IN RE: GRAND JURY SUBPOENA DATED FEBRUARY 2, 2012; UNITED STATES OF AMERICA, Movant-Appellee, -v.- JOHN DOE, Respondent-Appellant.

Docket No. 13-403-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

741 F.3d 339; 2013 U.S. App. LEXIS 25316

August 22, 2013, Argued

December 19, 2013, Decided

SUBSEQUENT HISTORY: As amended December 12, 2013.

PRIOR HISTORY: [**1]

John Doe appeals from a contempt order and an order compelling him to comply with a grand jury subpoena dated February 2, 2012, entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). The subpoena seeks records of Doe's foreign banks accounts, which the Bank Secrecy Act requires United States resident account holders in foreign banks to maintain. See 31 C.F.R. ß 1010.420. Doe resists, asserting that the Fifth Amendment privilege against self-incrimination applies to his production of the requested documents. The district court held that the "required records" exception to the privilege applies; Doe contends both that the exception no longer exists and, if it does, it does not apply. Finding these arguments unpersuasive, we AFFIRM the judgment of the district court.

United States v. Doe (In re Grand Jury Subpoena Dated February 2, 2012), 908 F. Supp. 2d 348, 2012 U.S. Dist. LEXIS 174712 (E.D.N.Y., 2012)

DISPOSITION: AFFIRMED.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The district court properly imposed sanctions for respondent's failure to comply with a grand jury subpoena seeking records of his foreign banks accounts under the Bank Secrecy Act because requiring respondent to produce the subpoenaed documents, over his objections, did not violate his Fifth Amendment right against self incrimination as the documents fell under the required records exception.

OUTCOME: Judgment affirmed.

CORE TERMS: records exception, subpoena, bank accounts, customarily, recordkeeping, prong, grand jury, self-incrimination, foreign bank, reporting, regulated, account holders, incriminating, subpoenaed, inherently, producing, compelled, regulatory scheme, criminal activities, intelligence, beneficiary, gambling, lawfully, maximum, gambler, reporting requirement, articulated, contempt, immunity, waived

LexisNexis(R) Headnotes

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN1] The Fifth Amendment privilege might protect an individual from being required to produce documents, even if the documents' contents are not protected by the privilege, when the witness's simple act of producing the documents could be used against the witness, for example, in those cases when the simple fact that the witness possessed the documents would be incriminating.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN2] The act of producing evidence in response to a subpoena has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN3] The self incrimination privilege, in certain circumstances, protects individuals from producing documents where they are incriminated by the contents of the documents. As applied, the privilege is practical; it inoculates people from being forced to contribute to their own prosecution while not unduly restricting grand juries' ability to seek the truth.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN4] The act of production privilege contains exceptions, and among them is the required records doctrine. The required records exception applies only when the Fifth Amendment privilege would otherwise allow a witness to avoid producing incriminating documents. It abrogates the protection of the privilege for a subset of those documents that must be maintained by law.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN5] The court set forth a three-factor test to determine whether documents are required records. 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.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN6] Courts have consistently applied the required records doctrine and its analytical framework as an exception to the Fifth Amendment privilege, long after the expiration of any exigency.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN7] The required records doctrine is an exception to the Fifth Amendment privilege. As such, it necessarily overrides the privilege in instances in which the privilege would otherwise apply.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN8] If a person conducts an activity in which record-keeping is required by statute or rule, he may be deemed to have waived his Fifth Amendment privilege with respect to the act of production, at least in cases in which there is a nexus between the government's production request and the purpose of the record-keeping requirement. Because the records must be kept by law, the record-holder admits little in the way of control or authentication by producing them.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN9] The Fifth Amendment's act of production privilege does not cover records that are required to be kept pursuant to a civil regulatory regime.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN10] The first Grosso prong asks whether the record requirement is essentially regulatory. This precludes Congress from circumventing the Fifth Amendment privilege by enacting comprehensive legislation directed at a selective group inherently suspect of criminal activities. When legislation is not directed at the public at large and concerns an area permeated with criminal statutes, courts are more likely to hold that the required records exception does not apply. In addition to illegal gambling, courts have declined to apply the required records exception to records regarding marijuana sales, ownership of dangerous firearms, and other areas permeated with criminal statutes, but have applied the exception in the context of drivers involved in automobile accidents, custodians of state-supervised children, and even various sections of the Bank Secrecy Act.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN11] For purposes of the required records exception to the Fifth Amendment privilege, the court's inquiry is not whether legislation as a whole was motivated by civil or criminal concerns, but rather whether the specific section in question is essentially regulatory or directed at an area permeated with criminal statutes.

Banking Law > Federal Acts > Bank Secrecy Act

[HN12] 31 C.F.R. ß 1010.420 targets those engaged in the lawful activity of owning a foreign bank account. There is nothing inherently illegal about having or being a beneficiary of an offshore foreign bank account.

Banking Law > Federal Acts > Bank Secrecy Act

[HN13] The Bank Secrecy Act declares that its purpose is to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism. 31 U.S.C.S. ß 5311. It does list criminal investigations first, but this multifaceted statute clearly contributes to civil and intelligence efforts wholly unrelated to any criminal purpose.

Governments > Legislation > Statutory Remedies & Rights

[HN14] The fact that a statute relates both to criminal law and to civil regulatory matters does not strip the statute of its status as essentially regulatory.

Banking Law > Federal Acts > Bank Secrecy Act

[HN15] Because people owning foreign bank accounts are not inherently guilty of criminal activity, the Bank Secrecy Act's applicable recordkeeping requirement, designed to facilitate criminal, tax, or regulatory investigations or proceedings, or the conduct of intelligence or counterintelligence activities, 31 U.S.C.S. ß 5311, is still essentially regulatory.

Banking Law > Federal Acts > Bank Secrecy Act

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN16] The Bank Secrecy Act's recordkeeping requirement in 31 C.F.R. ß 1010.420 is essentially regulatory for the purposes of the required records analysis.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN17] The second Grosso prong requires that the regulated information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept.

Banking Law > Federal Acts > Bank Secrecy Act

[HN18] The records required by 31 C.F.R. ß 1010.420 are very basic, they shall contain 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, and the maximum value of each such account during the reporting period. Another section of the Bank Secrecy Act requires foreign account holders to report substantially identical information to the IRS. 31 C.F.R. ß 1010.350(a).

Banking Law > Federal Acts > Bank Secrecy Act

[HN19] A bank account's beneficiary necessarily has access to such essential information as the bank's name, the maximum amount held in the account each year, and the account number. Common sense dictates that beneficiaries keep these records in part because they need the information to access their foreign bank accounts.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN20] The third Grosso prong asks whether the required records have assumed public aspects which render them at least analogous to public documents.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN21] The Government's anxiety to obtain information known to a private individual does not without more render that information public. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute. Congress's ability to require records for the purpose of securing access to otherwise-private information is restricted. However, records required to be kept pursuant to valid regulatory programs have a public aspect for purposes of constitutional analysis, and thus are not private papers entitled to the protection of the Fourth or Fifth amendments. Where personal information is compelled in furtherance of a valid regulatory scheme, that information assumes a public aspect.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN22] Records required to be created under an otherwise valid regulatory regime necessarily have public aspects for purposes of the required records exception to the Fifth Amendment production privilege. A constitutionally infirm statute cannot recharacterize private information as public. However, information that a statute lawfully requires a person to record is legally distinct from information that no statute lawfully requires anyone to record. This distinction is what the public aspects prong of the required records doctrine recognizes. The record need not be public in that anyone can examine or copy it at any time; it need only be lawfully required to be kept.

Banking Law > Federal Acts > Bank Secrecy Act

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN23] The Bank Secrecy Act is an otherwise-valid regulatory scheme that lawfully requires beneficiaries of foreign bank accounts to retain records containing the basic information about their accounts. 31 C.F.R. ß 1010.420. This information, required by lawful statute, has the public aspects that make it potentially subject to a grand jury subpoena in a case where a witness could assert the Fifth Amendment privilege to shield more distinctly private information.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN24] While a waiver must be voluntary, there is no requirement of any knowing and intelligent waiver of Fifth Amendment rights.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN25] The Fifth Amendment is inapplicable where the testimonial act does not create a related risk of self-incrimination.

