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Full Opinion
United States Court of Appeals
For the First Circuit
No. 05-2193
STEVEN P. AMATO, D.C.,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bowman,* Senior Circuit Judge,
and Howard, Circuit Judge.
Michael A. Cunniff with whom Jay P. McCloskey, Thimi R. Mina,
Kimberly L. Murphy, and McCloskey, Mina & Cunniff, LLC were on
brief, for appellant.
James W. Chapman, Jr., Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief, for
appellee.
June 8, 2006
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
BOWMAN, Senior Circuit Judge. Dr. Steven P. Amato
appeals the denial of his motion to quash two administrative
subpoenas duces tecum served on him as custodian of records for two
corporations in which he was the sole shareholder, director,
officer and employee. We affirm.
I.
Amato is a chiropractor in Damariscotta, Maine. He has
conducted his chiropractor business as a sole proprietorship and as
a corporation. In October 1997, Amato incorporated the business as
Dr. Steven Amato, D.C., P.C. ("Amato P.C.") in New York and is
Amato P.C.'s sole shareholder, director, officer and employee. In
September 2002, Amato incorporated Mainecures.com, Inc.
("Mainecures") in Maine. A year later, Maine dissolved Mainecures
for failing to file an annual report. Amato was Mainecures's sole
shareholder, director, officer and employee.
In January 2005, law enforcement, acting under the
authority of a search warrant, searched Amato's office for evidence
of federal health-care crimes. During the search, law enforcement
served two administrative subpoenas duces tecum on Amato as the
records custodian of Amato P.C. and Mainecures. See 18 U.S.C.
§ 3486 (2000). The subpoenas required the records custodian to
appear with the records at the United States Attorney's Office or,
in lieu of an appearance, to deliver the records with certificates
of authenticity to the United States Attorney's Office.
-2-
Amato moved to quash the subpoenas. Amato argued that
the act-of-production doctrine protects production of the records
because the testimonial aspects of the production would incriminate
him.1 Recognizing the collective-entity doctrine,2 Amato
nevertheless asserted that the act-of-production doctrine controls
in his case. For support, Amato invoked a footnote in Braswell v.
United States that left open the question of whether the
collective-entity doctrine would apply if the custodian of
corporate records is "able to establish, by showing for example
that he is the sole employee and officer of the corporation, that
the jury would inevitably conclude that he produced the records."
487 U.S. 99, 118â19 n.11 (1988). Because Amato is his
corporations' sole shareholder, director, officer and employee, he
1
Under the act-of-production doctrine, persons compelled by
subpoena to produce incriminating records may invoke the Fifth
Amendment privilege against self-incrimination "only where the act
of producing the evidence would contain 'testimonial' features."
United States v. Hubbell, 530 U.S. 27, 49 (2000) (Thomas, J.,
concurring); Fisher v. United States, 425 U.S. 391, 408 (1976)
(stating that while "the Fifth Amendment does not independently
proscribe the compelled production of every sort of incriminating
evidence," it does apply "when the accused is compelled to make a
testimonial communication that is incriminating").
2
The collective-entity doctrine recognizes that the Fifth
Amendment treats corporations and collective entities differently
from individuals. Braswell v. United States, 487 U.S. 99, 104
(1988). Because corporations and collective entities have no Fifth
Amendment privilege against self-incrimination and because a
"custodian of corporate or entity records holds those documents in
a representative rather than a personal capacity," the custodian
cannot claim a personal Fifth Amendment privilege against the
production of corporate records. Id. at 109â11.
-3-
asserted his personal Fifth Amendment privilege against producing
the corporate records. Amato also argued that Mainecures's records
are privileged because Mainecures was a dissolved corporation.
In considering the motion to quash, the magistrate judge
recognized that the collective-entity doctrine has not provided
Fifth Amendment protection to custodians of corporate records
because custodians act in their representative, rather than their
personal, capacities when complying with a subpoena directed at the
corporation. The magistrate judge declined to recognize an
exception to the collective-entity doctrine that would fit Amato's
situation: he is the target of an investigation, the custodian of
records, and the corporation's sole shareholder, director, officer
and employee. The judge reasoned that the First Circuit has
rejected such an exception, see United States v. Lawn Builders of
New Eng., Inc., 856 F.2d 388 (1st Cir. 1988); In re Grand Jury
Proceedings (The John Doe Co.), 838 F.2d 624 (1st Cir. 1988), and
concluded that Braswell's footnote does not contradict the First
Circuit's holdings. The magistrate judge also rebuffed Amato's
argument that Mainecures's records are privileged because the
records now belong to Amato's sole proprietorship, Mainecures
having been dissolved before the subpoena issued. The judge
concluded that Maine law dictates that a dissolved corporation
exists for up to three years after dissolution to wind up its
business affairs. Thus, the judge held that no Fifth Amendment
-4-
privilege guards against the subpoena directed at Mainecures's
custodian of records.
