In re American Sugar Refining Co.

LACOMBE, Circuit Judge. The motion made by the United States attorney to punish the company for contempt in failing to obey a subpoena duces tecum, requiring it to produce certain books aDd papers before the grand jury, is denied for the reason that the subpoena is obnoxious to the criticism which was sustained by the Supreme Court in; Hale v. Hendel, 201 U. S. 43, 26 Sup. Ct. 370. 50 L. Ed. 652—it is “far too sweeping in its terms to be regarded as reasonable.” The corporation moves to set aside the second subpoena, directed to it, served on its president and resident agent, and which is restricted to two specified books. Considering the arguments in support of the motion, this court remains _of the opinion enunciated in U. S. v. American Tobacco Co. (C. C.) 146 Fed. 557, that under the decision in Hale v. Henkel there is a distinction between aa individual and a corporation, and that the latter cannot avail of the provisions of the fifth amendment to the Constitution, which declares that no person “shall be compelled in any criminal case to be a witness against himself,” — when properly called upon to produce its books for examination in court. This subpoena is directed to the corporation itself, and not to some particular officer of the corporation. No doubt this is a wholly novel practice; but it seems to he a logical outcome of the distinction between corporation and individual pointed out in the opinion cited, and the alleged difficulties in such practice are theoretical rather than practical. The subpoena does not com mand any one to testify generally, as the usual form of subpoena does, but in many cases all that is sought to be elicited from a witness served with such subpoena is that he is the person named in the subpoena, and that A, B, and O are the books or papers asked for. There is nothing startling in dispensing with such perfunctory testimony when the production of the hook or papers by the party itself concedes their identity. I am not prepared to assent to the proposition that the individual officer who produces books and papers under an ordinary subpoena duces tecum is entitled to insist that he shall bo sworn generally and shall be allowed, unasked, to volunteer explanations to the grand jury as to what the documents contain. Nor does there seem to be any difficulty in the fact that the “corporation” cannot physically produce the books, but must avail of some human means to transmit them to the grand jury room; it does not necessarily follow that the individual thus selected should he one who might he criminated by the documentary evidence he carries with him; the corporation when the subpoena is directed solely to it may select its own messenger to transport the documents. It is not understood that the district attorney claims that such a subpoena as this can be used to get possession of the books for purposes of investigation and examination by clerks, experts, and irresponsible parties outside of the immediate presence of the grand jury. Obedience to the subpoena will be complete when the books called for are presented to the grand jury in an actual session, and are taken away again by the messenger of the corporation as soon as the particular session adjourns; while the session lasts they must remain with the grand jury. Under these circumstances, the suggestion of risk of alteration, spoliation; etc., would seem to be fanciful. The motion is denied.