In the Matter of the Grand Jury Subpoena of Fred R. Witte Center Glass No. 3. Fred R. Witte v. United States

Fred R. Witte appeals from an order of the district court finding him to be a reeal *1027 citrant witness within the meaning of 28 U.S.C. § 1826 (a) because he “refused without just cause to produce documents know as the ‘Teerlink’ work papers” before a grand jury as directed by a subpoena issued August 13, 1976 and served August 18, 1976. The work papers referred to in the subpoena were prepared by Richard Teerlink, an accountant, in connection with the corporate affairs of Center Glass Company No. 3 and related business enterprises. The subpoena initially was directed to John Dimaggio, vice-president of Center Glass Company No. 3, but he was substituted out when Fred R. Witte appeared before the district court and agreed to stand in his stead. The grand jury is investigating the possible criminal liability under federal tax laws of Center Glass Company No. 3 and there is no assurance that this investigation will not concern itself with possible similar liability of Fred R. Witte. The subpoena described the papers sought as “all work papers of Richard Teerlink.”

I.

Appellant Witte’s basic position is that the Fifth Amendment’s self-incrimination privilege justifies his failure…

(concurring):

I concur in the opinion of Judge Sneed, but should like to add these remarks.

It is important to state that a subpoena to produce documents may elicit testimonial assertations that pertain to matters quite aside from authentication. By complying with a subpoena, a witness may be forced to communicate his state of mind, his memory, his perception, or his cognition; and such evidence may relate either to the documents to be produced or to entirely different matters. Articulation of this evidence may arise either by the act of delivering the requested materials or by responding to inquiries necessary to insure that there has been full compliance with the subpoena. All such evidence, at least presumptively, should be protected by the fifth amendment, where the other requisite grounds for asserting the privilege have been established.

Fisher v. United States, 96 S.Ct. 1569 (1976), concerned an accountant’s working papers that were objectively identifiable. The testimonial assertion implied in the production of the documents was de minim-is and, as such, was outside the purview of the fifth amendment. In this respect, the working papers of an accountant, such as those…

544 F.2d 1026 76-2 USTC P 9761 In the Matter of the Grand Jury Subpoena of FRED R. WITTE CENTER GLASS NO. 3. Fred R. WITTE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 76-3061. United States Court of Appeals, Ninth Circuit. Oct. 26, 1976. Clyde R. Maxwell (argued), of Newport Beach, Cal., for petitioner-appellant. Thomas M. Coffin, Asst. U. S. Atty. San Diego, Cal. (on the brief), Terry J. Knoepp, U. S. Atty., San Diego, Cal., for respondent-appellee. Before TRASK, SNEED and KENNEDY, Circuit Judges. SNEED, Circuit Judge: 1 Fred R. Witte appeals from an order of the district court finding him to be a recalcitrant witness within the meaning of 28 U.S.C. § 1826 (a) because he "refused without just cause to produce documents know as the 'Teerlink' work papers" before a grand jury as directed by a subpoena issued August 13, 1976 and served August 18, 1976. The work papers referred to in the subpoena were prepared by Richard Teerlink, an accountant, in connection with the corporate affairs of Center Glass Company No. 3 and related business enterprises. The subpoena initially was directed to John Dimaggio, vice-president of Center Glass Company No. 3,…