United States v. Chabot

• Decision Date: 17 July 2015
• Docket Number: No. 14–4465.,14–4465.
• Citation: 793 F.3d 338
• Parties: UNITED STATES of America v. Eli CHABOT; Renee Chabot, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

793 F.3d 338

UNITED STATES of America

v.Eli CHABOT; Renee Chabot, Appellants.

No. 14–4465.

United States Court of Appeals, Third Circuit.

Argued June 8, 2015.

Opinion filed: July 17, 2015.

Vivek Chandrasekhar, Esq., Richard A. Levine, Esq., (Argued), Roberts & Holland, LLP, New York, NY, Counsel for Appellants.

Robert J. Branman, I, Esq.,(Argued), Robert W. Metzler, Esq., United States Department of Justice, Washington, DC, Counsel for Appellee.

Before: AMBRO and COWEN, Circuit Judges, and RESTANI,^* Judge.

OPINION OF THE COURT

RESTANI, Judge.

Eli and Renee Chabot (“the Chabots”) appeal the District Court's grant of the Internal Revenue Service's (“IRS”) petition to enforce summonses for foreign bank account records that 31 C.F.R. § 1010.420 requires the Chabots to keep. Today we join six other circuits in holding that these records fall within the required records exception to the Fifth Amendment privilege. Accordingly, we will affirm the District Court's grant of the IRS's petition.

I. Background

In April 2010, the IRS received information from French authorities concerning United States persons¹ with undisclosed bank accounts at HSBC Bank. The IRS alleges that it has information regarding accounts held by Pelsa Business Inc. (“Pelsa”) for the years 2005 through 2007. According to the information provided to the IRS, Eli Chabot is the beneficial owner of Pelsa.

On June 20, 2012, the IRS issued summonses to Eli and Renee Chabot requesting that they appear on July 13, 2012, to give testimony and produce documents about their foreign bank accounts for the period from January 1, 2006, to December 31, 2009.² The Chabots' attorney notified the IRS that the Chabots would not appear, were asserting their Fifth Amendment privilege against self-incrimination, and would not produce the requested documents. The IRS amended the two summonses on November 16, 2012, limiting their scope to only those documents required to be maintained under 31 C.F.R. § 1010.420. The Chabots continued to claim the Fifth Amendment privilege, and the IRS filed a petition to enforce the amended summonses on May 14, 2014.

Before the District Court, the Chabots claimed that, although the contents of the records sought might not be protected by the Fifth Amendment, their act of producing the documents was protected. The Chabots specifically claimed that responding to the summonses might subject them to prosecution for their failure to file the same information in an annual Report of Foreign Bank and Financial Accounts. The Chabots also claimed that any exception to the Fifth Amendment privilege based on the required records exception should not apply in this case. The District Court held that the required records exception applied and thus the Fifth Amendment did not prohibit production of the documents sought. The District Court therefore granted the petition to enforce the summonses.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 26 U.S.C. § 7402(b) and 26 U.S.C. § 7604(a) (2012). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Whether enforcement of a summons violates the Fifth Amendment privilege is a mixed question of law and fact. United States v. Ins. Consultants of Knox, Inc., 187 F.3d 755, 759 (7th Cir.1999). Here, the question before us is purely one of law, and we review de novo the District Court's application of the Fifth Amendment privilege and the required records exception to the present facts. In re Grand Jury Proceedings, 707 F.3d 1262, 1266 n. 4 (11th Cir.2013).

III. Discussion

On appeal, the Chabots' arguments can be summarized as follows: (1) allowing the government to rely on the required records exception to enforce the summonses in this case will lead to general governmental abrogation of the Fifth Amendment privilege for any “failure to report” crime; (2) the information that would be gleaned from compliance with the summonses is almost identical to what the government needs to charge the Chabots with the felony of willful failure to report an overseas account in the Report of Foreign Bank and Financial Accounts, thus requiring the Chabots to incriminate themselves; and (3) the records that 31 C.F.R. § 1010.420 requires accountholders to keep do not satisfy the three-pronged test for applying the required records exception to the Fifth Amendment privilege. The government's response to these arguments is simple. It argues that the Chabots' records fall within the required records exception to the Fifth Amendment privilege. Therefore, the questions before the panel are whether the Chabots' account records fall within the required records exception to the Fifth Amendment privilege and, if so, whether the Chabots' policy concerns are insurmountable barriers to our application of this exception. Unpersuaded by the overriding effect of the stated concerns, we conclude that the Chabots' account records fall squarely within the required records exception to the Fifth Amendment privilege. Therefore, we will affirm the District Court's grant of the IRS's petition.

