In Re GRAND JURY SUBPOENA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 21, 2012
No. 11-20750 Lyle W. Cayce
Clerk
IN RE: GRAND JURY SUBPOENA
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
DENNIS, Circuit Judge:
This appeal arises from a grand-jury investigation in which the target of
the investigation (the “witness”) was subpoenaed to produce any records of
foreign bank accounts he was required to keep under Treasury Department
regulations governing offshore banking. The witness informed the government
that he would not comply with the subpoena, citing his Fifth Amendment
privilege against self-incrimination, and the government moved to compel the
witness to comply. After hearing argument, the district court denied the
government’s motion, and the government subsequently appealed.
This appeal requires us to address the Required Records Doctrine, under
which the government may require that certain records be kept and later
No. 11-20750
produced without implicating the privilege against self-incrimination. Two of
our sister circuits have held that the doctrine applies to subpoenas identical to
the one at issue and that, therefore, the subpoenas’ targets must comply with
them. See In re M.H., 648 F.3d 1067, 1079 (9th Cir. 2011); In re Special Feb.
2011-1 Grand Jury Subpoena Dated Sept. 12, 2011, No. 11-3799, 2012 WL
3644842, at *5-6 (7th Cir. Aug. 27, 2012). Because we conclude that the
Required Records Doctrine applies in this case, we decline the witness’s
invitation to create a circuit split and accordingly REVERSE the district court’s
denial of the government’s motion to compel the witness to comply with the
subpoena.
BACKGROUND
I.
The witness in this case is the target of a grand-jury investigation in the
Southern District of Texas seeking to determine whether he used secret Swiss
bank accounts to evade his federal income taxes. In February 2009, following
an investigation into its cross-border banking business, the Swiss investment
bank UBS AG (“UBS”) entered into a deferred-prosecution agreement with the
Justice Department under which UBS (1) admitted to conspiring to defraud the
U.S. government by helping U.S. taxpayers commit tax evasion and (2) provided
the account records of approximately 250 of these taxpayers, including the
witness.
Based on the records obtained from UBS, the government determined that
the witness, through an offshore nominee entity, established an account with
UBS in 2005. A grand-jury investigation subsequently uncovered other offshore
entities the witness controlled. On February 25, 2011, the grand jury issued a
subpoena to the witness for any foreign-account records he was required to keep
under Treasury Department regulations governing offshore banking. See 31
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U.S.C. § 5314; 31 C.F.R. § 1010.420. The subpoena requires the witness to
produce, for the years 2005 to 2008,
[a]ny and all records required to be maintained pursuant to 31
C.F.R. § 103.32 relating to foreign financial accounts that [the
witness] had/[has] a financial interest in, or signature authority
over, including records reflecting the name in which each such
account is maintained, the number or other designation of such
account, the name and address of the foreign bank or other person
with whom such account is maintained, the type of such account,
and the maximum value of each such account during each specified
year.1
The subpoena then states that “[s]uch accounts include, but are not necessarily
limited to, the accounts of the following entities” and lists six entities that the
witness allegedly controls.
On March 16, 2011, the witness informed the government, through
counsel, that he would not comply with the subpoena, citing the Fifth
Amendment. The witness argues that requiring him to produce the records
sought would compel him to (1) admit the existence of the account, (2) admit his
control over it, and (3) authenticate the records. Alternatively, the witness
argues, assuming he has a foreign bank account but failed to comply with the
record-keeping requirements of the Bank Secrecy Act (“BSA” or “the Act”),
compelling him to produce these records would force him to admit to a violation
of the Act’s record-keeping provisions.
The government moved the district court to compel the witness to comply
with the subpoena. The district court heard argument and subsequently denied
the government’s motion, which the government now appeals.
II.
1
Since the subpoena was issued, 31 C.F.R. § 103.32 has been transferred to 31 C.F.R.
§ 1010.420.
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No. 11-20750
The Currency and Foreign Transactions Reporting Act of 1970, Pub. L. 91-
508, 84 Stat. 1118 (1970) (codified as amended at 31 U.S.C. §§ 5311-25) (the
BSA), regulates offshore banking and contains a number of record-keeping and
inspection provisions. Its purpose is “to require certain reports or records where
they have a high degree of usefulness in criminal, tax, or regulatory
investigations or proceedings.” 31 U.S.C. § 5311. Section 241(a) of the Act
instructs the Treasury Secretary to require U.S. citizens, residents, and
institutions to “keep records and file reports” regarding foreign financial
transactions and relationships. Id. § 5314. Accordingly, the Treasury Secretary
implemented regulations that require (1) U.S. citizens and residents to disclose
their foreign bank accounts, see 31 C.F.R. § 1010.350, and (2) that the records for
such accounts “be retained by each person having a financial interest in or
signature or other authority over any such account” for at least five years and
be kept “available for inspection as authorized by law,” id. § 1010.420. These
record-keeping regulations were in effect at all times relevant to this case.
