In Re GRAND JURY PROCEEDINGS, NO. 4-10
2013 U.S. App. LEXIS 2752
| 11th Cir. | 2013Background
- IRS-led grand jury investigation in the Northern District of Georgia sought foreign financial account records from the Target and his wife under 31 C.F.R. § 1010.420.
- Subpoenas duces tecum required production of records kept pursuant to federal offshore banking regulations for years 2006–present.
- The Target and wife refused under the Fifth Amendment privilege against self-incrimination; the government moved to compel.
- District court held the records fall within the Required Records Exception, making production permissible.
- Target and wife appealed, arguing the exception does not apply and that production itself could be testimonial and incriminating.
- Court reviews Bank Secrecy Act regime, the three-prong Required Records Exception, and the act-of-production issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Required Records Exception apply to foreign financial records? | Target argues records are regulatory but not within the exception. | Target contends records do not fit essentially regulatory, etc. | Yes; records satisfy the three premises and are subject to the exception. |
| Do the records themselves or the act of production fall outside the Fifth Amendment due to the exception? | Target claims act of production remains incriminating and thus privileged. | Government asserts act of production is covered by the exception along with records. | Both the records and the act of production are outside the privilege. |
| Are the records 'essentially regulatory,' 'customarily kept,' and have 'public aspects'? | Target disputes these premises for BSA records. | Government contends BSA records meet all three premises based on regulatory purpose, typical recordkeeping, and public aspects. | All three premises are satisfied for foreign financial account records under the BSA. |
Key Cases Cited
- Shapiro v. United States, 335 U.S. 1 (Supreme Court 1948) (establishes general regulatory exception framework for records)
- Grosso v. United States, 390 U.S. 62 (Supreme Court 1968) (three premises of Required Records Exception)
- Marchetti v. United States, 390 U.S. 39 (Supreme Court 1968) (three premises of Required Records Exception elaborated)
- Bouknight, 493 U.S. 550 (Supreme Court 1990) (act-of-production considerations in related contexts)
- In re Grand Jury Subpoena, 696 F.3d 428 (5th Cir. 2012) (applies Required Records Exception to BSA records; regulatory regime analysis)
- In re M.H., 648 F.3d 1067 (9th Cir. 2011) (supports essentially regulatory, customs, and public aspects premises)
- Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 909 (5th Cir. 2012) (coherent application of three premises to financial records)