Banking Law > Federal Acts > Bank Secrecy Act

[HN26] Because the Bank Secrecy Act only criminalizes a knowing and willful failure to engage in the required recordkeeping, an account owner who was truly unaware of the recordkeeping requirement would not incur related criminal sanctions by acknowledging in response to a production order his negligent failure to maintain the required records. 31 U.S.C.S. ß 5322. Thus, for the criminal provisions to apply in the first place, it must be a case where an individual 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.

COUNSEL: ROBERT S. FINK (Caroline Rule, Brian P. Ketcham, on the brief), Kostelanetz & Fink, LLP, New York, NY, for Appellant John Doe.

ALEXANDER P. ROBBINS (Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy Section, Gregory Victor Davis, Attorney, Tax Division, United States Department of Justice, on the [**2] brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee United States America.

Marc L. Greenwald, Cleland B. Welton II, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Amicus Curiae New York Council of Defense Lawyers.

JUDGES: WESLEY, Circuit Judge.

OPINION BY: WESLEY

OPINION

[*342] Wesley, Circuit Judge:

John Doe appeals from a contempt order and an order compelling him to comply with a grand jury subpoena entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). With respect to any foreign bank accounts in which Doe has a financial interest, the subpoena seeks records that the Bank Secrecy Act("BSA") requires Doe to maintain. See 31 C.F.R. ß 1010.420. Doe resists, asserting that the Fifth Amendment privilege against self-incrimination applies to his delivery of the requested documents. The district court held that requiring Doe to produce the subpoenaed documents, over his objections, did not violate Doe's right against self incrimination because that the documents were "required records" -- records whose creation and preservation serves a legitimate governmental regulatory interest. In re Grand Jury Subpoena Dated February 2, 2012, 908 F. Supp.2d 348, 352 (E.D.N.Y. 2012) [**3] . Doe contends both that the "required records" doctrine no longer exists and that, if it does, it does not apply to his case. We are not persuaded and AFFIRM the judgment of the district court.

Background

A federal grand jury in the Eastern District of New York issued a subpoena to Doe calling for him to produce records of his foreign bank accounts, including the names of the account holders, the banks, the account numbers, the type of the account, and the maximum value of the account¹ -- all information that must by law be reported to the Commissioner of Internal Revenue. 31 C.F.R. ßß 1010.350, 1010.420. Doe did not comply. The government moved to compel Doe to produce the documents and Doe continued to resist. The district court granted the government's motion. Subpoena Dated February 2, 2012, 908 F. Supp.2d 348. Doe still refused to comply, and thereafter the district court entered an order holding Doe in contempt for failure to produce the records. The court imposed a sanction (suspended pending his appeal) of $1,000 per day until he complies.

1 Specifically, the grand jury's subpoena requested production of:

Any [**4] and all records required to be maintained pursuant to 31 C.F.R. ß 1010.420 (formerly 31 C.F.R. ß 103.32) for the past 5 years relating to foreign financial bank, securities, or other financial accounts in a foreign country for which [Doe] had/ha[s] a financial interest in, or signature or other authority over and [is] required by law to file a Report of Foreign Bank and Financial Account (FBAR). The records required to be maintained pursuant to 31 C.F.R. ß 1010.420 (formerly 31 C.F.R. ß 103.32) include records that contain 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 the reporting period.

Discussion

Doe contends that the Fifth Amendment insulates him from a contempt order based on his refusal to comply. He claims that the grand jury's subpoena requires him either to produce documents that might incriminate him or to confirm that he failed to register his foreign bank accounts, [*343] which itself could be incriminating. The government counters that while Doe might otherwise [**5] have legitimate Fifth Amendment concerns, the subject documents are records required by federal law, and that the government has a legitimate regulatory interest in requiring Doe, and others like him, to maintain records of offshore accounts. Accordingly, the government contends, it is entitled to demand that Doe produce the records. Thus, we are presented with the question of whether the subpoenaed records fall within the aptly named "required records" exception to the Fifth Amendment act of production privilege. We hold that it does.

I. The Act of Production Privilege under the Fifth Amendment

The Fifth Amendment act of production privilege was first articulated in Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). Fisher recognizes that [HN1] the Fifth Amendment privilege might protect an individual from being required to produce documents, even if the documents' contents are not protected by the privilege, when the witness's simple act of producing the documents could be used against the witness -- for example, in those cases when the simple fact that the witness possessed the documents would be incriminating.

In Fisher the Court addressed a consolidated challenge by two clients whose lawyers [**6] were compelled to produce their tax records. Accountants had prepared each client's tax records and given them to their respective clients, who in turn gave them to their attorneys for legal advice. 425 U.S. at 394. The Court held:

[HN2] The act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena.

Id. at 410. In Fisher, the only incriminating aspect of the documents was their content, not their existence. Id. at 412. As a result, the privilege did not apply.

The Fisher Court noted that previously the "proposition that the Fifth Amendment prevents compelled production of documents over objection that such production might incriminate stem[med] from Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 [(1886)]." 425 U.S. at 405. However, the Court described Boyd's protections of private papers -- heavily dependent on the theory that the privacy interests protected in the Fourth Amendment also [**7] figure in Fifth Amendment inquiries -- as "a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give 'testimony' that incriminates him." Id. at 409. Instead of reaffirming Boyd's private / public distinction, Fisher articulated a new way of thinking about the Fifth Amendment privilege.²

2 The precise extent to which Fisher and subsequent cases constituted a repudiation of Boyd and its reasoning is debated, but scholars appear to agree that the Court sought to find similar constitutional protections without relying on Boyd's analysis. Compare Samuel A. Alito, Jr., Documents and the Privilege against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 51 (1986) ("While seeming to reject the entire framework on which Boyd rested, Fisher stopped short of expressly overruling Boyd") with Ronald Jay Allen Et Al., Comprehensive Criminal Procedure 308 (2d ed. 2005) ("The Court continued its reconstruction of Boyd in Fisher v. United States.").

[*344] Over 24 years after Fisher, the Court articulated a robust act of production privilege in United States v. Hubbell, a wire fraud prosecution stemming from the Whitewater investigation. 530 U.S. 27, 120 S. Ct. 2037, 147 L. Ed. 2d 24 (2000). [**8] Hubbell resisted initial subpoenas by asserting his Fifth Amendment rights; the government granted him use immunity for the act of production and then indicted him based on the content--rather than the production -- of the 13,120 pages of documents that he produced. Id. at 45. The Court held that the content of the documents could not be used against Hubbell, in light of the testimonial nature of Hubbell's extensive efforts in identifying and producing them. Id. at 43-46.

The documents did not magically appear in the prosecutor's office like 'manna from heaven.' They arrived there only after respondent asserted his constitutional privilege, received a grant of immunity, and-under the compulsion of the District Court's order-took the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena.

Id. at 42. The Court differentiated Fisher, where "the IRS knew [that the subpoenaed documents] were in the possession of the taxpayers' attorneys." Id. at 44. In Hubbell, the government had "not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 [**9] pages of documents ultimately produced by respondent." Id. at 45. "It was unquestionably necessary for respondent to make extensive use of 'the contents of his own mind' in identifying the hundreds of documents responsive to the requests in the subpoena." Id. at 43 (quoting Curcio v. United States, 354 U.S. 118, 128, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1957)). The government was therefore forbidden to use even the contents of the records and the court affirmed the dismissal of the indictment. Id. at 46.

[HN3] The privilege has thus evolved since its inception to a broader prophylactic regime that, in certain circumstances, protects individuals from producing documents where they are incriminated by the contents of the documents. See id. As applied, the privilege is practical; it inoculates people from being forced to contribute to their own prosecution while not unduly restricting grand juries' ability to seek the truth. Doe argues -- and the government does not meaningfully contest -- that absent an exception, the act of production privilege shields Doe from complying with the grand jury's subpoena.

II. The Required Records Doctrine

A. Background

1. Origins and Interpretations

[HN4] The act of production privilege contains exceptions, [**10] and among them is the required records doctrine, first articulated in Shapiro v. United States, 335 U.S. 1, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948). The required records exception applies only when the Fifth Amendment privilege would otherwise allow a witness to avoid producing incriminating documents. It abrogates the protection of the privilege for a subset of those documents that must be maintained by law.