DISCUSSION
Because the BSA’s record-keeping requirement is “essentially regulatory,”
the records sought are of a kind “customarily kept” by account holders such as
the witness, and the records have assumed “public aspects,” we conclude that the
Required Records Doctrine applies and requires the witness to comply with the
subpoena.
I.
“We review a district court’s decision granting a motion to quash or modify
a subpoena for abuse of discretion.” In re Grand Jury Proceedings, 115 F.3d
1240, 1243 (5th Cir. 1997). Although this is a deferential standard, the district
court abuses its discretion if its ruling is based on an erroneous view of the law.
In re MBS Mgmt. Servs., Inc., No. 11-35053, 2012 WL 3125167, at *1 (5th Cir.
Aug. 2, 2012).
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No. 11-20750
II.
The Fifth Amendment to the United States Constitution provides that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. CONST. amend. V. The Supreme Court has held that the privilege
against self-incrimination bars the government from “compelling a person to give
‘testimony’ that incriminates him.” Fisher v. United States, 425 U.S. 391, 409
(1976). Because “the privilege protects a person only against being incriminated
by his own compelled testimonial communications,” the Court determined that
it does not shield production of private papers voluntarily prepared or prepared
by a third party. Id. at 409-10.
Although one could reason that “[w]here documents are required to be kept
and then produced, they are arguably compelled,” In re M.H., 648 F.3d at 1071,
the Supreme Court has held that the privilege against self-incrimination does
not bar the government from imposing record-keeping and inspection
requirements as part of a valid regulatory scheme, see Shapiro, 335 U.S. at 32-
33. In Shapiro, the Court explained that Congress may impose record-keeping
and inspection requirements as a condition of engaging in an activity that is
within its power to regulate. Id. at 33. In that case, “the Supreme Court
required a wholesaler of fruit and produce to turn over certain records he was
obliged to keep and maintain for examination pursuant to the Emergency Price
Control Act, which applied in part to records ‘customarily kept.’” In re M.H., 648
F.3d at 1072. The Supreme Court explained that this Required Records Doctrine
“applies not only to public documents in public offices, but also to records
required by law to be kept in order that there may be suitable information of
transactions which are the appropriate subjects of governmental regulation, and
the enforcement of restrictions validly established.” Shapiro, 335 U.S. at 17.
That being said, the Required Records Doctrine does not empower the
government to command every citizen to keep a diary of their crimes under the
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No. 11-20750
guise of regulation. See id. at 71 (Jackson, J., dissenting). Rather, any record-
keeping or inspection requirement under Shapiro must be directed at “an
essentially non-criminal and regulatory area of inquiry,” Marchetti v. United
States, 390 U.S. 39, 57 (1968) (internal quotation marks omitted), and may not
be “directed almost exclusively to individuals inherently suspect of criminal
activities,” Grosso v. United States, 390 U.S. 62, 68 (1968) (holding that the
Required Records Doctrine does not permit the government to require record
keeping of “wagering activities” as part of a “wagering excise tax” when
gambling was generally illegal). Thus, the government may not make an end
run on the Fifth Amendment and require criminals to self-report their offenses.
However, “[t]he hypothetical case in which every individual is required to
maintain a record of everything he does that interests the government is remote
from the case of the individual who enters upon a regulated activity knowing
that the maintenance of extensive records available for inspection by the
regulatory agency is one of the conditions of engaging in the activity.” Smith v.
Richert, 35 F.3d 300, 303 (7th Cir. 1994). Thus, the Required Records Doctrine
permits “the government . . . [to] have the means, over an assertion of the Fifth
Amendment [privilege against self-incrimination], to inspect the records it
requires an individual to keep as a condition of voluntarily participating in [a]
regulated activity.” In re Special Grand Jury Subpoena, 2012 WL 3644842, at
*5.
III.
