A bank depositor lacks the necessary Fourth Amendment interest to challenge a subpoena duces tecum issued to a bank for its records of the depositor's transactions. United States v. Miller, 425 U.S. 435 (1976). Because of procedures imposed by the Right to Financial Privacy Act of 1978, it is important, nevertheless, that United States Attorneys exercise close control over the process of obtaining for law enforcement purposes business records of banks and other financial institutions.

Sound grand jury practice requires that:

1. • The prosecutor personally authorize the issuance of a subpoena duces tecum to obtain financial institution account records to avoid any appearance that the matter was left to the discretion of an investigative agent serving the subpoena;
2. • The subpoena be returnable on a date when the grand jury is in session and the subpoenaed records be produced before the grand jury unless the grand jury itself has previously agreed upon some different course, see United States v. Hilton, 534 F.2d 556, 564, 565 (3d Cir.1976), cert. denied, 429 U.S. 828; and
3. • If, for the sake of convenience and economy, the subpoenaed party is permitted voluntarily to relinquish the records to the government agent serving the subpoena, a formal return of the records be made in due course to the grand jury.

Every recipient of a grand jury subpoena for financial institution records who might be subject to the disclosure penalties should be made aware that civil and criminal penalties exist for making certain disclosures involving (FIF) offenses regarding the subpoena. The notice may be provided by way of an attachment to the subpoena setting forth the disclosure prohibitions and the penalties for disclosure. The prohibited notifications and applicable penalties are set out in 12 U.S.C. § 3402(b) and 18 U.S.C. § 1510(b), respectively. The criminal penalties include fines and a maximum prison term of five years if an officer of a financial institution (as defined in 18 U.S.C. § 1510(b)) notifies, directly or indirectly, any person regarding the existence or contents of this subpoena with the intent to obstruct a judicial proceeding. In addition, fines and a maximum prison term of one year may be imposed if the notification is made, directly or indirectly, to a customer of the financial institution whose records are sought by the subpoena or to any other person named in the subpoena. Section 3420(b) of the Right to Financial Privacy Act contains a provision to be read in pari materia with 18 U.S.C. § 1510(b) under which civil penalties may also be imposed. See also JM 9-13.800 et seq.

[updated April 2018]