CURCIO v. UNITED STATES

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 answer questions asked by a federal grand jury as to the whereabouts of such books and records which he has not produced pursuant to subpoena. For the reasons hereafter stated, we hold that the privilege against self-incrimination attaches to such questions.

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 of the books and records.1 It ruled that petitioner's claim of privilege was improper because he had not made a sufficient showing that his answers might incriminate him. When petitioner persisted in his refusal to answer, the District Court summarily adjudged him guilty of criminal contempt, and sentenced him to six months' confinement unless he sooner purged himself by answering the questions. This conviction related solely to petitioner's failure to answer questions asked pursuant to the personal subpoena ad testificandum. He has not been charged with failing to produce the books and records demanded in the subpoena duces tecum.

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.2

We turn, therefore, to the remaining issue—whether petitioner's personal privilege against self-incrimination attaches to questions relating to the whereabouts of the union books and records which he did not produce pursuant to subpoena.

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 privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity" (id., at 699).

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 the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.

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 privilege" only with respect to the production of the records themselves. Wilson v. United States, 221 U.S. 361, 380.

United States v. Austin-Bagley Corp., 31 F.2d 229, and cases following it3 are relied upon by the Government. Those cases, holding that a corporate officer who has been required by subpoena to produce corporate documents may also be required, by oral testimony, to identify them, are distinguishable and we need not pass on their validity. 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. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself. The custodian is subjected to little, if any, further danger of incrimination. However, in the instant case, the Government is seeking to compel the custodian to do more than identify documents already produced. It seeks to compel him to disclose, by his oral testimony, the whereabouts of books and records which he has failed to produce. It even seeks to make the custodian name the persons in whose possession the missing books may be found. Answers to such questions are more than "auxiliary to the production" of unprivileged corporate or association records.4

The Government cites but one federal case, United States v. Field, 193 F.2d 92, as directly supporting its position.5 In that case, the trustees of a bail fund were held in contempt for failure to produce records of the fund pursuant to a subpoena. After affirming the convictions on that ground, the Court of Appeals for the Second Circuit went on to consider, by way of dictum, other contentions raised by the trustees. One of their contentions was that questions about the location and production of records were improper. The court, relying on several cases in which a custodian was compelled to identify records which he had already produced, said that the questions pertaining to the location of the records "were proper under the precedents." Id., at 97. The cases cited, however, do not support the court's dictum.6

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.7 There is a great difference between them. The compulsory production of corporate or association records by their custodian is readily justifiable, even though the custodian protests against it for personal reasons, because he does not own the records and has no legally cognizable interest in them. However, forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind. He might be compelled to convict himself out of his own mouth. That is contrary to the spirit and letter of the Fifth Amendment.

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.