In Grosso, the Supreme Court identified three “premises” of the Required
Records Doctrine: “[F]irst, the purposes of the United States’ inquiry must be
essentially regulatory; second, information is to be obtained by requiring the
preservation of records of a kind which the regulated party has customarily kept;
and third, the records themselves must have assumed ‘public aspects’ which
render them at least analogous to public documents.” 390 U.S. at 67-68. These
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three premises—(1) “essentially regulatory”; (2) “customarily kept”; and (3)
“public aspects”—have been recognized by half of the twelve courts of appeals
(excluding the Federal Circuit).2 Although the Fifth Circuit has applied the first
and third prongs of the Required Records Doctrine, see, e.g., In re Grand Jury
Proceedings, 601 F.2d 162, 167-71 (5th Cir. 1979), it has not applied the second
prong, and so the government argues that the customarily kept prong is not
required for the Required Records Doctrine to apply. However, “[e]ven if we
assume, for purposes of decision, that all three prongs of the test set forth in
Grosso apply, we conclude that all three requirements are met in this case.” In
re M.H., 648 F.3d at 1073.
A.
The witness argues that the text of the BSA and its legislative history
indicate that the record-keeping requirements imposed on foreign bank accounts
are meant to aid law enforcement and that therefore the Act is not “essentially
regulatory.” Implicit in the witness’s argument is that because the BSA lists
first among its purposes the gathering of information that has a “high degree of
usefulness in criminal . . . investigations,” 31 U.S.C. § 5311, the Act’s chief
purpose is to fight crime.
Notwithstanding his own argument, the witness acknowledges that the
BSA has more than one purpose. And that a statute relates to criminal law in
addition to regulatory matters does not strip the statute of its status as
“essentially regulatory.” See Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 76 (1974)
(“[T]hat a legislative enactment manifests a concern for the enforcement of the
criminal law does not cast any generalized pall of constitutional suspicion over
it.”); In re M.H., 648 F.3d at 1074 (“[T]hat Congress aimed to use the BSA as a
2
See In re M.H., 648 F.3d at 1072; In re Grand Jury Subpoena, 21 F.3d 226, 228 (8th
Cir. 1994); United States v. Lehman, 887 F.2d 1328, 1333 (7th Cir. 1989); In re Grand Jury
Subpoena Duces Tecum Served upon Underhill, 781 F.2d 64, 67 (6th Cir. 1986); In re Doe, 711
F.2d 1187, 1191 (2d Cir. 1983); United States v. Webb, 398 F.2d 553, 556 (4th Cir. 1968).
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tool to combat certain criminal activity is insufficient to render the BSA
essentially criminal as opposed to essentially regulatory.”).
Furthermore, although one purpose of the BSA was to help ferret out
criminal activity, the Act requires records to be kept “where they have a high
degree of usefulness in criminal, tax, or regulatory investigations.” 31 U.S.C. §
5311 (emphasis added). Elaborating on the non-criminal purposes of the BSA,
the House Report acknowledges that the Acts’s record-keeping and reporting
requirements “aid duly constituted authorities in lawful investigations” but also
underscores that the requirements “facilitate the supervision of financial
institutions properly subject to federal supervision” and “provide for the
collection of statistics necessary for the formulation of monetary and economic
policy.” H.R. Rep. 91-975 (1970), reprinted in 1970 U.S.C.C.A.N. 4394, 4405.
Consequently, the Treasury Department shares the information it collects
pursuant to the Act’s requirements with other agencies—including the Office of
the Comptroller of the Currency, the Consumer Financial Protection Bureau, the
Federal Reserve Board, the Federal Deposit Insurance Corporation, the National
Credit Union Administration, and the Office of Thrift Supervision—none of
which are empowered to bring criminal prosecutions. See 31 U.S.C. § 5319; 31
C.F.R. § 1010.950(a)-(b). Furthermore, the Supreme Court has noted, in
discussing “the recordkeeping and reporting requirements of the [BSA],” that
Congress “seems to have been equally concerned with civil liability which might
go undetected by reason of the transactions of the type required to be recorded
or reported.” Shultz, 416 U.S. at 76.
The district court’s application of the “essentially regulatory” requirement
was therefore erroneous. The district court ruled that the BSA’s record-keeping
requirements fail under Marchetti and Grosso because the “regulatory
justifications” for the requirement “are but smoke and mirrors for [the
government’s] real concern: crime.” However, even ignoring the non-criminal
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purposes of the BSA, the question is not whether Congress was subjectively
concerned about crime when enacting the Act’s record-keeping provisions, but
rather whether these requirements apply exclusively or almost exclusively to
people engaged in criminal activity. See Marchetti, 390 U.S. at 57.