Adopting the magistrate judge's view of the matter, the
district court denied Amato's motion to quash. After the district
court further denied a motion to stay enforcement of the subpoenas
pending appeal, Amato's attorney produced the records and the
certificates of authenticity, but stated that Amato did not waive
his constitutional rights by complying with the subpoenas.
Amato appeals, contending that "the Fifth Amendment
protects a (sole shareholder/sole employee) one-person corporate
entity from compulsory self-incrimination arising from the act of
producing materials pursuant to an administrative subpoena." Amato
also contends that Mainecures's records should be treated as
records of Amato's sole proprietorship and that as such, they enjoy
Fifth Amendment protection from production.
II.
Denials of motions to quash are reviewed for abuse of
discretion. In re Grand Jury Subpoena, 138 F.3d 442, 444 (1st Cir.
1998), cert. denied, 524 U.S. 939 (1998). Because Amato contends
that the district court operated under an erroneous view of the
law, we review de novo the district court's legal analysis. Id.
A.
The Fifth Amendment guarantees that no person "shall be
compelled in any criminal case to be a witness against himself."
-5-
U.S. Const. amend V. "The word 'witness' in the constitutional
text limits the relevant category of compelled incriminating
communications to those that are 'testimonial' in character."
United States v. Hubbell, 530 U.S. 27, 34 (2000). A corporation
does not enjoy the privilege against self-incrimination guaranteed
by the Fifth Amendment, as the privilege is a personal privilege
enjoyed by natural individuals. See Braswell, 487 U.S. at 102
(acknowledging the "well-established [rule] that such artificial
entities [as corporations] are not protected by the Fifth
Amendment"); United States v. White, 322 U.S. 694, 698 (1944)
(explaining that the "constitutional privilege against self-
incrimination is essentially a personal one, applying only to
natural individuals"). Furthermore, the contents of corporate
records generally do not enjoy Fifth Amendment protection. See
Braswell, 487 U.S. at 102; United States v. Doe, 465 U.S. 605, 612
(1984). The rationale underpinning these principles is that the
Fifth Amendment's privilege against self-incrimination "is designed
to prevent the use of legal process to force from the lips of the
accused individual the evidence necessary to convict him or to
force him to produce and authenticate any personal documents or
effects that might incriminate him." White, 322 U.S. at 698.
In addition, the Supreme Court has long held that the
collective-entity doctrine precludes a custodian of corporate
records from relying on the Fifth Amendment to block the production
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of those records. See Bellis v. United States, 417 U.S. 85, 88
(1974) (explaining that a "long line of cases has established that
an individual cannot rely upon the [Fifth Amendment] privilege to
avoid producing the records of a collective entity which are in his
possession in a representative capacity, even if these records
might incriminate him personally"). The Court in Braswell stated
that its cases applying the collective-entity doctrine hold "that
without regard to whether the subpoena is addressed to the
corporation, [or] to the individual in his capacity as a custodian,
. . . a corporate custodian . . . may not resist a subpoena for
corporate records on Fifth Amendment grounds." 487 U.S. at 108â09
(citations omitted). Finally, the Supreme Court has stated that
well-settled law applying the collective-entity doctrine holds that
custodians of corporate records have no Fifth Amendment privilege,
"regardless of how small the corporation may be." Bellis, 417 U.S.
at 100.
