PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: Grand Jury Subpoena: JOHN
DOE, No. 05GJ1318
UNITED STATES OF AMERICA,
Movant-Appellee,
v. No. 06-1572
UNDER SEAL,
Intervenor-Appellant.
UNDER SEAL,
Amicus Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(1:05-dm-00401-TSE)
Argued: September 18, 2006
Decided: March 7, 2007
Opinion Unsealed: October 14, 2009
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge King wrote the major-
ity opinion, in which Judge Shedd joined. Judge Gregory
wrote an opinion concurring in the judgment.
2 IN RE: GRAND JURY SUBPOENA
COUNSEL
ARGUED: Amy Berman Jackson, TROUT CACHERIS,
P.L.L.C., Washington, D.C., for Appellant. Patty Merkamp
Stemler, UNITED STATES DEPARTMENT OF JUSTICE,
Criminal Division, Appellate Section, Washington, D.C., for
Appellee. ON BRIEF: Robert P. Trout, Gloria B. Solomon,
TROUT CACHERIS, P.L.L.C., Washington, D.C., for Appel-
lant. Jeffrey P. Singdahlsen, UNITED STATES DEPART-
MENT OF JUSTICE, Criminal Division, Appellate Section,
Washington, D.C.; Kenneth E. Melson, Acting United States
Attorney, Mark D. Lytle, Rebeca H. Bellows, Assistant
United States Attorney, Michael K. Atkinson, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. Geraldine
R. Gennet, General Counsel, Kerry W. Kircher, Deputy Gen-
eral Counsel, David Plotinsky, Assistant Counsel, U.S.
HOUSE OF REPRESENTATIVES, Office of General Coun-
sel, Washington, D.C., for Amicus Curiae.
OPINION
KING, Circuit Judge:
This appeal is taken by a sitting Congressman (the "Con-
gressman"), who challenges the district court’s refusal to
quash a grand jury subpoena duces tecum seeking documents
from his Chief of Staff ("Doe").1 See In re Grand Jury Sub-
1
The files relating to this appeal have been sealed in both the district
court and this Court, in order to protect the confidentiality of grand jury
proceedings. See Fed. R. Crim. P. 6(e). The district court’s proceedings
were closed to the public and its decision was filed under seal. The oral
argument in this Court was conducted in camera on September 18, 2006.
Consistent with the confidentiality interests of these proceedings, we do
not refer to the Congressman by name, we refer to his Chief of Staff sim-
ply as "Doe," and we do not otherwise use the names of any individuals.
IN RE: GRAND JURY SUBPOENA 3
poena Duces Tecum, John Doe No. 05GJ1318 (Under Seal),
No. 1:05dm401 (E.D. Va. May 4, 2006) (the "Order").2 The
Congressman contends that the court erred in declining to rec-
ognize his Fifth Amendment privilege against production of
the requested documents by Doe, and in entering its Order
compelling Doe to produce subpoenaed documents to the
grand jury. In support thereof, the Congressman maintains
that at all relevant times he retained possession of the docu-
ments at issue, and that he is entitled to interpose his Fifth
Amendment privilege to bar their production. As explained
below, we affirm the district court.
I.
A.
The facts of this case were largely uncontested, and all per-
tinent factual disputes were resolved by the district court.3 On
August 3, 2005, two separate grand jury subpoenas duces
tecum were issued in the Eastern District of Virginia, each
seeking records from the office of the Congressman. The first
of the two subpoenas, directed to "[the Congressman], in his
official capacity as Custodian of Records for [the Congress-
man]’s Congressional Office" was served on the Congress-
man himself (the "Custodian Subpoena"). The second
subpoena was directed to his Chief of Staff, as "[Doe], Chief
Under the circumstances, we also exercise our discretion and seal this
opinion and Judge Gregory’s separate opinion. We defer in the first
instance to the district court, in its supervisory capacity for the grand jury
proceedings, on when these opinions (or any part thereof) should be
unsealed and made public.
2
The Order is found at J.A. 717-18. (Citations herein to "J.A. ___" refer
to the contents of the Joint Appendix filed by the parties in this appeal.)
3
The relevant facts spelled out herein are largely those found and relied
upon by the district court. They have also been derived, inter alia, from
the Stipulated Facts, Doe’s grand jury testimony, and two sworn declara-
tions made by Doe.
4 IN RE: GRAND JURY SUBPOENA
of Staff, [the Congressman]’s Congressional Office" and was
served on Doe (the "Doe Subpoena").4 These subpoenas were
materially identical and requested production of ten categories
of documents generated or retained by the Congressman’s
office relating to his official duties. After the subpoenas were
served, Doe and two other staff members gathered the docu-
ments that they believed responsive to the Custodian Subpoena.5
They did so at the Congressman’s direction, as communicated
to them through his private counsel and the General Counsel
of the House of Representatives ("House Counsel").
B.
On August 23, 2005, House Counsel represented to the
United States Attorney that the potentially responsive docu-
ments were being identified and gathered by the Congress-
man’s staff (the "Documents").6 In response, the United States
4
The Custodian Subpoena is found at J.A. 275-94, and the Doe Sub-
poena is found at J.A. 241-60.
5
As explained infra Part I.E, Doe maintains that she identified and gath-
ered the Documents in response to the Custodian Subpoena only, and not
in response to the Doe Subpoena, which makes a request materially identi-
cal to that of the Custodian Subpoena. Doe’s mind-frame in this regard is
not, in our view, legally significant to our analysis of the issues presented
here. As explained below, the issues in this appeal largely turn on whether
Doe had sufficient possession of the Documents to warrant the district
court’s compulsion ruling, and do not turn on which of the two subpoenas
Doe believed she was satisfying. See Couch v. United States, 409 U.S.
322, 330 n.12 (1973) ("[I]t is possession of papers sought by the govern-
ment . . . which sets the stage for exercise of the governmental compulsion
which it is the purpose of the [Fifth Amendment] privilege to prohibit.");
United States v. Int’l Union of Petrol. & Indus. Workers, 870 F.2d 1450,
1452 (9th Cir. 1989) ("The party to whom a subpoena for records is issued
must produce . . . those records which are in his possession, custody, or
control." (internal quotation marks omitted)).
6
We refer herein to the Movant-Appellee, the United States of America,
as the "United States Attorney," and that term refers collectively to the
investigators, attorneys, and others representing the prosecution and the
grand jury in this matter.
