United States v. White

BIGGS, Circuit Judge

(dissenting).

I must record my dissent from the opinion expressed by the majority.

Two questions must be answered in the case at bar: (1) May the defendant refuse to produce the records of the union on the ground that they will incriminate him; and (2) May he refuse on the ground that their production by him will incriminate the union or its members?

The defendant read to the grand jury a statement prepared by his attorney which set out the facts on which he based his claim of privilege under the Fifth Amendment. After the presentment of the grand jury to the court but before the court sentenced the defendant, his attorney read a statement to the District Judge which again stated his client’s grounds for claiming the privilege. These statements need *27not be repeated here. They are set out in the majority opinion.

At no time did the defendant assert or allege that he himself was a member of Local No. 542. He did not claim that the books and records of the union contained disclosures so related to his personal acts as to make them virtually his own.1 He did not assert any facts which by analogy would bring him within the rule stated by Wigmore in respect to officers of corporations.2 The privilege against self-incrimination is personal. It may not be asserted by one individual on behalf of another.3 No fact appears in the record before us from which the court below would have been justified in sustaining the claim of privilege. So far as the record shows the defendant is in the position of any individual who has in his possession books and records belonging to others and is called upon to produce them before a grand jury. It is axiomatic that unless a witness claims some measure of ownership in records he is not entitled to claim the privilege in respect to them. The defendant may or may not be a member of Local No. 542 but his status in this respect is immaterial. He has chosen to stand on his carefully prepared written statements.4 He has had his day in court and I think that he, the District Court, and ourselves are bound upon the record. It follows that the answers to the two questions set out in the second paragraph of this opinion must be in the negative.

If, however, the defendant had asserted in the court below that he was a member of the union, I would still be of the opinion that the judgment of conviction should be affirmed. Labor unions are not partnerships.5 A member of a partnership may maintain the privilege against self-incrimination in respect to the production of the records of the partnership. The right to choose one’s fellow members, the delectus personarum, which is regarded as one of the most important and indispensable characteristics of a partnership,6 is not available to the members of a labor union. Generally a worker may be admitted to a labor union without the consent of all of the members. See People v. Herbert, 162 Misc. 817, 295 N.Y.S. 251. And a member may not be expelled from the union so long as he meets its membership requirements. Spayd v. Ringing Rock Lodge No. 665, 270 Pa. 67, 113 A. 70, 14 A.L.R. 1443; Thompson v. Grand International Brotherhood of Locomotive Engineers, 41 Tex.Civ.App. 176, 91 S.W. 834; Abdon v. Wallace, 95 Ind.App. 604, 165 N.E. 68; Sweet*28man v. Barrows, 263 Mass. 349, 161 N.E. 272, 62 A.L.R. 311. Unlike the members of a partnership, the members of a union do not act as agents for each other or assume responsibility for the conduct of the other members. Consequently in fact there can be no claim of personal ownership or privity by the members of a union in the records of the organization. The books and records of a labor union are no more the personal property of the individual members than are the funds in a union treasury the private and personal funds of the members.7

Labor unions are unincorporated associations composed of individuals, but they are also organizations which today operate as entities. Their members do not function as individuals in relation to the public. This fact has been recognized frequently by Congress.8 The law should not extend to the records of such bodies, or to those of any other unincorporated association which functions as an entity, a privilege hitherto zealously restricted to an individual who claims the privilege expressly on his ow-n behalf. If this conclusion is correct, membership in a union can confer no right upon an individual to claim the privilege guaranteed by the Fifth Amendment on the ground that the production of the books and records of the union will incriminate him or the organization.

It follows that even if it be assumed that the defendant is a member of Local 542, he cannot meet the test imposed by the Supreme Court in Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 528, 29 L.Ed. 746. In the cited case Mr. Justice Bradley made use of the definitive phrase “a man’s private books and papers”. The Supreme Court held that the privilege against self-incrimination guaranteed by the Fifth Amendment was applicable only to a man’s personal records. The Boyd case is the governing law today on this point. It is unrealistic to say that by reason of membership in the union, the defendant can meet the test laid down by the Supreme Court in the Boyd case.