Shapiro was a prosecution of a fruit purveyor for illegal pricing under the Emergency Price Control Act during the Second World War. Id. at 3. [*345] Shapiro, the wholesaler, was served with a subpoena in September 1944 for invoices and other business information "required to be kept pursuant to [Section 14 of Maximum Price Regulation 426, 8 Fed. Reg. 9546 (1943)] 271 and 426." Id. at 4-5. Although the Court acknowledged "that there are limits which the government cannot constitutionally exceed in requiring the keeping of records which may be . . . used in prosecuting statutory violations committed by the record-keeper himself," the Court nonetheless compelled un-immunized disclosure of these documents. Id. at 32.

Subsequently, [HN5] the Court set forth a three-factor test to determine whether documents are "required records." [**11] "[F]irst, 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." Grosso v. United States, 390 U.S. 62, 67-68, 88 S. Ct. 709, 19 L. Ed. 2d 906, 1968-1 C.B. 496 (1968).

In Grosso's sister case, the Court applied the three-factor test to find the required records exception inapplicable. Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889, 1968-1 C.B. 500 (1968). Marchetti asserted his Fifth Amendment privilege in response to a prosecution under a statutory scheme that required illegal gamblers to register and pay an occupational tax. Id. at 41 (1968); see also Grosso, 390 U.S. at 64. Marchetti was not inclined to disclose his illegal gambling for good reason. By maintaining receipts of his illegal gambling successes (or failures) he admitted to a crime. Those who break the law understandably are unlikely to register their misdeeds with the government.

Even assuming that the "United States' principal interest [was] the collection of revenue, and not the punishment of gamblers," the Court [**12] found that Shapiro was distinguishable. Marchetti, 390 U.S. at 57. The records were not "of the same kind as he has customarily kept;"³ there were no "public aspects . . . to the records at issue;" and the records were collected about a group largely or entirely defined by their illegal activities. Id. (internal quotation marks omitted); see also Grosso, 390 U.S. at 68 (deciding the same thing in the context of a gambler's refusal to pay excise taxes and the occupation tax because "[h]ere, as in Marchetti, the statutory obligations are directed almost exclusively to individuals inherently suspect of criminal activities"). Marchetti's refusal to comply with the statute was protected by the Fifth Amendment and not subject to the required records exception. Id. at 60. His conviction was overturned.

3 Indeed, it seems plausible that a gambler would not keep any records relating to his gambling activities. The Court needed only to note that the information required was "unrelated to any records which [Marchetti] may have maintained[] about his wagering activities." Marchetti, 390 U.S. at 57.

2. Interaction with the act of production privilege

Doe and amicus contend that the required records [**13] doctrine is no longer valid or that it applies only in exigent circumstances. To support this argument, they point out that Shapiro was a wartime case that drew heavily on the reasoning of Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), which has been either reconfigured or abrogated by the Fisher [*346] line of cases. Prior precedents of this Court squarely foreclose this argument.

[HN6] Courts have consistently applied the required records doctrine and its analytical framework as an exception to the Fifth Amendment privilege, long after the expiration of any exigency. See, e.g., Baltimore City Dep't of Social Servs. v. Bouknight, 493 U.S. 549, 556-559, 110 S. Ct. 900, 107 L. Ed. 2d 992 (1990). This Court has twice explicitly rejected the idea that the required records exception has been abrogated by the act of production cases. In re Two Grand Jury Subpoenae Duces Tecum Dated Aug. 21, 1985, 793 F.2d 69, 73 (2d Cir. 1986) ("Two Subpoenae"); In re Doe, 711 F.2d 1187, 1192-93 (2d Cir. 1983).

A psychiatrist associated with a clinic that freely distributed quaaludes to patients without medical need was required to turn over subpoenaed W-2 and prescription forms along with patient files. In re Doe, 711 F.2d at 1189. Conceding that "even Shapiro [**14] recognizes constitutional limits on the government's power to compel record keeping which might circumvent the privilege contained in the Fifth Amendment," we held that "there [wa]s a strong correlation between the purpose of the New York law which require[d] that patient files be kept and that for which their production [wa]s sought." Id. at 1192. Finally, we rejected the argument that the act of production privilege recognized in Fisher shielded the state-required records from disclosure:

[HN7] [T]he required records doctrine is an exception to the Fifth Amendment privilege. As such, it necessarily overrides the privilege in instances in which the privilege would otherwise apply. Fisher was not concerned with required records and nothing in its analysis could be construed as weakening the required records exception.

Id. at 1192-93 (emphasis in original, internal citations omitted).

Three years later, an attorney appealed a contempt order entered because of his failure to comply with subpoenas related to contingency fee arrangements with his clients. Two Subpoenae, 793 F.2d at 70. After noting that the fee documents were not covered by the attorney-client privilege, this Court rejected the [**15] lawyer's Fifth Amendment argument based in part on the fact "that the subpoenaed retainer agreements and closing statements . . . fall within the 'required records' exception to the fifth amendment." Id. at 73. Although the lawyer "claim[ed] that the 'required records' exception to the fifth amendment is no longer valid after the Supreme Court's decision in United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 [(1984)]," we noted that "Doe did not involve required records, and [found] nothing in its 'act of production' analysis that c[ould] be construed as weakening the required records exception." Id. (internal citation omitted). We further explained the rationale for the required records exception:

First, [HN8] if a person conducts an activity in which record-keeping is required by statute or rule, he may be deemed to have waived his privilege with respect to the act of production -- at least in cases in which there is a nexus between the government's production request and the purpose of the record-keeping requirement. Second, because the records must be kept by law, the record-holder 'admits' little in the way of control or authentication by producing them.

Two Subpoenae, 793 F.2d at 73.⁴

4 Doe argues that [**16] the rationale for the survival of the required records doctrine does not apply in his case. However, we view this argument as relating to the applicability of the exception to his current case. Insofar as his attempt to distinguish Two Subpoenae challenges the continued existence of the required records exception, this argument has been squarely foreclosed by our prior precedents.

Based in part on the Two Subpoenae reasoning, this Court still recognizes [*347] the required records exception. In 2008, we applied the exception to information obtained from immigrants from specified countries who had responded to a mandatory registration program following the attacks of September 11, 2001. See Rajah v. Mukasey, 544 F.3d 427, 433, 442 (2d Cir. 2008). Information obtained under this program was ultimately used by the government in the immigrants' deportation proceedings. This Court denied the immigrants' attempts to block the use of the records through the Fifth Amendment because [HN9] "the Fifth Amendment's act of production privilege does not cover records that are required to be kept pursuant to a civil regulatory regime." Id. at 442. The required records exception remains a part of Fifth Amendment [**17] jurisprudence.

B. Application of the Required Records Doctrine to the BSA

Applying the Grosso test, several circuits have specifically held that the required records exception applies to cases indistinguishable from the present cases. See United States v. Under Seal, F.3d , No. 13-4267, 737 F.3d 330, 2013 U.S. App. LEXIS 24785 (4th Cir. Dec. 13, 2013); In re Grand Jury Proceedings, No. 4-10, 707 F.3d 1262 (11th Cir. 2013); In re Grand Jury Subpoena, 696 F.3d 428 (5th Cir. 2012); In re Special February 2011-1 Grand Jury Subpoena Dated September 12, 2011, 691 F.3d 903 (7th Cir. 2012); In re M.H., 648 F.3d 1067 (9th Cir. 2011). For the reasons stated below, we agree with our sister circuits.

1. The "essentially regulatory" test

[HN10] The first Grosso prong asks whether the record requirement is "essentially regulatory." This precludes Congress from circumventing the Fifth Amendment privilege by enacting comprehensive legislation "directed at a 'selective group inherently suspect of criminal activities.'" Marchetti, 390 U.S. at 57 (quoting Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 79, 86 S. Ct. 194, 15 L. Ed. 2d 165 (1965)). When legislation is not "directed at the public at large" and concerns "an area permeated with criminal statutes," courts [**18] are more likely to hold that the required records exception does not apply. Albertson, 382 U.S. at 79. In addition to illegal gambling, courts have declined to apply the required records exception to records regarding marijuana sales, ownership of dangerous firearms, and other "area[s] permeated with criminal statutes," Haynes v. United States, 390 U.S. 85, 99, 88 S. Ct. 722, 19 L. Ed. 2d 923, 1968-1 C.B. 615 (1968) (internal quotation marks omitted), but have applied the exception in the context of drivers involved in automobile accidents, custodians of state-supervised children, and even various sections of the BSA.