A. The Development of the Required Records Exception to the Fifth Amendment Privilege

The Fifth Amendment states that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. An individual may claim this privilege if compelled to produce self-incriminating, “testimonial communication[s].” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The act of producing documents may trigger the Fifth Amendment privilege. See id. at 410, 96 S.Ct. 1569. This is because, by producing documents, one acknowledges that the documents exist, admits that the documents are in one's custody, and concedes that the documents are those that the subpoena requests.Id. When these “testimonial” aspects of compelled production are self-incriminating, the Fifth Amendment privilege applies. See id. at 410–12, 96 S.Ct. 1569.

In Shapiro v. United States, the Supreme Court first articulated the required records exception to the Fifth Amendment privilege. 335 U.S. 1, 32–33, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948) ; In re Grand Jury Subpoena Dated Feb. 2, 2012, 741 F.3d 339, 344 (2d Cir.2013) (hereinafter “Doe”). When Shapiro was decided, private papers were entitled to Fifth Amendment protection based on their private status. See 335 U.S. at 33–34, 68 S.Ct. 1375. Public papers, however, did not have Fifth Amendment protection. See id. at 5, 68 S.Ct. 1375. In Shapiro, the Supreme Court qualified this distinction when it held that the Fifth Amendment privilege did not apply to certain private papers that the law required a person to keep. Id. at 33, 68 S.Ct. 1375. The Supreme Court subsequently fleshed out Shapiro's holding in Grosso v. United States, wherein it explained that the following three prongs must be met in order for records to fall within the “required records” exception: (1) the reporting or recordkeeping scheme must have an essentially regulatory purpose; (2) a person must customarily keep the records that the scheme requires him to keep; and (3) the records must have “public aspects.” 390 U.S. 62, 67–68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).

Fisher, which found no Fifth Amendment privilege because the involved taxpayers were not the persons compelled to produce, appeared to shift the focus away from the private/public distinction in determining whether compelled production of records violates the Fifth Amendment privilege.³ See 425 U.S. at 397, 400–01, 96 S.Ct. 1569. Despite this somewhat altered view of how the Fifth Amendment relates to the production of documents, courts have continued to rely on the required records exception. See, e.g., Balt. City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 555–56, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990) (recognizing the principle behind the required records exception abrogated respondent's act-of-production privilege even though her compliance with a court order to produce her child would have aided in her prosecution); Doe, 741 F.3d at 342–43, 346 (applying the required records exception to the respondent's act-of-production privilege where his compliance with a grand jury's subpoena for account records would have aided in criminal proceedings against him).

Courts have offered several reasons for continuing to apply the required records exception to the Fifth Amendment privilege, even though the threshold framework for applying the privilege to documents appears to have changed to a degree. The first is, engaging in an activity for which Congress conditions participation upon recordkeeping effectively waives the right to invoke the Fifth Amendment privilege to prevent compelled disclosure of such records. In re Two Grand Jury Subpoenae Duces Tecum Dated Aug. 21, 1985, 793 F.2d 69, 73 (2d Cir.1986). The next, and perhaps weaker, is, because “the records must be kept by law, the record-holder ‘admits' little in the way of control or authentication by producing them.” Id. And the last is, continued application of the required records exception is vital in order to protect the government's legitimate interest in using the records that it requires individuals to keep. See, e.g., Bouknight, 493 U.S. at 556, 110 S.Ct. 900 (“The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws.”); In re Grand Jury Proceedings, 707 F.3d at 1274 (citing In re Special Feb. 2011–1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903, 908–09 (7th Cir.2012) ). These reasons support application of the exception under either the private/public framework or the act-of-production framework. Thus, the required records exception has retained its vitality as an exception to the Fifth Amendment privilege against self-incrimination. See Bouknight, 493 U.S. at 554–62, 110 S.Ct. 900.

B. The...