U.S. v. Goldberger & Dubin, P.C., Nos. 676

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore VAN GRAAFEILAND and WALKER, Circuit Judges and DEARIE; VAN GRAAFEILAND
Citation935 F.2d 501
Parties-1166, 60 USLW 2001, 91-2 USTC P 50,315, 33 Fed. R. Evid. Serv. 14 UNITED STATES of America, Petitioner-Appellee, v. GOLDBERGER & DUBIN, P.C., Paul A. Goldberger, Lawrence A. Dubin, Fischetti, Pomerantz & Russo, Ronald P. Fischetti and Mark F. Pomerantz, Respondents-Appellants, John Doe # 1 and John Doe # 2, Intervenors-Appellants. ockets 90-6155, 90-6205.
Decision Date07 June 1991
Docket NumberD,677,Nos. 676

Page 501

935 F.2d 501
67 A.F.T.R.2d 91-1166, 60 USLW 2001, 91-2
USTC P 50,315,
33 Fed. R. Evid. Serv. 14
UNITED STATES of America, Petitioner-Appellee,
v.
GOLDBERGER & DUBIN, P.C., Paul A. Goldberger, Lawrence A.
Dubin, Fischetti, Pomerantz & Russo, Ronald P.
Fischetti and Mark F. Pomerantz,
Respondents-Appellants,
John Doe # 1 and John Doe # 2, Intervenors-Appellants.
Nos. 676, 677, Dockets 90-6155, 90-6205.
United States Court of Appeals,
Second Circuit.
Argued Nov. 11, 1990.
Decided June 7, 1991.

Page 502

Kay K. Gardiner, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y. and Marla Alhadeff, Asst. U.S. Atty., of counsel), for petitioner-appellee.

Mark F. Pomerantz, New York City (Robert Penchina, Rogers & Wells, New York City, of counsel), for respondents-appellants Fischetti, Pomerantz & Russo, Ronald P. Fischetti, and Mark F. Pomerantz; and intervenors-appellants John Doe # 1 and John Doe # 2.

J. Jeffrey Weisenfeld, New York City (Goldberger & Dubin, P.C., New York City, of counsel), for respondents-appellants Goldberger & Dubin, P.C., Paul A. Goldberger, and Lawrence A. Dubin.

Daniel J. Popeo and Paul D. Kamenar, Washington, D.C., submitted a brief for Washington Legal Foundation, amicus curiae.

Ronald E. DePetris and Marion Bachrach, New York City, submitted a brief for New York Council of Defense Lawyers, amicus curiae.

Michael S. Ross, New York City, submitted a brief for Committee on Criminal Advocacy, The Ass'n of the Bar of the City of New York, amicus curiae. Gerald B. Lefcourt, P.C., Sheryl E. Reich, New York City, and Neal R. Sonnett, Sonnett Sale & Kuehne, P.C., Miami, Fla., for Nat. Ass'n of Criminal Defense Lawyers, Jack Litman, New York City, for New York State Ass'n of Criminal Defense Lawyers, Jack Hoffinger, New York City, for New York Criminal Bar Ass'n, Arthur Eisenberg, New York City, for New York Civil Liberties Union, and Max D. Stern, Boston, Mass., for Nat. Network for the Right to Counsel, submitted a joint brief amici curiae.

John J. Curtin, Jr., Chicago, Ill., Michael S. Ross, Steven H. Goldblatt and Antonia B. Ianniello, New York City, submitted a brief for American Bar Ass'n, amicus curiae.

Before VAN GRAAFEILAND and WALKER, Circuit Judges and DEARIE, District Judge. *

VAN GRAAFEILAND, Circuit Judge:

Attorneys Ronald P. Fischetti, Mark F. Pomerantz, Paul A. Goldberger, Lawrence A. Dubin, the law firms of Fischetti, Pomerantz & Russo and Goldberger & Dubin, P.C., and intervenors John Doe No. 1 and John Doe No. 2 appeal from orders of the United States District Court for the Southern District of New York (Broderick, J.) requiring the attorneys and their firms to provide the Internal Revenue Service, pursuant to 26 U.S.C. Sec. 6050-I, 1 with the names of clients who paid them cash fees in excess of $10,000. We affirm.