Despite the collective-entity doctrine's far reach, cases
such as the instant case must confront the act-of-production
doctrine. The act-of-production doctrine recognizes that although
"the Fifth Amendment does not independently proscribe the compelled
production of every sort of incriminating evidence," it does apply
"when the accused is compelled to make a testimonial communication
that is incriminating." Fisher v. United States, 425 U.S. 391, 408
-7-
(1976). The Supreme Court has expressed its concerns over the
testimonial nature of acts of production:
The act of producing evidence in response to a
subpoena . . . has communicative aspects of
its own, wholly aside from the contents of the
papers produced. Compliance with the subpoena
tacitly concedes the existence of the papers
demanded and their possession or control by
the [individual producing the records]. It
also would indicate the [individual]'s belief
that the papers are those described in the
subpoena. The elements of compulsion are
clearly present, but the more difficult issues
are whether the tacit averments of the
[individual] are both "testimonial" and
"incriminating" for purposes of applying the
Fifth Amendment. These questions perhaps do
not lend themselves to categorical answers;
their resolution may instead depend on the
facts and circumstances of particular
cases. . . .
Id. at 410 (citation omitted); Doe, 465 U.S. at 612, 613â14
(stating that "[a]lthough the contents of a document may not be
privileged, the act of producing the document may be" because the
holder of the document is compelled "to perform an act that may
have testimonial aspects and an incriminating effect"; concluding
that the district court did not err in finding that a sole
proprietor's "act of producing [subpoenaed business] documents
would involve testimonial self-incrimination"); see also Hubbell,
530 U.S. at 36â37 (discussing the act-of-production doctrine).
It is fair to say that while the collective-entity
doctrine focuses on the contents of corporate records or at least
the status of the records, i.e., corporate or individual, the act-
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of-production doctrine focuses on whether an individual's compelled
acts in producing records involve testimonial self-incrimination.
This case tests Fifth Amendment boundaries when the act-of-
production doctrine intersects with the collective-entity doctrine.
In the present case, the issue is whether the Fifth Amendment
protects Amato's act of producing the subpoenaed records in his
capacity as custodian of the corporate records because the act
itself would incriminate Amato personally. In other words, we ask
whether the Fifth Amendment recognizes an exception to the
collective-entity doctrine such that an act-of-production privilege
protects a custodian of corporate records from producing those
records when the custodian is the corporation's sole shareholder,
director, officer and employee.
Our resolution of this issue is controlled by our
decision in John Doe Co., in which we decided that the act-of-
production doctrine is not an exception to the collective-entity
doctrine even when the corporate custodian is the corporation's
sole shareholder, officer and employee. 838 F.2d at 627. In
asserting a Fifth Amendment privilege, Amato ignores the holding of
John Doe Co. Instead, he seeks refuge in the language later used
by the Supreme Court in footnote eleven in Braswell:
We leave open the question whether the agency
rationale [behind the collective-entity
doctrine] supports compelling a custodian to
produce corporate records when the custodian
[can] establish, by showing for example that
he is the sole employee and officer of the
-9-
corporation, that the jury would inevitably
conclude that he produced the records.
487 U.S. at 118â19 n.11. Our reading of Braswell and of our
caselaw, however, leads us to conclude that such refuge is
unavailable in this circuit.
Although Braswell does not directly contradict Amato's
argument, the decision contains nothing that would justify our
reconsideration of our holding in John Doe Co.. In Braswell, the
Supreme Court held that "the 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." 487 U.S. at 100. Randy Braswell operated his business
through two corporations, with himself as the sole shareholder of
both. State law required the corporations to have three directors,
so Braswell's wife and mother were directors along with Braswell.
All three were also corporate officers. A federal grand jury
issued a subpoena to Braswell in his capacity as president of the
corporations to produce the corporations' records. Moving to quash
the subpoena, Braswell argued that the Fifth Amendment's act-of-
production doctrine prohibited the compulsion of the records.
Given Braswell's argument, the Supreme Court discussed
the act-of-production and the collective-entity doctrines. The
Court recognized that the act-of-production doctrine "embarked upon
a new course of Fifth Amendment analysis," but did not "render[]the
collective entity rule obsolete." Id. at 109. The Court recounted
-10-
the collective-entity doctrine's "lengthy and distinguished
pedigree," recognizing that since 1906 it has held that
representatives of collective entities, including corporate
officers, possess no Fifth Amendment privilege to refuse to produce
records that belong to collective entities, including corporate
records. Braswell, 487 U.S. at 104â13 (discussing Bellis, 417 U.S.
85; White, 322 U.S. 694; Dreier v. United States, 221 U.S. 394
(1911); Wilson v. United States, 221 U.S. 361 (1911); and Hale v.
