In re Criminal Investigation No. 1
In re Criminal Investigation No. 1
Opinion of the Court
The shock waves from the collapse of Old Court Savings & Loan Association weakened (or at least revealed the weakness of) the foundations of several other savings and loan institutions, precipitating a crisis that appears destined to keep the courts of this state and a good many of its lawyers supplied with litigation for quite some time. This appeal is part of that litigation; it arises from the financial difficulties of one of those troubled savings and loan institutions (hereinafter referred to as The Institution).
A Special Grand Jury investigating The Institution caused to be issued several subpoenas duces tecum, two of which
Upon receipt of the subpoena served upon him, appellant filed a motion to quash it, contending that the subpoena infringed upon the privilege against self-incrimination afforded him by both the Fifth Amendment to the federal constitution and Article 22 of the Maryland Declaration of Rights. Concomitantly, appellant notified his accountant that he intended to assert his privilege against self-incrimination relative to the income tax records held by the accountant.
A hearing on appellant’s motion to quash and his accountant’s motion for protective order was held on December 2, 1987. At the conclusion of the hearing, the court entered two orders. The first order denied appellant’s motion to quash and commanded him to comply with the subpoena served on him (with one restriction not relevant here); the second denied the accountant’s motion for protective order and directed the accountant to comply with the subpoena
Appellant makes three contentions that he asserts warrant a reversal of the order to enforce the subpoena issued to the accountant. Specifically, he contends:
1. The subpoena exceeds the gubernatorial authorization and is thus invalid.
2. The subpoena exceeds the reasonableness and relevancy limitations of the Fourth Amendment.
3. The subpoena, if enforced, violates appellant’s privilege against self-incrimination.3
I
The United States Supreme Court consistently has stated that a grand jury’s function should not, except in the most extreme situations, be interrupted, interfered with, or monitored too closely. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906).
Notwithstanding these authorities, appellant has attempted to thwart the present grand jury investigation by asserting that the subpoena exceeds the authority granted to the Attorney General’s investigation. Specifically, appellant argues that the authorization by the Governor
Based on our decision in In Re: A Special Investigation No. 258, 55 Md.App. 119, 461 A.2d 34 (1983), we believe appellant’s argument is premature. In that case, the late Judge Lowe stated that “[ajbsent an improper and unneces
We have no hesitancy in stating, nevertheless, that were this matter before us we would unquestionably reject appellant’s contention that the Governor’s authorization was not broad enough to support an investigation into appellant’s tax records. At the December 2, 1987, hearing the Attorney General consented to make the gubernatorial authorization part of the record as an aid to the trial judge. (The mere fact that the authorization has been made part of the record does not thereby create a right to challenge that authorization in the pre-indictment stage. See In Re: A Special Investigation No. 258, 55 Md.App. at 127, 461 A.2d 34.) That authorization, issued pursuant to Md. Const, art. V, § 3(a)(2) and signed by Governor Schaefer, granted the Attorney General power to investigate “the possibility of criminal conduct with respect to the financial affairs of [The Institution], its affiliated companies and associated individuals.” (Emphasis added.) The authorization permitted the investigation of various possible crimes, including “violations of the State tax laws.” Since appellant was an “associated individual” of The Institution and since the authorization permitted an investigation of tax law violations, it is so clear that the Attorney General’s investigation of appellant’s tax records by way of the subpoena was entirely authorized and thus appropriate that appellant’s contention to the contrary borders on the frivolous.
II
The Fourth Amendment prohibition against unreasonable searches and seizures restricts the investigatory power of a grand jury. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50
1. That the subpoena command only the production of materials relevant to the investigation;
2. That the subpoena specify the materials to be produced with reasonable particularity; and
3. That the subpoena command production of materials covering only a reasonable period of time.
In Re: Special Investigation No. 281, 299 Md. at 192-93, 473 A.2d 1 (citing United States v. Reno, 522 F.2d 572 (10th Cir. 1975)).
Appellant asserts that the subpoena fails to meet the first and third requirements. The Attorney General argues that we should not reach this issue because appellant never raised the argument below.
In order for an issue to be preserved for appeal, that issue must be raised and decided by the trial court. Md. Rule 1085. This Court ordinarily will not entertain an issue that was not raised below but is raised for the first time on appeal. Kanaras v. State, 54 Md.App. 568, 460 A.2d 61, cert. denied, 297 Md. 109 (1983); White v. State, 7 Md.App. 416, 256 A.2d 174 (1969); Gaylord v. State, 2 Md.App. 571, 235 A.2d 783 (1967). Throughout the pleadings and the hearing, appellant steadfastly asserted his privileges against self-incrimination, both state and federal, but not once did he assert any Fourth Amendment rights.