Determining the target population of a statute is frequently difficult. In California v. Byers, 402 U.S. 424, 430, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971), the Supreme Court examined a California statute in the context of "all persons who drive automobiles in California," despite the statute's facial applicability only to people who have been involved in automobile accidents resulting in damage to property. Id. "Driving an automobile, unlike gambling, is a lawful activity. Moreover, it is not a criminal offense under California law to be a driver 'involved in an accident.'" Id. at 431.

[*348] Similarly, this Court upheld a conviction under the BSA for failure [**19] to report carrying over $5,000 in cash when leaving the country. United States v. Dichne, 612 F.2d 632, 633 (2d Cir. 1979). We noted that the reporting requirement had incriminating potential while also serving legitimate social interests; as a result, "a balance must be struck between the competing interest of the state and the individual when evaluating the constitutionality of a disclosure requirement." Id. at 638 (citing Byers, 402 U.S. at 427). Because "the transportation of such amounts of currency is by no means an illegal act" in itself, "as such [the statute] cannot be faulted as being aimed at an inherently suspect group." Id. at 639-40. "In each of the Supreme Court cases holding a reporting requirement invalid, the reporting individual was required to reveal to the Government information which would almost necessarily provide the basis for criminal proceedings against him for the very activity that he was required to disclose." Id. at 640. Insofar as transporting large amounts of money across international borders is indicative of other illegal activity, this is still short of requiring reporting from users of marijuana or gamblers, who would be reporting the exact activity [**20] for which they would be susceptible for prosecution.

Dichne and other cases concluding that the BSA's purpose is "essentially regulatory" are informative but not dispositive with respect to the provisions at issue here. [HN11] Our inquiry is not whether the BSA as a whole was motivated by civil or criminal concerns, but rather whether the specific section in question is "essentially regulatory" or directed at "'an area permeated with criminal statutes.'" Byers, 402 U.S. at 430 (quoting Albertson, 382 U.S. at 79).

The record keeping regulation at issue here, [HN12] 31 C.F.R. ß 1010.420, targets those engaged in the lawful activity of owning a foreign bank account. "There is nothing inherently illegal about having or being a beneficiary of an offshore foreign bank account." M.H., 648 F.3d at 1074. Doe's protestations notwithstanding, owners of these accounts are not "inherently suspect" and the statute is "essentially regulatory."

Doe's argument that the statute is criminally focused has some force. [HN13] The BSA declares that its purpose is "to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of [**21] intelligence or counterintelligence activities, including analysis, to protect against international terrorism." 31 U.S.C. ß 5311. It does list "criminal investigations" first, but this multifaceted statute clearly contributes to civil and intelligence efforts wholly unrelated to any criminal purpose.⁵

5 Doe points out that the Treasury Department's Financial Crimes Enforcement Network (FinCEN) lists the BSA as one of the tools that it uses to pursue its goals of criminal investigation. It is neither surprising nor persuasive that a law enforcement organization uses a multi-purposed statute for law enforcement ends. We assume that insofar as the Central Intelligence Agency uses the BSA, it uses it for intelligence and counter-intelligence purposes, while the Internal Revenue Service uses it for revenue collection purposes. Doe asserts that "[t]he government has never pointed to a 'regulatory' act that FinCEN performs with FBAR [Report of Foreign Bank and Financial Account] data." Doe Brief at 35. However, other agencies also use the data obtained through the challenged reports:

The [**22] Treasury Department shares the information it collects pursuant to the Act's requirements with other agencies--including the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of Thrift Supervision--none of which are empowered to bring criminal prosecutions.

Grand Jury Proceedings, No. 4-10, 707 F.3d at 1271 (quoting Grand Jury Subpoena, 696 F.3d at 434).

[*349] Although portions of the statute's legislative history support Doe's characterization of the BSA as focused on criminal activity, "[t]he Supreme Court has already considered and rejected these arguments as they relate to the BSA generally." M.H., 648 F.3d at 1074 (citing Cal. Bankers' Ass'n v. Shultz, 416 U.S. 21, 76-77, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974)). Moreover, "the question is not whether Congress was subjectively concerned about crime when enacting the BSA's recordkeeping and reporting provisions, but rather whether these requirements apply exclusively or almost exclusively to people engaged in criminal activity." Grand Jury Proceedings, No. 4-10, 707 F.3d at 1271; accord Grand Jury Subpoena, 696 F.3d at 434. [**23] Looking beyond "Congressional subjective intent" -- if there could be such a thing -- the BSA has considerable regulatory utility outside of the criminal justice context.

The question becomes whether a statute with mixed criminal and civil purposes can be "essentially regulatory" with respect to the required records exception. We agree with our sister circuits: [HN14] the fact "[t]hat a statute relates both to criminal law and to civil regulatory matters does not strip the statute of its status as 'essentially regulatory.'" Grand Jury Proceedings, No. 4-10, 707 F.3d at 1270. [HN15] Because people owning foreign bank accounts are not inherently guilty of criminal activity, the BSA's applicable recordkeeping requirement, designed to facilitate "criminal, tax, or regulatory investigations or proceedings, or [] the conduct of intelligence or counterintelligence activities," 31 U.S.C. ß 5311, is still essentially regulatory.

Doe argues that our reliance on Dichne and other cases involving ex post challenges to the validity of statutory reporting requirements are distinguishable from individual assertions of the privilege against self-incrimination. These two categories of challenges are indeed distinct. [**24] However, Supreme Court precedent asks us to inquire into the purposes of the regulatory scheme pursuant to which records are required -- a necessarily generalized inquiry, and a matter discussed in cases like Dichne. 612 F.2d at 640. Besides, in this case -- as in Shapiro itself -- the witness asserted the privilege against self-incrimination in response to the subpoena issued. See Shapiro, 335 U.S. at 4-5. "Shapiro did more than set the constitutional parameters for record-keeping requirements; it determined that the Fifth Amendment is not a barrier to the enforcement of a valid civil regulatory scheme." Special February 2011-1 Grand Jury Subpoena Dated September 12, 2011, 691 F.3d at 907. The fact that the specific records sought would support a criminal prosecution did not defeat the "essentially regulatory" prong in that case; the analysis does not come out differently here. [HN16] The BSA's recordkeeping requirement at issue, 31 C.F.R. ß 1010.420, is "essentially regulatory" for the purposes of the required records analysis.

2. The "customarily kept" requirement

[HN17] The second Grosso prong requires that the regulated "information is to be obtained by requiring the preservation of records of a [**25] kind which the regulated party has customarily kept." Grosso, 390 [*350] U.S. at 68.⁶ Doe points to no cases in which any court has held that records are not required because they are not "customarily kept."

6 Citing Bouknight, the Government urges us to hold that this is no longer a requirement of the required records doctrine. Although Bouknight did not discuss the second Grosso prong, it was an atypical "required records" case that does not dictate our analysis here, as the regulated "evidence" was Bouknight's infant. See 493 U.S. at 556-62. Perhaps the Bouknight Court did not feel it necessary to discuss whether a child is "customarily kept" by his parents. We need not decide this issue for the purposes of this opinion as the "customarily kept" prong is easily met here.

[HN18] The records required by 31 C.F.R. ß 1010.420 are very basic -- they "shall contain 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, and the maximum value of each such account during the reporting period." In determining that the records at issue are "customarily [**26] kept," the district court relied in large part on the fact that another section of the BSA requires foreign account holders to report substantially identical information to the IRS. See 31 C.F.R. ß 1010.350(a). Doe contends that this reasoning is "tautological" in that it permits Congress to manufacture a "custom" in order to satisfy the required records doctrine by requiring that the records be kept. We need not address whether, in another case, records "customarily kept" only because they are required by law satisfy the prerequisites of the required records doctrine.

