In Re GRAND JURY SUBPOENA
696 F.3d 428
| 5th Cir. | 2012Background
- Grand-jury investigation in the Southern District of Texas targets a witness who kept foreign accounts; subpoena seeks records required by Treasury regulations (offshore banking) for 2005–2008; witness refuses citing Fifth Amendment privilege; district court denies government’s motion to compel; government appeals seeking application of the Required Records Doctrine; UBS provided account records to prosecutors, revealing witness’s offshore accounts and control; BSA record-keeping requirements mandate retention and inspection of records, implying public-regulatory purposes; court analyzes whether the records fall within the doctrine’s three prongs (essentially regulatory, customarily kept, public aspects) to compel production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Required Records Doctrine applies to the subpoena. | Witness argues doctrine does not apply to BSA records. | Government contends BSA records are regulatory and thus subject to production. | Yes; doctrine applies and compels compliance. |
| Whether the BSA record-keeping is essentially regulatory. | Witness asserts BSA is primarily crime-fighting, not regulatory. | Government argues BSA has broader regulatory goals beyond criminal enforcement. | Regulatory in nature; not exclusively criminal. |
| Whether the records are of a kind customarily kept by the regulated party. | Witness contends records are not customarily kept by individuals. | Records are of a type citizens would maintain for financial accounts. | Records are customarily kept. |
| Whether the records have public aspects sufficient for the third Grosso prong. | Witness claims private records lack public aspects. | Data sharing with multiple agencies confers public aspects. | Public aspects satisfied. |
Key Cases Cited
- In re M.H., 648 F.3d 1067 (9th Cir. 2011) (Required Records Doctrine applied to offshore-account records)
- In re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979) (premises for regulatory records doctrine; early articulation)
- Shapiro v. United States, 335 U.S. 1 (S. Ct. 1948) (record-keeping/inspection permitted in regulatory schemes)
- Grosso v. United States, 390 U.S. 62 (U.S. 1968) (three-prong test for Required Records Doctrine: regulatory, customarily kept, public aspects)
- Marchetti v. United States, 390 U.S. 39 (U.S. 1968) (limits on regulatory record-keeping to essentially regulatory activities)