Opinion · Supreme Court of the United States

Perlman v. United States

247 U.S. 7

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1918-05-06
Topic
general

How later courts describe this case

  • recognizing that, as a practical matter, denials of an intervenor’s privilege-based motion to quash a subpoena must be immediately appealable because no effective post-judgment remedy otherwise would exist
  • holding that discovery orders directed at third parties are immediately appealable
  • holding turnover order to be appealable as to third party intervenor whose documents were in custody of trial court at time order issued
  • concluding that the Perlman doctrine vests this court with jurisdiction where appellant appeals from "a discovery order directed at a disinterested third party ... because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance”
  • holding turnover order to be final as to third party intervenor whose property was in custody of trial court at time order issued
  • recognizing the importance of the immediate appealability of disclosure orders directed at disinterested third parties because, under such circumstances, a party claiming a privilege is otherwise “powerless to avert the mischief of the order”
  • permitting appeal where denial of immediate review would render impossible any review of the party's claims
  • reviewing Perlman’s claim on interlocutory appeal, but finding no violation of the Fifth Amendment in later use by the United States of exhibits made public in previous litigation

Citator

UpLaw has not yet analyzed Perlman v. United States. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
515 opinions
Distinguished
1 times

Headnotes

  1. Civil Procedure — Appellate Jurisdiction An order of the district court granting the District Attorney's application for custody of documentary and other exhibits impounded in a private suit, overruling a witness's objection based on constitutional privilege, is a final order; the objecting party's right to appeal therefrom is unaffected by his lack of interest in the suit in which the exhibits were impounded. 247 U.S. at 8 (Syllabus)
  2. Constitutional Law — Fourth and Fifth Amendments One who voluntarily and to subserve his own interest has produced papers, models, and other property owned by him as part of his testimony in an equity suit, in which they are impounded as exhibits, is not subjected to an unreasonable seizure or compelled to bear witness against himself, within the meaning of the Fourth and Fifth Amendments, by the delivery of such exhibits to the District Attorney and their use as evidence in a prosecution of the owner for perjury alleged to have been committed in his testimony. 247 U.S. at 8 (Syllabus)
  3. Civil Procedure — Standing A witness whose property has been impounded as exhibits in an equity suit to which he is not a party may intervene to oppose the Government's use of those exhibits and to assert property and constitutional rights, because the Government's exercise of its governmental power to obtain the exhibits affects him directly; his petition is in effect an independent proceeding and does not lose that character merely because it is entitled in the equity suit. 247 U.S. at 12
  4. Civil Procedure — Appellate Jurisdiction An order granting the Government access to impounded exhibits is final as to the affected owner rather than merely interlocutory, since the owner would otherwise be powerless to avert the mischief of the order and would be compelled to accept its incidence and seek a remedy at some other time and in some other way. 247 U.S. at 12–13
  5. Constitutional Law — Compulsory Self-Incrimination The constitutional immunity against unreasonable seizure and compulsory self-incrimination precludes compulsion exerted upon the individual or, under some circumstances, upon his property; it is not a necessary condition of compulsion that there be an actual entry upon premises or an actual search and seizure, and the principles likewise forbid the extortion of testimony or detrimental inferences from silence or refusals to testify. 247 U.S. at 13
  6. Constitutional Law — Compulsory Self-Incrimination The criterion of immunity under the Fourth and Fifth Amendments is not the ownership of property but the existence of physical or moral compulsion; where articles have been voluntarily exposed and offered as evidence and thereby become part of the judicial records, the owner cannot invoke constitutional privilege to suppress their use merely because he retains title to them. 247 U.S. at 15–17
  7. Constitutional Law — Compulsory Self-Incrimination Where an owner voluntarily produces exhibits as evidence for his own advantage in prior litigation, without any form of constraint or compulsion, and the exhibits are taken from his possession into the control and custody of the court, their subsequent release to the Government for use in a criminal proceeding against him does not violate the Fourth or Fifth Amendments, because he has already let them go into the judicial records and is not in a position to suppress the evidence they supply. 247 U.S. at 16–17
PERLMANv. UNITED STATES,247 U.S. 7(1918)
38 S.Ct. 417
PERLMANv. UNITED STATES.
APPEAL FROM AND ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
No. 752.
Argued April 18, 1918.
Decided May 6, 1918.
An order of the District Court allowing the District Attorney's application for the custody of documentary and other exhibits, to be used in criminal proceedings against a witness in a private suit in which they were used and impounded, and overruling the witness' objection based on grounds of constitutional privilege and his prayer to have them restored to him as his property, is a final order, and the right of the objecting party to appeal therefrom is unaffected by his lack of interest in the suit in which the exhibits were impounded. One who voluntarily and to subserve his own interest has produced papers, models, etc., owned by him, as part of his testimony in an equity suit, in which they are impounded as exhibits, is not subjected to an unreasonable seizure, or made to bear witness against himself, within the meaning of the Fourth and Fifth Amendments, by the delivery of such exhibits to the District Attorney and their use asPage 8evidence in a prosecution of such owner for perjury alleged to have been committed in his testimony. 244 F. 304, affirmed.
APPEAL and error to review an order denying petition of
Perlman to restrain and enjoin the United States attorney for the
Southern District of New York from taking into his possession or
custody certain exhibits which had been impounded and deposited
by order of the district court for that district with the clerk
of the court.
In support of the relief prayed Perlman alleges the following
facts, which we state narratively: He is the inventor of a device
