487 U.S. 99 (1988)
In 1965, Randy Braswell began operating a business involving the sale and purchase of equipment, land, timber, and oil and gas interests as a sole proprietorship.1 He continued this until 1980, when he incorporated Worldwide Machinery Sales, Inc. as a Mississippi corporation and transferred the business to it.2
The following year, Braswell formed Worldwide Purchasing, Inc., also a Mississippi corporation, and funded it with his 100 percent interest in Worldwide Machinery Sales, Inc.3 Braswell remained the sole shareholder of both corporations at all relevant times.4
Both corporations maintained active status with the State of Mississippi, filed corporate tax returns, and kept current corporate books and records.5 Pursuant to Mississippi law, each corporation had three directors consisting of Braswell, his wife, and his mother.6 Braswell's wife served as secretary-treasurer and his mother as vice-president, but neither exercised any authority over the business affairs of the corporations.7
In August 1986, a federal grand jury issued a subpoena addressed to Randy Braswell as president of both corporations.8 The subpoena directed him to produce specified corporate books and records, including receipts and disbursement journals, general ledgers, accounts receivable and payable ledgers, bank records, contracts, minutes, stock books, loan documents, and retained copies of tax forms such as Forms 1120, W-2, and 1099.9 The subpoena permitted Braswell to deliver the records to the serving agent without requiring him to provide any testimony.10
Braswell moved to quash the subpoena on the basis that producing the records would incriminate him.11 The district court denied the motion.12 The Court of Appeals for the Fifth Circuit affirmed that denial.13 The Supreme Court granted certiorari.14
Whether the custodian of corporate records may resist a subpoena for such records on the ground that the act of production would incriminate him in violation of the Fifth Amendment?15
The collective entity doctrine provides that an individual cannot rely upon the privilege against self-incrimination to avoid producing the records of a collective entity, such as a corporation, which are in his possession in a representative capacity, even if the records might incriminate him personally.16 This doctrine is based on the proposition that the privilege is intended to be a personal protection against government compulsion and does not apply to entities that are collective in nature.17 The custodian’s act of producing the records is not a personal act, but rather an act of the corporation, and the custodian is therefore not entitled to claim the privilege.18 The act of production doctrine does not apply to the production of corporate records by a custodian acting in a representative capacity.19 The custodian is not acting in a personal capacity when he produces the records.20 Any incriminating evidence derived from the act of production is attributable to the corporation, not the custodian.21
No. Randy Braswell is the sole shareholder and custodian of records of two corporations that maintained active status with the State of Mississippi, filed corporate tax returns, and kept current corporate books and records.22 A federal grand jury issued a subpoena to Braswell requiring him to produce the corporations’ books and records, and he moved to quash on Fifth Amendment grounds.23 The act of production by Braswell constitutes an act of the corporation rather than a personal act because he holds the records in a representative capacity as president.24 Any implicit admission regarding the existence, possession, or authenticity of the records is therefore made on behalf of the corporation, which possesses no Fifth Amendment privilege.25
The fact that Braswell is the sole shareholder does not alter the analysis because the corporations remain separate legal entities whose records are not Braswell’s private papers.26 The collective entity doctrine applies regardless of the size of the corporation or the number of shareholders, as established through application to small partnerships and one-person corporations alike.27 Braswell’s motion to quash was properly denied by the district court and affirmed by the court of appeals under this framework.28
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.29
Related opinions on this issue
Joined by Brennan, Marshall, And Scalia, Jj.
Justice Kennedy dissented on the ground that the Fifth Amendment protects the custodian from being compelled to produce the records if the act of production would be testimonial and incriminating.30 The act of production doctrine recognizes that the very act of producing documents may be testimonial.31 By producing the records, the custodian admits their existence, his possession of them, and their authenticity.32 These admissions may provide the Government with a link in the chain of evidence necessary to convict the custodian.33
The majority’s conclusion that the custodian is not acting in a personal capacity when he produces corporate records is inconsistent with both logic and precedent.34 The custodian is a natural person who is being compelled to act.35 The fact that he holds the records in a representative capacity does not eliminate the testimonial nature of the act.36 The distinction the Court draws between the corporation and the custodian is artificial when the custodian is the sole shareholder and the only person capable of producing the records.37 In such circumstances, the custodian is in effect being compelled to incriminate himself.38