Although this Court Should Not Reach Two Other Issues Discussed in
Petitioner's Brief, Petitioner's Analysis of Those Issues Is Flawed

   Petitioner's brief discusses two issues that were not reached by
either the district court or the court of appeals.  Petitioner
endeavors to show that the "facts and circumstances" of this case
(Fisher, 425 U.S. at 410) support his claim that compelled production
of corporate records would incriminate him (Pet. Br. 40-48).
Petitioner also argues that, once he establishes that claim, only
statutory use immunity and not the appointment of someone elso to
produce the records will comport with the Fifth Amendment (id. at
46-47;  see also NACDL Br. 21-30).  We submit that neither issue is
ripe for resolution by this Court.

   Our primary position, of course, is that these issues are not
relevant to this case because, as the court of appeals held, the
collective entity rule requires petitioner to comply with the subpoena
without any further inquiry.  If the Court rejects that argument and
holds that there are some circumstances in which a custodian of
corporate records may invoke his personal Fifth Amendment rights in
response to a subpoena for those documents, we submit that the record
is not adequate to permit the Court to determine whether petitioner
may invoke the privilege in this case.

   According to Doe, the question whether "the act of producing
records would involve testimonial self-incrimination" in a particular
case rests on a "determination of factual issues" (465 U.S. at 613-614
(footnote omitted)).  No such factual determination has yet been made
in this case, because the government argued and both courts below
agreed that any such factual determination was irrelevant to the task
at hand.  If this Court disagrees, then in our view both petitioner
and the government would be entitled to make a new evidentiary
presentation to the district court and to have that court resolve the
issue, in the first instance, based on any findings of fact it might
make.  Indeed, petitioner concedes, at least in part, that "a remand
for (a) limited purpose might be appropriate" (Pet. Br. 46 n.21).

   Only if petitioner succeeded in making a factual showing supporting
a claim of act-of-production privilege would it become necessary to
consider whether compelled production of the corporate records through
some other person would be appropriate.  Furthermore, resolution of
that issue again might require factual findings.  For example, despite
the claimed status of Worldwide Purchasing and Worldwide Machinery as
one-man operations, each corporation has two other officer-directors
(petitioner's wife and mother) and one other employee (a secretary,
also related to petitioner), and it might become necessary to
determine whether there is any legal or factual obstacle to an attempt
to require them to produce the corporate records.

   We therefore suggest that this Court not resolve these issues.  If
the Court is not disposed to affirm the judgment of the court of
appeals on the grounds we have argued above, it should leave the
remaining issues to the lower courts on remand for resolution in the
first instance.  We limit our discussion of these issues accordingly.
Because petitioner has addressed these issues, however, we briefly
mention what we perceive to be the major flaws in petitioner's
analysis.

 1. Petitioner's Claim that He Would Be Incriminated By the Act of
Producing Corporate Documents Improperly Rests on the Contents of
Those Documents

   As Fisher makes clear, there are two distinct ways in which the
response to a document subpoena may communicate information to the
government:  the contents of voluntarily prepared records will
communicate information (a fact that gives rise to no Fifth Amendment
scrutiny), and the very act of production will sometimes communicate
additional information.  The sole object of Fifth Amendment protection
is the additional information that is communicated by the act of
production itself and not by the contents of the records.  /26/

   Petitioner initially appears to recognize this point.  See Pet. Br.
41 (recognizing that privilege applies to "what the government will
learn, not just from the contents of the records, but from Braswell's
act of producing them").  But his effort to show that the act of
production would incriminate him is not faithful to the distinction
between the unprotected contents of the records and the protected
communicative content of the act of production.  In arguing that his
tacit communication of the fact that the documents exist would
incriminate him, petitioner rests on what the contents of those
documents would show.  See Pet. Br. 42 ("(d)ocuments are called for
which may reflect taxable financial transactions");  id. at 43 ("(t)he
records sought may reflect that items expensed on the corporate
returns were in fact of a personal non-deductible nature");  id. at 45
(relying extensively on contents).  /27/ In arguing that his tacit
authentication of the documents would incriminate him, petitioner
ignores the methods of authentication that are available to the
government using the contents of the documents rather than the act of
production.  See, e.g., Fed. R. Evid. 901(b)(3) and (4);  Fed. R.
Evid. 901(b) advisory committee note;  5 D. Louisell & C. Mueller,
Federal Evidence Section 515, at 78 (1981).  /28/