Ill
Appellant asserts that the subpoena issued to his accountant violates his Fifth Amendment privilege against self-incrimination. In support of this position, he cites three cases.
The first is United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), which involved a federal grand jury investigation of corruption in the awarding of county and municipal contracts. As part of that investigation,
The Supreme Court affirmed in part, reversed in part, and remanded. In so doing, it held that the contents of the subpoenaed documents (which are equal in many respects to the ones subpoenaed in the case sub judice) were not privileged by the Fifth Amendment. The Court noted that the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. Where one prepared the records voluntarily, no compulsion would be present. In Doe, the Supreme Court noted that Doe did not claim that he prepared the documents involuntarily or that the subpoenas would force him to restate, repeat, or affirm the truth of the records. Hence, the Court held that the documents themselves were not privileged.
The Court went on to hold, however, that although the documents were not subject to Fifth Amendment protection, the act of producing them might be. That is, a subpoena that compels the holder of a document to perform an act could have a testimonial aspect with an incriminating effect. As the District Court made a finding of fact that the documents would incriminate Doe, the Supreme Court upheld the District Court’s order, affirmed by the Circuit Court, that Doe’s production of the documents would violate
Doe is illustrative for our purposes for two reasons. First, the documents subpoenaed in Doe, although more diverse and numerous, were essentially similar in nature to the ones subpoenaed here. As in Doe, appellant does not contend that he prepared the documents involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of their contents. To the extent that the subpoenaed documents include work papers that were not prepared by appellant, they contain no testimonial declarations by appellant; as to any subpoenaed papers that were prepared by appellant, they were prepared voluntarily and thus cannot be said to contain compelled testimonial evidence. Consequently, appellant cannot avoid subpoena compliance on the grounds that the documents which the accountant is required to produce contain incriminating writing. See, Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Based upon Doe, therefore, the subpoenaed documents themselves are not protected by the Fifth Amendment. In that respect, Doe supports the Attorney General’s argument, not appellant’s.
Secondly, the Supreme Court’s holding that compelling Doe to produce the documents would violate his Fifth Amendment privilege has no applicability to the case sub judice. The documents in this case are being held by the accountant; it is the accountant who is being compelled to produce them and not appellant. Doe, therefore, furnishes no support for appellant’s argument.
Darwin seems to support appellant’s argument that personal records are entitled to Fifth Amendment protection, although that position appears to be suspect, based upon the Supreme Court opinion in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Darwin relies on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), for the notion that private papers are to be protected by the Fifth Amendment. In Fisher, however, the Court noted that several of Boyd’s express or implicit declarations had not stood the test of time and that its privacy of papers concept has long been a rule searching for a rationale. 425 U.S. at 407-09, 96 S.Ct. at 1579-80. Even Darwin, however, does not support an argument for
The third case relied on by appellant is In Re: Special Investigation No. 281, 299 Md. 181, 473 A.2d 1 (1984). In that case, the Attorney General was conducting an investigation into medicaid fraud. A subpoena was issued to a dentist directing him to produce his patient records. The dentist had initially practiced as a sole practitioner and later incorporated and transferred his practice, along with his records, to the corporate entity. The subpoena commanded the production of the corporation’s records, including the pre-incorporation records of the dentist. A motion to quash the subpoenas was filed. The trial court denied the motion. The Court of Appeals granted certiorari prior to an adjudication of the issue by us. The Court denied the dentist’s argument that the subpoenas, if enforced, would violate his Fifth Amendment privilege. The principal reason for the Court’s holding, aside from the fact that the dentist had voluntarily created the records so that production of them would not constitute compelled testimonial incrimination (citing Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)), was that the dentist had passed the records from his personal practice to the corporation. The records belonged to the corporation, not the individual dentist. See, Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) and Reamer v. Beall, 506 F.2d 1345 (4th Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 431 (1975). Seizing on the point of ownership, appellant argues that In Re: Special Investigation 281
Appellant’s argument misses the mark. First, the records were given to the accountant to be used by the accountant in the preparation of tax returns to be filed with state and federal agencies.