Accordingly I conclude that the judgment of conviction should be affirmed.9

It is contended that the District Judge should have inspected the books and records to see if their contents would tend to incriminate the defendant. This contention cannot be sustained. It was the defendant’s duty to produce the books in order that the court might by an inspection of them satisfy itself whether they contained matters which might tend to incriminate. As was stated in Brown v. United States, 276 U.S. 134, 144, 48 S.Ct. 288, 290, 72 L.Ed. 500, “If [the witness] declined to [produce the records covered by the subpoena], that alone would constitute a failure to show reasonable ground for his refusal to comply with the requirements of the subpoena.” In the cited case Mr. Justice Sutherland quoted with approval the decision of the Court of Appeals of Kentucky in Commonwealth v. Southern Express Co., 160 Ky. 1, 3, 169 S.W. 517, L.R.A.1915B, 913, Ann.Cas.1916A, 378, where it was said, “ * * * the individual citizen may not resolve himself into a court and himself determine and assert the criminating nature of the contents of books and papers required to be produced.”

“Nor can * * * [the witness] refuse to produce on the ground that some parts of the corporate records would criminate himself even if such parts were made by himself; though, for any documents therein that concern only the ‘private or personal’ affairs of the officer, the Court may direct their ‘withdrawal from scrutiny’.”, citing Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558; and other authorities. Wigmore on Evidence, Third Edition, Volume 8, Section 2259b, 1943, Pocket Supplement p. 23.

Wigmore, supra, Section 2196.

Such statements allege only that he is an officer of the union. Since the constitution and by-laws of the union have not been produced, this court has no way of knowing whether or not an officer is ipso facto a member of the union.

I agree with the majority that the analogy between corporations and labor unions is not persuasive. As the majority state, a power of visitation on the part of the state is included with the privileges granted by the charter and the immunity from personal liability which is one of these privileges.

Mechem, Elements of Partnership, Sec. 5.

It is interesting to observe that in at least two cases it has been held that if an officer of a union converts the funds of the union to his own use, he may be found guilty of larceny. See People v. Herbert, supra, and People ex rel. Murphy v. Crane, 80 App.Div. 202, 80 N.Y.S. 408. It is true that in the cited cases, the defendants asserted the supposed analogy between unions and partnerships and that the Supreme Court of Now York in arriving at the conclusion which I have stated, had before it a statute, Section 528 of the Penal Code of New York of 1881, which provided that any person, who having property in his possession as an officer of any person, association, or corporation, appropriated it to his own use, could be found guilty of larceny. None the less the Court based its conclusion upon the fact that the defendants in the two cases cited were not possessed of such an interest in the moneys of their union as to enable them to plead ownership. See also Starr v. Chase, [1924] 4 D.L.R. 55, [1924] S.C.R. 495—Can.

For example the right to collective bargaining has been established by law. See Sections 7, 8 of the National Labor Relations Act, Act of July 5, 1935, c. 372, 49 Stat. 452, 29 U.S.C.A. §§ 157, 158. Labor unions likewise are given a special status in respect to the anti-trust laws of the United States. Section 20 of the Act of October 15, 1914, c. 323, and Sec. 6 (The Clayton Act) 38 Stat. 731, 29 U.S.C.A. § 52, 15 U.S.C.A. § 17. The Norris-La Guardia Act protects labor unions from injunctions for the purposes specified in the Act. See Section 4 of the Act of March 23, 1932, c. 90, 47 Stat. 70, 29 U.S.C.A. § 104.

In this connection see what Mr. Chief Justice Taft stated in the First Coronado Case, United Mine Workers v. Coronado Coal Co., 259 U.S. 344, at page 391, 42 S.Ct. 570, at page 576, 66 L.Ed. 975, 27 A.L.R. 762.

Compare the following four decisions of lower federal courts: United States v. B. Goedde & Co., D.C., 40 F.Supp. 523, 534; United States v. Greater New York L. P. Chamber of Commerce, D.C., 34 F.2d 967, 968, affirmed 2 Cir., 47 F.2d 156, certiorari denied 283 U.S. 837, 51 S.Ct. 486, 75 L.Ed. 1448; United States v. Lumber Products Ass’n, D.C., 42 F.Supp. 910; In re Local Union No. 550, United Brotherhood of Carpenters and Joiners of America, D.C., 33 F.Supp. 544.