   Petitioner's analysis of the "possession and control" element of
the Fisher test perhaps comes closer to recognizing the distinction
between the unprotected contents of business records and the protected
act of production.  Yet, if it was a "foregone conclusion" in Fisher
that possession and control would be established even without the act
of production (425 U.S. at 411), surely that is just as true here.
Petitioner, after all, cannot deny that any records of Worldwide
Purchasing and Worldwide Machinery are in his possession and control:
to the contrary, he emphasizes his "total control over the contents of
the records of the business" and his "'abolute, total, complete'"
authority over the corporation (Pet. Br. 5).  Petitioner, indeed,
admits in so many words that he is "the custodian of * * * records" of
Worldwide Purchasing and Worldwide Machinery (id. at 7).  /29/ This
case is not at all like Doe, in which the court of appeals had
postulated that "'the Government (was) unable to prove * * * that the
appellee even is somehow connected to the business entities under
investigation'" (465 U.S. at 613-614 n.12).  Petitioner's connection
to Worldwide Purchasing and Worldwide Machinery is a matter of public
knowledge and is expressly conceded by petitioner.

   In sum, petitioner's analysis may tell us something about what the
government will know following petitioner's response to the subpoena.
But it tells us nothing about what that act of production -- as
opposed to the unprotected contents of business records and foregone
conclusions -- "adds * * * to the sum total of the Government's
information" (Fisher, 425 U.S. at 411).

 2. Petitioner's Claim that a Court May Not Require That Someone Else
Be Designated to Produce the Corporate Documents Is Incorrect

   Abolition of the collective entity rule, which is what petitioner
seeks in this case, makes no sense unless it can be done consistently
with the undisputed principle that corporations have no Fifth
Amendment privilege and must produce their documents in response to a
subpoena, no matter who will be incriminated.  That is why every court
of appeals that has departed from the traditional rule has
nevertheless held that, if a request is directed to the corporation
and not to its custodian of records, the corporation must produce the
records, appointing an agent from outside the corporation if necessary
to do so (see note 13, supra).

   Petitioner (Pet. Br. 46-47) and amicus (NACDL Br. 21-30) criticize
this result.  They insist that, in cases where only the target of an
investigation has access to or knowledge of some or all of the
corporate records, the Fifth Amendment permits that person to maintain
silence, even in response to the simple question -- asked by the
corporation's own selected agent -- "Where are the corporate records,
so that I may examine them and try to determine for myself which ones
are responsive to the subpoena?"

   For 80 years, this Court has consistently maintained that every
corporation, regardless of size, must turn over its documents in
response to valid demands.  Without a single exception that we know
of, the lower courts still adhere to that rule, Petitioner purports to
accept that rule.  See Pet. Br. 34 ("(a) custodian claiming the
privilege is not denying the Government's right to the records").
Yet, if petitioner prevails on this last argument, that will cease to
be the law:  there will be cases in which the government's only
choices are granting use immunity to the target of the investigation
or foregoing all access to a corporation's documents.  The
Constitution has never been held to require that result.  It should
not be so construed today.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ROY T. ENGLERT, JR.

      Assistant to the Solicitor General

   JOEL M. GERSHOWITZ

      Attorney

   JANUARY 1988

   /1/ The subpoena requested "all books, records, papers, and other
data relating to Worldwide Machinery Sales, Inc., and Worldwide
Purchasing, Inc., for the years 1982, 1983, 1984, and 1985, to
include, but not limited to the following:  (1) receipts and
disbursements journals;  (2) general ledger and subsidiaries;  (3)
accounts receivable/accounts payable ledgers, cards, and all customer
data;  (4) bank records of savings and checking accounts, including
statements, checks, and deposit tickets;  (5) contracts, invoices --
sales and purchase, conveyances, and correspondence;  (6) minutes and
stock books and ledgers;  (7) loan disclosure statements and
agreements;  (8) liability ledgers;  (9) retained copies of Forms
1120, W-2, W-4, 1099, 940 and 941." J.A. 21 n.1;  see J.A. 6-7.

