Braswell v. United States
487 U.S. 99 (1988)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A custodian of corporate records, acting in a representative capacity, cannot resist a subpoena for those records on the grounds that the act of producing them would personally incriminate him in violation of the Fifth Amendment.
Facts:
- From 1965 to 1980, Randy Braswell operated his business selling equipment and other interests as a sole proprietorship.
- In 1980, Braswell incorporated his business as Worldwide Machinery Sales, Inc., and later formed a second corporation, Worldwide Purchasing, Inc.
- Braswell was the sole shareholder of both corporations.
- The corporations' boards of directors included Braswell, his wife, and his mother, but only Braswell had any authority over the business affairs of either corporation.
- In August 1986, a federal grand jury issued a subpoena to "Randy Braswell, President..." for the books and records of both corporations.
Procedural Posture:
- Randy Braswell filed a motion in the U.S. District Court to quash the grand jury subpoena.
- The District Court, acting as the court of first instance, denied the motion to quash.
- Braswell, as appellant, appealed the denial to the U.S. Court of Appeals for the Fifth Circuit, the intermediate appellate court.
- The Court of Appeals affirmed the District Court's ruling.
- The U.S. Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on this issue.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a custodian of corporate records have a Fifth Amendment privilege to refuse to produce those records on the grounds that the act of production would personally incriminate him?
Opinions:
Majority - Chief Justice Rehnquist
No. A custodian of corporate records may not resist a subpoena for such records on the ground that the act of production would incriminate him in violation of the Fifth Amendment. The long-standing 'collective entity rule' establishes that corporations and other artificial entities are not protected by the Fifth Amendment privilege. A custodian holds corporate records in a representative, not a personal, capacity. Therefore, the act of producing the records is not a personal testimonial act but rather an act of the corporation, which has no privilege to assert. This 'agency rationale' means any claim of privilege by the agent is tantamount to a claim by the corporation itself. While the act of production has testimonial aspects, it is the corporation that is 'testifying,' not the individual custodian. This precedent is necessary to allow for the effective prosecution of white-collar crime, as crucial evidence is often found in corporate records.
Dissenting - Justice Kennedy
Yes. An individual cannot be compelled, by virtue of his status as a corporate custodian, to perform a testimonial act that will personally incriminate him. The collective entity rule applies only to the contents of the records and the privilege of the entity itself, not to the personal, testimonial act of production by an individual. The act of selecting and producing documents is inescapably the custodian's own act, requiring him to disclose the contents of his own mind, which the Fifth Amendment protects. The majority's 'agency fiction' confuses metaphor with the reality that the government is compelling a natural person to give incriminating testimony. The proper course would be for the government to grant the custodian statutory use immunity for the act of production, rather than have the Court invent a new rule that strips an individual of a fundamental constitutional right.
Analysis:
This decision solidifies the 'collective entity doctrine' and clarifies its interaction with the 'act of production' privilege established in cases like Fisher and Doe. It creates a bright-line rule: the act-of-production privilege available to individuals and sole proprietors does not extend to custodians of corporate records. The Court's agency rationale effectively prevents individuals from using the corporate form as both a liability shield and a Fifth Amendment shield for business records. This holding significantly strengthens the government's hand in white-collar crime investigations by facilitating access to corporate documents without the procedural hurdle of granting immunity to the custodian.