IN RE: GRAND JURY SUBPOENA 5
Attorney expressed concern to House Counsel about possible
copying of the Documents and emphasized the necessity of
maintaining their integrity and security. The parties disagree
on whether the United States Attorney requested that the Con-
gressman not be provided with the "original" set of Documents,7
but they agree that the United States Attorney suggested that
his security and integrity concern could be alleviated by
"Bates-numbering" the Documents prior to any of them being
provided to the Congressman’s counsel. See Stipulated Facts
¶ 3.8 House Counsel rejected that course of action and made
a single copy of the Documents, which was delivered to the
Congressman’s counsel. See id. ¶¶ 3, 4.
On or about September 16, 2005, the original set of Docu-
ments was placed in a locked cabinet in the Chief of Staff’s
office, because Doe was the only member of the staff — other
than the Congressman himself — with an office cabinet that
could be locked and secured.9 House Counsel then notified the
United States Attorney that the Documents had been secured
and were being maintained in Doe’s locked cabinet. On Sep-
tember 28, 2005, the United States Attorney interviewed Doe
on that point, and she confirmed that the Documents had been
placed in the locked cabinet in the Chief of Staff’s office. At
the conclusion of the interview, Doe was served with a sub-
poena to testify before the grand jury, returnable on October
6, 2005 (the "Testimonial Subpoena").10
7
In referring to the "original" set of Documents, we mean the specific
documents initially identified and gathered by Doe and the staff members
who assisted in that effort.
8
The Stipulated Facts, filed in the district court on December 22, 2005,
are found at J.A. 517-19.
9
Doe described to the grand jury the placement of the Documents in her
locked cabinet, stating: "I’m the only person in the office with — I mean
in addition to the congressman, I’m sort of a semiprivate office and I have
a locked cabinet. We put [the Documents] in that cabinet." J.A. 171.
10
The Testimonial Subpoena, served on Doe on September 28, 2005,
directed that she appear and testify before the grand jury on October 6,
2005. The Testimonial Subpoena is to be distinguished from the Doe Sub-
poena, which directed production of the Documents to the grand jury, and
which underlies this appeal. The Testimonial Subpoena is found at J.A.
262-63.
6 IN RE: GRAND JURY SUBPOENA
C.
On October 6, 2005, Doe testified before the grand jury
pursuant to the Testimonial Subpoena of September 27, 2005.
During her testimony, she described her responsibilities as
Chief of Staff as "[o]verall administrative responsibility for
the office, human resource responsibility, and sort of overall
direction for legislative strategy." J.A. 164. Doe was ques-
tioned about her role in identifying, gathering, and securing
the Documents, and she indicated that, as Chief of Staff, she
had been tasked with the responsibility of identifying and
gathering them. In so doing, she ascertained that two staff
members, in addition to herself, had material knowledge of
the Documents. Those staff members — a legislative assistant
("Staff Member 2") and a Deputy Chief of Staff, described as
an office manager and executive secretary ("Staff Member 3")
— were thus assigned to assist Doe in identifying and gather-
ing the Documents. The Documents were identified and gath-
ered from three primary sources: (1) the Congressman’s
private office, computer, and email account (the "Congress-
man’s Materials"); (2) Doe’s files and computers (the "Doe
Materials"); and (3) the files and computers of Staff Members
2 and 3 (the "Staff Materials"). The materials from these
sources were identified, gathered, and placed in the locked
cabinet in the Chief of Staff’s office. Doe and Staff Member
3 were the only persons who knew where Doe kept the key
to the locked cabinet, and they were thus the only persons
with access to the Documents. The Congressman had no role
in determining whether any of the Documents were respon-
sive to either the Custodian Subpoena or the Doe Subpoena.
He did not participate in identifying, gathering, copying, or
securing the Documents, and none of the materials examined
or reviewed included his private papers. According to Doe,
the materials reviewed, as well as the Documents themselves,
are official documents of the congressional office.
D.
On October 21, 2005, House Counsel, representing Doe in
her official capacity, notified the United States Attorney that
IN RE: GRAND JURY SUBPOENA 7
she objected to the Doe Subpoena’s request for documents
from the Congressman’s office. This objection rested on two
grounds: (1) the Documents sought by the Doe Subpoena
belonged to the Congressman; and (2) Doe was not the custo-
dian of the Congressman’s records and had no authority to
release or produce them to the grand jury. As a result, the
United States Attorney, on November 14, 2005, filed a motion
in the district court seeking a compulsion order on the Doe
Subpoena (the "Motion to Compel"). That same day, House
Counsel informed the United States Attorney that Doe would
be leaving her employment with the Congressman four days
hence, on November 18, 2005. House Counsel and the United
States Attorney then discussed whether the Documents —
already secured in Doe’s locked cabinet — should be moved
because of her imminent departure. House Counsel took the
position that Doe should simply transfer the key to the locked
cabinet to Staff Member 3, without removing the Documents.
In making this request, House Counsel maintained that (1) the
Documents were responsive to the Custodian Subpoena and
not the Doe Subpoena; (2) Doe’s involvement with the Docu-
ments was "minimal," as Staff Members 2 and 3 had identi-
fied and gathered most of them; (3) the Documents had been
locked in Doe’s cabinet only "as a courtesy response" to the
United States Attorney’s integrity and security concerns; and
(4) even if Doe was the custodian of the Congressman’s
records, her status as such would cease when her employment
as the Congressman’s Chief of Staff terminated.
On November 17, 2005, the United States Attorney filed in
the district court a "Motion to Preliminarily Secure Docu-
ments Responsive to Grand Jury Subpoena Pending Judicial
Determination" (the "Motion to Secure"), seeking to compel
the transfer of the Documents to the custody of the court’s
Clerk prior to Doe’s departure (the next day) from the Con-
gressman’s office. Doe promptly filed a memorandum in
opposition to the Motion to Secure, and the court conducted
an immediate hearing on the matter. At this hearing, Doe and
the United States Attorney agreed: (1) the Documents would
8 IN RE: GRAND JURY SUBPOENA
be transferred to and held by House Counsel; and (2) Doe and
House Counsel would not contend, in response to the pending
Motion to Compel, that Doe’s possessory interest in the Doc-
uments, if any, was in any way altered by her departure from
the Congressman’s staff or by transfer of the Documents to
House Counsel. Premised on this agreement, the court denied
the Motion to Secure as moot. The Documents were then
transferred from Doe’s locked cabinet to House Counsel’s
office, subject to the foregoing agreement, as confirmed by
the court’s Order of November 17, 2005.11
E.