known in the market as a demountable rim, its purpose being to
mount and carry an inflated pneumatic tire upon a metallic rim,
which contains locking devices for attachment to the wheels of
automobiles and other vehicles.
He brought suit for infringement against the Standard Welding
Company, and, issue being joined, there was a judgment for him
against the company, which was affirmed by the Court of Appeals.
231 F. 453;Id. 734. At the trial of the cause certain
exhibits hereinafter referred to were offered by him which were
and are his personal property and have been continuously in his
possession or in the possession of those who represent him.
Subsequently he, with others, formed a corporation known as
the Perlman Rim Corporation, which, among other things, undertook
to market the patented device.
In March, 1916, he assigned the letters patent to the
corporation, but not the exhibits above mentioned.
In February, 1917, the corporation, being advised that the
Firestone Tire Rubber Company was infringing the device,
brought suit against the company for infringement, which came up
for trial before Judge Hand. After final submission of the case,
the plaintiff, the Perlman Rim Corporation, through its counsel,
asked leave to discontinue the action and for its dismissal
without prejudice.
Page 9
The motion was granted, but the condition was imposed that the
evidence be perpetuated and the exhibits impounded in the custody
of the clerk, to be kept under seal subject to the order of the
court.1The exhibits were part of those heretofore referred
to and used on the trial before Judge Hunt.
July 17, 1917, Perlman ascertained from the attorney for the
corporation that the attorney had been served with a copy of an
order signed by Judge Hand directing him, the attorney for the
corporation, and the attorney for the Firestone Company to appear
and show cause why the United States attorney should not have and
be given possession of the exhibits, as the United States
attorney had instituted proceedings against Perlman which
involved the question whether he had committed an offense against
the United States. The attorney for the corporation also told
Perlman that he had not opposed the motion and that the attorney
for the Firestone Company had not appeared; that, therefore, the
order would be entered as a matter of course.
The application of the United States attorney was based
Page 10
on an affidavit of one Harold Harper, an assistant to the United
States attorney, which charged, among other things, that the
exhibits were material and necessary in an investigation pending
before the grand jury and for preparation for trial in case an
indictment should be found.
The exhibits are his, Perlman's, personal property and the use
of them by the grand jury and the United States attorney as
contemplated would be in violation of his rights and unwarranted
in law; they were impounded in a suit to which he was not a
party, but a witness, and he had not consented thereto or been
heard by counsel.
He prayed for an order upon all the parties concerned to show
cause why an order should not be made directing the clerk to
deliver to him, Perlman, the exhibits and that the United States
attorney be restrained from using them, averring that, unless
such stay were granted, his rights would be seriously invaded and
he would be compelled to furnish evidence against himself in a
criminal proceeding, all without due process of law.
A schedule of the exhibits is attached to the petition and
shows them to be not only matters in writing, such as bills,
letters and checks, but models of wheels, rim-carrying tires, and
of other implements and tools, and the patent upon which the suit
was brought.
Before the filing of the petition an order had been granted
upon motion of the United States attorney directing the clerk to
produce the exhibits before the grand jury. The order further
directed that the United States attorney have access to the
exhibits at all reasonable times and that if an indictment should
be found against Perlman the United States attorney might have
such temporary custody of the exhibits or any part thereof as
might be necessary for the purpose, under such regulations as the
clerk might make.
Upon the filing of Perlman's petition an order was granted
restraining the use of the exhibits until the hearing
Page 11
of the petition. Subsequently, upon the hearing, and Perlman
having withdrawn so much of his application as related to the
return of the exhibits to him, the court, Judge Manton sitting,
denied the relief prayed for against the use of the exhibits by
the United States attorney or their presentation to the United
States grand jury.
The order recited that it was made upon the order of Judge
Hand, the petition of Perlman and the affidavit of Harper.
The affidavit gives some details that Perlman's petition does
not. It states that Perlman testified that he had been president
of the Perlman Rim Corporation since its formation, and, further,
that he gave testimony in respect to the alleged invention which
was the subject of the patent, and that, in the course of his
testimony, he produced and offered in evidence on the part of the
corporation the exhibits. And the affidavit states that the
impounding of the exhibits was part of the decree in the suit
against the Firestone Company and that Perlman was present at the
time and during practically all of the proceedings of the trial
and that the minutes of the court show no protest by him.
It further states that certain of the alleged perjuries
committed by Perlman referred directly to the exhibits, as to the
time and manner of their production or alteration; and that
certain other statements alleged to have been perjured were made
by him and supported by the exhibits. And further that in the
course of his cross-examination Perlman gave certain evidence
with regard to events in England in the year 1895 which did not
directly concern the matter of invention but went to the
credibility of the witness as such, and in respect to those
statements an indictment had been found against Perlman by the
grand jury attending the court for the July, 1917, term.
The sources of information of Harper as to the above
Page 12
matters not within his own knowledge were stated to be the
official stenographic report of the trial, the records of the
clerk's office, and statements made to him by persons who had
been present in the court room during the trial and were
cognizant of the proceedings.
Mr. Louis Marshall, with whomMr. A.A. Silberbergwas on the briefs, for appellant and plaintiff in error.Mr. Assistant Attorney General Fittsfor the United States.
MR. JUSTICE McKENNA, after stating the case as above, delivered the opinion of the court.
The United States makes a motion to dismiss on the following grounds:

"1. Appellant has no interest in the subject matter of and is not a party to the equity suit out of which the appeal arises;

"2. The order of the District Court if considered as a part of the criminal proceeding is not final, but merely interlocutory, and therefore not reviewable by this court."

We think the motion should be overruled. Referring to the impounding order it will be seen that the Government was not one of those for whom the use of the exhibits was reserved. It, therefore, had no rights under the order. Its rights — or, it is more accurate to say, its powers — were of different origin, were governmental, and would affect Perlman by their exercise. We think, therefore, that he could intervene to oppose and urge in opposition property and constitutional rights and their sanctions. His petition was in effect independent and did not lose its character by being entitled in the equity suit.

The second contention of the Government is somewhatPage 13strange, that is, that the order granted upon its solicitation was not final as to Perlman but interlocutory in a proceeding not yet brought and depending upon it to be brought. In other words, that Perlman was powerless to avert the mischief of the order but must accept its incidence and seek a remedy at some other time and in some other way. We are unable to concur.

On the merits the case is rather unique. Perlman contends that the proposed use by the United States before the grand jury of the exhibits as a basis for an indictment against him constitutes an unreasonable seizure and makes of him a compulsory witness against himself, in violation of the Fourth and Fifth Amendments. In other words, he claims the same sanctuary for the exhibits in the hands of the court as though they were in his hands and had never been published or delivered to the world. For this he invokes certain principles and cases. The principles are well established. They are paraphrases of the Constitution, giving it in cases a more precise specialization. They preclude, of course, compulsion, either upon the individual or, under some circumstances, his property; nor is it a condition or part of compulsion that there be an actual entry upon premises, an actual search and seizure. The principles preclude as well the extortion of testimony or detrimental inferences from silence or refusals to testify.

