In re: GRAND JURY INVESTIGATION M.H., M.H., Witness-Appellant, v. UNITED STATES OF AMERICA, Appellee.
No. 11-55712
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 19, 2011
11233
Before: William C. Canby, Jr., Ronald M. Gould, and Richard C. Tallman, Circuit Judges.
D.C. No. 10-GJ-0200. OPINION. Appeal from the United States District Court for the Southern District of California. Irma E. Gonzalez, Chief District Judge, Presiding. Argued and Submitted June 24, 2011—Pasadena, California.
Opinion by Judge Tallman
COUNSEL
Frank P. Cihlar, Gregory Victor Davis, Alexander P. Robbins, Tax Division, Department of Justice, Washington, D.C., for appellee United States of America.
OPINION
TALLMAN, Circuit Judge:
Appellant M.H. is the target of a grand jury investigation seeking to determine whether he used secret Swiss bank accounts to evade paying federal taxes. The district court granted a motion to compel M.H.‘s compliance with a grand jury subpoena duces tecum demanding that he produce certain records related to his foreign bank accounts. The court declined to condition its order compelling production upon a grant of limited immunity and, pursuant to the recalcitrant witness statute,
The foreign bank account information the Government seeks is information M.H. is required to keep and maintain for inspection under the Bank Secrecy Act of 1970 (BSA),
The district court concluded that under the Required Records Doctrine, the Fifth Amendment did not apply. That doctrine recognizes that when certain conditions are met, records required to be maintained by law fall outside the scope of the privilege. We agree that, under the Required Records Doctrine, the Fifth Amendment does not apply. We therefore affirm the district court‘s order of contempt for failing to produce the information the grand jury sought.
I
In 2009, as part of a deferred-prosecution agreement with the United States Department
In June 2010, a San Diego federal grand jury issued a subpoena duces tecum to M.H. for records he was required to keep pursuant to Treasury Department regulations governing offshore banking. The subpoena demanded production of:
[a]ny and all records required to be maintained pursuant to
31 C.F.R. § 103.32 [subsequently relocated to31 C.F.R. § 1010.420 ] relating to foreign financial accounts that you had/have a financial interest in, or signature authority over, including records reflecting the name in which each such account is maintained, the number or other designation of such account, the name and address of the foreign bank or other person with whom such account is maintained, the type of such account, and the maximum value of each such account during each specified year.
(Emphasis added).1 M.H. declined to provide the requested information and also declined to deny having it, reasoning that either response posed a risk of self-incrimination under the Fifth Amendment to the United States Constitution. The district court ordered him to comply anyway. When he again refused to produce the requested documents, the court conducted a show-cause hearing for failing to comply with its order and found him in contempt. However, because the district court considered M.H.‘s arguments “substantial and worthy of appellate review,” the court stayed the contempt order pending appeal, contingent on M.H.‘s posting of a $250,000
cash bond. M.H. is not currently incarcerated and may travel without restriction.
The information identified in the subpoena mirrors the banking information that
II
We review de novo mixed questions of law and fact contained within the
the thirty-day time limit for deciding appeals that
III
A
[1] As a preliminary matter, M.H. argues that—for a number of reasons—
The Government is not required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of its inquiry is to establish whether probable cause exists to accuse the taxpayer of violating our tax laws. See id. at 297 (“The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. Unlike this Court, whose jurisdiction is predicated on a specific case or controversy, the grand jury ‘can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ ” (citation omitted)).
[2] There are, of course, limits to the grand jury‘s authority. See, e.g., id. at 299 (stating that a grand jury may not “engage in arbitrary fishing expeditions” or base its investigation on “malice or an intent to harass“). But there is no evidence of excess here. We have examined the evidence in the sealed record along with the evidence the district court reviewed in camera. That evidence confirms that the grand jury‘s inquiry is a legitimate exercise of its investigatory authority. If it is later established that, for whatever legal reason, the regulation at issue does not apply to M.H., then the Government will be unable to successfully prosecute him and there is no risk of a Fifth Amendment violation. Until then, however, M.H.‘s obligation to comply with the grand jury subpoena is not contingent upon whether the Government has proven the BSA and its regulations apply to him as a U.S. taxpayer who has previously filed FBARs with the Department of the Treasury.