On December 2, 2005, Doe filed a memorandum in opposi-
tion to the Motion to Compel. With her opposition memoran-
dum, Doe filed a Declaration stating that
it has always been my understanding that all official
records in [the Congressman’s] office belong solely
to him; that he is the sole custodian of records for
those records and has exclusive control of them; and
that neither I nor any other member of [the Con-
gressman]’s staff were authorized to make any deci-
sions regarding the disposition of those records.
J.A. 238. On December 9, 2005, the United States Attorney
filed a reply to Doe’s opposition memorandum, and Doe filed
a prompt surreply. On December 16, 2005, the district court
conducted a hearing on the Motion to Compel, at which Doe
and the United States Attorney agreed to promptly file their
Stipulated Facts, as well as supplemental memoranda (which
were filed on December 22, 2005). Doe’s supplemental mem-
11
The court’s November 17, 2005 Order also provided that House
Counsel would maintain the security and integrity of the Documents. See
J.A. 146. Pursuant to the agreement confirmed by that Order, we proceed
as though Doe is yet employed as the Congressman’s Chief of Staff and
the Documents remain in the locked cabinet in her office.
IN RE: GRAND JURY SUBPOENA 9
orandum was supported by her Second Declaration, in which
she stated that her role in the document identification and
gathering process was limited to searching her own office and
computer for documents potentially responsive to the Custo-
dian Subpoena, and that she understood the reason for storing
the Documents in her locked cabinet to be the United States
Attorney’s integrity and security concern. Doe stated that she
did not personally review the Documents, except for the Doe
Materials she personally gathered from the Chief of Staff’s
office and computer. The Second Declaration also asserted
that Doe had never searched for documents potentially
responsive to the Doe Subpoena.12
Following another hearing in the district court on January
6, 2006, the Congressman, who had been authorized to inter-
vene in the Motion to Compel proceedings, spelled out his
objections to the Doe Subpoena and moved to quash it (the
"Motion to Quash"). The district court issued its decision on
both the Motion to Quash and the Motion to Compel on May
4, 2006. See Order and accompanying Memorandum Opinion
(the "Opinion").13 The Order provides as follows:
It is ORDERED that the [Motion to Compel] is
GRANTED IN PART AND DENIED IN PART. It
is DENIED insofar as it seeks production of docu-
ments found in [the Congressman]’s private office,
computer, or email account. It is GRANTED in all
other respects. It is further ORDERED that [the
Motion to Quash] is GRANTED IN PART AND
DENIED IN PART. It is GRANTED insofar as it
12
As explained supra note 5, Doe’s contention that she identified and
gathered documents in response to the Custodian Subpoena only, and not
the Doe Subpoena, is neither legally nor factually significant here. The
two subpoenas are materially identical and, according to the Congress-
man’s Motion to Quash the Doe Subpoena, filed January 9, 2006, the two
subpoenas seek "precisely the same documents." Supplemental J.A. 20.
13
The Opinion is found at J.A. 696-716.
10 IN RE: GRAND JURY SUBPOENA
seeks production of documents found in [the Con-
gressman]’s private office, computer, or email
account. It is DENIED in all other respects.
Order 1. Thus, the court ordered Doe to produce to the grand
jury the Doe Materials and the Staff Materials, and the court
quashed the Doe Subpoena to the extent that it sought produc-
tion of the Congressman’s Materials. See id. In its accompa-
nying Opinion, the court explained its ruling, stating:
[Although the Congressman]’s Fifth Amendment
privilege requires that the subpoena issued to him in
his capacity as custodian of records [the Custodian
Subpoena] be quashed, his Fifth Amendment privi-
lege does not permit [him] to quash the subpoena
issued to Doe [the Doe Subpoena] except with
respect to the documents retrieved from his private
office, computer, or e-mail account.
Opinion 21. In declining to fully quash the Doe Subpoena,
and in granting the Motion to Compel in part, the court made
certain pertinent findings of fact. Significantly, it found that
Doe and Staff Members 2 and 3 individually had actual pos-
session of the Doe Materials and the Staff Materials, and that,
consequently, the Congressman did not retain sole and exclu-
sive authority over those materials. See id. at 18. The court
found that, as Chief of Staff, Doe had the authority to demand
the Staff Materials from Staff Members 2 and 3 at any time.
See id. at 14-15. Additionally, the court found that the United
States Attorney had not requested that Doe take possession of
the Documents after they were identified and gathered, and
that he merely assented to House Counsel’s decision to have
the Documents locked in the cabinet in the Chief of Staff’s
office. See id. at 15 n.18. The court ruled that the nature of
Doe’s possession and control of the Doe Materials and the
Staff Materials triggered her obligation to produce them to the
grand jury pursuant to the Doe Subpoena, and that her obliga-
IN RE: GRAND JURY SUBPOENA 11
tion in that respect was not trumped by the Congressman’s
Fifth Amendment act of production privilege. See id. at 14-15.
The Congressman has appealed from that aspect of the May
4, 2006 Order declining to fully quash the Doe Subpoena, and
we have authorized Doe to participate in the appeal as amicus
curiae. We possess jurisdiction in this appeal — a point not
contested by the United States Attorney — and we will briefly
explain the basis thereof. As a general proposition, a person
served with a subpoena is not entitled to appeal the denial of
a motion to quash without first resisting the subpoena and
being held in contempt. See United States v. Jones, 696 F.2d
1069, 1071 (4th Cir. 1982). In these circumstances, however,
where the Congressman challenges only the court’s ruling on
the Doe Subpoena, the general rule has no application. We are
thus obliged to recognize the Congressman’s right to contest
on appeal the propriety of Doe being compelled to comply in
part with the Doe Subpoena, in the face of his Fifth Amend-
ment privilege claim. See id. ("[W]hen the one who files the
motion to quash is not the person to whom the subpoena is
directed and the movant claims that production of the subpoe-
naed documents would violate his fifth amendment privilege
against self-incrimination, the movant is permitted an imme-
diate appeal."). In these circumstances, we consider and dis-
pose of the Congressman’s appeal on its merits.
II.
We review for abuse of discretion a district court’s denial
of a motion to quash a grand jury subpoena. See In re Grand
Jury Subpoena (Torf), 350 F.3d 1010, 1014 (9th Cir. 2003).