This holding is consistent with that of the Supreme Court in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). In Couch, the question was whether an individual could invoke a Fifth Amendment privilege against compulsory self-incrimination to prevent the produc
Couch is clearly apposite to the case sub judice. The subpoena in Couch demanded production of the same type of documents as are sought by the subpoena in this case. The Couch subpoena was even broader; it commanded the production of “all other pertinent documents pertaining to the tax liability of the ... taxpayer.” As in Couch, appellant’s records are in the hands of an accountant who is the party under compulsion to produce them; appellant is under no personal compulsion. As in Couch, appellant’s records lack any expectation of privacy as the information in those records is subject to mandatory disclosure on an income tax return. Based upon Couch, the absence of both personal compulsion and expectation of privacy renders appellant’s assertion of a Fifth Amendment right inapplicable. Couch, 409 U.S. at 336, 93 S.Ct. at 619.
The judgment of the Circuit Court for Baltimore County, ordering the enforcement of the subpoena duces tecum, is affirmed.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
. In accordance with Md.Rule 1098(b), we shall refrain from identifying the savings and loan institution and the other parties.
. Appellant could not, of course, assert the statutorily recognized accountant-client privilege, since that privilege does not apply generally to criminal actions, Md.Cts. & Jud.Proc.Code Ann. § 9-110(b), and specifically to subpoenas issued by a Grand Jury. In Re: Special Investigation No. 236, 295 Md. 573, 458 A.2d 75 (1983).
. In the pleadings filed below, appellant asserted both his federal and state privilege against self-incrimination. Although we shall consider and decide the issue in the context of both privileges, we shall limit our discussion to the Fifth Amendment privilege, because the Maryland constitutional privilege is to be construed in pari materia with the federal Fifth Amendment privilege. State v. Panagoulis, 253 Md. 699, 253 A.2d 877 (1969); Brown v. State, 233 Md. 288, 196 A.2d 614 (1964).
. See also, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), at 17, 93 S.Ct. at 773 where the Supreme Court
. Md. Const, art. V, § 3(a)(2) provides:
The Attorney General shall:
Investigate, commence, and prosecute or defend any civil or criminal suit or action or category of such suits or actions in any of the Federal Courts or in any Court of this State, or before administrative agencies and quasi legislative bodies, on the part of the State or in which the State may be interested, which the. General Assembly by law or joint resolution, or the Governor, shall have directed or shall direct to be investigated, commenced and prosecuted or defended.
. At oral argument, appellant’s attorney stated that although the Fourth Amendment was never expressly invoked, pages 22-24 of the
. It is, of course, highly questionable whether appellant has a viable Fourth Amendment argument. By turning his papers over to his accountant, appellant may well have relinquished any reasonable expectation of privacy in those papers, since the information in those papers was intended to be disclosed to the state and federal tax authorities. Furthermore, assuming that appellant could have asserted a reasonable expectation of privacy in those documents and thus had a cognizable Fourth Amendment claim, it' is apparent that the subpoena issued to the accountant did conform to the three-prong Fourth Amendment test for reasonableness as enunciated in In Re: Special Investigation No. 281. That is, the items requested from the accountant were tax records within the contemplation of the authorized investigation as the authorization permitted an investigation into possible "violations of State tax laws.” Hence, the subpoena commands the production of materials relevant to the investigation. The subpoena to the accountant specified the materials for production with reasonable particularity. Indeed, it was the particularity of the subpoena of which appellant complains. Therefore, prong two of the reasonableness test was satisfied. The subpoena commanded the production of tax records for the period of 1980-1987. We see nothing unreasonable about an investigation covering this eight year period. The problems with Maryland’s savings & loan institutions began in 1979 with the rise of interest rates. See, Cardin v. State, 73 Md.App. 200, 533 A.2d 928 (1987), cert. denied, 312 Md. 126, 538 A.2d 777 (1988). Since the present investigation is related to the finances of The Institution and to appellant, who is related to The Institution, the period beginning in 1980 is appropriate for a determination of whether criminal acts were committed at a time when a number of savings and loan institutions began to struggle for survival.
. At oral argument appellant’s attorney consistently referred to the documents being subpoenaed as "Financial and Tax Records.”.
. The record is unclear as to whether appellant actually prepared the documents himself and transferred them to the accountant or whether he merely provided the accountant with the information that enabled the accountant to complete the documents.
Reference
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- In re CRIMINAL INVESTIGATION NO. 1
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