   /2/ Petitioner argued in the court of appeals (C.A. Br. 12, 19-21),
and in his petition for a writ of certiorari (Pet. 16-17) that the
collective entity rule does not apply to this case because Worldwide
Purchasing and Worldwide Machinery are not collective entities.
Indeed, that was petitioner's primary argument in the court of
appeals;  his brief declared that it was "fine with" him (C.A. Br. 19)
to apply an analytic framework under which, "if the individual holds
the records of a collective entity in a representative capacity, * * *
no privilege will be recognized" (ibid.).  Petitioner appears to have
abandoned that argument in this Court, however.  The portion of
petitioner's brief that attempts to distinguish or to repudiate the
collective entity rule (id. at 11-40) makes no mention of the argument
that Worldwide Purchasing and Worldwide Machinery are not collective
entities;  petitioner is in fact emphatic that his argument applies to
"(t)he Fifth Amendment rights of any records custodian, for any
entity, albeit huge corporation, one-man corporation, or
sole-proprietorship" (id. at 40;  see also id. at 9;  NACDL Br. 12-13
(argument applies to "custodian of documents of any organization --
regardless of size")).  Therefore we, like petitioner and amicus, will
focus our arguments on the question whether the collective entity rule
applies to an attempt to invoke the Fifth Amendment on
act-of-production grounds, and not on whether petitioner's
corporations are otherwise exempt from the rule.

   /3/ In order for the collective entity rule to apply, it is
sufficient (Bellis, 417 U.S. at 100) but not necessary (id. at 89)
that the artificial entity in question be a corporation.  Thus, the
Court has held that the Fifth Amendment privilege may not be asserted
as to the records of labor unions, United States v. White, 322 U.S.
694, 700 (1944);  political parties, Rogers v. United States, 340 U.S.
367, 371-372 (1951);  or business partnerships, Bellis v. United
States, supra.

   /4/ See Wheeler, 226 U.S. at 489-490;  Grant, 227 U.S. at 79-80;
Essgee Co. v. United States, 262 U.S. 151, 155-158 (1923);  United
States v. White, 322 U.S. 694 (1944);  Oklahoma Press Publishing Co.
v. Walling, 327 U.S. 186, 205-206, 208, 210 (1946);  Rogers v. United
States, 340 U.S. 367, 371-372 (1951);  Curcio v. United States, 354
U.S. 118, 122-125, 128 (1957);  McPhaul v. United States, 364 U.S.
372, 380 (1960);  George Campbell, 392 U.S. at 288-289;  Bellis, 417
U.S. at 89-92;  Fisher, 425 U.S. at 408, 411-412, 413 & n.14.  Not all
of those decisions were unanimous, but in each case the dissent either
specifically endorsed the collective entity rule (see, e.g., McPhaul,
364 U.S. at 387;  George Campbell, 392 U.S. at 290) or took issue with
the majority on other grounds without discussing the validity of the
collective entity rule.  Justice McKenna dissented alone in the Wilson
case, but he subsequently joined the Court's opinions in Wheeler,
Grant, and Essgee, all of which reaffirmed the holding of Wilson.

   /5/ Justice Brennan and Justice Marshall, in separate opinions,
took issue with the majority opinion in Fisher in several respects,
but they explicitly agreed with the Court that a custodian of the
records of a collective entity may not claim his privilege as a ground
for refusing to produce the entity's records.  425 U.S. at 426, 430
n.9 (Brennan, J., concurring in the judgment);  id. at 432 (Marshall,
J., concurring in the judgment).