In conducting such a review, we assess de novo the district
court’s rulings of law, and we examine its findings of fact for
clear error. See In re Grand Jury Subpoenas Dated Dec. 10,
1987, 926 F.2d 847, 854 (9th Cir. 1991) ("We review the dis-
trict court’s factual determinations under the clearly erroneous
rule, and review its decision to quash the grand jury subpoe-
nas for abuse of discretion." (internal quotation marks omit-
12 IN RE: GRAND JURY SUBPOENA
ted)); cf. In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th
Cir. 2003) (reviewing for clear error findings of fact underly-
ing attorney-client privilege claim on motion to quash grand
jury subpoena). More specifically, we review for clear error
any findings of fact underlying a district court’s ruling on the
applicability of the Fifth Amendment privilege. See United
States v. Doe, 465 U.S. 605, 614 (1984). A finding of fact is
clearly erroneous when, through our review of the evidence,
we are left with the definite and firm conviction that a mistake
has been committed. United States v. Singh, 363 F.3d 347,
354 (4th Cir. 2004).
III.
A.
The grand jury is an ancient institution and an integral part
of our constitutional heritage, which came "to this country
with the common law." United States v. Mandujano, 425 U.S.
564, 571 (1976). The grand jury has traditionally been under-
stood to be both a sword and a shield but, as has been
observed, it "earned its place in the Bill of Rights by its
shield, not by its sword." United States v. Cox, 342 F.2d 167,
186 (5th Cir. 1965) (Wisdom, J., concurring). As Justice Pow-
ell aptly emphasized, the grand jury is responsible for both
authorizing criminal prosecutions when probable cause exists
and ensuring "the protection of citizens against unfounded
criminal prosecutions" when probable cause is lacking.
United States v. Calandra, 414 U.S. 338, 343 (1974).
The grand jury, in carrying out its investigative function,
has broad authority to subpoena witnesses and documents. As
the Supreme Court recognized in Branzburg v. Hayes in 1972,
the grand jury’s authority to subpoena witnesses is
not only historic, . . . but essential to its task.
Although the powers of the grand jury are not unlim-
ited and are subject to the supervision of a judge, the
IN RE: GRAND JURY SUBPOENA 13
longstanding principle that the public . . . has a right
to every man’s evidence, except for those persons
protected by a constitutional, common-law, or statu-
tory privilege, . . . is particularly applicable to grand
jury proceedings.
408 U.S. 665, 688 (1972) (internal quotation marks omitted).
B.
Before turning to our assessment of the issues presented in
this appeal, it is appropriate to succinctly review certain of the
pertinent facts and procedural points. First of all, this proceed-
ing does not concern any claim of privilege asserted by Doe
— it deals only with the Congressman’s claim of a Fifth
Amendment act of production privilege. Second, we are not
concerned with the Custodian Subpoena directed to and
served on the Congressman, as that subpoena has been
quashed by the district court. See Opinion 21. Third, the
records requested by the Custodian Subpoena and the Doe
Subpoena are materially identical, and any assertion that the
efforts to identify and gather documents were directed to the
Custodian Subpoena only is both factually and legally irrele-
vant. See supra note 5. Finally, the Fifth Amendment privi-
lege being invoked is that of the Congressman only, and it is
directed to the Doe Subpoena only.
C.
1.
The Congressman maintains, in connection with the Opin-
ion and Order of May 4, 2006, that the district court erred in
ruling that Doe’s production to the grand jury of the Doe
Materials and the Staff Materials, pursuant to the Doe Sub-
poena, does not violate his Fifth Amendment privilege. At its
essence, the resolution of the Congressman’s appeal turns on
whether his Fifth Amendment privilege applies to Doe’s pro-
14 IN RE: GRAND JURY SUBPOENA
duction of the Doe Materials and the Staff Materials. If it
applies, Doe is barred from producing those Materials to the
grand jury. If, on the other hand, the Congressman’s claim of
privilege is rejected, Doe is obliged to produce both the Doe
Materials and the Staff Materials.14 With this predicate in
mind, we turn to our assessment of the Congressman’s Fifth
Amendment contentions.
a.
As a general proposition, the burden of establishing that the
Fifth Amendment privilege applies in a particular setting is on
the party asserting it. See United States v. Wujkowski, 929
F.2d 981, 984 (4th Cir. 1991). The Fifth Amendment privi-
lege is purely personal, and it applies only to natural individu-
als. See United States v. White, 322 U.S. 694, 698 (1944).
Because it is a personal privilege, it cannot be asserted by a
collective entity or the custodian of a collective entity’s
records. See Bellis v. United States, 417 U.S. 85, 88 (1974).
In Bellis, the Supreme Court held that the records of an orga-
14
The Congressman also contends that, even if his Fifth Amendment
privilege does not apply to the Staff Materials, the Doe Subpoena should
nonetheless be quashed with respect to the Staff Materials because he did
not share possession of them with Doe. Specifically, the Congressman
maintains that Doe did not possess or control the Staff Materials, either
when the Doe Subpoena was served on her or when the Documents were
placed in the locked cabinet in the Chief of Staff’s office. Even if Doe
lacks possession of the Staff Materials, however, we would be obliged to
reject the Congressman’s contention as to their production, because he
lacks standing to seek to quash a subpoena for documents over which he
has no valid Fifth Amendment claim. See 9A Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Procedure § 2459
(3d ed. 1998) ("Ordinarily a party has no standing to seek to quash a sub-
poena issued to someone who is not a party to the action unless the party
claims some personal right or privilege with regard to the documents
sought."); see also Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)
(concluding that movants who had not asserted valid privilege claim
lacked standing to seek to quash subpoena duces tecum directed to third
party).
IN RE: GRAND JURY SUBPOENA 15
nization which has a "recognizable juridical existence apart
from its members" are outside the ambit of the Fifth Amend-
ment and not protected by the constitutional privilege. Id. at
87 (internal quotation marks omitted). Thus, 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, because such a cus-
todian does not hold the records in a purely personal capacity,
but only as agent of the collective entity. See Braswell v.
United States, 487 U.S. 99, 117-18 (1988). On the other hand,
because the privilege is a personal one, an individual who
operates a business as a sole proprietorship may, in the proper
circumstances, assert his Fifth Amendment privilege to bar
production of his business records. See United States v. Doe,
465 U.S. 605, 612-13 (1984).
The question of whether a congressman, in connection with
a grand jury subpoena for his congressional office’s records,
is entitled to invoke his Fifth Amendment privilege to bar
their production appears to be one of first impression in this
Court. In pursuing his contention, the Congressman asserts
that his congressional office is akin to a sole proprietorship,
and that the records thereof fall within the ambit of his Fifth
Amendment privilege. The United States Attorney contends,
on the other hand, that a congressional office is more akin to
a collective entity and that the Congressman is not entitled to
successfully interpose his Fifth Amendment privilege to
quash the Doe Subpoena.
