Ex parte Chapman

GILBERT, Circuit Judge (after stating the facts). While the proceedings began with a subpoena duces tecum, directing the petitioner to bring before the grand jury the books and records of the Barber Lumber Compan}'-, they finally resulted in an ultimatum from the court ordering him to produce the books and papers and submit them to the inspection of the grand jurj', and giving the grand jury the authority, which was expressly denied to the petitioner, to determine what was pertinent, and what was not pertinent, to the subject which was under consideration. That subject had been announced in open court to be the investigation of the proceedings whereby the Barber Lumber Company had acquired title to timber lands of the United States in the state of Idaho. It was not disputed that the Barber Lumber Company was incorporated without the state of Idaho, and that the petitioner was, and from the first had been, the manager of its business in the state of Idaho. It followed from this that the acquisition of title to timber lands must have been conducted on behalf of the corporation by the petitioner, and that everything that was done in that connection was doné with his knowledge and under his direction. If, therefore, there was criminal violation of law in acquiring those lands, there is every reason to assume that the petitioner must necessarily have been implicated therein, and that an inspection of the books would furnish evidence against him. That was one -of the grounds of his appéal to the protection afforded by the fifth amendment and his refusal to comply with the order of the court. The-, fifth amendment, [375] which provides that one may not be compelled in a criminal case to be a witness against himself, is closely allied with the fourth amendment, which inhibits unreasonable searches and seizures. Said the court, in Boyd v. United States, 116 U. S. 616-633, 6 Sup. Ct. 534, 534, 39 L. Ed. 746: “We have been unable to perceive that the seizure of a man’s private hooks and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.” On page 631 of 116 U. S., page 533 of 6 Sup. Ct. (39 L. Ed. 746) the court said: “And any compulsory discovery by extorting the party’s oath or compelling the production of his private books and papers to convict him of crime, or to forfeit his property, is contrary to the principles of a free government.” Elsewhere in the opinion, the court said: “It is our opinion, therefore, that a compulsory production of a man’s private papers, to establish a criminal charge against him or to forfeit his property, is within the scope of the fourth amendment to the Constitution in all eases in which a search and seizure would be, because it is a material ingredient and affects the sole object and purpose of search and seizure.” But it is said that while one may not be compelled in a criminal case to produce his own books and records, if they tend to criminate him, he can claim no protection under either the fourth or the fifth amendment when,' as here, he is called upon to produce, not his own books, but the books of a corporation of which he is an officer. In support of that view reference is made to McAlister v. Henkel, 201 U. S. 90, 26 Sup. Ct. 385, 50 L. Ed. 671, in which the court said: “Indeed, the authorities are numerous to the effect that an officer of a corporation cannot set up the privilege of a corporation as against his testimony or the production of their books.” But here the petitioner is not setting up the privilege of the corporation as against the production of its books. He is asserting his own privilege, for his own benefit, on the ground that the books of the corporation, of which he is the custodian, will tend to incriminate him. In Hale v. Henkel, 201 U. S. 43, 36 Sup. Ct. 370, 50 L. Ed. 652, Hale, who was the secretary and treasurer of a corporation, had been subpoenaed to produce the books and papers of that corporation before a grand jury. He asked to be advised of the nature of the investigation in which he had been summoned.. Upon being informed by the district attorney that it was a proceeding under the Sherman act to protect trade and commerce against unlawful restraint and monopolies, and that, under Act Feb. 25, 1903, c. 755, 32 Stat. 904 [U. S. Comp. St. Supp. 1905, p. 603], no person could be prosecuted or subjected to any penalty on account of any matter or thing concerning which he might testify, or produce documentary evidence in any prosecution under said act, the witness refused to answer questions or to produce the papers and documents called for in the subpeena, upon the ground that they might tend to criminate him. He was [376] committed for contempt, and habeas corpus proceedings were instituted for his release. On appeal to the Supreme Court, it was held, following Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819, that the witness could not refuse to answer for the reason that the act of February 25, 1903, afforded him absolute immunity against future prosecution for the offenses as to which he was to be interrogated and was to produce books and documents. The court said: “The interdiction of the fifth amendment operates only where the witness is asked to incriminate himself; in other words, to give testimony which may possibly expose him to a criminal charge. * * * If the constitutional amendment were unaffected by the immunity statute, it would put it within the power of the witness to be his own judge as to what would tend to incriminate him, and would justify him in refusing to answer almost any question in a criminal case, unless it clearly appeared that the immunity was not set up in