B
[3] M.H. argues that the Required Records Doctrine—which, if it applies, renders the Fifth Amendment privilege inapplicable—does not apply to this case and that the district court erred in finding otherwise. The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has held that where documents are voluntarily created and kept, compelling their disclosure does not implicate the privilege against self-incrimination. See United States v. Doe, 465 U.S. 605, 611-12 (1984) (citing Fisher v. United States, 425 U.S. 391, 409-10 (1976)). Where documents are required to be kept and then produced, they are arguably compelled. However, the Supreme
[4] In Shapiro—credited for establishing the principles of what has come to be known as the Required Records Doctrine—the Supreme Court required a wholesaler of fruit and produce to turn over certain records he was obliged to keep and maintain for examination pursuant to the Emergency Price Control Act, which applied in part to records “customarily kept.” See Marchetti v. United States, 390 U.S. 39, 55 (1968). The Court reasoned that the Required Records “principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established.” Shapiro, 335 U.S. at 17.
Twenty years after Shapiro, the Court considered two cases that examined whether being required to pay an excise tax on one‘s gambling wagers violated the Fifth Amendment. Those two cases were Marchetti and Grosso v. United States, 390 U.S. 62 (1968). In its analysis in those cases, the Court identified three principles from Shapiro that distinguished it from Grosso and Marchetti where, the Court concluded, the Required Records Doctrine did not apply. See Marchetti, 390 U.S. at 56-57 (“We think that neither Shapiro nor the cases upon which it relied are applicable here. . . . Each of the three principal elements of the [Required Records Doctrine], as it is described in Shapiro, is absent from this situation.“); Grosso, 390 U.S. at 67-68 (“The premises of the [Required Records Doctrine], as it is described in Shapiro, are evidently three: first, the purposes of the United States’ inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed ‘public aspects’ which render them at least analogous to public documents. . . . [B]oth the first and third factors are plainly absent from this case.” (emphasis added)).
Since Grosso and Marchetti, the Supreme Court has applied Shapiro and the principles underlying the Required Records Doctrine broadly to “items that are the legitimate object of the government‘s noncriminal regulatory powers,” Baltimore City Dept. of Soc. Servs. v. Bouknight, 493 U.S. 549, 557 (1990), regardless of whether they are required to be kept and regardless of whether they are records. See, e.g., California v. Byers, 402 U.S. 424, 427-31 (1971) (applying Required Records Doctrine principles and concluding that a state statute requiring drivers involved in vehicle accidents to stop at the scene of the accident and leave their names and addresses for police did not infringe the Fifth Amendment); Bouknight, 493 U.S. at 558 (applying the Required
[5] We have recognized that the three principles announced in Grosso define the Required Records Doctrine, but have also adopted the Supreme Court‘s flexibility in applying those principles. See In re Grand Jury Proceedings (Doe M.D.), 801 F.2d 1164, 1168 (9th Cir. 1986) (“Under [the Required Records Doctrine], the Fifth Amendment privilege does not apply if: (1) the purpose of the government‘s inquiry is regulatory, not criminal; (2) the information requested is contained in documents of a kind the regulated party customarily keeps; and (3) the records have public aspects.“); see also U.S. SEC v. Fehn, 97 F.3d 1276, 1291-92 (9th Cir. 1996) (observing that we have applied the Required Records Doctrine “principles in a variety of contexts, and have accorded them varying emphasis“).
Even though M.H. is being asked to turn over reports he is required to keep pursuant to the BSA and its regulations, the Government, citing Byers, Bouknight, and Fehn, suggests that all three requirements need not be met. While it is true that when the Required Records Doctrine is applied to items other than records a rigid application of all three factors may not be necessary, see, e.g., Bouknight, 493 U.S. at 558-60 (applying the “principles” of the Required Records Doctrine and concluding that a mother compelled to produce her child through a court order could not invoke a Fifth Amendment privilege against self-incrimination to resist the order); United States v. Des Jardins, 747 F.2d 499, 507-09 (9th Cir. 1984) (concluding that the Fifth Amendment privilege does not apply to a requirement under the BSA that travelers transferring more than $5,000 out of the country file a written report, but considering only whether the regulation at issue was essentially regulatory or criminal in nature), rev‘d on other grounds, 772 F.2d 578 (9th Cir. 1985), we need not resolve that issue here. Even if we assume, for purposes of decision, that all three prongs of the test set forth in Grosso apply, we conclude that all three requirements are met in this case.