Henkel, 201 U.S. 43 (1906)). The Court explained:
[T]he Court has consistently recognized that
the custodian of corporate or entity records
holds those documents in a representative
rather than a personal capacity. Artificial
entities such as corporations may act only
through their agents, and a custodian's
assumption of his representative capacity
leads to certain obligations, including the
duty to produce corporate records on proper
demand by the Government. Under those
circumstances, the custodian's act of
production is not deemed a personal act, but
rather an act of the corporation. Any claim
of Fifth Amendment privilege asserted by the
agent would be tantamount to a claim of
privilege by the corporationâwhich of course
possesses no such privilege.
Id. at 109â10 (citation omitted). Braswell did not alter the
application of the collective-entity doctrine in this circuit. See
also United States v. Milligan, 371 F. Supp. 2d 1127, 1129 (D.
Ariz. 2005) (stating that no court has treated the language in
Braswell's footnote eleven as an exception to the collective-entity
doctrine).
-11-
Our caselaw rejects Amato's argument suggesting that we
should recognize an exception to the collective-entity doctrine
where the custodian of records is the corporation's sole
shareholder, director, officer and employee. Four months before
the Supreme Court decided Braswell, this court held "that the sole
shareholder of a one-man corporation has no 'act of production
privilege' under the fifth amendment to resist turnover of
corporate documents." John Doe Co., 838 F.2d at 627 n.3. In John
Doe Co., which is very similar to Amato's case, a grand jury
investigated an individual (referred to by the court as "Owner")
who was a corporation's sole shareholder, officer and employee.
When the grand jury issued a subpoena to the corporation's "Keeper
of the Records," the Owner's attorney provided the government some
of the records, but "the corporation refused to authenticate the
documents before the grand jury or to provide testimony (through
Owner or by designating some other agent) that they were all the
records of the corporation." Id. at 624. The Owner also "refused
to stipulate to these facts or to appoint an agent of the
corporation to provide the requested testimony." Id. The
government moved to compel the production of the corporate records,
while the corporation moved to quash the subpoena. The district
court denied the motion to compel and granted the motion to quash
"on the basis that the compelled testimony would likely force Owner
to incriminate himself in violation of his fifth amendment right
-12-
not to be a witness against himself." Id. at 624â25. This circuit
reversed "on the basis that the subpoena is directed at the
corporation which receives no constitutional protection from
self-incrimination." Id. at 624.
Acknowledging that "the very act of producing the
documents may, in some circumstances, be a testimonial act of
authentication," we nevertheless concluded that "production,
including implied authentication, can be required of a corporation
through a corporate officer regardless of the potential for
self-incrimination." Id. at 626; see also Bellis, 417 U.S. at 90
("Since no artificial organization may utilize the personal
privilege against compulsory self-incrimination, . . . it follows
that an individual acting in his official capacity on behalf of the
organization may likewise not take advantage of his personal
privilege."). This court also concluded that a so-called "one-man
corporation" fares no better under the collective-entity doctrine:
âIt is well settled that no privilege can be
claimed by the custodian of corporate records,
regardless of how small the corporation may
be.â Bellis, 417 U.S. at 100. It was Owner's
choice to incorporate. With that choice came
all the attendant benefits and
responsibilities of being a corporation. One
of those responsibilities is to produce and
authenticate records of the corporation when
they are subpoenaed by a grand jury. How the
corporation chooses to fulfill this duty is
not the court's concern.
-13-
John Doe Co., 838 F.2d at 627.3
In a case argued eight days after Braswell was decided,
this court, citing Braswell, reaffirmed its application of the
collective-entity doctrine to a corporation where the sole
shareholder was also the sole officer and employee: "even assuming
[the corporation] to be a one-man corporation and [the corporate
custodian] to be that one man, the corporate records are not
shielded from production, nor may [the corporate custodian] resist
a subpoena for those records on the ground that the act of
production would impermissibly infringe on his Fifth Amendment
right against self-incrimination." Lawn Builders, 856 F.2d at 394.