Here, the BSA’s record-keeping requirements do not apply exclusively to
those engaged in criminal activity. “There is nothing inherently illegal about
having or being [the] beneficiary of an offshore foreign banking account,” and
“[n]othing about having a foreign bank account on its own suggests a person is
engaged in illegal activity,” In re M.H., 648 F.3d at 1074, points that the witness
does not dispute. Because the BSA’s record-keeping requirements serve
purposes unrelated to criminal law enforcement and because the provisions do
not exclusively target people engaged in criminal activity, we conclude that the
requirements are “essentially regulatory,” satisfying the Require Records
Doctrine’s first prong.
B.
That the records sought are of a kind customarily kept is not contested.
Even if this were not the case, this prong of the Required Records Doctrine is
easily satisfied here. The records sought are of the same type that the witness
must report annually to the IRS pursuant to the IRS’s regulation of offshore
banking: the name, number, and type of account(s), the name and address of the
bank where an account is held, and the maximum value of the account during
the reporting period. See In re M.H., 648 F.3d at 1076; 31 C.F.R. §§ 1010.350,
1010.420. Furthermore, the records sought are also of the same type that a
reasonable account holder would keep in order to access his account. See In re
M.H., 648 F.3d at 1076. Accordingly, we find that the records the subpoena
seeks are of a kind “customarily kept” by the witness in satisfaction of the
Require Records Doctrine’s second prong.
C.
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Finally, we consider the witness’s arguments that the third prong of the
Required Records Doctrine is not met. In order to satisfy this prong, “the records
[sought] must have assumed ‘public aspects’ which render them at least
analogous to public documents.” Grosso, 390 U.S. at 68. Two courts of appeals
have held that “if the government’s purpose in imposing the regulatory scheme
is essentially regulatory, then it necessarily has some ‘public aspects,’” sufficient
for the Required Records Doctrine’s third prong. In re M.H., 648 F.3d at 1076
(citing Shapiro, 335 U.S. at 33-34); accord Donovan v. Mehlenbacher, 652 F.2d
228, 231 (2d Cir. 1981).
Drawing a distinction between individuals who publicly engage in business
and those who privately open a foreign bank account, the witness argues that
“[i]ndividuals subject to the BSA’s foreign account record keeping requirements
are not licensed, are subject to no substantive restrictions, and generally have
not engaged in activities with the public or in the public sphere.” Br. for
Appellee 22. Thus, the witness contends that substantive restrictions, like those
imposed in Shapiro, were enacted in order to protect the public and that record-
keeping requirements are meant to aid in the enforcement of these substantive
restrictions. Accordingly, the “public aspects” necessary for the third prong do
not come from record-keeping requirements, the witness argues, but rather from
the underlying substantive restrictions enacted to protect the public. Because
the BSA imposes no substantive restrictions on the holding of foreign bank
accounts, the witness maintains that records of these accounts lack the “public
aspects” required for the third prong of the Required Records Doctrine.
The witness misapprehends this prong of the Required Records Doctrine.
Although the witness argues that substantive regulations designed to protect the
public from harm may imbue otherwise private documents with public aspects,
it does not follow that public aspects exist only under these circumstances.
Furthermore, adopting a rule that the legitimacy of a record-keeping
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requirement depends on Congress first enacting substantive restrictions would
lead to absurd results. “If the witness’s argument were correct, then Congress
would be prohibited from imposing the least regulatory burden necessary; it
would instead be required to supplement a reporting or recordkeeping scheme
with additional and unnecessary ‘substantive restrictions’ for the sole purpose
of upholding its record keeping and reporting requirements.” Reply Br. for
Appellant 25. Additionally, that the records sought are typically considered
private does not bar them from possessing the requisite public aspects. See In
re M.H., 648 F.3d at 1077 (“[T]hat the information sought is traditionally private
and personal as opposed to business-related does not automatically implicate the
Fifth Amendment.”); In re Kenny, 715 F.2d at 52-54 (reasoning that subpoenaed
medical records possessed sufficient “public aspects” to satisfy the Required
Records Doctrine’s third prong).
Here, the Treasury Department shares the information it collects pursuant
to the Act’s record-keeping and reporting requirements with a number of other
agencies. That this data sharing is designed to serve an important public
purpose sufficient to imbue otherwise private foreign bank account records with
“public aspects” is not difficult to imagine. The witness “has not made a
compelling argument that the information he is being asked to provide lacks
‘public aspects’ despite its essentially regulatory nature.” In re M.H., 648 F.3d
at 1079. Accordingly, we find that the records sought have “public aspects”
sufficient to satisfy the Required Records Doctrine’s third prong.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s denial of the
government’s motion to compel the witness to comply with the subpoena.
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