Amato v. United States

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, 118–19 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 109–11.

-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

-6-
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 108–09

(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, 613–14

(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 36–37 (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-

-8-
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 118–19 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 104–13 (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 corporation—which of course
possesses no such privilege.

Id. at 109–10 (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 624–25. 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:

“It is well settled that no privilege can be
claimed by the custodian of corporate records,
regardless of how small the corporation may
be.” 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 117–18. 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.

-17-