Here, the grand jury's subpoena seeks information so basic that the "argument that these records are not 'customarily kept' is a non-starter." Grand Jury Proceedings, No. 4-10, 707 F.3d at 1273. [HN19] "A bank account's beneficiary necessarily has access to such essential information as the bank's name, the maximum amount held in the account each year, and the account number." M.H., 648 F.3d at 1076. "[C]ommon sense" dictates that beneficiaries keep these records "in part because they need the information to access their foreign bank accounts." Id. The amount of money in the account is relevant to most foreign bank account holders [**27] in that many people are regularly forced to assess prospective purchases against the balance of their accounts. Most people check a bank account before making a major purchase; not everyone who holds a foreign bank account could, without a second thought, incur (for example) vast litigation costs in a feckless attempt to avoid paying lawfully-imposed taxes vital to the functioning of the United States without needing to assess whether losing such a challenge would leave them incapable of paying the inevitable hefty sanctions. And even if the account holder is a person of great wealth surely they want to know where that wealth is located.

Doe believes that, despite the basic presumption that bank account owners know the location of their money, some individuals engaged in wrongdoing are advised not to keep even this basic information.⁷ But even if those who possess foreign bank accounts for the purposes of avoiding some specific U.S. tax or criminal laws may be less likely to maintain these records, the BSA covers the entire group of foreign bank account holders. We decline to look at the custom of only the miscreants [*351] among the larger group of foreign bank account holders.

7 Even if we [**28] were to look at only the customs of criminal circles, if a criminal don't have this information, how can he retrieve his ill gotten gains? He must either possess a photographic memory or well-encrypted devices hidden in some offshore location.

3. The "public aspects" prong

[HN20] The third Grosso prong asks whether the required records "'have assumed 'public aspects' which render them at least analogous to public documents.'" Grand Jury Proceedings, No. 4-10, 707 F.3d at 1273 (quoting Grosso, 390 U.S. at 68). The parties dispute the meaning of the "public aspects" test, which -- as a vestige of Boyd -- may not have the same legal significance as it did in 1948, when the public / private distinction was of paramount importance. Cf. Fisher, 425 U.S. at 400-01, Samuel A. Alito, Jr., Documents and the Privilege against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 36-44 (1986).

Doe urges us to hold that the test requires one of three factors: records have "public aspects" when they "are a direct mainstay of a regulatory scheme that promotes the public welfare," "are vital to a regulatory regime promulgated in response to emergency or other exigent conditions," or "are routinely forwarded to a regulatory [**29] or licensing body as a means of protecting the public." Doe Brief at 49-50. Although he cites to authority in support of the proposition that each of these is sufficient to establish "public aspects," we see no evidence that one of these three prongs must be met to conclude that the records have a "public aspect."

[HN21] "The Government's anxiety to obtain information known to a private individual does not without more render that information public. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute." Marchetti, 390 U.S. at 57. Marchetti restricts Congress's ability to require records for the purpose of securing access to otherwise-private information. However, "records required to be kept pursuant to valid regulatory programs have a 'public aspect' for purposes of constitutional analysis, and thus are not private papers entitled to the protection of the fourth or fifth amendments." Donovan v. Mehlenbacher, 652 F.2d 228, 231 (2d Cir. 1981). "Where personal information is compelled in furtherance of a valid regulatory scheme, as is the case here, that information assumes a public aspect." M.H., 648 F.3d at 1077.

The [**30] rule distilled from Donovan and Marchetti is that [HN22] records required to be created under an otherwise valid regulatory regime necessarily have "public aspects" for purposes of the required records exception to the Fifth Amendment production privilege. A constitutionally infirm statute cannot recharacterize private information as public. However, information that a statute lawfully requires a person to record is legally distinct from information that no statute lawfully requires anyone to record. This distinction is what the "public aspects" prong of the required records doctrine recognizes. The record need not be 'public' in that anyone can examine or copy it at any time; it need only be lawfully required to be kept.

Doe's argument that the exception applies only in areas in which there are already "substantive restrictions" in place is unpersuasive. "If [**31] the witness's argument were correct, then Congress would be prohibited from imposing the least regulatory burden necessary; it would instead be required to supplement a reporting or recordkeeping scheme with additional and unnecessary 'substantive restrictions' for the sole purpose of upholding its record keeping and reporting requirements." Grand Jury Subpoena, 696 F.3d at 436. It is enough that Congress could prohibit an activity to permit it to validly require records to be kept; it need not actively [*352] prohibit -- or otherwise significantly restrict -- possession of foreign bank accounts to give force to its recordkeeping requirements.

[HN23] The BSA is an otherwise-valid regulatory scheme that lawfully requires beneficiaries of foreign bank accounts to retain records containing the basic information about their accounts. 31 C.F.R. ß 1010.420. This information, required by lawful statute, has the "public aspects" that make it potentially subject to a grand jury subpoena in a case where a witness could assert the Fifth Amendment privilege to shield more distinctly private information. The "required records" exception to the privilege therefore applies in this case.

***

Doe's additional arguments [**32] are unpersuasive. Doe asserts that production of records required to be kept may be compelled only when the record keeper sought a related government benefit or license and thus may fairly be said to have deliberately waived her Fifth Amendment privilege with respect to those records by engaging in the regulated activity. He declares that the Fifth Amendment cannot inadvertently be waived, and because (he asserts) beneficiaries of foreign bank accounts are frequently unaware of the BSA's recordkeeping requirements, they cannot be deemed to have waived their Fifth Amendment rights with respect to banking records .

Even if the latter assertion (regarding ignorance of the law's recordkeeping requirements) were true -- a proposition that we seriously doubt -- this argument fails for two reasons. First, the Supreme Court has strongly hinted that, [HN24] while a waiver must be voluntary, there is no requirement "of any 'knowing' and 'intelligent' waiver" of Fifth Amendment rights. Schneckloth v. Bustamonte, 412 U.S. 218, 237 n.18, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Second, [HN25] the Fifth Amendment is inapplicable where the testimonial act does not create a related risk of self-incrimination. [HN26] Because the BSA only criminalizes a knowing [**33] and willful failure to engage in the required recordkeeping, an account owner who was truly unaware of the recordkeeping requirement would not incur related criminal sanctions by acknowledging in response to a production order his negligent failure to maintain the required records.⁸ 31 U.S.C. ß 5322. Thus, for the criminal provisions to apply in the first place, this must be a case where an "individual [] 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." Smith v. Richert, 35 F.3d 300, 303 (7th Cir. 1994).

8 Although it is not necessary to our resolution of this case in which Doe has not alleged ignorance of the BSA's recordkeeping requirements, the government's brief acknowledges that "an individual who was unaware that he was engaging in a regulated activity would not be able to establish a risk of self-incrimination in the first place." Appellee Brief at 38 n.17.

Finally, Doe's assertion that the government could obtain his records only by granting him immunity relies on the inapplicability of the required records exception; here, production of the [**34] required records could be compelled without first offering Doe immunity.

Conclusion

The required records exception to the Fifth Amendment privilege against self-incrimination still exists. The BSA's requirements at issue here are "essentially [*353] regulatory," the subpoenaed records are "customarily kept," and the records have "public aspects" sufficient to render the exception applicable. Because Doe cannot lawfully excuse his failure to comply with the subpoena, the district court was within its discretion to impose sanctions for his noncompliance.

For the foregoing reasons, the opinion and order of the district court is

AFFIRMED.

JUDGMENT

The appeal in the above captioned case from an order of the United States District Court for the Eastern District of New York was argued on the district court record and the parties' briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the order of the district court is AFFIRMED in accordance with the opinion of this court.

December 19, 2013.

For The Court:

/s/ Catherine O'Hagan Wolfe

Catherine O'Hagan Wolfe, Clerk of Court

70 of 75 DOCUMENTS

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. UNDER SEAL, Defendant - Appellant.

No. 13-4267

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

737 F.3d 330; 2013 U.S. App. LEXIS 24785; 112 A.F.T.R.2d (RIA) 7316

October 29, 2013, Argued

December 13, 2013, Decided

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:12-dm-00020-LMB-1). Leonie M. Brinkema, District Judge.

