Case Information
‐ ‐ cv UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At stated term Appeals Second Circuit, at Thurgood Marshall Courthouse, Foley Square, City New York, th day December, two thousand sixteen.
PRESENT: AMALYA L. KEARSE,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges . ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ UNITED STATES OF AMERICA,
Plaintiff ‐ Appellee , No. ‐ ‐ cv
NATALIO FRIDMAN,
Defendant Appellant. ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 1
FOR PLAINTIFF ‐ APPELLEE: J ENNIFER J UDE , Assistant United States Attorney, (Benjamin H. Torrance, Assistant United States Attorney, on brief ), for Preet Bharara, Attorney for Southern District New York, New York, NY. DEFENDANT ‐ APPELLANT: R ICHARD A. L EVINE , (Vivek A.
Chandrasekhar, on brief ), Roberts & Holland LLP, New York, NY. Appeal from an order District Southern District New York (Victor Marrero, Judge ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, DECREED order VACATED AND REMANDED .
Defendant appellant Natalio appeals from order Southern New York (Marrero, J.) entered on November granting an Internal Revenue Service (“IRS”) petition enforce summonses pursuant Internal Revenue Code, U.S.C. §§ 7604(a). As part investigation into Fridman’s tax liability, issued two identical summonses (the “Summonses”) seeking related Fridman’s foreign financial accounts. One summons was served capacity
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trustee a domestic trust (the “David Marcelo Trust”) and the other was served in his individual capacity. On appeal, Fridman asserts that the erred in concluding: (1) that the Government satisfied its burden v. Powell, U.S. (1964), to show that the Summonses seek documents that are relevant to the IRS’s investigation; (2) that Fridman’s invocation his “act production” against self incrimination was blanket invocation insufficient to establish his entitlement to the privilege; (3) that, in any event, the requested documents were subject to the doctrine, the doctrine, and the collective entity doctrine; and (4) that must appear interview IRS to provide testimony regarding produced in representative capacity as trustee David Marcelo Trust. We assume parties’ familiarity facts and prior proceedings, we refer only necessary to explain our decision to vacate remand.
We conclude that not err determining that Government satisfied its burden show that requested are relevant. To obtain enforcement summons, must establish inquiry “may be relevant purpose” agency’s investigation. Clarke, S. Ct. (2014) (quotation marks omitted). Under *4 Powell, U.S. 48 (1964), the standard showing relevance is “very low,” Adamowicz States, F.3d (2d Cir. 2008), the Government’s burden is “minimal,” White, F.2d (2d Cir. 1988). The may satisfy this burden by submitting “simple affidavit” from investigating agent. Clarke, S. Ct at 2367. Here, the declaration submitted Agent Kobayashi adequately supports the District Court’s conclusion that the requested are relevant to the Government’s investigation of whether accurately reported income 2008.
But we also conclude that the insufficiently developed to permit meaningful appellate review the District Court’s determination that the Fifth act production does not apply. There is, example, no transcript the proceeding before the District during which asserted act production privilege. We are therefore unable to evaluate confidence accuracy Court’s description that assertion “blanket” invocation. In alternative, determined “producing responsive Summonses falls doctrine, collective entity doctrine, and/or exceptions Amendment’s protection.” Joint App’x 107. But not identify these exceptions apply which document requests *5 or accounts. Nor it determine whether any of these exceptions might apply for time periods narrower than periods covered by Summonses. See, e.g., In re Grand Jury Subpoena Dated Feb. F.3d 339, (2d Cir. 2013) (applying records doctrine covered Bank Secrecy Act C.F.R. § 1010.420, which requires foreign bank be for only period of five years).
On remand, through in camera review if necessary, Court should: (1) provide sufficient for appellate review in determining whether properly invoked act production privilege; and (2) identify any applicable exceptions act production for each document request determine period time exception applies.
For foregoing reasons, judgment VACATED REMANDED further proceedings consistent this order. THE COURT: Catherine O = Hagan Wolfe, Clerk
[1] The should evaluate whether exception applies light our decision in Greenfield, F.3d (2d Cir. 2016).