741 F.3d 339 (2nd Cir. 2013), 13-403-cv, In re Grand Jury Subpoena Dated February 2, 2012

Docket Nº:13-403-cv.
Citation:741 F.3d 339
Opinion Judge:WESLEY, Circuit Judge:
Party Name:In re GRAND JURY SUBPOENA DATED FEBRUARY 2, 2012. v. John Doe, Respondent-Appellant. United States of America, Movant-Appellee,
Attorney:Robert S. Fink (Caroline Rule, Brian P. Ketcham, on the brief), Kostelanetz & Fink, LLP, New York, NY, for Appellant John Doe. Alexander P. Robbins (Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy Section, Gregory Victor Davis, Attor...
Judge Panel:Before: WINTER, WESLEY, and CARNEY, Circuit Judges.
Case Date:December 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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741 F.3d 339 (2nd Cir. 2013)


United States of America, Movant-Appellee,


John Doe, Respondent-Appellant.

No. 13-403-cv.

United States Court of Appeals, Second Circuit.

December 19, 2013

         Argued: Aug. 22, 2013.

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[Copyrighted Material Omitted]

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         Robert S. Fink (Caroline Rule, Brian P. Ketcham, on the brief), Kostelanetz & Fink, LLP, New York, NY, for Appellant John Doe.

          Alexander P. Robbins (Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy Section, Gregory Victor Davis, Attorney, Tax Division, United States Department of Justice, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New

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York, Brooklyn, NY, for Appellee United States America.

          Marc L. Greenwald, Cleland B. Welton II, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Amicus Curiae New York Council of Defense Lawyers.

          Before: WINTER, WESLEY, and CARNEY, Circuit Judges.

          WESLEY, Circuit Judge:

         John Doe appeals from a contempt order and an order compelling him to comply with a grand jury subpoena entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge ). With respect to any foreign bank accounts in which Doe has a financial interest, the subpoena seeks records that the Bank Secrecy Act(" BSA" ) requires Doe to maintain. See 31 C.F.R. § 1010.420. Doe resists, asserting that the Fifth Amendment privilege against self-incrimination applies to his delivery of the requested documents. The district court held that requiring Doe to produce the subpoenaed documents, over his objections, did not violate Doe's right against self incrimination because the documents were " required records" — records whose creation and preservation serves a legitimate governmental regulatory interest. In re Grand Jury Subpoena Dated February 2, 2012, 908 F.Supp.2d 348, 352 (E.D.N.Y.2012). Doe contends both that the " required records" doctrine no longer exists and that, if it does, it does not apply to his case. We are not persuaded and AFFIRM the judgment of the district court.


         A federal grand jury in the Eastern District of New York issued a subpoena to Doe calling for him to produce records of his foreign bank accounts, including the names of the account holders, the banks, the account numbers, the type of the account, and the maximum value of the account 1— all information that must by law be reported to the Commissioner of Internal Revenue. 31 C.F.R. §§ 1010.350, 1010.420. Doe did not comply. The government moved to compel Doe to produce the documents and Doe continued to resist. The district court granted the government's motion. Subpoena Dated February 2, 2012, 908 F.Supp.2d 348. Doe still refused to comply, and thereafter the district court entered an order holding Doe in contempt for failure to produce the records. The court imposed a sanction (suspended pending his appeal) of $1,000 per day until he complies.


          Doe contends that the Fifth Amendment insulates him from a contempt order based on his refusal to comply. He claims that the grand jury's subpoena requires him either to produce documents that might incriminate him or to confirm that he failed to register his foreign bank accounts,

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which itself could be incriminating. The government counters that while Doe might otherwise have legitimate Fifth Amendment concerns, the subject documents are records required by federal law, and that the government has a legitimate regulatory interest in requiring Doe, and others like him, to maintain records of offshore accounts. Accordingly, the government contends, it is entitled to demand that Doe produce the records. Thus, we are presented with the question of whether the subpoenaed records fall within the aptly named " required records" exception to the Fifth Amendment act of production privilege. We hold that it does.