In the circumstances here, we need not definitively resolve
the question of whether a congressional office is a sole propri-
etorship or a collective entity. The Congressman’s contention
of error must be rejected because, even if his congressional
office is deemed to be a sole proprietorship, he is not entitled
to bar Doe from producing the Documents to the grand jury
by invoking his Fifth Amendment privilege.15
15
We agree with the district court that a congressional office shares
characteristics of both collective entities and sole proprietorships. See
16 IN RE: GRAND JURY SUBPOENA
b.
The circumstances under which a sole proprietor may assert
his Fifth Amendment privilege to bar the production of docu-
ments in the possession of a third party, in response to a grand
jury subpoena, are circumscribed by controlling precedent. In
Couch v. United States, the Supreme Court was confronted
with the question of whether a sole proprietor could assert her
Fifth Amendment privilege to bar production, pursuant to an
Internal Revenue summons, of records in the possession of
her accountant. See 409 U.S. 322, 327 (1973).16 In ruling on
this issue, the Court held that, because the documents were in
the possession of the proprietor’s accountant, there was no
element of compulsion as to the proprietor, and the IRS was
entitled to subpoena the documents from the accountant. See
id. at 329. The Court rejected the notion that ownership,
rather than possession, marks the boundary of the Fifth
Amendment privilege, observing that "possession bears the
closest relationship to the personal compulsion forbidden by
the Fifth Amendment." Id. at 331.
Opinion 12. A congressional office is a "creature of the state," is represen-
tative by nature, and is subject to the rules and regulations established by
the House of Representatives. See United States v. White, 322 U.S. 694,
701 (1944) ("The test . . . is whether one can fairly say under all the cir-
cumstances that a particular type of organization has a character so imper-
sonal in the scope of its membership and activities that it cannot be said
to embody or represent the purely private or personal interests of its con-
stituents, but rather to embody their common or group interests only.").
On the other hand, as the record reflects, a congressman leases office
space and vehicles for official use in his individual name, and he is per-
sonally responsible for any expenditures exceeding the allowance pro-
vided by the House.
16
Although the Couch case involved an Internal Revenue summons and
not a grand jury subpoena, the analysis of whether a Fifth Amendment
privilege can be invoked to preclude documents from being produced by
another is the same in both contexts. See, e.g., In re Grand Jury Subpoena
Duces Tecum Dated May 29, 1987, 834 F.2d 1128, 1131-33 (2d Cir. 1987)
(applying Couch analysis to grand jury subpoena).
IN RE: GRAND JURY SUBPOENA 17
The Court thus recognized and applied the general rule that,
because actual possession of documents bears the most signif-
icant relationship to Fifth Amendment protections against per-
sonal compulsion, compelling the production of documents in
possession of a third person generally does not contravene the
Fifth Amendment. See id. at 333. The Couch Court recog-
nized, however, a possible exception to this rule, observing
that "situations may well arise where constructive possession
is so clear or the relinquishment of possession is so temporary
and insignificant as to leave the personal compulsions upon
the accused substantially intact." Id.; see also United States v.
Jones, 630 F.2d 1073, 1079 (5th Cir. 1980) ("Constructive
possession of personal records for purposes of asserting the
privilege against self-incrimination exists only where the [per-
son asserting the privilege] has placed papers in the hands of
another person or entity for custodial safekeeping, thereby,
retaining the right to immediate possession though not having
actual possession." (internal quotation marks omitted)).
As a general proposition, the courts have justifiably applied
the so-called Couch exception (that is, the notion that a person
may invoke his personal Fifth Amendment act of production
privilege to bar third persons from producing documents) in
a very limited manner — only to those situations where the
person from whom production is sought has such an attenu-
ated possessory right in the documents that the person claim-
ing the privilege retains exclusive constructive possession of
them. Importantly, the courts have consistently rejected appli-
cation of the Couch exception in circumstances, such as those
in this appeal, where an employer shares control, use, or cre-
ation of documents with his employee. See In re Grand Jury
Investigation No. 89-4-8881-J, 921 F.2d 1184, 1189 (11th
Cir. 1991) (holding that lawyer could not assert Fifth Amend-
ment privilege to preclude secretary from delivering subpoe-
naed documents to grand jury where secretary had prepared
and maintained records); Grand Jury Subpoena Duces Tecum
Dated May 29, 1987, 834 F.2d 1128, 1133 (2d Cir. 1987)
(upholding subpoena where administrative assistant had
18 IN RE: GRAND JURY SUBPOENA
nearly exclusive responsibility for maintaining documents and
owners "had no more than occasional and casual contact with
the materials in question"); In re Grand Jury Proceedings
(Manges), 745 F.2d 1250, 1252 (9th Cir. 1984) (rejecting sole
proprietor’s effort to quash subpoena directed to bookkeeper
on basis of Fifth Amendment privilege where bookkeeper
actively prepared and maintained ledgers, and observing that
Couch exception only applies where possession of records by
employee is so insignificant or fleeting as to leave incriminat-
ing testimonial effects in place); In the Matter of Grand Jury
Empanelled Feb. 14, 1978, 597 F.2d 851, 862 (3d Cir. 1979)
(holding that sole proprietor could not assert Fifth Amend-
ment privilege to quash subpoena served on office manager
who had full access to papers and prepared some of them).
Consistent with the foregoing rulings, the Fifth Circuit, in
In re Grand Jury Subpoena (Kent), recognized and applied
the Couch exception, holding that a sole proprietor could
invoke his Fifth Amendment privilege to preclude his
employee from producing documents pursuant to a grand jury
subpoena. See 646 F.2d 963, 970 (5th Cir. 1981). There, how-
ever, the employee had neither prepared, filed, nor maintained
any of the requested documents, and the court found that she
merely had access to them, as did other employees. See id. at
966, 968. The court thus ruled that the proprietor had retained
exclusive possession and control of the subpoenaed docu-
ments and that his Fifth Amendment privilege applied to bar
their production in response to a subpoena directed to his
employee. See id. at 970. On its facts, Kent is readily distin-
guishable from the situation posed in the Congressman’s
appeal.
2.