   /6/ Conyers, Corporate and White-Collar Crime:  A View by the
Chairman of the House Subcommittee on Crime, 17 Am. Crim. L. Rev. 287,
288 (1980).  The annual cost of white-collar crime is estimated to be
between $40 billion and $200 billion, in contrast to the annual cost
of $4 billion attributable to crimes against property (id. at 288,
297).

   /7/ "Groups frequently are powerful and their illegal doings
frequently are provable 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." 8 J. Wigmore, Evidence Section 2259b, at 360-361 (J.
McNaughton rev. ed. 1961).  See generally Note, Fifth Amendment
Privilege and Compelled Production of Corporate Papers After Fisher
and Doe, 54 Fordham L. Rev. 935, 935-936 (1986).

   /8/ See Applegate, The Business Papers Rule:  Personal Privacy and
White Collar Crime, 16 Akron L. Rev. 189, 195-198 (1982);  Vaira, Use
of the Grand Jury to Obtain Business Records, 59 Chi. B. Rec. 32
(1977).

   /9/ Applegate, supra, 16 Akron L. Rev. at 198;  Heidt, The Fifth
Amendment Privilege and Documents -- Cutting Fisher's Tangled Line, 49
Mo. L. Rev. 439, 488 (1984).

   /10/ Amicus National Association of Criminal Defense Lawyers makes
a different argument in an effort to show that abolition of the
collective entity rule will not devastate the government's ability to
detect and prosecute white-collar crime.  Amicus contends that in only
a "small number of cases" will use immunity be required as a
prerequisite to compulsion of the custodian's production of the
records (NACDL Br. 4), apparently because amicus believes that the
custodian's claim of self-incrimination will fail on its merits in
most cases.  If that is so, then one must wonder why this issue has
arisen in at least 17 published opinions of the courts of appeals just
since 1984 (see Pet. Br. 31-32 n.11).  The answer, of course, is that
every corporate custodian with sufficient ingenuity can come up with a
way to contend that the very act of producing records would somehow
incriminate him, especially if it suffices to argue, as petitioner
does, that "compliance with the subpoena would compel (the custodian)
* * * to disclose the very existence of particular documents of which
the Government is ignorant" (id. at 42).  Every subpoena, except the
hypothetical one that identifies each requested document with such
specificity as to render it unique, potentially could compel the
custodian to reveal the "existence of particular documents of which
the Government is ignorant."

   /11/ As we explain in the next section, if the witness is a
custodian of corporate documents, the government is entitled to that
investigative lead under the collective entity rule, even though the
particular individual whose knowledge is tacitly communicated by the
production of the document may be incriminated by that tacit
communication.  Although the government cannot compel that individual
to provide certain kinds of oral testimony (see Curcio v. United
States, supra), the government is entitled to learn what the
corporation knows (see United States v. Kordel, 397 U.S. 1, 8 (1970)),
and the corporation -- through the individual acting on its behalf --
knows that the document fits within the categories described in the
subpoena.

   /12/ Grants of act-of-production immunity would be especially
problematic if, as one commentator has recently suggested, such
immunity precludes the government from using the contents of the
subpoenaed records against the individual who produced them under a
grant of immunity.  See Mosteller, supra, 73 Va. L. Rev. at 43;  cf.
In re Sealed Case, 791 F.2d 179 (D.C. Cir. 1986) (leaving question
open), cert. denied, No. 86-312 (Oct. 20, 1986).  Fortunately, this
Court has already rejected that proposition.  See Doe, 465 U.S. at 617
n.17.  Indeed, petitioner concedes that the government, once it
obtained corporate documents under a grant of act-of-production
immunity, "'could then use the contents against any officer of the
company, including the person to whom immunity was granted.'" Pet. Br.
35 (quoting Note, Organizational Papers and the Privilege Against
Self-Incrimination, 99 Harv. L. Rev. 640, 649-650 (1986)).