         I. The Act of Production Privilege under the Fifth Amendment

          The Fifth Amendment act of production privilege was first articulated in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Fisher recognizes that the Fifth Amendment privilege might protect an individual from being required to produce documents, even if the documents' contents are not protected by the privilege, when the witness's simple act of producing the documents could be used against the witness— for example, in those cases when the simple fact that the witness possessed the documents would be incriminating.

         In Fisher the Court addressed a consolidated challenge by two clients whose lawyers were compelled to produce their tax records. Accountants had prepared each client's tax records and given them to their respective clients, who in turn gave them to their attorneys for legal advice. 425 U.S. at 394, 96 S.Ct. 1569. The Court held:

The act of producing evidence in response to a subpoena ... has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena.

Id. at 410, 96 S.Ct. 1569. In Fisher, the only incriminating aspect of the documents was their content, not their existence. Id. at 412, 96 S.Ct. 1569. As a result, the privilege did not apply.

         The Fisher Court noted that previously the " proposition that the Fifth Amendment prevents compelled production of documents over objection that such production might incriminate stem[med] from Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 [ (1886) ]." 425 U.S. at 405, 96 S.Ct. 1569. However, the Court described Boyd's protections of private papers— heavily dependent on the theory that the privacy interests protected in the Fourth Amendment also figure in Fifth Amendment inquiries— as " a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give ‘ testimony’ that incriminates him." Id. at 409 96 S.Ct. 1569. Instead of reaffirming Boyd 's private/public distinction, Fisher articulated a new way of thinking about the Fifth Amendment privilege.2

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          Over 24 years after Fisher, the Court articulated a robust act of production privilege in United States v. Hubbell, a wire fraud prosecution stemming from the Whitewater investigation. 530 U.S. 27, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Hubbell resisted initial subpoenas by asserting his Fifth Amendment rights; the government granted him use immunity for the act of production and then indicted him based on the content— rather than the production— of the 13,120 pages of documents that he produced. Id. at 45, 120 S.Ct. 2037. The Court held that the content of the documents could not be used against Hubbell, in light of the testimonial nature of Hubbell's extensive efforts in identifying and producing them. Id. at 43-46, 120 S.Ct. 2037.

The documents did not magically appear in the prosecutor's office like ‘ manna from heaven.’ They arrived there only after respondent asserted his constitutional privilege, received a grant of immunity, and-under the compulsion of the District Court's order-took the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena.

Id. at 42, 120 S.Ct. 2037. The Court differentiated Fisher, where " the IRS knew [that the subpoenaed documents] were in the possession of the taxpayers' attorneys." Id. at 44, 120 S.Ct. 2037. In Hubbell, the government had " not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by respondent." Id. at 45, 120 S.Ct. 2037. " It was unquestionably necessary for respondent to make extensive use of ‘ the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena." Id. at 43, 120 S.Ct. 2037 (quoting Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957)). The government was therefore forbidden to use even the contents of the records and the court affirmed the dismissal of the indictment. Id. at 46, 120 S.Ct. 2037.

          The privilege has thus evolved since its inception to a broader prophylactic regime that, in certain circumstances, protects individuals from producing documents where they are incriminated by the contents of the documents. See id. As applied, the privilege is practical; it inoculates people from being forced to contribute to their own prosecution while not unduly restricting grand juries' ability to seek the truth. Doe argues— and the government does not meaningfully contest— that absent an exception, the act of production privilege shields Doe from complying with the grand jury's subpoena.

         II. The Required Records Doctrine

         A. Background

         1. Origins and Interpretations

         The act of production privilege contains exceptions, and among them is the required records doctrine, first articulated in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). The required records exception applies only when the Fifth Amendment privilege would otherwise allow a witness to avoid producing incriminating documents. It abrogates the protection of the privilege for a subset of those documents that must be maintained by law.

          Shapiro was a prosecution...

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