648 F.3d 1067
9th Cir.2011Background
- M.H. is the target of a grand jury investigation into possible use of Swiss accounts to evade taxes.
- UBS records provided to DOJ show M.H. transferred securities to UEB Geneva in 2002; investigation ensued.
- A June 2010 grand jury subpoena duces tecum sought records M.H. was required to keep under 31 C.F.R. § 1010.420 (formerly § 103.32).
- M.H. refused to produce or deny possessing the records, risking Fifth Amendment self-incrimination.
- The district court held him in contempt for noncompliance after deciding the Fifth Amendment did not apply under the Required Records Doctrine.
- Court stayed contempt pending appeal conditioned on a $250,000 bond; now affirms the contempt order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Required Records Doctrine applies to § 1010.420 records | M.H.: records are testimonial; privilege applies unless doctrine applies | Government: records are regulatory and outside privilege under doctrine | Yes; records fall under Required Records Doctrine, so Fifth Amendment inapplicable |
| Whether the regulation is essentially regulatory | M.H.: BSA regulation is criminal in nature | Government: regulation is regulatory; not inherently criminal | Regulation is essentially regulatory |
| Whether records are customarily kept | M.H.: records are not necessarily kept by individuals | Government: records are basic, commonly kept | Records are customarily kept |
| Whether the records have public aspects | M.H.: records lack public aspects; privacy interest | Government: regulatory scheme grants public aspects to records | Records have public aspects under doctrine |
| Whether production would implicate the Fifth Amendment or immunity issue | M.H.: immunity may be needed if Fifth Amendment applies | Government: Fifth Amendment not implicated due to doctrine; immunity not addressed | Fifth Amendment not implicated; immunity not necessary; contempt affirmed |
Key Cases Cited
- Shapiro v. United States, 335 U.S. 1 (U.S. 1948) (Required Records Doctrine foundation; records kept to regulate activity)
- Marchetti v. United States, 390 U.S. 39 (U.S. 1968) (Three-pronged test for essential regulatory/public aspects analysis)
- Grosso v. United States, 390 U.S. 62 (U.S. 1968) (Helped define three Grosso principles for Required Records Doctrine)
- Byers, 402 U.S. 424 (U.S. 1971) (Public aspects balancing; regulatory vs criminal nature)
- Bouknight, 493 U.S. 549 (U.S. 1990) (Application of doctrine beyond strict record-keeping to other regulatory contexts)
- Fehn, 97 F.3d 1276 (9th Cir. 1996) (Applied required-records doctrine in varied contexts)
- Rosenberg, 515 F.2d 190 (5th Cir. 1975) (Regulatory compliance can have public aspects without explicit reporting)
- Des Jardins, 747 F.2d 499 (9th Cir. 1984) (Record-keeping in regulatory scheme deemed essentially regulatory; not inherently criminal)
- Doe M.D., 801 F.2d 1164 (9th Cir. 1986) (Applied doctrine to medical privacy context; records outside privilege when required by law)