2. Fifth Amendment Privilege Against Self-Incrimination — Use of Documents Obtained Pursuant to an Immunized Act of Production. The Supreme Court granted certiorari today in United States v. Hubbell, No. 99-166, to decide under what circumstances the act of producing subpoenaed documents constitutes a testimonial communication within the meaning of the Fifth Amendment and whether the contents of subpoenaed documents produced pursuant to an immunity order under 18 U.S.C. § 6003 are ever entitled to Fifth Amendment protection.

The Office of Independent Counsel served a subpoena duces tecum on Webster Hubbell, demanding production of business and financial records relating to Hubbell, his family, and his sole proprietorship. Hubbell resisted the subpoena by invoking his Fifth Amendment privilege against self-incrimination. The Independent Counsel obtained from the district court an order pursuant to 18 U.S.C. § 6003, compelling Mr. Hubbell to produce all responsive documents under protection of immunity. Hubbell complied with that order. The Independent Counsel then used the documents produced by Hubbell to secure an indictment against him on several tax-related charges.

Hubbell moved to dismiss the indictment, arguing that the Independent Counsel could not use the documents compelled under the grant of immunity to build a case against him. The Independent Counsel responded that Hubbell's production of the subpoenaed materials was not testimonial in nature — and thus did not implicate the privilege against self-incrimination — since the government already was aware of the existence of the general class of materials sought in the subpoena and of Hubbell's possession of those materials. The Independent Counsel also argued that even if Hubbell's act of producing the documents was sufficiently testimonial to be entitled to protection, the grant of immunity only prohibited the government from using Hubbell's compliance with the subpoena to establish the existence, location, and authenticity of the documents. According to the Independent Counsel, the grant of immunity did not bar the government from using the contents of the documents themselves, which were created prior to issuance of the subpoena.

The district court dismissed the indictment, agreeing with Hubbell that the indictment violated his Fifth Amendment privilege. 11 F. Supp. 2d 25 (D.D.C. 1998). While the court acknowledged that the Fifth Amendment generally does not protect the contents of documents that a witness has voluntarily prepared (id. at 35), it held that in Hubbell's case production of documents in response to the § 6003 immunity order amounted to a compelled testimonial admission that such incriminating documents existed (id. at 35-36) and that such compelled testimony infected the contents of the documents themselves.

The District of Columbia Circuit vacated the dismissal of the indictment and remanded with instructions to supplement the record in one respect. 167 F.3d 552 (1999). The court of appeals held that the production of documents in response to a subpoena is generally testimonial, communicating the facts that the documents exist, are possessed by the holder, are authentic, and are believed by the holder to be responsive to the subpoena. Id. at 567-568, 575. However, that testimony is entitled to Fifth Amendment protection only when it "communicates something of substance to the state." Id. at 568; see also id. at 576. Where the government already has knowledge of the information that would otherwise be conveyed by production, the Fifth Amendment is not implicated. Id. at 569. Thus, the court held, the disclosure of the existence of documents subpoenaed over a claim of privilege is a communication entitled to Fifth Amendment protection unless the government shows that it already knew "with 'reasonable particularity'" about the documents' existence and hence, the information disclosed by the compelled testimony was a "'foregone conclusion.'" Id. at 579 (quoting Fisher v. United States, 425 U.S. 391, 411 (1976)). Rejecting the view advanced by the Independent Counsel, the court observed that the government cannot satisfy its "reasonably particularity" burden by showing simply that it was aware that the defendant possessed the categories or classes of material identified in the indictment. Id. at 571.

The court of appeals directed the district court to apply the "reasonable particularity" standard on remand. Pending these further findings of fact, the District of Columbia Circuit declined to decide whether Hubbell's act of production was sufficiently testimonial to preclude the government's use of the contents of the documents, or any information derived therefrom, to prosecute Hubbell. However, the court did observe that any such use would be limited by the Supreme Court's decision in Kastigar v. United States, 406 U.S. 441 (1972), which held that a § 6003 immunity order must leave "the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege.'" 167 F.3d at 582 (quoting Kastigar, 406 U.S. at 462)). In this regard, the court of appeals held that if the government fails to establish that either the existence or the defendant's possession of the subpoenaed material was indeed a "foregone conclusion," it would be prohibited from using not only the "testimony" flowing from the act of production, i.e., the facts of existence and possession, but also the otherwise nonprivileged contents of the documents, about which the government would not have known but for the compelled privileged testimony. Id. at 585.

The Supreme Court's grant of certiorari in this case provides the Court with an opportunity to clarify the "foregone conclusion" doctrine and whether Kastigar forbids the government's use of the contents of subpoenaed documents where the defendant's testimonial "act of production" has been compelled by a grant of immunity. This case is of obvious interest to members of the business community who may be targeted by a government subpoena seeking the production of business records, appointment calendars, and other documents in connection with white collar, securities, tax and other document-intensive investigations. If the Court adopts the views of the District of Columbia Circuit, the government would be limited in its ability to use documents obtained in exchange for a grant of immunity to build a case against those who produced them.