MR. JUSTICE BURTON delivered the opinion of the Court.
The issue in this case is whether the custodian of a union's books and records may, on the ground of his Fifth Amendment privilege against self-incrimination, refuse to
In April 1956, a special grand jury in the United States District Court for the Southern District of New York was investigating racketeering in the garment and trucking industries in New York City. This investigation followed widespread charges of racketeering in labor unions, including specific charges that seven local unions had been recently chartered by a faction of the International Brotherhood of Teamsters to gain control of the Teamsters' New York Joint Council, and that these "phantom unions" were controlled by a group of gangsters, ex-convicts and labor racketeers.
Petitioner, Joseph Curcio, the secretary-treasurer of Local 269 of the International Brotherhood of Teamsters, one of the alleged "phantom unions," was subpoenaed to appear before the grand jury, and to produce the union's books and records. There were two subpoenas—a personal subpoena ad testificandum and a subpoena duces tecum addressed to him in his capacity as secretary-treasurer of Local 269. On several days he appeared before the grand jury but failed to produce the demanded books and records. He testified that he was the secretary-treasurer of Local 269; that the union had books and records; but that they were not then in his possession. He refused, on the ground of self-incrimination, to answer any questions pertaining to the whereabouts, or who had possession, of the books and records he had been ordered to produce.
The District Court, after a hearing in which petitioner attempted to justify his claim of privilege, directed petitioner to answer 15 questions pertaining to the whereabouts
The Court of Appeals affirmed the conviction. 234 F.2d 470. It held that petitioner had failed to show that his answers to the 15 questions might incriminate him; that the privilege against self-incrimination did not attach to questions put to a custodian relating to the whereabouts of union books; and that petitioner had been accorded a fair hearing. We granted certiorari to determine whether petitioner's claim of privilege was properly denied. 352 U.S. 820.
In the courts below, the Government contended that petitioner had not made a sufficient showing that answering the 15 questions might tend to incriminate him. The Government no longer so contends. In its brief it now says, "We make no claim that, if petitioner's personal privilege did apply to questions concerning the union records, he failed to make an adequate showing of possible incrimination." There is substantial ground for the Government's concession.
It is settled that a corporation is not protected by the constitutional privilege against self-incrimination. A corporate officer may not withhold testimony or documents on the ground that his corporation would be incriminated. Hale v. Henkel, 201 U.S. 43. Nor may the custodian of corporate books or records withhold them on the ground that he personally might be incriminated by their production. Wilson v. United States, 221 U.S. 361; Essgee Co. v. United States, 262 U.S. 151. Even after the dissolution of a corporation and the transfer of its books to individual stockholders, the transferees may not invoke their privilege with respect to the former corporate records. Grant v. United States, 227 U.S. 74; Wheeler v. United States, 226 U.S. 478. The foregoing cases stand for the principle that 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.
In United States v. White, 322 U.S. 694, this principle was applied to an unincorporated association, a labor union. Stating that the privilege against self-incrimination had the historic function of "protecting only the natural individual from compulsory incrimination through his own testimony or personal records" (id., at 701), the Court held that "the papers and effects which
The Government now contends that the representative duty which required the production of union records in the White case requires the giving of oral testimony by the custodian in this case. From the fact that the custodian has no privilege with respect to the union books in his possession, the Government reasons that he also has no privilege with respect to questions seeking to ascertain the whereabouts of books and records which have been subpoenaed but not produced. In other words, when the custodian fails to produce the books, he must, according to the Government, explain or account under oath for their nonproduction, even though to do so may tend to incriminate him.