CASE SUMMARY:

OVERVIEW: ISSUE: Did the required records doctrine apply to foreign bank account records kept pursuant to the Bank Secrecy Act (Act), 31 U.S.C.S. ßß 5311 - 5325? HOLDINGS: [1]-They met the doctrine's first prong because the Act served essentially regulatory purposes unrelated to criminal law enforcement and did not only apply to those engaged in crimes; [2]-They met the doctrine's second prong because they are "of a kind which the regulated party has customarily kept," since they are of the type appellants account holders had to report to the IRS, under 31 C.F.R. ßß 1010.350 and 1010.420 and were of the same type that a reasonable account holder would keep, and 31 C.F.R. ß 1010.420 did not unreasonably require keeping them for five years; [3]-They met the doctrine's third prong because they were shared with other agencies for important public purposes, giving them "public aspects."

OUTCOME: Judgment affirmed.

CORE TERMS: foreign bank, recordkeeping, subpoena, prong, inspection, self-incrimination, offshore, banking, grand jury, reporting requirements, criminal activity, criminal law, civil contempt, account holder, high degree, criminal investigation, regulatory scheme, public documents, customarily, supervision, usefulness, subpoenaed, compelled, regulated, unrelated, resident, monetary, times, law enforcement, financial interest

LexisNexis(R) Headnotes

Criminal Law & Procedure > Grand Juries > Investigative Authority > Subpoenas > Challenges > Motions to Quash

Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Evidence

Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Conclusions of Law

[HN1] An appellate court reviews a district court's denial of a motion to quash a grand jury subpoena for an abuse of discretion. But insofar as the district court's determination was based upon interpretations of law, the appellate court reviews those conclusions de novo.

Banking Law > Federal Acts > Bank Secrecy Act

[HN2] The Bank Secrecy Act (BSA), 31 U.S.C.S. ßß 5311 - 5325, regulates offshore banking and contains a number of recordkeeping and inspection provisions. Among the purposes of the BSA is to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings. 31 U.S.C.S. ß 5311. 31 U.S.C.S. ß 5314(a) instructs the Treasury Secretary to require a resident or citizen of the United States to keep records, file reports, or keep records and file reports, when the resident, citizen, or person makes a transaction with a foreign financial agency. In furtherance of that statutory directive, the Treasury Secretary has implemented regulations that require (1) U.S. citizens and residents to disclose their foreign bank accounts, 31 C.F.R. ß 1010.350, and (2) that the records for such accounts be retained by each person having a financial interest in or signature or other authority over any such account for at least five years and be kept at all times available for inspection as authorized by law. 31 C.F.R. ß 1010.420.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN3] U.S. Const. amend. V provides that no person shall be compelled in any criminal case to be a witness against himself. The privilege against self-incrimination bars the government from compelling a person to give "testimony" that incriminates him or her. Because the privilege protects a person only against being incriminated by his or her own compelled testimonial communications, it has been determined that it does not shield production of private papers voluntarily prepared or prepared by a third party.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN4] The privilege against self-incrimination does not bar the government from imposing recordkeeping and inspection requirements as part of a valid regulatory scheme.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN5] There are three requirements for determining the applicability of the required records doctrine. Those requirements are: (1) the purposes of the United States' inquiry must be essentially regulatory; (2) information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and (3) the records themselves must have assumed public aspects which render them at least analogous to a public document. These three principles define the required records doctrine.

Banking Law > Federal Acts > Bank Secrecy Act

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN6] Records required to be maintained under the Bank Secrecy Act, 31 U.S.C.S. ßß 5311 - 5325, fall within the required records doctrine.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN7] In order to fall under the required records doctrine, the purpose of a recordkeeping must be "essentially regulatory." A recordkeeping requirement is "essentially regulatory" if it is imposed in an essentially noncriminal and regulatory area of inquiry and is not directed to a selective group inherently suspect of criminal activity.

Governments > Legislation > Statutory Remedies & Rights

Governments > Legislation > Types of Statutes

[HN8] A statute which includes a criminal law purpose in addition to civil regulatory matters does not strip the statute of its status as "essentially regulatory."

Banking Law > Federal Acts > Bank Secrecy Act

[HN9] The plain language of the Bank Secrecy Act (Act or BSA), 31 U.S.C.S. ßß 5311 - 5325, verifies its concomitant tax, regulatory, and counterterrorism purposes in addition to its law enforcement goals. 31 U.S.C.S. ß 5311. The Act's recordkeeping and reporting requirements aid duly constituted authorities in lawful investigations but its requirements also facilitate the supervision of financial institutions properly subject to federal supervision and provide for the collection of statistics necessary for the formulation of monetary and economic policy. Consequently, the Treasury Department shares the information it collects pursuant to the requirements of the BSA with other agencies--including the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of Thrift Supervision--none of which are empowered to bring criminal prosecutions. 31 U.S.C.S. ß 5319; 31 C.F.R. ß 1010.950(a), (b).

Banking Law > Federal Acts > Bank Secrecy Act

[HN10] In the recordkeeping and reporting requirements of the Bank Secrecy Act (BSA), 31 U.S.C.S. ßß 5311 - 5325, 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. Indeed, the BSA's comprehensive statutory scheme contains recordkeeping requirements that carry both civil and criminal penalties. 31 U.S.C.S. ßß 5321, 5322.

Banking Law > Federal Acts > Bank Secrecy Act

[HN11] The recordkeeping requirements of the Bank Secrecy Act (BSA), 31 U.S.C.S. ßß 5311 - 5325, broadly cover all those who maintain foreign bank accounts, rather then a particular subgroup. There is nothing inherently illegal about having or being a beneficiary of an offshore foreign banking account.

Banking Law > Federal Acts > Bank Secrecy Act

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN12] Admitting to having a foreign bank account carries no risk of implicating a person in criminal activity. That the information contained in a record required under the Bank Secrecy Act, 31 U.S.C.S. ßß 5311 - 5325, may ultimately lead to criminal charges does not convert an essentially regulatory regulation into a criminal one.

Banking Law > Federal Acts > Bank Secrecy Act

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN13] When considering whether the Bank Secrecy Act, 31 U.S.C.S. ßß 5311 - 5325, violates the privilege against self-incrimination, 31 C.F.R. ß 1010.420 has a reporting requirement. The regulation mandates that the required records shall be kept at all times available for inspection as authorized by law. No meaningful difference exists between an obligation to maintain records for inspection and such an obligation supplemented by a requirement that those records be filed periodically with officers of the United States.

Banking Law > Federal Acts > Bank Secrecy Act

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN14] Because the recordkeeping requirements of the Bank Secrecy Act, 31 U.S.C.S. ßß 5311 - 5325, serve purposes unrelated to criminal law enforcement and the provisions do not apply exclusively to those engaged in criminal activity, those requirements are "essentially regulatory."

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN15] To satisfy the required records doctrine, the records in question must be of a kind which the regulated party has customarily kept.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN16] Foreign bank account holders can reasonably be expected to follow the law governing their choice to engage in offshore banking, requiring, in 31 C.F.R. ß 1010.420, the maintenance of account records for five years, because it is the failure to maintain such records that can be probative of criminal activity, rather than the contents of the records, so the required records doctrine applies.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN17] For the required records doctrine to apply, the records sought must have assumed "public aspects" which render them at least analogous to public documents. It has been held that if the government's purpose in imposing a regulatory scheme regarding the records is essentially regulatory, then it necessarily has some "public aspects" sufficient to satisfy this prong of the required records doctrine.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege

[HN18] When considering the applicability of the required records doctrine, that the records sought are typically considered private does not bar them from possessing the requisite public aspects.

COUNSEL: ARGUED: Caroline Rule, KOSTELANETZ & FINK, LLP, New York, New York, for Appellant.

Elissa Hart-Mahan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF: Robert Steven Fink, Juliet Leah Fink, KOSTELANETZ & FINK, LLP, New York, New York; David G. Barger, GREENBERG TRAURIG, LLP, McLean, Virginia, for Appellant.

Neil H. MacBride, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy Section, Gregory Victor Davis, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

JUDGES: Before KING, GREGORY, and AGEE, Circuit Judges. Judge Agee wrote the opinion, in which Judge King and Judge Gregory joined.

OPINION BY: AGEE

OPINION

[*331] AGEE, Circuit Judge:

John and Jane Doe (the "Does") appeal the district court's order holding them in civil contempt for refusing to comply with grand jury subpoenas. The Does contend that the district court erred in finding that the required records doctrine [**2] overrode their Fifth Amendment privilege against self-incrimination and required production of certain foreign bank records. For the reasons that follow, we affirm the judgment of the district court.