Amato also invokes this court's decision in In re Grand
Jury Subpoena, 973 F.2d 45 (1st Cir. 1992), to cast doubt on the
precedential value of John Doe Co. and Lawn Builders. But there is
nothing in that case that causes us to rethink our previous
decisions that foreclose Amato's argument. In re Grand Jury
Subpoena held that the collective-entity doctrine precluded the
possibility that the records of a nominee trust were privileged
under the Fifth Amendment. 973 F.2d at 46. In reaching that
3
The court opined that the Supreme Court was likely to decide
"the pivotal question presented in this appeal" in the Braswell
appeal. John Doe Co., 838 F.2d at 627 n.3. As already explained,
the Supreme Court did not decide the pivotal question of whether
the collective-entity doctrine is applicable where the corporate
custodian is also the sole shareholder, officer and employee, nor
did the Supreme Court call into question this circuit's decision in
John Doe Co..
-14-
decision, the court iterated, "Whether an organization is properly
deemed a collective entity has little to do with its size. 'It is
well settled that no privilege can be claimed by the custodian of
corporate records, regardless of how small the corporation may
be.'" Id. at 47 (quoting Bellis, 417 U.S. at 100). The court also
noted that "Braswell held the [collective-entity] rule applicable
to a one-person corporation." Id. In a footnote to this
statement, the court recognized Braswell's footnote eleven. Id.
n.3 (quoting Braswell, 487 U.S. at 118 n. 11). Amato relies on the
footnote in In re Grand Jury Subpoena to argue that we reopened the
issue of whether an exception to the collective-entity doctrine
exists where the records custodian is the corporation's sole
shareholder, officer and employee. We see nothing that supports
this contention.
Although we acknowledged in In re Grand Jury Subpoena
that the Supreme Court left open the question of whether the
collective-entity doctrine applies where the custodian is the sole
officer and employee of the corporation, we did not call into
question our own precedent holding that it does. Accordingly, we
follow our precedent and affirm the district court's order denying
Amato's motion to quash the administrative subpoena directed at him
as the corporations' custodian of records. See generally Wallace
v. Reno, 194 F.3d 279, 283 (1st Cir. 1999) ("When a panel of this
circuit has decided an issue, another panel will ordinarily not
-15-
revisit that issue; but, of course, this limitation does not apply
where an intervening decision of the Supreme Court overturns or
undermines our earlier decision."); Lacy v. Gardino, 791 F.2d 980,
985 (1st Cir. 1986) ("Uniformity of decisions within a multi-panel
circuit can only be achieved by strict adherence to prior circuit
precedent, with the error-correcting function reserved to the court
sitting en banc."), cert. denied, 479 U.S. 888 (1986).
B.
Finally, we conclude that the district court committed no
error in concluding that Mainecures's records remained corporate
records after the corporation's dissolution. See Me. Rev. Stat.
Ann. tit. 13-C, § 1406(1) ("A dissolved corporation continues
corporate existence for a period not exceeding 3 years from the
effective date of the articles of dissolution . . . to wind up and
liquidate its business and affairs. . . ."); 1406(2) ("Dissolution
of a corporation does not: A. Transfer title to the corporation's
property; . . . E. Prevent commencement of a proceeding by or
against the corporation in its corporate name; . . . or
G. Terminate the authority of the clerk of the corporation.").
Mainecures was dissolved in late 2003, less than three years before
the service of the subpoena in January 2005. And nothing in the
record suggests that Mainecures's dissolution effected a transfer
of its corporate records to Amato personally. Moreover, the
Supreme Court has stated that corporate records receive no Fifth
-16-
Amendment protection even after dissolution. Bellis, 417 U.S. at
96 n.3 (recognizing that Supreme Court decisions make "clear that
the dissolution of a corporation does not give the custodian of the
corporate records any greater claim to the Fifth Amendment
privilege"); Grant v. United States, 227 U.S. 74, 80 (1913);
Wheeler v. United States, 226 U.S. 478, 490 (1913).
III.
For the reasons discussed, we decline Amato's invitation
to reconsider our prior caselaw on the applicability of the
collective-entity doctrine in cases involving a records custodian
who is also the corporation's sole shareholder, officer and
employee. We also conclude that Mainecures's dissolution did not
protect its records from the reach of the subpoena in this case.
Therefore, we affirm the district court's order denying Amato's
motion to quash.4
4
Although the Supreme Court in Braswell held that "a corporate
custodian is not entitled to resist a subpoena on the ground that
his act of production will be personally incriminating," the Court
recognized that "certain consequences flow from the fact that the
custodian's act of production is one in his representative rather
than personal capacity." 487 U.S. at 117â18. The Court explained
that the government could not use an individual's act of production
against him, but could use the corporation's act of production
against the individual. Id. at 118.
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