United States v. Doe (In re Grand Jury Subpoena)

• Decision Date: 10 December 2012
• Docket Number: No. 12–cv–00553 (JFB).,12–cv–00553 (JFB).
• Citation: 908 F.Supp.2d 348
• Parties: In re GRAND JURY SUBPOENA DATED FEBRUARY 2, 2012. United States of America, Movant v. John Doe, Respondent.
• Court: U.S. District Court — Eastern District of New York

908 F.Supp.2d 348

In re GRAND JURY SUBPOENA DATED FEBRUARY 2, 2012.United States of America, Movant

v.John Doe, Respondent.

No. 12–cv–00553 (JFB).

United States District Court, E.D. New York.

Dec. 10, 2012.

Loretta Lynch, U.S. Attorney, Eastern District of New York, Central Islip, NY, Jeffrey B. Bender and Mark W. Kotila, Trial Attorneys, Northern Criminal Enforcement Section Tax Division, U.S. Department of Justice, for Movant.

Brian P. Ketcham, Kostelanetz & Fink, LLP, New York, NY, for Respondent.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

The United States of America (the “government”) seeks an order compelling John Doe (“respondent”) to comply with a grand jury subpoena dated February 2, 2012 (the “Subpoena”). Respondent opposes the government's motion on two grounds: (1) the government already possesses the records sought by the Subpoena and is improperly using the grand jury's subpoena power to prepare for trial; and (2) compelling compliance with the Subpoena would violate respondent's Fifth Amendment privilege against self-incrimination. For the reasons set forth on the record on November 20, 2012 and provided in detail herein, the Court orders respondent to comply with the Subpoena.

Specifically, the Court finds that no evidence supports the conclusion that the government is already in possession of the requested documents or that the government has issued the Subpoena for purposes of preparing for trial. Additionally, the Court holds that the requested documents fall within the required records exception and, thus, are outside the scope of respondent's Fifth Amendment privilege.

I. Background

As part of its investigation, the grand jury in the Eastern District of New York issued a subpoena to respondent that sought the production of foreign bank records that account holders are required by law to keep and maintain for a period of five years. In particular, the Subpoena sought the following foreign bank account records:

Any and all records required to be maintained pursuant to 31 C.F.R. § 1010.420 (formerly 31 C.F.R. § 103.32) for the past 5 years relating to foreign financial bank, securities, or other financial accounts in a foreign country for which you had/have a financial interest in, or signature or other authority over and are required by law to file a Report of Foreign Bank and Financial Account (FBAR). The records required to be maintained pursuant to 31 C.F.R. § 1010.420 (formerly 31 C.F.R. § 103.32) include records that contain 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 the reporting period.

The government served respondent with the Subpoena on February 8, 2012, and the Subpoena required compliance by February 23, 2012. Respondent has failed to respond to the Subpoena. On August 17, 2012, the government moved to compel respondent's compliance with the Subpoena. On September 27, 2012, respondent filed his opposition to the government's motion. On October 9, 2012, the government filed its reply. The Court heard oral argument on November 20, 2012 and, following the argument, issued an oral decisiongranting the government's motion to compel.

II. Discussion

A. Issuance of Subpoena

Respondent argues that the government's motion to compel should be denied because (1) the government already possesses the records sought by the subpoena, and (2) the government may not use the grand jury to prepare for trial. For the reasons set forth below, the Court concludes that these arguments have no merit.

As a threshold matter, although courts must ensure that the grand jury process is not being abused by the government, it is not the role of the courts to micromanage the government's presentation of evidence to the grand jury. See, e.g., United States v. Kleen Laundry & Cleaners, Inc., 381 F.Supp. 519, 521–22 (E.D.N.Y.1974) (“It is now the United States Attorney who gathers the evidence for later presentation to the grand jury.... So broad is his role in practice that courts are loath to review prosecutorial actions.”). Having carefully reviewed the submissions, the Court finds no evidence of abuse of the grand jury process by the government in any way.