Having spelled out the legal framework for analyzing a
Fifth Amendment privilege claim being invoked in connec-
tion with a subpoena for documents directed to an employee
of the claimant, we now examine the district court’s relevant
IN RE: GRAND JURY SUBPOENA 19
factual findings. First, the court specifically found that,
although the Congressman had constructive possession of the
Doe Materials and the Staff Materials, and could have called
for them at any time, he shared such possession with Doe. See
Opinion 18. Next, Doe had actual possession of the Doe
Materials when the Doe Subpoena was served, because she
was directly responsible for preparing and maintaining them.
See id. at 14. In addition, the court found that Doe had con-
structive possession of the Staff Materials when the Doe Sub-
poena was served, due to her supervisory authority as Chief
of Staff. See id. at 14-15. Her possession of the Staff Materi-
als became actual possession when they were placed in the
locked cabinet in the Chief of Staff’s office. Id. at 15 n.18.
Finally, the court found that Staff Members 2 and 3 had actual
possession of the Staff Materials because the preparation and
maintenance thereof was their responsibility. Id. at 18. As fur-
ther explained below, we have carefully considered each of
these findings and, on this record, readily conclude that none
is clearly erroneous.
Doe’s evidence provided ample support for the district
court’s finding that she and Staff Members 2 and 3 had actual
possession of the Doe Materials and the Staff Materials,
respectively. The Staff Materials were located in the hard
drives or files of Staff Members 2 and 3, and the Doe Materi-
als were located in the files and computer of the Chief of
Staff. The evidence also warranted the court’s determination
that Doe acquired actual possession of the Staff Materials
when they were placed in the locked cabinet in her office.
Although the United States Attorney expressed concern about
the integrity and security of the Documents after they were
copied, he did not request that they be placed in Doe’s posses-
sion, and his assent to House Counsel’s decision to lock them
in Doe’s cabinet was merely that — assent. See Opinion 15
n.18. In ruling against the Congressman on this point, the
court found:
[a]lthough the government did express concern about
security of the documents, it was House Counsel —
20 IN RE: GRAND JURY SUBPOENA
not the government — who decided to lock the doc-
uments in Doe’s [cabinet]. Rather, the government
merely assented to House Counsel’s decision in this
regard after House Counsel refused to have the
responsive documents Bates-stamped.
Id.
Furthermore, the evidence supported the district court’s
finding that Doe had constructive possession of the Staff
Materials because of her supervisory authority in the Con-
gressman’s office. As Chief of Staff, she was the most senior
member of the Congressman’s Washington staff, and was
responsible for running the office and overseeing its nine
employees, including Staff Members 2 and 3. Working with
those Staff Members, Doe identified and gathered the Docu-
ments, including the Staff Materials and the Doe Materials.
Although Staff Members 2 and 3 generated and kept their
own files, Doe actively participated in matters on which they
worked, and she was regularly required to obtain and use the
materials created and maintained in their files. Put simply, we
are not, on this record, left with the "definite and firm convic-
tion" that the district court made a mistake in any of its rele-
vant findings.
3.
Finally, the district court properly applied the controlling
legal principles to the pertinent facts. As we have explained,
the Fifth Amendment act of production privilege cannot —
under the governing principles of Couch — be successfully
invoked by the Congressman with respect to the relevant
Materials sought by the Doe Subpoena, if Doe also had pos-
session of those Materials. Because the court did not err in
finding that Doe had possession of both the Doe Materials and
the Staff Materials, it also did not err in ruling that the Con-
gressman was not entitled to invoke his Fifth Amendment
privilege to bar Doe’s production of those Materials.
IN RE: GRAND JURY SUBPOENA 21
IV.
Pursuant to the foregoing, we affirm the Order of May 4,
2006 compelling Doe to produce to the grand jury the Doe
Materials and the Staff Materials sought by the Doe Sub-
poena.
AFFIRMED
GREGORY, Circuit Judge, concurring in the judgment:
I am mostly in agreement with the majority decision and I
vote to affirm the ruling of the district court, albeit on slightly
different grounds. I write separately to discuss whether Doe
had constructive possession or control over Staff Member 3’s
files because of Doe’s supervisory authority and whether Doe
gained actual possession of the Staff Materials upon their
transfer to her cabinet on September 16, 2005.
I.
The majority opinion sets out the facts relevant to this
appeal. However, there are additional facts that clarify the
relationship between Doe and Staff Member 3. First, although
Doe described Staff Member 3 as "her deputy chief of staff,"
Doe noted that Staff Member 3 was responsible for budget
and procurement issues for the Congressman’s office, and
served as his scheduler and "sort of executive secretary." J.A.
165. When noting that all staff members keep their own files,
Doe commented specifically that Staff Member 3 "keeps all
of her own records and she helps to maintain the congress-
man’s records." J.A. 180. Before she could explain further,
the United States Attorney interrupted Doe with an unrelated
question. J.A. 180. At a meeting between Doe, Staff Members
2 and 3, House Counsel, and the Congressman’s counsel, Doe
commented on the methodology for gathering responsive doc-
uments:
22 IN RE: GRAND JURY SUBPOENA
[W]e were going to . . . look through the e-mail, . . .
we were going to look through hard files, we were
going to search the computer, . . . [Staff Member 3]
was going to look through the papers on the con-
gressman’s desk and in his files and she was going
to search his e-mail . . . . She was going to look at
files left on the server from other staffers who had
left.
J.A. 178-79.
Except for one set of documents located on Doe’s com-
puter, all responsive documents were found in the files of
Staff Members 2 and 3. J.A. 176. Indeed, Staff Members 2
and 3 "were the only ones with some sort of material knowl-
edge about what these documents were and had some idea of
how to find them or where to find them." J.A. 170. In addition
to the documents collected in the Congressman’s office, Doe
testified that Staff Member 3 "sort of reminded us all that
there is an official archive for each member’s office," leading
to a search of that archive for responsive documents. J.A. 195.
II.
A.
The majority concludes that Doe had "constructive posses-
sion of the Staff Materials because of her supervisory author-
ity in the Congressman’s office." With regard to the materials
in the files of Staff Member 2, I agree with this conclusion.
With respect to the files of Staff Member 3, however, this
conclusion ignores evidence that Doe did not have the same
(or greater) access as Staff Member 3 to certain documents
and that Staff Member 3 functioned as the Congressman’s
executive secretary, and was not supervised by Doe. The
United States Attorney bears the burden of proof on the initial
inquiry—that of Doe’s possession, custody, or control of the
Staff Materials—and, on this record, has not carried this bur-
IN RE: GRAND JURY SUBPOENA 23
den with respect to the files of Staff Member 3. Accordingly,
I conclude that Doe did not have possession, custody, or con-
trol over the files of Staff Member 3.
