Friday, February 8, 2013

Another Circuit -- the 11th -- Sustains Required Records Doctrine for Foreign Account Records (2/8/13)

The Eleventh Circuit today joined the chorus of Appeals Courts holding the Required Records Doctrine overrides any Act of Production Fifth Amendment claim with respect to foreign account records.  See IN RE: Grand Jury Proceedings, No. 4-10, 707 F.3d 1262 (11th Cir. 2012), here.  I have not studied the opinion, but I don't think it breaks new ground.  Just another opinion stating the same rationale as stated in the three preceding appellate opinions.   In re Special Feb. 2011-1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903, 905–09 (7th Cir. 2012), petition for certiorari filed; In re Grand Jury Investigation M.H., 648 F.3d 1067, 1071–79 (9th Cir. 2011), cert. denied, 133 S. Ct. 26 (2012); In re Grand Jury Subpoena, 696 F.3d 428, 432–36 (5th Cir. 2012).  These earlier opinions were discussed in prior blogs that may be searched by clicking the required records link below.

The Court concludes:
In sum, to the extent that the Required Records Exception operates to extinguish the Target’s Fifth Amendment privilege against self-incrimination, it necessarily extinguishes this privilege as to both the act of producing the records and the records themselves.
I don't know precisely what "and the records themselves" means.  I think that the law is clear that the records and their contents have no Fifth Amendment privilege, so except for any testimony inherent in compulsion to produce them, the Fifth Amendment is not implicated and there is no potential for conflict between the Required Records Doctrine and the Fifth Amendment.

No comments:

Post a Comment

Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.