   /13/ In re Sealed Case, 832 F.2d at 1278, 1282 & n.9;  United
States v. Antonio J. Sancetta, M.D., P.C., 788 F.2d 67, 74 (2d Cir.
1986) (one-person corporation);  In re Two Grand Jury Subpoenae Duces
Tecum, 769 F.2d 52, 57 (2d Cir. 1985) ("(t)here simply is no situation
in which the Fifth Amendment would prevent a corporation from
producing corporate records");  In re Special Federal Grand Jury
Empanelled October 31, 1985, 819 F.2d 56, 57 n.1 (3d Cir. 1987);
United States v. Rogers Transp., Inc., 793 F.2d 557, 558 (3d Cir.
1986) (one-person corporation);  In re Grand Jury Matter (Brown), 768
F.2d 525, 529 & n.4 (3d Cir. 1985) (en banc);  United States v. Lang,
792 F.2d 1235, 1240-1241 (4th Cir. 1986), cert. denied, No. 86-420
(Dec. 1, 1986);  In re Grand Jury No. 86-3 (Will Roberts Corp.), 816
F.2d 569, 573 (11th Cir. 1987) (one-person corporation).  There are
the decisions on point of the five circuits that allow a corporate
custodian, in at least some circumstances, to assert a personal
act-of-production privilege in response to a subpoena for corporate
documents.  In the remaining circuits, the issue has never arisen
because the courts have not departed from the traditional rule that
the custodian may be compelled personally to produce the records of
the collective entity.  See J.A. 24-25 (collecting cases).

   /14/ See Wilson, 221 U.S. at 385 ("When the appellant became
president of the corporation and as such held and used its books for
the transaction of its business committed to his charge, he was at all
times subject to its direction, and the books continuously remained
under its control.  If another took his place his custody would yield.
 He could assert no personal right to retain the corporate books
against any demand of government which the corporation was bound to
recognize.").  Essgee, 262 U.S. 158 ("(A)n officer of a corporation in
whose custody are its books and papers is given no right to object to
the production of the corporate records because they may disclose his
guilt.  He does not hold them in his personal capacity and is not,
therefore, protected against their production or against a writ
requiring him as agent of the corporation to produce them.").

   /15/ See, e.g., Wheeler, 226 U.S. at 490 ("nor does the privilege
of individuals against self-incrimination in the production of their
own books and papers prevent the compulsory production of the books of
a corporation with which they happen to be or have been associated");
White, 322 U.S. at 699 ("the official records and documents of (an)
organization that are held by (individuals) in a representative rather
than in a personal capacity cannot be the subject of the personal
privilege against self-incrimination, even though production of the
papers might tend to incriminate them personally");  Oklahoma Press,
327 U.S. at 208 ('the fair distillation (of prior cases), insofar as
they apply merely to the production of corporate records and papers in
response to a subpoena or order authorized by law and safeguarded by
judicial sanction, seems to be that the Fifth Amendment affords no
protection by virtue of the self-incrimination provision, whether for
the corporation or for its officers");  Rogers, 340 U.S. at 371-372
(footnotes omitted) ("petitioner had no privilege with respect to the
books of the Party, whether it be a corporation or an unincorporated
association");  Curcio, 354 U.S. at 122 ("Nor may the custodian of
corporate books or records withhold them on the ground that he
personally might be incriminated by their production.");  McPhaul, 364
U.S. at 380 (repeating above-quoted language from White);  Bellis, 417
U.S. at 100 ("It is well settled that no privilege can be claimed by
the custodian of corporate records, regardless of how small the
corporation may be.");  Fisher, 425 U.S. at 411-412 ("This Court has
also time and again allowed subpoenas against the custodian of
corporate documents * * * over claims that the documents will
incriminate the custodian despite the fact that producing the
documents tacitly admits their existence and their location in the
hands of their possessor.");  see also Wilson, 221 U.S. at 384
(custodian "could not withhold the books to protect himself from the
effect of their disclosures");  Dreier, 221 U.S. at 400 ("By virtue of
the fact that they were the documents of the corporation in his
custody, * * * (Dreier) was under obligation to produce them when
called for by proper process.");  Essgee, 262 U.S. at 158 (custodian
of corporate records "is not * * * protected against their production
or against a writ requiring him as agent of the corporation to produce
them").