The incidences of the cases in which the principles were declared do not help Perlman. In all of them there was force or threats or trespass upon property, some invasion of privacy or governmental extortion. InBoydv.United States,116 U.S. 616, there was an order of the court requiring the production of private books, invoices and papers, the alternative of refusal being that their character as asserted by counsel should be taken as confessed. InCounselmanv.Hitchcock,142 U.S. 547, there was an effort to compel a witness to disclose circumstances which might bePage 14evidence against him of the commission of an offense or might connect him with it.Halev.Henkel,201 U.S. 43, is of like illustration. InUnited Statesv.Wong Quong Wong, 94 F. 832, private letters were opened. InUnited Statesv.Mills, 185 F. 318, there was a general seizure of all of the defendant's business records by the United States marshal when executing a warrant of arrest. InUnited Statesv.Abrams, 230 F. 313, business papers were delivered to an officer under threats or promises of benefit. InWeeksv.United States,232 U.S. 383, there was an invasion of premises without a search warrant and the carrying away of certain letters and envelopes. The latter case is especially relied on by counsel, and it is definite as to principles and as to seizures the Constitution forbids and those it permits. The distinctions are made clear and the discussion leaves nothing to be added of either principles or their illustration. But it is not like the case at bar. In it there was an invasion of the defendant's privacy, a taking from his immediate and personal possession. In the case at bar there was a voluntary exposition of the articles, for use as evidence in the District Court and in the Circuit Court of Appeals (231 F. 453 and 734), that judicial action should be based upon them, action prayed for by him against another. And they served his purpose; they prevailed as proof and secured a judgment for him.

There was again exposition of them and use as evidence inPerlman Rim Co. v.Firestone Tire Rubber Co. In that case, it is true, Perlman was not nominally a party, but he was interested in the suit and its success. His patent depended upon it. They were part of his evidence, necessary supports and illustrations of it, as much, therefore, a part of his testimony as his spoken word, as much a part of the records of the court as the stenographer's notes. Their tangibility did not change their character as evidence. Indeed, it gave emphasis to the notes andPage 15a more pertinent strength, and was deemed necessary to their completeness and understanding. As is usual in a patent case, there was exposition and illustration by exhibits. And their production was voluntary, no form of constraint or compulsion or extortion was put upon him, and that some one of them must exist is the test of immunity.Holtv.United States,218 U.S. 245,252. Therefore, as said by counsel for the Government, "Having let go the exhibits, so that they have become a part of the judicial records, he is not now in position to suppress the story they tell."

But Perlman insists that he owned the exhibits and appears to contend that his ownership exempted them from any use by the Government without his consent. The extent of the insistence is rather elusive of measurement. It seems to be that the owner of property must be considered as having a constructive possession of it wherever it be and in whosesoever hands it be, and it is always, therefore, in a kind of asylum of constitutional privilege. And to be of avail the contention must be pushed to this extreme. It is opposed, however, by all the cited cases. They, as we have said, make the criterion of immunity not the ownership of property but the "physical or moral compulsion" exerted.

As we have seen, Perlman delivered the exhibits to publicity, made them the means of advantage. They, for the purposes of justice, were taken from his possession and volition into the control and custody of the court. Upon formal motion they were released for the use of the Government, a use as meritorious in consideration as that which determined the ruling inEx parteUppercu,239 U.S. 435.Order affirmed.Page 16
  1. Page 9 "This cause having come on to be heard and testimony having been taken by both parties, now, on plaintiff's motion, and after hearing defendant's counsel in opposition thereto, it is

    "Ordered, that the bill of complaint herein be and it hereby is dismissed without prejudice with costs to defendant to be taxed; and as a condition of such dismissal and in accordance with plaintiff's stipulation made in open court, it is

    "Further ordered, that the minutes of the trial be filed and that all the exhibits offered by either party be impounded and deposited with the clerk of this court under seal to be opened only by order of court on notice to each of the parties hereto; and

    "That, all testimony taken up to the present time in this cause (as well as the exhibits) shall stand as testimony which may be read and used in any cause between the parties hereto or between any other parties who would be privies if judgment were entered herein, including cases in which the vendees and users of the rims made or sold by the defendant or such other parties are sued." ↩