Internal Revenue Code section 6050-I requires "[a]ny person ... engaged in a trade or business, and who, in the course of such trade or business, receives more than $10,000 in cash in 1 transaction (or 2 or more related transactions)" to file a return specified as Form 8300. When completed, a Form 8300 contains the cash payor's name and other identifying information. During 1986 and 1987, Fischetti, Pomerantz & Russo received cash fees in excess of $10,000 from two individuals identified in this proceeding as John Doe No. 1 and John Doe No. 2. Both payors retained the Fischetti firm to represent them in connection with criminal indictments; both were advised of section 6050-I's reporting requirements, and both requested their attorneys not to disclose their identities as payors. Goldberger and Dubin, P.C. similarly received cash fees in excess of $10,000 from, or on behalf of, each of three individuals,

Page 503

but none of these three has intervened.

Respondents filed a Form 8300 disclosing the cash fee payment in each case but did not identify the payor. Following an unproductive exchange of correspondence with respondents, the IRS issued summonses directing them to appear and produce information identifying the payors. Upon respondents' refusal to comply, the government petitioned the district court for enforcement of the summonses. John Doe No. 1 and John Doe No. 2 were granted leave to intervene in the summons enforcement proceedings. In a bench ruling after oral argument, the district court held that respondents must comply with the IRS summonses and provide the payor information.

Financial-reporting legislation plays an important role in the economic life of our country. See California Bankers Ass'n v. Shultz, 416 U.S. 21, 45-49, 94 S.Ct. 1494, 1509-10, 39 L.Ed.2d 812 (1974); 47B C.J.S. Internal Revenue Secs. 1042-1043. Prominent among statutes of this nature are those that require reports of substantial currency transactions. See, e.g., the Bank Secrecy or Currency and Foreign Transactions Reporting Act of 1970 (the Bank Secrecy Act), Pub.L. No. 91-508, 84 Stat. 1114 (codified as amended and revised at 31 U.S.C. Secs. 5311-5326) and the Trading with the Enemy Act, 40 Stat. 411 (1917) (codified as amended at 50 U.S.C.A.App. Sec. 5, at 49 (1990)), both of which have survived constitutional challenges. See California Bankers, supra, 416 U.S. at 77, 94 S.Ct. at 1525; United States v. Yoshida Int'l, Inc., 526 F.2d 560, 573 n. 16, 63 CCPA 15 (1975).

The record-keeping and reporting provisions of the Bank Secrecy Act were based upon congressional findings that they "have a high degree of usefulness in criminal, tax, and regulatory investigations or proceedings." See Secs. 121, 123, 202 of the original act, 84 Stat. at 1116, 1118; see also Sec. 5311 of the 1982 revision of the act, Pub.L. No. 97-258, 96 Stat. 877, 995 (codified at 31 U.S.C. Sec. 5311).

Congress incorporated section 6050-I(a) in the Tax Reform Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, in an additional effort to unearth the "underground economy" (13 Mertens, Law of Federal Income Taxation Sec. 48.50). In section 6050-I(a)(1), Congress expanded the reporting requirements for cash transactions in excess of $10,000 to apply to "[a]ny person who is engaged in a trade or business." Extensive lobbying efforts to exempt attorneys from the reach of this amendment were unsuccessful. Appellants now seek to secure from the judiciary what their lobbyists were unable to get from Congress.

Appellants' allegations of unconstitutionality merit only brief discussion. Their contentions relative to the Fourth and Fifth Amendments have been rejected consistently in cases under the Bank Secrecy Act by both the Supreme Court and this court. See United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976); California Bankers, supra, 416 U.S. at 44-75, 94 S.Ct. at 1509-24; United States v. Mickens, 926 F.2d 1323, 1330-32 (2d Cir.1991); United States v. Dichne, 612 F.2d 632, 638-41 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980); see also Couch v. United States, 409 U.S. 322, 327-28, 93 S.Ct. 611, 615-16, 34 L.Ed.2d 548 (1973); Matter of Grand Jury Empanelled February 14, 1978, 603 F.2d 469, 472-73 n. 3 (3d Cir.1979). The reporting requirements of the 1984 Tax Reform Act, like those of the Bank Secrecy Act, target transactions without regard to the purposes underlying them and do not require reporting of information that necessarily would be criminal. See United States v. Mickens, supra, 926 F.2d at 1331.