The Fifth Amendment suggests no such exception. It guarantees that "No person . . . shall be compelled in any criminal case to be a witness against himself . . ." A custodian, by assuming the duties of his office, undertakes
In the Wilson case, supra, which is the leading case for the proposition that corporate officers may not invoke their personal privilege against self-incrimination to prevent the production of corporate records, Mr. Justice Hughes, speaking for the Court, drew the distinction sharply. He said, "They [the custodians of corporate records] may decline to utter upon the witness stand a single self-criminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers." 221 U. S., at 385. In the White case, supra, the Court was careful to point out that "The subpoena duces tecum was directed to the union and demanded the production only of its official documents and records" (322 U. S., at 704), that "He [White, the custodian of the union's records] had not been subpoenaed personally to testify" (id., at 695-696), and that "there was no effort or indicated intention to examine him personally as a witness" (id., at 696). And in Shapiro v. United States, 335 U.S. 1, 27, holding that the privilege against self-incrimination did not apply to records required to be kept by food licensees under wartime OPA regulations, the Court said, "Of course all oral testimony by individuals can properly be compelled only by exchange of immunity for waiver of privilege." There is no hint in these decisions that a custodian of corporate or association books waives his constitutional privilege as to oral testimony by assuming the duties of his office. By accepting custodianship of records he "has voluntarily assumed a duty which overrides his claim of
United States v. Austin-Bagley Corp., 31 F.2d 229, and cases following it
The Government suggests that subpoenaed corporate and association records will be obtained more readily for law-enforcement purposes if their custodian is threatened with summary commitment for contempt in failing to testify as to their whereabouts, rather than with prosecution for disobedience of the subpoena to produce the records themselves. We need not concern ourselves with the relative efficacy of those procedures.
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court with instructions to enter a judgment of acquittal.
Reversed and remanded.
"I am going to ask you certain questions, including some that were put to you on Thursday, which you declined to answer. Referring to the books and records of Local 269 of the International Brotherhood of Teamsters, have you at any time been in custody of those books and records? . . . .
"Mr. Curcio, have you ever had possession of the books and records of this local? . . . .
"Did you have custody and control of these records last Thursday? . . . .
"Do you have possession of those records or any of them today? . . . .
"Do you have custody and control of any of those records today? . . . .
"Where are any of those records today, if you know? . . . .
"Who has any of those records today, if you know? . . . .
"Where were any of these records or all of these records a week ago Thursday? . . . .
"Where were any or all of these records a week ago Saturday? . . . .
"Where were any or all these records a week ago last Monday? . . . .
"Where were any or all of these records yesterday? . . . .
"Where are any or all of these records today? . . . .
"Who, if you know, had any or all of these records a week ago last Saturday? . . . .
"Who had any or all of these records a week ago yesterday? . . . .
"Who has any or all of these records today? . . . ."
The above questions were selected by the Government from 225 that were asked petitioner before the grand jury. He was directed by the foreman of the grand jury to answer these 15, and, upon his refusal to do so under claim of his privilege against self-incrimination, the District Court advised him that it proposed to ask him those questions itself, and that his failure to answer them would constitute contempt of court. The District Judge thereupon asked petitioner these questions in open court in the presence of the grand jury. Petitioner refused to answer each of them, and stated that he refused to do so because his answers might tend to incriminate him.
"That the production of the books and documents could be compelled, even if they contained entries incriminating the accused, is now well-settled law. . . . However, the availability of the documents does not necessarily determine that of the testimony by which they may be authenticated. Conceivably it might be possible to force their production, and yet their possessor be protected from proving by his oath that they were what they purport to be. . . .
"While, therefore, we do not disguise the fact that there is here a possible, if tenuous, distinction, we think that the greater includes the less, and that, since the production can be forced, it may be made effective by compelling the producer to declare that the documents are genuine. . . . Hence it appears to us that the case [Heike v. United States, 227 U.S. 131] determines that testimony auxiliary to the production is as unprivileged as are the documents themselves. 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."
See also, Lopiparo v. United States, 216 F.2d 87, where the trial court upheld the custodian's claim of privilege with respect to oral testimony pertaining to corporate records.
From a memorandum filed by the Government, it appears that petitioner later did produce for the grand jury certain books and records of the union when threatened with a commitment for contempt for his failure to comply with a subsequent subpoena duces tecum issued to him in his representative capacity. The Government suggested that this subsequent compliance had rendered this proceeding moot, but we believe that it did not do so because the order for petitioner's commitment was for criminal, not civil, contempt.