United States v. Doe
741 F.3d 339
| 2d Cir. | 2013Background
- A federal grand jury subpoenaed Doe for records of foreign bank accounts (names, banks, account numbers, types, maximum values) that 31 C.F.R. §1010.420 requires account holders to maintain; Doe refused to produce them.
- The government moved to compel production; the district court ordered compliance and found Doe in contempt for continued refusal, imposing a $1,000/day sanction (suspended pending appeal).
- Doe invoked the Fifth Amendment act-of-production privilege, arguing production would be testimonial and incriminating (including confirming failure to file FBARs).
- The government argued the requested records fall within the required-records exception to the Fifth Amendment because they are mandated by a regulatory scheme (the Bank Secrecy Act) and serve legitimate regulatory purposes.
- The Second Circuit affirmed, holding the required-records doctrine survives Fisher/Hubbell, and that the BSA recordkeeping rule satisfies Grosso's three-factor test (essentially regulatory; customarily kept; public aspects).
Issues
| Issue | Doe's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the Fifth Amendment act-of-production privilege protects Doe from producing BSA-required foreign-account records | Production is testimonial and would incriminate Doe (including confirming FBAR nonfiling) | The records are "required records" under the required-records exception and thus not protected by the privilege | Exception applies; Doe must produce the records |
| Whether the required-records doctrine remains good law after Fisher/Hubbell | The doctrine is obsolete or limited after the act-of-production cases | The doctrine remains an exception to the privilege and has been applied post-Fisher | Doctrine survives and controls here |
| Whether 31 C.F.R. §1010.420 is "essentially regulatory" (Grosso prong 1) | BSA is criminally focused and targets wrongdoing | The regulation applies to lawful account holders broadly and serves regulatory, tax, and intelligence purposes | The recordkeeping rule is essentially regulatory |
| Whether the requested account information is "customarily kept" and has "public aspects" (Grosso prongs 2–3) | Some wrongdoers might not keep records; beneficiaries may be unaware of recordkeeping duty | The information is basic and commonly retained by account holders; records are required by a valid regulatory scheme and thus assume public aspects | Records are customarily kept and have sufficient public aspects; exception applies |
Key Cases Cited
- Fisher v. United States, 425 U.S. 391 (U.S. 1976) (articulated the Fifth Amendment act-of-production privilege)
- Hubbell, United States v., 530 U.S. 27 (U.S. 2000) (broadened act-of-production protections where production required use of the contents of the witness’s mind)
- Shapiro v. United States, 335 U.S. 1 (U.S. 1948) (first recognized the required-records exception)
- Grosso v. United States, 390 U.S. 62 (U.S. 1968) (adopted the three-factor test for required records)
- Marchetti v. United States, 390 U.S. 39 (U.S. 1968) (declined to apply required-records exception where statute targeted inherently suspect group)
- In re Two Grand Jury Subpoenae Duces Tecum Dated Aug. 21, 1985, 793 F.2d 69 (2d Cir. 1986) (Second Circuit rejected that Fisher undermined the required-records doctrine)
- Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) (applied required-records exception to records kept under a mandatory registration program)