[*332] I.

The underlying facts in this case are undisputed. The Does are the targets of a grand jury investigation in the United States District Court for the Eastern District of Virginia seeking to determine whether they used secret Swiss bank accounts to conceal assets and income from the Internal Revenue Service ("IRS") and the Treasury Department. The grand jury received evidence that on June 2, 2008, John Doe opened an account at the Swiss investment bank Clariden Leu (now Credit Suisse AG) in the name of [Redacted Corporation]. He was the beneficial owner of the account, which was valued in excess of $2.3 million at the close of 2008. The account was managed by the Swiss firm Beck Verwaltungen AG. When John Doe closed this account in January 2009, he transferred $1.5 million to Beck Verwaltungen AG's account at a different Swiss private bank, Bank Sarasin.

On May 18, 2012, the Does were served grand jury subpoenas requesting that they produce certain foreign bank account records that they [**3] were required to keep pursuant to Treasury Department regulations governing offshore banking. The subpoenas demanded production of

[a]ny and all records required to be maintained pursuant to 31 C.F.R. ß 1010.420 (formerly 31 C.F.R. ß 103.32) for the past five (5) years relating to foreign financial bank, securities, or other financial accounts in a foreign country for which you had/have a financial interest in, or signature or other authority over and are required by law to file a Report of Foreign Bank and Financial Account (FBAR). The records required to be maintained pursuant to 31 C.F.R. ß 1010.420 (formerly 31 C.F.R. ß 103.32) include records that contain 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 the reporting period.

(J.A. 10.) The Does timely moved to quash the subpoenas, citing their Fifth Amendment privilege against self-incrimination. The Government opposed the motion, arguing that under the required records doctrine, the privilege does not apply to [**4] financial records that the Does were required by law to retain.

After hearing argument, the district court denied the Does' motion to quash, finding that the required records doctrine overrode their Fifth Amendment privilege against self-incrimination, and ordered them to comply with the subpoenas. The Does refused to comply, and pursuant to a stipulation by the parties, the district court held the Does in civil contempt.¹

1 The district court stayed the execution of the contempt order until this Court adjudicates the Does' appeal.

The Does now appeal, and we have jurisdiction pursuant to 28 U.S.C. ß 1291.

II.

A.

[HN1] We review the district court's denial of a motion to quash a subpoena for an abuse of discretion.² In re Grand Jury Subpoena: John Doe, No. 05GJ1318, 584 F.3d 175, 182 (4th Cir. 2009). But "[i]nsofar as the district court's determination was based upon interpretations of law, . . . [*333] we review those conclusions de novo." In re Grand Jury Subpoena (T-112), 597 F.3d 189, 195 (4th Cir. 2010).

2 Although the Does formally appeal the district court's order holding them in civil contempt, the underlying basis of the contempt order is the court's denial of their motion to quash the grand jury [**5] subpoenas.

B.

[HN2] The Bank Secrecy Act (the "BSA" or the "Act"), 31 U.S.C. ßß 5311-25, regulates offshore banking and contains a number of recordkeeping and inspection provisions. Among the purposes of the BSA is "to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings." 31 U.S.C. ß 5311. Section 241(a) of the Act instructs the Treasury Secretary to "require a resident or citizen of the United States . . . to keep records, file reports, or keep records and file reports, when the resident, citizen, or person makes a transaction . . . with a foreign financial agency." Id. ß 5314(a). In furtherance of that statutory directive, the Treasury Secretary implemented regulations that require (1) U.S. citizens and residents to disclose their foreign bank accounts, see 31 C.F.R. ß 1010.350, and (2) that the records for such accounts "be retained by each person having a financial interest in or signature or other authority over any such account" for at least five years and be kept "at all times available for inspection as authorized by law," id. ß 1010.420. These recordkeeping regulations were in effect at all times [**6] relevant to this case.

III.

[HN3] The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The Supreme Court has held that the privilege against self-incrimination bars the government from "compelling a person to give 'testimony' that incriminates him." Fisher v. United States, 425 U.S. 391, 409, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). Because "the privilege protects a person only against being incriminated by his own compelled testimonial communications," the Court has determined that it does not shield production of private papers voluntarily prepared or prepared by a third party. Id. at 409.

The Does contend that the required records doctrine--which, if it applies, renders the Fifth Amendment privilege inapplicable--does not apply here and that the district court erred in finding otherwise. Essentially, the Does argue that "[w]here documents are required to be kept and then produced, they are arguably compelled." In re M.H., 648 F.3d 1067, 1071 (9th Cir. 2011) (emphasis in original). The Supreme Court, however, has held that [HN4] the privilege against self-incrimination does not bar the government from [**7] imposing recordkeeping and inspection requirements as part of a valid regulatory scheme. See Shapiro v. United States, 335 U.S. 1, 17, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948) (noting that the nature of documents and the capacity in which they are held may indicate that "the custodian has voluntarily assumed a duty which overrides his claim of privilege").

In Shapiro, the 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 ("EPCA"), which was enacted during World War II to prevent inflation and price gouging. Id. at 4-11. The Court determined that the EPCA represented a valid exercise of Congress' regulatory authority and that the recordkeeping provisions of the EPCA were essential to the administration of the statute's objectives. Id. at 31-32. Further, the Court reasoned that this "required records doctrine" [*334] 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." Id. at 17 [**8] (emphasis omitted).

The Court revisited its decision in Shapiro twenty years later in Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889, 1968-1 C.B. 500 (1968) and Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906, 1968-1 C.B. 496 (1968). In holding that the required records doctrine was inapplicable to the circumstances before it in both cases, the Court articulated [HN5] three requirements--derived from Shapiro's holding--for determining the applicability of the required records doctrine. As summarized in Grosso, those requirements are: (1) the purposes of the United States' inquiry must be essentially regulatory; (2) information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and (3) the records themselves must have assumed public aspects which render them at least analogous to a public document. 390 U.S. at 67-68.

This Court has recognized that the foregoing three principles announced in Grosso define the required records doctrine, see, e.g., United States v. Webb, 398 F.2d 553, 556 (4th Cir. 1968) (recognizing required records doctrine in context of regulation of interstate trucking), but has yet to address the applicability of the doctrine in the context of foreign bank records. [**9] We do so now and join the consensus of the courts of appeals to have considered the issue that the required records doctrine applies in concluding that [HN6] records required to be maintained under the BSA fall within the required records doctrine.³ We further conclude that all three requirements of the doctrine are met in this case.

3 See, e.g., In re Grand Jury Subpoena, 696 F.3d 428, 433-34 (5th Cir. 2012); In re Special Feb. 2011-1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903, 909 (7th Cir. 2012); In re M.H., 648 F.3d at 1073; In re Doe, 711 F.2d 1187, 1191 (2d Cir. 1983).

A.

[HN7] In order to fall under the required records doctrine, the purpose of the recordkeeping must be "essentially regulatory." Grosso, 390 U.S. at 68. We have held that a recordkeeping requirement is "essentially regulatory" if it is "imposed in an essentially noncriminal and regulatory area of inquiry and [is] not directed to a selective group inherently suspect of criminal activity." Webb, 398 F.2d at 556 (internal quotation marks omitted).

The Does argue that, for several reasons, the BSA's recordkeeping provision is criminal in nature, rather than regulatory. They contend that unlike truly regulatory schemes, [**10] such as those that condition employment or licensure on the retention of certain records, the BSA's purpose is prosecutorial--i.e., to grant law enforcement access to otherwise unavailable evidence of foreign financial transactions. The Does cite language referring to criminal investigation as one of the BSA's aims in the statute's declaration of purpose, legislative history, and descriptions on the IRS website, to support their position that the BSA's recordkeeping requirements prohibitively operate in a criminal area of inquiry against those suspected of tax fraud. Implicit in the Does' argument is that because the BSA lists first among its purposes the gathering of information that has "a high degree of usefulness in criminal [*335] . . . investigations," 31 U.S.C. ß 5311, the Act's chief purpose is to fight crime.

These same arguments failed to persuade the other appellate courts which have considered the issue, and do not persuade us either. See, e.g., In re M.H., 648 F.3d at 1073-74 (noting and rejecting party's citations to language in the BSA and the IRS website); In re Grand Jury Subpoena, 696 F.3d at 434-35 (same).