1. “Essentially regulatory”
We begin by recognizing that when compelled disclosure has incriminating potential, “the judicial scrutiny is invariably a close one.” Byers, 402 U.S. at 427. In evaluating the danger of incrimination, we consider whether the requirement in question is essentially regulatory or criminal in nature. Doe M.D., 801 F.2d at 1168. In doing so, “[i]t is irrelevant that records kept for regulatory purposes may be useful to a criminal grand jury investigation.” Id. Instead, we consider whether the statutory or regulatory requirement involves an area “permeated with criminal statutes,” whether it is “aimed at a highly selective group inherently suspect of criminal activities,” Des Jardins, 747 F.2d at 508 (internal citations and quotation marks omitted), and whether complying with the requirement would “generally . . . prove a significant ‘link in a chain’ of evidence tending to establish guilt.” Id. at 509 (internal quotation marks omitted). M.H. argues that, for sev-eral reasons, the BSA‘s record-keeping provision is criminal in nature, not regulatory. Our precedent indicates otherwise.
[6] M.H. first argues that
[7] The Supreme Court has already considered and rejected these arguments as they relate to the BSA generally. In California Bankers Ass‘n v. Shultz, 416 U.S. 21, 76-77 (1974), the Court observed that the goal of assisting in the enforcement of criminal laws “was undoubtedly prominent in the minds of the legislators,” as they considered the BSA. However, it noted that “Congress seems to have been equally concerned with civil liability which might go undetected by reason of transactions of the type required to be recorded or reported.” Id. at 76. The Court concluded that “the fact that a legislative enactment manifests a concern for the enforcement of the criminal law does not cast any generalized pall of constitutional suspicion over it.” Id. at 77. Therefore, that Congress aimed to use the BSA as a tool to combat certain criminal activity is insufficient to render the BSA essentially criminal as opposed to essentially regulatory.
Turning to the specific regulation in question, our analysis in Des Jardins is informative. There, we considered whether a particular BSA record-reporting provision, which required travelers to report transporting more than $5,000 in monetary instruments across the United States border, was essentially criminal in nature and determined it was not. In that case, a U.S. Customs Agent working at the Los Angeles International Airport—as part of a project to detect narcotics-related criminal activity—noticed that Des Jardins‘s travel route paralleled those drug couriers frequently took. Des Jardins, 747 F.2d at 501. The agent inspected Des Jardins‘s luggage and found $5,000. Upon searching Des Jardins‘s person, the agent discovered several thousand more dollars. Id. at 502. Des Jardins was ultimately convicted for violating the reporting requirement.
We considered whether the reporting requirement violated Des Jardins‘s Fifth Amendment privilege, and we analyzed whether the fact that the regulation was not ”exclusively regulatory” made it essentially criminal. Id. at 508-09 (emphasis added). We determined it did not. Id. at 509. We reasoned in part that “[s]ince the transportation of monetary instruments in such amounts is not itself illegal and since there is no reason to suppose that the transportation of monetary instruments in such amounts is generally connected with criminal activity, the vast majority of people subject to the requirement are not suspect of illegality.” Id.
[8] The same can be said here. There is nothing inherently illegal about having or being a beneficiary of an offshore foreign banking account. According to the Government,
Considering whether the sought-after information would likely serve as a significant chain in a link of evidence establishing guilt, we found relevant in Des Jardins the nature of the specific information travelers were required to report (the legal capacity in which the person filing the report was acting; the origin, destination, and route being traveled; and the amount and kind of monetary instruments transported). We concluded that because such evidence lacked an inherently criminal quality, it would not likely serve as a significant link in a chain of evidence. Des Jardins, 747 F.2d at 508-09.
[9] M.H. was required to maintain, and through the subpoena is being asked to produce, the following information:
- The name in which each account is maintained;
- The number or other designation of such account;
- The name and address of the foreign bank or other person with whom such account is maintained;
- The type of such account;
- The maximum value of each such account during the reporting period.