good faith.” It is the clear meaning of these words, and the plain import of the decision, that, but for the immunity statute, the witness would, under the fifth amendment, have had the right to judge for himself as to what would tend to incriminate him, and would have been justified in refusing to answer almost any question. And such was the view of the court below in the decision from which the appeal in that case was taken.' In re Hale (C. C.) 139 Fed. 496. In that case, Wallace, Circuit Judge, said: “Tbe contention for the petitioner, that the order of the court violates the constitutional prohibition against compelling a person to give evidence against himself in a criminal case, would be fairly sound, were it not for the effect of the immunity act of Congress of February, 1903.” There were further remarks of the court in that case which are particularly applicable to the present case. Said the court: “In view of his official relations with the corporation, it fairly may be assumed that the petitioner had participated personally in some of the acts or transactions which were the alleged offenses of the corporation, and was therefore originally responsible himself.” When a question is propounded to a witness in the course of his examination in court or before a grand jury, he may be compelled to answer, unless there is reasonable ground to apprehend that his answer may furnish a link in the chain of evidence that might expose him to criminal prosecution. On the trial of Aaron Burr, 25 Fed. Cas. 38, No. 14,692e, it was contended on the part of a witness that he was to be the sole judge of the effect of his answer. Chief Justice Marshall held that this was too broad a claim, but also held that it would be too narrow a rule to hold that a witness can never refuse, unless the answer will per se convict him of crime, and that the correct rule is that a witness is not compellable to disclose a single link in the chain of proof against him. In Fx parte Irvine (C. C.) 74 Fed. 954, Judge Taft held that where, from the evidence and the nature of the question, the court can definitely determine that the question, if answered in a particular way, might form a link in the chain of evidence to establish the commission of a crime by [377] the witness, the court can inquire whether the witness claimed his privilege in good faith, otherwise it is only where the incriminating effect of the question is doubtful that the witness’ motive may be considered, for in such a case his bad faith would tend to show that his answer would not subject him to any danger. The reasons why a witness may not be required to answer a question which he claims may tend to criminate him apply with added force to a case where he is ordered to subject to the inspection of a grand jury books and papers which contain the record of his connection with transactions which are alleged to be criminal in their nature. In the present case, it is not perceivable that there can be any question of the good faith of the petitioner in declining to subject the books to examination. Although they are in fact the books of the corporation, they are nevertheless to all intents and purposes his own books. They are records made by him or under his direction, and are in his charge and control. They refer to transactions which he has conducted. If they show the method in which the corporation acquired title to timber lands, they necessarily disclose his own acts. It is not denied that the presentation of the books and their inspection .by the grand jury is desired for one purpose only. This is fully shown by the record of the proceedings before the court. It is that they be resorted to to ascertain what individual or individuals may be subject to indictment for violation of the laws of the United States in acquiring title to timber lands. I think it very clear that if the books contained the evidence thus sought, tending to prove the violation of law, there was reasonable ground for concluding that they might have tended to incriminate the petitioner, and that therefore his plea of privilege should have been sustained. The present case is plainly distinguishable from United States v. Collins (D. C.) 145 Fed. 709, recently decided by Judge Wolverton in this circuit. In that case a partner was subpoenaed to bring the partnership books before the grand jury. In the contempt proceedings which ensued, the subject-matter of the investigation before the grand jury was not disclosed; nor was it shown what relation the witness sustained thereto, or in what manner the investigation would affect him. It appeared that he claimed the protection of the fifth amendment before he had been sworn as a witness. The court held that, until he was sworn as a witness, so that his claim of a constitutional privilege might be made under the sanction of an oath, he could not assert it. As the return to the order to show cause is precisely the same •that the marshal must have made if a writ of habeas corpus had been issued and served on him, all the facts are presented, and it is possible to determine the right of the petitioner to be discharged as fully as if he were present under the writ and in the marshal’s custody. Ex parte Yarbrough, 110 U. S. 653, 4 Sup. Ct. 152, 28 L. Ed. 274; Ex parte William Wells, 18 How. 308, 15 L. Ed. 421; Ex parte Watkins, 7 Pet. 571, 8 L. Ed. 786; Ex parte Bull, 1 Saund. & C. 141; Ex parte Cross, 2 H. & N. 354; Sims Case, 7 Cush. (Mass.) 285. [378] Under the authorities, I am compelled to hold that the judgment committing the petitioner for contempt is void, and that he is entitled to be discharged from custody. It is so ordered.