United States v. Greenfield
2016 U.S. App. LEXIS 13871
2d Cir.2016Background
- Steven Greenfield was implicated by a 2008 leak of Liechtenstein Global Trust (LGT) documents showing offshore entities (Maverick, TSF, Chiu Fu) and a 2001 LGT memo describing Greenfield as a person authorized to give instructions and holding power of attorney.
- Greenfield did not disclose these entities on tax returns; the IRS audited him and issued an Information Document Request (May 2013) and a summons (June 2013) seeking broad domestic and foreign financial and related records (2001–2011/2013 scope narrowed by the Government).
- Greenfield moved to quash, invoking the Fifth Amendment act-of-production privilege; the Government argued Fisher’s foregone-conclusion doctrine permitted enforcement because it already knew existence, control, and authenticity of some documents from the LGT disclosures.
- The Southern District enforced production of documents tied to identified LGT accounts and certain travel records; Greenfield appealed to the Second Circuit.
- The Second Circuit analyzed whether the Government had independent knowledge—at the time of the summons (2013)—that the documents existed, were in Greenfield’s control, and could be authenticated, distinguishing Fisher from Hubbell.
- The court concluded the Government failed to show with reasonable particularity that the existence, control, and authenticity of the sought documents (beyond a narrow subset) were a foregone conclusion in 2013 and vacated the enforcement order, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Greenfield) | Held |
|---|---|---|---|
| Whether compelled production of documents violates the Fifth Amendment act-of-production privilege | Fisher foregone-conclusion applies because LGT records already establish existence, control, authenticity for identified accounts | Production would be testimonial because Government lacks independent knowledge as to existence, control, authenticity in 2013 | Foregone-conclusion not met for most documents; privilege protects production unless Government shows independent knowledge in 2013 |
| What temporal point governs the foregone-conclusion inquiry | Government: prior knowledge as of documents’ creation (2001) suffices | Greenfield: Government must show knowledge as of summons issuance (2013) | Court: Relevant time is when summons issued; Government must show foregone conclusion at that time |
| Required quantum of Government knowledge to invoke foregone-conclusion | Government need only reasonable particularity, not absolute certainty | Must actually know (not merely infer) existence, control, authenticity; speculative means insufficient | Government must show independent, non-speculative proof (reasonable particularity) of existence, control, authenticity |
| Whether specific categories (bank records, subsidiary accounts, ownership & professional-service files, passport/travel docs) are foregone conclusions | Govt: LGT documents and bank practices establish many categories; passport/travel trivial to authenticate | Greenfield: Intervening events (entity dissolutions, father’s death, FATCA, time lapse) make continued possession/control non-foregone; authentication uncertain for foreign banks | Only a narrow subset (passport and closely related travel docs as of 2001) clearly foregone as to 2001; but Government cannot infer continued possession/control through 2013 for these or authenticate most foreign account records—so enforcement reversed |
Key Cases Cited
- Fisher v. United States, 425 U.S. 391 (foregone-conclusion doctrine for act-of-production privilege)
- United States v. Hubbell, 530 U.S. 27 (government must show prior knowledge of existence/whereabouts; act-of-production can provide incriminating linkage)
- United States v. Doe, 465 U.S. 605 (standard of review; testimonial-production inquiry must be supported by record)
- Rylander v. United States, 460 U.S. 752 (non-possession defense in contempt context; distinguishes compelled production from required-records doctrine)
- Hoffman v. United States, 341 U.S. 479 (compelled testimony that furnishes a link in the chain of evidence is protected)
- United States v. Rue, 819 F.2d 1488 (inference of continued possession over short intervals; factors to consider)
- United States v. Fox, 721 F.2d 32 (rejecting speculative inferences from tax returns and generalized retention practices)
- In re Katz (Jamil v. United States), 623 F.2d 122 (government lacked knowledge of identities/locations of corporations; foregone conclusion absent)
- Sideman & Bancroft, LLP v. United States, 704 F.3d 1197 (authenticity concerns; risk of tacit identification when defendant selects responsive documents)