[10] This information is not inherently criminal. As in Des Jardins, it is the act of not reporting (or in this case the act of not maintaining for inspection) the information that suggests criminality, not the information itself. Because the information being requested of M.H. is not inherently criminal, being required to provide that information would generally not establish a significant link in a chain of evidence tending to prove guilt. See Des Jardins, 747 F.2d at 509 (“Since the requirement concerns such relatively innocuous matters . . . any information obtained would be at best tangentially related to criminal activity.“); see also Wilson, 221 U.S. at 380 (“But the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held.“).
[11] M.H. suggests that Des Jardins should not apply because in that case we considered a reporting requirement instead of a record-keeping requirement. But Des Jardins‘s analysis of whether the regulation in question was essentially regulatory did not hinge on the “reporting” aspect of the regulation. Des Jardins relied on cases interpreting the Required Records Doctrine and is clearly applicable to the “essentially regulatory” aspect of that doctrine, which does not turn on whether a reporting requirement exists, but—as we have already explained—on whether the information sought is inherently criminal in nature. While Des Jardins does not answer the precise question at issue in this case, we apply the rules recognized there to inform our Fifth Amendment inquiry. Those rules suggest that because
We have held that whether a requirement to maintain records involves a reporting requirement is not determinative for purposes of deciding whether it is essentially regulatory. See United States v. Rosenburg, 515 F.2d 190, 199-200 (9th Cir. 1975) (holding that the Required Records Doctrine applied even though the statute in question only required records to be kept for two years and did “not expressly provide that records shall be open to inspection by state officials“). Thus, the lack of an “automatic” reporting requirement does not mean
Moreover,
Because
2. Customarily Kept
[12] We have not assigned a specific definition to the term “customarily kept,” but records appear to be customarily kept if they would typically be kept in connection with the regulated activity. As the case law dealing with this requirement suggests, the Fifth Amendment does not apply when the Government compels individuals to create records that they would customarily keep.
In Shapiro, the records a fruit wholesaler “customarily kept” in compliance with the Emergency Price Control Act of 1942 were not privileged. By contrast, in Marchetti, records regarding a person‘s gambling expenses were deemed not customarily kept and were privileged. Some courts have recognized records as “customarily kept” where they are required to be retained as part of the general regulatory scheme, as they were in Shapiro. See, e.g., In re Doe, 711 F.2d 1187, 1191 (2d Cir. 1983) (“That the W-2s are records of a kind customarily kept by taxpayers is not open to dispute.“). Most, however, seem to simply make a cursory statement that the records are, or are not, customarily kept. See, e.g., Doe M.D., 801 F.2d at 1168 (concluding without analysis that “it is evident that Doe customarily maintained the documents in his possession“).
[13] The information that
3. “Public aspects”
[14] The Supreme Court has recognized that if the government‘s purpose in imposing the regulatory scheme is essentially regulatory, then it necessarily has some “public aspects.” Shapiro, 335 U.S. at 33 (noting that “the privilege which exists as to private papers cannot be maintained in relation to records required by law to be kept in order that there may be suitable information of transactions which
[15] The mere fact that the government has “formalized its demands in the attire of a statute” does not automatically ascribe “public aspects” to otherwise private documents. See Marchetti, 390 U.S. at 57. However, that the information sought is traditionally private and personal as opposed to business-related does not automatically implicate the Fifth Amendment. Where personal information is compelled in furtherance of a valid regulatory scheme, as is the case here, that information assumes a public aspect. See Byers, 402 U.S. at 431-32 (holding that a California statutory requirement that drivers involved in automobile accidents provide their names and addresses to police did not infringe on the Fifth Amendment privilege because “[d]isclosure of name and address is an essentially neutral act. Whatever the collateral consequences of disclosing name and address, the statutory purpose is to implement the state police power to regulate use of motor vehicles“). Similarly, disclosure of basic account information is an “essentially neutral” act necessary for effective regulation of offshore banking.