As "[t]he words ‘possession’ and ‘custody’ are . . . super-
fluous in view of the use of the term ‘control,’ which is an all-
inclusive word," the United States Attorney need only demon-
strate that Doe had control over the documents in question.
Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 512 n.52
(4th Cir. 1977). "Control is defined as the legal right to obtain
documents upon demand." United States v. Int’l Union of
Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450,
1452 (9th Cir. 1989). This legal right must include "access to
the subpoenaed documents in the ordinary course of busi-
ness." U.S. Int’l Trade Comm’n v. ASAT, Inc., 411 F.3d 245,
254 (D.C. Cir. 2005).
The majority concludes that Doe had control over Staff
Member 3’s files because Doe’s statements to the Grand Jury
on October 6, 2005 indicated that Doe was the senior staff
member, actively participated in matters on which other staff
members worked, and was regularly required to use their
files, although each staff member kept separate files. Despite
the assertion of the district court and the majority that Doe
had regular access to Staff Member 3’s files, there is no evi-
dence of that fact in Doe’s grand jury testimony.
Based on the limited evidence about the day-to-day func-
tioning of the Congressman’s office, the United States Attor-
ney has not met its burden of proof that Doe had access to
Staff Member 3’s documents in the ordinary course of busi-
ness. While it is true that Doe characterized herself as the lead
staff member in the Congressman’s Washington office, she
also characterized Staff Member 3 as the Congressman’s
executive secretary. Both of these statements may be true;
Doe may have been the head of the office, exercising supervi-
sory control over other staff members, and Staff Member 3
24 IN RE: GRAND JURY SUBPOENA
may have reported directly to the Congressman as an execu-
tive secretary.
Staff Members 2 and 3 gathered documents with Doe
because they, rather than Doe, were the only ones who knew
where the responsive documents were located. In a meeting
with the Congressman’s counsel, Staff Member 3, not Doe,
was charged with the task of gathering documents from the
Congressman’s desk and computer, lending support to the
conclusion that Staff Member 3 reported directly to the Con-
gressman. In addition, in that same meeting, Staff Member 3
was charged with the task of gathering responsive documents
from the electronic files of former staffers. Indeed, Doe was
not aware of the existence of an off-site archive containing
materials from the office until Staff Member 3 mentioned the
archive. Given this evidence, and the lack of any evidence
that Doe routinely supervised, or accessed the files of, Staff
Member 3, the United States Attorney has not carried its bur-
den of proof to demonstrate that Doe had access to Staff
Member 3’s files in the ordinary course of business.1 Accord-
ingly, I conclude that Doe did not have possession, custody,
or control over these files.
1
The United States Attorney had ample opportunity to develop the
record with regard to the functioning of the Congressman’s office during
Doe’s grand jury appearance. For example, when Doe testified that she
had "overall administrative responsibility" for the Congressman’s office,
"oversee[ing] employees in the larger sense," but that Staff Member 3
functioned as "sort of [the Congressman’s] executive secretary," the
United States Attorney did not ask Doe to clarify what she meant by over-
all responsibility or the chain of authority within the office. J.A. 164-66.
Similarly, while describing the filing system of the office, and comment-
ing specifically on Staff Member 3’s practice of "keep[ing] all of her own
records and . . . help[ing] to maintain some of the congressman’s records,"
Doe was interrupted by the United States Attorney with an unrelated ques-
tion. J.A. 180.
IN RE: GRAND JURY SUBPOENA 25
B.
Having established that Doe did not have possession, cus-
tody, or control over the documents in the files of Staff Mem-
ber 3, I turn to the question of whether the Congressman has
a valid Fifth Amendment privilege with respect to the materi-
als in question. Because the Congressman is challenging a
third-party subpoena, he only has standing to challenge Doe’s
subpoena to the extent that he has a valid privilege or right
with respect to the documents in question. The only such priv-
ilege or right claimed by the Congressman is the Fifth
Amendment right against self-incrimination.
On the Fifth Amendment question, I agree with the major-
ity that the exception announced in Couch v. United States,
409 U.S. 322, 327 (1973), does not apply to the instant case.
Doe and Staff Members 2 and 3 possessed the responsive
materials in their work files or on their computers. There is no
evidence that the Congressman restricted any staff member’s
access to, or use of, the responsive documents in any manner.
Cf. In re Grand Jury Subpoena (Kent), 646 F.2d 963, 969 (5th
Cir. 1981) (quashing subpoena where employee had mere
access to records, rather than control thereof); United States
v. Guterma, 272 F.3d 344, 346 (2d Cir. 1959) (quashing sub-
poena where trustee had possession of locked safe containing
documents, but was never given access to, or ownership of,
safe); Schwimmer v. United States, 232 F.2d 855, 860-61 (8th
Cir. 1956) (owner of documents was entitled to make privi-
lege argument where documents were on premises of third
party who was mere naked possessor without having control
over documents). Indeed, Staff Member 3 gathered responsive
documents from the Congressman’s own files, electronic
archives of former employees, and an off-site archive. The
breadth of the search for responsive documents undertaken by
Doe and Staff Member 3 demonstrates the extent to which
they had physical possession over most of the responsive doc-
uments, as well as authority to obtain those not in their imme-
diate possession. Such broad ability to use and gather
26 IN RE: GRAND JURY SUBPOENA
documents goes well beyond the mere access or naked pos-
session discussed in Kent, Guterma, or Schwimmer. In sum,
as the majority correctly concludes, courts have repeatedly
rejected the application of the Couch exception in cases where
an employer does not restrict employee access to, or use of,
documents in the normal course of business. The cases cited
by the majority establish clearly that the Congressman does
not have a Fifth Amendment privilege in either the Doe or
Staff Materials.
The Congressman’s standing as an intervenor in this pro-
ceeding, and our exercise of appellate review at this stage, is
predicated upon his assertion that compelling Doe to comply
with the subpoena at issue violates his Fifth Amendment privi-
lege.2 See, e.g., United States v. Jones, 696 F.2d 1096, 1071
(4th Cir. 1982) (allowing third party immediate appeal of
motion to quash when third party asserts privilege in the
requested documents); In re Doe, 662 F.2d 1073, 1076 (4th
Cir. 1981) (allowing third party immediate review of sub-
poena to protect asserted work-product doctrine materials).