   /16/ The decisions on which we rely are in no way undercut by the
fact that we now know that the Fifth Amendment claim as to "contents"
should not have succeeded for the independent reason that the contents
were voluntarily prepared (see Pet. Br. 38).  The fact that the Court
has now adopted a rule that would have provided an alternative
justification for the results in those cases is no warrant for
ignoring the quite different rule -- the collective entity rule --
that the Court announced as the basis for its holdings.

   /17/ Curcio, 354 U.S. at 122 ("Nor may the custodian of corporate
books or records withhold them on the ground that he personally might
be incriminated by their production.");  ibid. ("the books and records
of corporations cannot be insulated from reasonable demands of
governmental authorities by a claim of personal privilege on the part
of their custodian");  id. at 123-124 ("A custodian, by assuming the
duties of his office, undertakes the obligation to produce the books
of which he is custodian in response to a rightful exercise of the
State's vistorial powers.");  id. at 124-125 ("By accepting
custodianship of records he 'has voluntarily assumed a duty which
overrides his claim of privilege' * * * with respect to the production
of the records themselves.");  id. at 125 ("The custodian's act of
producing books or records in response to a subpoena duces tecum is
itself a representation that the documents produced are those demanded
by the subpoena.");  id. at 126 n.4 (quoting United States v.
Austin-Bagley Corp., 31 F.2d 229, 233, 234 (2d Cir. 1929)) ("'That the
production of the books and documents could be compelled, even if they
contained entries incriminating the accused, is now well-settled law.
* * * By accepting the office of custodian the holder not only exposes
himself to producing the documents, but to making their use possible
without requiring other proof than his own.'");  354 U.S. at 128
('"The compulsory production of corporate or association records by
their custodian is readily justifiable, even though the custodian
protests against it for personal reasons * * *.");  Fisher, 425 U.S.
at 408 ("despite Boyd (V. United States, 116 U.S. 616 (1886)), neither
a partnership nor the individual partners are shielded from compelled
production of partnership records on self-incrimination grounds");
id. at 411-412 ("This Court has also time and again allowed subpoenas
against the custodians of corporate documents * * * over claims that
the documents will incriminate the custodian despite the fact that
producing the documents tacitly admits their existence and their
location in the hands of their possessor.");  id. at 413 (in prior
cases, "the custodian of (a collective entity's) books * * * was
ordered to respond to a subpoena * * * even though doing so involved a
'representation that the documents produced are those demanded by the
subpoena'");  id. at 413 n.14 ("In these cases compliance with the
subpoena is required even though the books have been kept by the
person subpoenaed and his producing them would itself be sufficient
authentication to permit their introduction against him.").

   /18/ It is therefore difficult to understand why the District of
Columbia Circuit recently "f(ou)nd it significant that in Doe the
Supreme Court * * * did not expressly limit its statement of the
'act-of-production' doctrine to individuals or sole proprietors, nor
did it deny that custodians of collective entities could invoke the
privilege on behalf of themselves" (In re Sealed Case, 832 F.2d at
1278 (emphasis added in part)).  There having been no issue about
collective entities before the Court in Doe, there was no reason for
the Court to make express in Doe what it had already made express in
Fisher (as well as Curcio) about the interrelationship of the
act-of-production doctrine and the collective entity rule.

   /19/ In light of petitioner's claim that the Court's focus on the
act of production in deciding document subpoena cases somehow
undercuts the collective entity rule, it is particularly noteworthy
that the Wigmore treatise, which gave birth to the act-of-production
theory in 1904, also supports the collective entity rule.  See 8 J.
Wigmore, Evidence Section 2259b (J. McNaughton rev. ed. 1961).

