Braswell v. United States

Supreme Court of the United States · 1988 · Criminal Law

Criminal LawFifth AmendmentSelf-IncriminationCorporate RecordsFifth Amendmentself-incriminationact of productioncollective entity

Facts

Randy Braswell had previously operated his business as a sole proprietorship, but in 1980 and 1981 he began conducting it through two active Mississippi corporations. He was the sole shareholder of the parent corporation, and the corporations maintained tax filings, books, records, and formal directors. A federal grand jury subpoenaed "Randy Braswell, President" of the two corporations to produce their books and records, and the subpoena required only production, not testimony. Braswell moved to quash on the ground that the act of producing the records would incriminate him personally under the Fifth Amendment.

Issue

May the custodian of corporate records resist a subpoena for those records on the ground that the act of production would incriminate him personally in violation of the Fifth Amendment? Does the answer change when the corporation is closely held and the custodian is its sole shareholder?

Rule

A corporate custodian may not resist a subpoena for corporate records on Fifth Amendment grounds, even when the act of production would personally incriminate him. Because the custodian holds corporate records in a representative rather than personal capacity, the compelled act of production is deemed the act of the corporation, and any privilege claim would amount to a forbidden privilege claim by the corporation itself.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Lena Ortiz is the president and sole shareholder of Desert Mesa Transport, Inc., an active Arizona corporation. A federal grand jury subpoenas "Lena Ortiz, President, Desert Mesa Transport, Inc." to produce the corporation's ledgers, bank statements, and tax files, and the subpoena requires only production of records, not testimony.

Lena moves to quash, arguing that producing the records would personally incriminate her because the act of production would admit their existence, possession, and authenticity. How should the court rule?

Explanation. The motion should be denied. The majority held that a custodian of corporate records may not resist a subpoena for corporate records on Fifth Amendment act-of-production grounds, even if producing them would incriminate him or her personally. The records are held in a representative, not personal, capacity, so the compelled production is deemed the act of the corporation. This remains true even when the corporation is closely held or wholly owned by one person.