Respondents' principal constitutional argument, that section 6050-I deprives them of their Sixth Amendment right to counsel, is equally without merit. On several occasions in recent years the Supreme Court has elaborated on the essential meaning of the Sixth Amendment right to counsel. The Court succinctly summarized these holdings in Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), where it said:

Page 504

We have further recognized that the purpose of providing assistance of counsel "is simply to ensure that criminal defendants receive a fair trial," Strickland v. Washington, 466 U.S. 668, 689 [104 S.Ct. 2052, 2065, 80 L.Ed.2d 674] (1984), and that in evaluating Sixth Amendment claims, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." United States v. Cronic, 466 U.S. 648, 657, n. 21 [104 S.Ct. 2039, 2046, n. 21, 80 L.Ed.2d 657] (1984). Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be...

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63 practice notes
  • Whitehouse v. U.S. Dist. Court for Dist. of Rhode Island, Nos. 94-1776
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 8, 1994
    ...by 26 U.S.C. Sec. 6050I, is protected from disclosure by attorney-client privilege) with United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir.1991) (holding that the information is not protected by attorney-client privilege). In addition, service of a subpoena opens a second......
  • In re Fairbanks, Bankruptcy No. 89-10904.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of New Hampshire
    • December 20, 1991
    ...privilege and the Fifth Amendment privilege had to yield to statutory reporting requirements appears in United States v. Goldberger, 935 F.2d 501 (2d Cir.1991), holding valid the 26 U.S.C. § 6050I provision requiring reporting of cash transactions in excess of $10,000 even as applied to a f......
  • Durand v. Hanover Ins. Grp., Inc., CIVIL ACTION NO. 3:07–CV–00130–HBB
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 14, 2016
    ...and should be strictly confined within the narrowest possible limits underlying its purpose." United States v. Goldberger & Dubin, P.C. , 935 F.2d 501, 504 (2d Cir. 1991). Federal common law applies to questions of privilege in ERISA cases. Moss , 495 Fed.Appx. at 595 (citing Fed.R.Evid. 50......
  • Lone Gan v. Hasty, No. 04 CV 2743(NG)(VVP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 22, 2006
    ...to attorney-client communications generally belongs to the client, not to the attorney, see United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991), the existence of robust protections for attorney-client communications makes plaintiffs' expectation of privacy in their c......
  • Request a trial to view additional results
62 cases
  • Whitehouse v. U.S. Dist. Court for Dist. of Rhode Island, Nos. 94-1776
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 8, 1994
    ...by 26 U.S.C. Sec. 6050I, is protected from disclosure by attorney-client privilege) with United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir.1991) (holding that the information is not protected by attorney-client privilege). In addition, service of a subpoena opens a second......
  • In re Fairbanks, Bankruptcy No. 89-10904.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of New Hampshire
    • December 20, 1991
    ...privilege and the Fifth Amendment privilege had to yield to statutory reporting requirements appears in United States v. Goldberger, 935 F.2d 501 (2d Cir.1991), holding valid the 26 U.S.C. § 6050I provision requiring reporting of cash transactions in excess of $10,000 even as applied to a f......
  • Durand v. Hanover Ins. Grp., Inc., CIVIL ACTION NO. 3:07–CV–00130–HBB
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 14, 2016
    ...and should be strictly confined within the narrowest possible limits underlying its purpose." United States v. Goldberger & Dubin, P.C. , 935 F.2d 501, 504 (2d Cir. 1991). Federal common law applies to questions of privilege in ERISA cases. Moss , 495 Fed.Appx. at 595 (citing Fed.R.Evid. 50......
  • Lone Gan v. Hasty, No. 04 CV 2743(NG)(VVP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 22, 2006
    ...to attorney-client communications generally belongs to the client, not to the attorney, see United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991), the existence of robust protections for attorney-client communications makes plaintiffs' expectation of privacy in their c......
  • Request a trial to view additional results
1 books & journal articles
  • FALSE STATEMENTS AND FALSE CLAIMS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...“[s]ilence may be falsity when it misleads, particularly if there is a duty to speak”). 45. See United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 506 (2d Cir. 1991) (noting that § 1001 has been applied to bank customers who conceal information from banks so as to cause the banks to v......

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