First, respondent's argument that the government already possesses the information requested by the Subpoena is based upon sheer speculation and is denied by the government. ( See Gov't Reply Mem. of Law at 2) (“The respondent's argument begins with the false premise that the government already possesses the records sought by the Subpoena.”); ( id.) (“The respondent ... has no basis for his contention that the government ‘already possesses the documents sought by the subpoena.’ ” (quoting Resp't's Mem. of Law in Opp'n at 3)). Although the government attached to its motion to compel a selection of documents from one foreign bank account with dates spanning from 1992 to August 2008, those documents are hardly (on their face) co-extensive with the scope of the Subpoena. Specifically, the Subpoena required the production of documents for a five-year period prior to February 2012. Thus, the government's selection does not contain any documents for the majority of the five-year period covered by the Subpoena. Moreover, there are no documents from other foreign banks at which the respondent, unbeknownst to the government, may have had accounts. In other words, it is self-evident that the government would have no way of ensuring that all such records from all foreign bank accounts—for which respondent has a financial interest, or is a signatory, or has authority over—have been uncovered unless respondent complies with the Subpoena. In short, there is no reason to believe that the government already possesses all documents sought by the Subpoena. Additionally, the fact that the government has some of respondent's foreign bank records clearly does not preclude it from seeking all such relevant foreign bank records. See, e.g., United States v. Dionisio, 410 U.S. 1, 13, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (“The grand jury may well find it desirable to call numerous witnesses in the course of an investigation. It does not follow that each witness may resist a subpoena on the ground that too many witnesses have been called.”).

Respondent seeks to counter this proposition by citing to Application of Linen Supply Cos., 15 F.R.D. 115, 119 (S.D.N.Y.1953). However, that decision is clearly distinguishable. In that case, the court held that the recipients of a grand jury subpoena did not need to provide the originals of documents for which the government already possessed copies. Id. at 119. Here, the grand jury has not received any documents from respondent and, thus, it cannot be determined that the grand jury will have access to all potentially responsive documents. Accordingly, the above-referenced case is inapposite to the instant situation.

Respondent's second argument, that the grand jury is being used by the government to prepare for trial, is similarly unavailing. This argument is a legal non-starter in the instant case because the grand jury has not returned an indictment. Stated differently, the concern that the government is abusing the grand jury by preparing for trial only arises after the grand jury has returned an indictment. See, e.g., United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994) (“It is, of course, improper for the Government to use the grand jury for the sole or dominant purpose of preparing for trial under a pending indictment.” (emphasis added)); see also United States v. Ohle, 678 F.Supp.2d 215, 233 (S.D.N.Y.2010) (same); United States v. Bin Laden, 116 F.Supp.2d 489 (S.D.N.Y.2000) (citing cases). Here, there are no pending charges that have been returned by the grand jury; moreover, there is no trial. In short, no evidence supports the conclusion that the government has issued the Subpoena for the sole or dominant purpose of preparing for a trial, particularly when no charges have yet been brought. For this reason, respondent's argument does not provide a basis to deprive the government, and the grand jury, of these potentially relevant documents.

B. The Fifth Amendment and the Required Records Exception

Respondent next argues that, if this Court were to compel compliance with the Subpoena, respondent's rights under the Fifth Amendment would be violated. Respondent additionally asserts that the required records exception is not applicable. For the following reasons, the Court disagrees with respondent's argument and concludes that the required records exception overrides any Fifth Amendment privilege.

1. Legal Standard

The Fifth Amendment's protection against self-incrimination is well-established. SeeU.S. Const. amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself.”). Its protections are triggered “when the accused is compelled to make a [t]estimonial [c]ommunication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); see also United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Courts have interpreted what constitutes a “testimonial communication” broadly. In Fisher, the Supreme Court stated that “[t]he act of producing evidence in response to a subpoena ... has communicative aspects of its own, wholly aside from the contents of the papers produced.” 425 U.S. at 410, 96 S.Ct. 1569;see also United States v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (“A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect.”). For instance, by complying with a subpoena, the subpoena recipient may “tacitly concede[ ] the existence of the papers demanded and their possession or control,”...