M.H. V. USA

Under the Required Records Doctrine, the Fifth Amendment right not to incriminate oneself does not apply to a subpoena to bring forward documents relating to the ownership of foreign bank accounts.

In 2009, the Swiss Bank UBS entered into a deferred-prosecution agreement with the US Department of Justice. They agreed to turnover information identifying 250 people they may have helped in committing tax evasion. M.H. was one of the people identified for possible tax evasion. A grand jury investigation subpoenaed him to bring forward any documents related to his ownership of foreign bank accounts. M.H. failed to comply, stating that to comply would violate his Fifth Amendment right not to incriminate himself. The district court issued a contempt order that was stayed pending M.H.’s appeal of the issue. The Ninth Circuit held that the subpoena did not violate the Fifth Amendment. On appeal M.H. argued that regulations regarding the requirement to retain documents relating to foreign bank accounts did not apply to him. During a grand jury investigation, the government need not show the applicability of a law. The purpose of a grand jury proceeding is to determine if there is probable cause. The documents that M.H. was asked to produce are of a kind that a taxpayer is statutorily required to maintain for purposes of filing their taxes. Thus, the Fifth Amendment did not apply because the “privilege does not extend to records required to be kept as a result of an individual’s voluntary participation in a regulated activity”. The Required Records Doctrine gets around the Fifth Amendment when 1) the inquiry is regulatory, 2) the documents are of a kind the regulated party customarily keeps 3) the records have public aspects. AFFIRMED