M.H. argues that the records in question, even if they are essentially regulatory, lack public aspects because “nothing in the record keeping provision of the BSA requires [M.H.] to produce bank records to the Government.” However, we have held that a regulation need not have an express reporting requirement in order to have public aspects. See Rosenburg, 515 F.2d at 199-200 (finding no Fifth Amendment violation even though the statute required records to be kept but not produced (citing Shapiro, 335 U.S. 1, and Grosso, 390 U.S. at 68)).
Furthermore, as we have already noted,
M.H. next suggests that because the BSA provides that a person need only disclose records “as required by law” and the House report accompanying the legislation specified that the records “will not be made automatically available for law enforcement purposes,” the records are not public because they are not “easily accessed” by the Government. But court orders and subpoenas are legal processes that prevent law enforcement from automatically retrieving information, and whether a document is easily accessible has nothing to do with whether a document
M.H.‘s argument that, because the law recognizes special privacy interests in bank records and tax documents, those documents cannot have “public aspects” is also flawed. The fact that documents have privacy protections elsewhere does not transform those documents into private documents for the purpose of grand jury proceedings. See Doe M.D., 801 F.2d at 1168 (finding that confidential patient records have “public aspects” for purposes of the Required Records Doctrine and that “expectations of privacy do not negate a finding that there is a public aspect to the files under the . . . regulatory schemes“); see also Fisher, 425 U.S. at 401 (“We adhere to the view that the Fifth Amendment protects against ‘compelled self-incrimination, not the disclosure of private information.’ ” (citation and internal markings omitted)).
M.H. emphasizes decisions from other circuits that have found certain personal income tax documents beyond the scope of the Required Records Doctrine. Those cases are not binding in this Circuit, but even if they were, they fail to support M.H.‘s position. For example, M.H. relies heavily on Smith v. Richert, 35 F.3d 300, 303 (7th Cir. 1994). There, the court held that where the “production of personal tax records of the character of W-2‘s and 1099‘s would have testimonial force and incriminate the taxpayer . . . the required-records doctrine is inapplicable and that production is excused by the self-incrimination clause.” Smith, 35 F.3d at 304.
But the rationale behind that ruling was that “[t]he decision to become a taxpayer cannot be thought voluntary . . . [because] [a]lmost anyone who works is a taxpayer, along with many who do not.” Id. at 303. The court reasoned that the obligatory nature of paying taxes was distinguishable from “the case of the individual who enters upon a regulated activity knowing that the maintenance of extensive records available for inspection by the regulatory agency is one of the conditions of engaging in the activity.” Id. In the latter scenario—which is precisely the situation here because no one is required to participate in the activity of offshore banking—the required records doctrine would apply.
Furthermore, in Smith the subpoena did not indicate that the records being sought related to a regulated activity, whereas in this case the subpoena so indicates. See id. (determining that the Required Records Doctrine did not apply in part because “[n]othing in the subpoena identifies the records sought as records required by the state‘s agricultural statutes to be kept“). Here, the subpoena explicitly requires the pro-duction of banking records required to be kept and maintained for inspection pursuant to regulations implemented through the BSA.
[16] Finally, M.H. argues that allowing the regulatory nature of a requirement to render it as having “public aspects” allows the exception to swallow the rule that “[t]he Government‘s anxiety to obtain information known to a private individual does not without more render that information public.” Marchetti, 390 U.S. at 57. But, as stated above, a statute or regulation “directed at a selective group inherently suspect of criminal activities” fails to render the privilege against self-incrimination inapplicable. Id. Determining whether a regulation is essentially regulatory or criminal requires analysis that goes beyond the label Congress or an agency provides, thus safeguarding against the exception swallowing the rule. Furthermore, in this instance,
IV
[17] Because the records sought through the subpoena fall under the Required Records Doctrine, the Fifth Amendment privilege against self-incrimination is inapplicable, and M.H. may not invoke it to resist compliance with the subpoena‘s command. See Doe M.D., 801 F.2d at 1167 (“Records that are required to be maintained by law are outside the scope of the privilege [against self-incrimination].“). Because M.H.‘s Fifth Amendment privilege is not implicated, we need not address his request for immunity. Bouknight, 493 U.S. at 562 (declining to “define the precise limitations that may exist upon the State‘s ability to use the testimonial aspects of Bouknight‘s act of production in subsequent criminal proceedings“).
The district court‘s order is AFFIRMED.