The Supreme Court has observed that [HN8] a statute which includes a criminal [**11] law purpose in addition to civil regulatory matters does not strip the statute of its status as "essentially regulatory." See Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 77, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974) ("[T]hat a legislative enactment manifests a concern for the enforcement of the criminal law does not cast any generalized pall of constitutional suspicion over it."). Notwithstanding their own argument, the Does acknowledge that the BSA has purposes unrelated to criminal investigation. [HN9] The plain language of the BSA verifies its concomitant tax, regulatory, and counterterrorism purposes in addition to its law enforcement goals. See 31 U.S.C. ß 5311 (requiring records to be kept "where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism" (emphasis added)). Elaborating on the non-criminal purposes of the BSA, the relevant House Report acknowledges that the Act's recordkeeping and reporting requirements "aid duly constituted authorities in lawful investigations" but also underscores that the requirements "facilitate the supervision [**12] of financial institutions properly subject to federal supervision" and "provide for the collection of statistics necessary for the formulation of monetary and economic policy." H.R. Rep. No. 91-975 (1970), reprinted in 1970 U.S.C.C.A.N. 4394, 4405. Consequently, the Treasury Department shares the information it collects pursuant to the requirements of the BSA with other agencies--including the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of Thrift Supervision--none of which are empowered to bring criminal prosecutions. See 31 U.S.C. ß 5319; 31 C.F.R. ß 1010.950(a)-(b).

Further, the Supreme Court has noted, [HN10] in discussing "the recordkeeping and reporting requirements of the [BSA]," 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." Schultz, 416 U.S. at 76. Indeed, the BSA's comprehensive statutory scheme contains recordkeeping requirements that carry both civil and criminal penalties. See 31 U.S.C. ßß 5321, [**13] 5322 (individual's failure to report or retain required records of foreign bank accounts does not give rise to criminal liability unless that failure is proven "willful").⁴

4 31 U.S.C. ß 5321 permits the Secretary of Treasury to commence civil actions to recover monetary penalties for various violations of the BSA.

Additionally, [HN11] the BSA's recordkeeping requirements broadly cover all those who maintain foreign bank accounts, rather then a particular subgroup. The Ninth Circuit has explained:

There is nothing inherently illegal about having or being a beneficiary of an offshore foreign banking account. According to the Government, ß 1010.420 applies to "hundreds of [*336] thousands of foreign bank accounts--over half a million in 2009." Nothing about having a foreign bank account on its own suggests a person is engaged in illegal activity. The fact distinguishes this case from Marchetti and Grosso, where the activity being regulated--gambling--was almost universally illegal, so that paying a tax on gambling wagers necessarily implicated a person in criminal activity. [HN12] Admitting to having a foreign bank account carries no such risk. That the information contained in the required record may ultimately [**14] lead to criminal charges does not convert an essentially regulatory regulation into a criminal one.

In re M.H., 648 F.3d at 1074-75.

Moreover, [HN13] ß 1010.420 has a reporting requirement. The regulation mandates that the required records "shall be kept at all times available for inspection as authorized by law." 31 C.F.R. ß 1010.420. The Supreme Court has indicated that "no meaningful difference" exists "between an obligation to maintain records for inspection, and such an obligation supplemented by a requirement that those records be filed periodically with officers of the United States." Marchetti, 390 U.S. at 56 n.14.

[HN14] Because the BSA's recordkeeping requirements serve purposes unrelated to criminal law enforcement and the provisions do not apply exclusively to those engaged in criminal activity, we find that those requirements are "essentially regulatory." Accordingly, we conclude that the first prong of the required records doctrine is satisfied.

B.

[HN15] The records must also be "of a kind which the regulated party has customarily kept." Grosso, 390 U.S. at 68. We find this prong of the required records doctrine to be easily satisfied here. The records sought are of the same type that the Does [**15] must report annually to the IRS pursuant to the regulation of offshore banking: the name, number, and type of account(s), the name and address of the bank where an account is held, and the maximum value of the account during the reporting period. See 31 C.F.R. ßß 1010.350, 1010.420.

Furthermore, the records sought are also of the same type that a reasonable account holder, foreign or domestic, would keep in order to access his or her account. See In re M.H., 648 F.3d at 1076 (reasoning that foreign account holders routinely retain basic foreign bank records if only to access their own accounts). The Does argue that individuals are unlikely to keep account records for the five years required under 31 C.F.R. ß 1010.420, given the three-year statute of limitations for civil tax adjustments, and because foreign banks are notorious for failing to provide customers with records. This argument fails, however, given the clear language in ß 1010.420 that requires the retention of the account information that has been subpoenaed.⁵ [HN16] Because it is the failure to maintain such records that can be probative of criminal activity, rather than the contents of the records, foreign account holders can [**16] reasonably be expected to follow the law governing their choice to engage in offshore banking.

5 We also find the Does' five-year argument dubious in view of 26 U.S.C. ß 6501(e), which contains a six-year statute of limitations for many taxpayers and fosters a generally accepted accounting practice to advise taxpayers to keep their pertinent records until the ß 6501(e) period has expired.

Accordingly, we conclude that the records sought are of a kind "customarily [*337] kept" and the second prong of the required records doctrine is satisfied.

C.

Finally, [HN17] "the records [sought] must have assumed 'public aspects' which render them at least analogous to public documents." Grosso, 390 U.S. at 68. Two courts of appeals have held that "if the government's purpose in imposing the regulatory scheme is essentially regulatory, then it necessarily has some 'public aspects'" sufficient to satisfy the third prong of the required records doctrine. In re M.H., 648 F.3d at 1076 (citing Shapiro, 335 U.S. at 33); accord Donovan v. Mehlenbacher, 652 F.2d 228, 231 (2d Cir. 1981). For purposes of this case, we agree.

Drawing a distinction between entities and individuals who publicly engage in business with the public [**17] and those who privately open a foreign bank account, the Does contend that there is "nothing public about the unlicensed private activity of owning a foreign bank account." (Appellant's Br. 49.) The Does argue that the subpoenaed records are private, personal financial records which are unrelated to legitimate regulatory goals.

This argument by the Does misapprehends this prong of the required records doctrine by conflating "public aspects" and "public access." Although the Does argue that substantive regulations designed to protect the public from harm and open to public access may imbue otherwise private documents with public aspects, it does not follow that public aspects exist only under these circumstances. [HN18] That the records sought are typically considered private does not bar them from possessing the requisite public aspects. See In re M.H., 648 F.3d at 1077 ("[T]hat the information sought is traditionally private and personal as opposed to business-related does not automatically implicate the Fifth Amendment."); In re Kenny, 715 F.2d 51, 52-54 (2d Cir. 1983) (reasoning that subpoenaed medical records possessed sufficient "public aspects" to satisfy the third prong of the required [**18] records doctrine). As discussed above, the Treasury Department shares the information it collects pursuant to the Act's recordkeeping and reporting requirements with a number of other agencies. See 31 U.S.C. ß 5319; 31 C.F.R. ß 1010.950(a)-(b). This data sharing is designed to serve important public purposes, including the formation of economic, monetary, and regulatory policy, any of which are more than sufficient to imbue otherwise private foreign bank account records with "public aspects." See In re Grand Jury Subpoena, 696 F.3d at 436.

Finally, the Does contend that a requirement to retain records begets a more attenuated relationship with the government than a requirement to report their contents, such that documents maintained under a mere recordkeeping requirement have insufficient "public aspects." The Supreme Court, however, has squarely rejected this proposition. See Marchetti, 390 U.S. at 56 n.14 ("We perceive no meaningful difference between an obligation to maintain records for inspection, and such an obligation supplemented by a requirement that those records be filed periodically with officers of the United States."). We therefore conclude that the records in question [**19] have "public aspects" sufficient to satisfy the third prong of the required records doctrine.

IV.

Because we find that the records sought in the grand jury subpoenas meet all the requirements of the required records doctrine, the Fifth Amendment privilege is inapplicable, and the Does may not invoke [*338] it to shield themselves from the subpoenas' commands. As the Does' Fifth Amendment privilege is not implicated, we need not address their request for immunity. Accordingly, the judgment of the district court is

AFFIRMED.