   /20/ Reliance on the act-of-production doctrine recognized in
Fisher and Doe as a basis for overturning the collective entity rule
would be particularly curious, because the reason a corporate
custodian resists a subpoena for corporate documents seldom has much
to do with the incriminating aspect of the act of production.
Instead, it is safe to say that the vast majority of all disputes in
which the act-of-production doctrine is invoked are really attempts to
avoid having to produce documents because of their incriminatory
content (see Couch, 409 U.S. at 348 (Marshall, J., dissenting);
Alito, supra, 48 U. Pitt. L. Rev. at 46, 48).  Petitioner virtually
concedes as much (Pet. Br. 41 & n.17).  To overturn the collective
entity rule through the device of the act-of-production doctrine would
thus in effect revitalize, and greatly expand, the incriminating
nature of the contents of documents as a basis for resisting subpoenas
-- an odd result to attribute to two cases that purported to reject
that ground for resisting subpoenas once and for all.  In In re Grand
Jury Matter (Brown), 768 F.2d 525 (3d Cir. 1985) (en banc), the court
of appeals reached a contrary conclusion by reasoning that Fisher and
Doe created new Fifth Amendment doctrine by "mak(ing) the significant
factor, for the privilege against self-incrimination, * * * the
communicative or noncommunicative nature of the arguably incriminating
disclosures sought to be compelled" (768 F.2d at 528;  accord In re
Sealed Case, 832 F.2d at 1277).  Petitioner endorses this reasoning
explicitly (Pet. Br. 33) and similarly postulates that all pre-Fisher
cases were decided "(b)efore (this Court's) adoption of a compelled
testimony standard" (Pet. Br. 37).  But it has always been necessary,
in order to invoke the Fifth Amendment, to show that the arguably
incriminating disclosure sought to be compelled is testimonial.  It
was fully recognized at the time of Wilson that the Fifth Amendment
privilege applies only to testimonial communications (see, e.g., Holt
v. United States, 218 U.S. 245 (1910)), and the contents of documents
were at that time regarded as testimonial communications.  The Court
nonetheless saw fit to make an exception to the privilege for the
contents of corporate documents, even when compelled production would
incriminate the subpoenaed corporate representative himself.

   /21/ See, e.g., New York v. Burger, No. 86-80 (June 19, 1987)
(junkyard owners may be subjected to searches that would violate the
Fourth Amendment if they were engaged in other businesses);  Shapiro
v. United States, 335 U.S. 1 (1948) (entry into particular regulated
industries subjects individuals and collective entities to
requirements that they both keep and produce on demand "required
records" whose compelled production might otherwise be inconsistent
with the Fifth Amendment).

   /22/ Petitioner and amicus also rely on cases in which this Court
has refused to find a valid waiver of Fifth Amendment rights even
though individuals had engaged in the conduct in question with
knowledge that a statute purported to require them to waive their
rights.  Pet. Br. 36-37;  NACDL Br. 15-19.  But none of those cases
involved the very limited testimonial communications that are tacit in
an act of producing corporate records, and none of those cases
involved an attempt by an entity having no Fifth Amendment right to
evade its duty to respond to valid process.  Moreover, any assertion
that petitioner was not on notice that incorporating his business
constituted an implied waiver of the right to protect business
documents from disclosure ignores decades of settled precedent from
this Court.

   /23/ Petitioner's analysis of the justifications for the collective
entity rule is correct in one limited respect:  as he argues (Pet. Br.
39-40), the "privacy rationale" that this Court once advanced for the
collective entity rule (see Bellis, 417 U.S. at 91-92) cannot survive
Fisher and Doe.  But, as petitioner concedes (Pet. Br. 34 n.12),
Bellis did not rest on the privacy rationale alone but "reaffirm(ed)
all of the Court's earlier justifications underlying the government's
'right' to business records." It is those traditional underlying
justifications, and not just the erstwhile privacy rationale of
Bellis, that petitioner must refute in order to prevail.  He has not
done so.

   /24/ We take the approach adopted by the Sixth and Eighth Circuits
to be equivalent to the analysis that we suggest.  The Sixth Circuit
based its ruling on the fact that "(t)he custodian of corporate or
partnership records acts only in a representative capacity, not as an
individual, and production of the records is not a testimonial act of
the custodian (but) * * * communicates nothing more than the fact that
the one producing them is a representative of the corporation or
partnership." In re Grand Jury Proceedings (Morganstern), 771 F.2d
143, 148, cert. denied, 474 U.S. 1033 (1985);  see also In re Grand
Jury Empanelled March 8, 1983, 722 F.2d 294, 297 (6th Cir. 1983),
cert. dismissed, 465 U.S. 1085 (1984);  In re Grand Jury Subpoena
(85-W-71-5), 784 F.2d 857, 861 (8th Cir. 1986), cert. dismissed, No.
85-1987 (Jan. 15, 1987).