Because the Congressman’s Fifth Amendment claim fails, he
cannot obtain relief on this appeal. The Congressman cannot
quash the Doe subpoena, even on the basis that Doe lacked
possession, custody, or control over the documents in Staff
Member 3’s files and was therefore not a proper respondent
to the subpoena for those documents. Cf. United States v.
Idema, 118 Fed. App’x 740, 744 (4th Cir. 2005) ("Idema has
failed to make any showing that he has a personal right to, or
2
This is not to say that the Congressman could not satisfy the standing
requirement to challenge the Doe subpoena based on another right or priv-
ilege. See, e.g., In re Grand Jury, 111 F.3d 1066, 1073-74 (3d Cir. 1997)
(listing cases where third parties have standing to quash subpoena on basis
of various legally cognizable interests in the documents sought). In this
case, however, the Congressman has maintained only a Fifth Amendment
argument. Thus, his standing before this court, and our jurisdiction to con-
sider this appeal, depends solely upon a finding of a Fifth Amendment
interest in the subpoenaed documents. See S.J.A. 5-10 (Motion to Inter-
vene on Behalf of the Congressman).
IN RE: GRAND JURY SUBPOENA 27
privilege in, the information being sought in the subpoenas.
Thus, he lacks standing to contest whether the subpoenas
were properly issued . . . ."). Consequently, I must agree with
the majority to affirm the district court’s ruling, on the
slightly different grounds discussed above and with the reser-
vations discussed below.
III.
In addition to finding that Doe had constructive possession
of the Staff Materials because of her supervisory authority,
the majority concludes that the transfer of the Staff Materials
to Doe’s cabinet on September 16, 2005, resulted in her actual
possession of these materials. Even if it is not the sole basis
for the majority’s conclusion that Doe had possession, cus-
tody, or control over the Staff Materials, I feel that this Court
should not find actual possession based on the transfer of the
materials to Doe’s cabinet, when Staff Counsel approved of
the transfer to address the United States Attorney’s security
concerns. I believe that the transfer of the Staff Materials to
Doe’s cabinet is analogous to the situation in Stuart v. United
States, 416 F.2d 459 (5th Cir. 1969), and the Stuart rule
should control.
In Stuart, taxpayers under civil investigation by the Internal
Revenue Service ("IRS") placed certain tax records with their
accountant for the government’s convenience, as the taxpay-
ers "worked nights and slept days." Id. at 460. Without notice
to the taxpayers, the investigation became a criminal one, and
the IRS served a summons upon the accountant ordering pro-
duction of the taxpayers’ records. Id. at 461. Reversing the
district court order enforcing the summons, the Fifth Circuit
held that "the records were put in the accountant’s custody
primarily for the convenience of [the government]" and that
"the accountant, was not to process or use them in any way;
he was simply their custodial bailee [and] a mere ‘naked pos-
sessor.’" Id. at 462-63 (quoting Schwimmer, 232 F.2d at 860-
61). Because the taxpayers could have withheld the records
28 IN RE: GRAND JURY SUBPOENA
prior to transfer if they had known about the criminal investi-
gation, the court held that the "Government should not gain
an advantage because the taxpayers, acting reasonably as
human beings and citizens, did it a favor and failed to insist
that [the IRS agent] perform her inspection in uncomfortable
circumstances and at off-hours." Id. at 463.
The Stuart rule was applied in Streett v. United States, 65
F. Supp. 2d 383 (W.D. Va. 1999), a case presenting similar
facts. In Streett, the IRS began a tax audit of a married couple,
the Streetts, as well as the veterinary practice operated by Mr.
Streett. Id. at 384. The Streetts granted power of attorney to
their accountant and arranged for the IRS to conduct the audit
at the accountant’s office. Id. This location was "the most log-
ical site" for the audit because it would avoid disruption to the
veterinary practice, would ensure a more orderly review of
documents, and was a shorter drive for the IRS agent than the
couple’s home. Id. Without notifying the Streetts, the IRS
decided to proceed criminally and issued a summons to the
accountant for the Streetts’ records. Id. at 384-85. The Streetts
filed a motion to quash the summons on the basis of Stuart
and the Fifth Amendment. Id. at 385. The district court
granted the motion, reasoning that "[a]lthough some minimal
benefits flowed to the Streetts under th[e] [transfer] arrange-
ment, through the avoidance of interruptions to the veterinary
practice caused by the audit investigation, the government is
undoubtedly the greater benefactor of this arrangement," and
that "[b]ecause the government’s situation played a large role
in getting the documents transferred, they should not be per-
mitted to use the transfer to their advantage." Id. at 386.
In this case, the United States Attorney expressed concerns
over the security of documents that were potentially respon-
sive to a grand jury subpoena. J.A. 517. As a result of these
concerns, House Counsel instructed Doe, the subpoena recipi-
ent, to take physical possession of the responsive documents.
J.A. 518. Though the United States Attorney did not specifi-
cally request that House Counsel place the documents in
IN RE: GRAND JURY SUBPOENA 29
Doe’s cabinet, that was the only locking cabinet in the office,
other than the Congressman’s personal office. J.A. 517-18.
The reasoning behind Stuart applies in the instant case. Stu-
art does not require that the transfer occur at the insistence of
the government; rather, the dispositive inquiry is whether the
transfer was effected primarily for the government’s benefit.
As in Stuart and Streett, once the files were transferred to
Doe’s cabinet, she was a mere naked possessor of those files
—she was not given any additional rights over them, nor was
she to use them in any way. Doe should not be found to be
in possession of documents placed in her cabinet as a result
of House Counsel’s reasonable response to the United States
Attorney’s security concerns, especially when the cabinet was
the only available secure location. I believe that Stuart should
control the case at bar, and therefore dissent from the majori-
ty’s conclusion that "Doe acquired actual possession of the
Staff Materials when they were placed in the locked cabinet
in her office."
IV.
Because the Congressman shared use and possession of the
responsive documents with Doe and the Staff Members, he
cannot avail himself of the Couch exception and has no Fifth
Amendment interest in those documents, insofar as the sub-
poena for the documents is directed to Doe. As a result, the
Congressman cannot challenge the subpoena as defective on
the basis that Doe did not have possession, custody, or control
over the documents in Staff Member 3’s files. Additionally,
I believe that Stuart forecloses the conclusion that the transfer
of Staff Materials into Doe’s cabinet resulted in Doe’s actual
possession of those documents.