   /25/ Accordingly, although the Third Circuit reached the incorrect
result in In re Grand Jury Matter (Brown), 768 F.2d 525 (1985) (en
banc), the court may have been rightly disturbed by the government's
suggestion that it could compel the witness in that case personally to
produce the documents and then use his personal act of production
against him, and by the government's refusal to accept delivery of the
documents by the witness's attorney (768 F.2d at 526, 529 n.4).  The
proper result in Brown would have been for the court to compel
production of the documents by Brown as the agent of the corporation,
but to bar the government from making evidentiary use of the fact that
it was Brown -- as opposed to simply the corporation -- that turned
over the documents.  Likewise, in In re Grand Jury Subpoenas Duces
Tecum (Saxon Industries), 722 F.2d 981 (2d Cir. 1983), the court
should not have remanded for the district court to decide whether to
quash the subpoena on the ground that the former corporate officer's
possession of the records could be used as evidence that he absconded
with them.  Rather, the court should have refused to quash the
subpoena but, if the issue subsequently arose, the court should have
prevented the government from making use of the fact that it was the
former president, rather than someone else associated with the
corporation, who produced the documents.

   /26/ It is erroneous to treat everything that the government knows
after the act of production, but did not know before that act, as
something that was communicated by the very act of production.
Rather, the two distinct communications that have taken place --
communications by the unprotected contents of the documents themselves
and communications by the act of production -- must be kept separate.
A useful analytic aid to conducting this inquiry is to ask:  What does
the government know, given the act of production in response to a
subpoena, that it would not have known if the documents had simply
shown up, unsolicited, in the grand jury room?  See Alito, supra, 48
U. Pitt. L. Rev. at 60-61.

   /27/ Petitioner relies (Pet. Br. 42 & n.19) on Professor
Mosteller's article in this respect.  But that article, like
petitioner's own analysis, is flawed by its failure to treat the tacit
communications inherent in the act of production as something to be
measured at the margin -- rather than as a backdoor way to afford
protection to the contents of the documents.  That is also why
Professor Mosteller reaches the conclusion, which is directly contrary
to Doe, that act-of-production immunity protects the contents of
documents.  Compare Mosteller, supra, 73 Va. L. Rev. at 43, with Doe,
465 U.S. at 617 n.17.

   /28/ Petitioner also ignores the likelihood that his secretary
could authenticate documents that she witnessed being written and
documents that she received, typed, delivered, mailed, filed, read, or
was otherwise familiar with (5 D. Louisell & C. Mueller, supra,
Section 507, at 27).  She could also authenticate the corporations'
business ledgers and journals, assuming that she made entries, saw
them being made, or is familiar with the corporations' recordkeeping
procedures (4 id. Section 446, at 662-667 (1980);  see also E. Cleary,
McCormick on Evidence, Section 219, at 688 (3d ed. 1984)).  To be
sure, the government cannot in this case -- or in any other case --
show, before it sees the documents, that it is an absolute certainty
that every corporate document can be authenticated by one of these
means.  But if inability to make that showing is fatal to the
government's ability to obtain the documents by subpoena, then no
subpoena will ever again be enforceable without a grant of use
immunity.  We do not think Fisher and Doe were designed to bring about
that result.

   /29/ Although petitioner maintains elsewhere in his brief (Pet. Br.
10, 45) that he has never admitted that the subpoenaed documents exist
or that he has possession and control of them, that is simply not so
in light of petitioner's statement of the case in this Court.  Indeed,
petitioner has given the district court an inventory of the records
responsive to the subpoena and an assurance that he will turn them
over if his legal contentions do not prevail.  See Pet. App. 12a;
11/26/86 Tr. 4-5, 9-11.