Are Individuals Required To Turn Over Personal Foreign Bank Account Records?

The United States government has been issuing subpoenas to U.S. citizens to turn over their foreign bank account records for the past several years. The government’s intention is to use the bank records to investigate tax evasion and other offenses and, in some instances criminally prosecute account holders. There is much debate over whether the government’s compulsion of the production of foreign bank records over an individual’s assertion of his or her Fifth Amendment rights is unconstitutional.  The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or bill-of-rightsin the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Can individuals be compelled to turn over their personal foreign bank account records pursuant to the so-called required records exception to the Fifth Amendment or does compelling the production of such records violate an individual’s Fifth Amendment right against self-incrimination?

Recent rulings out of the United States Courts of Appeals for the Seventh, Fifth, Ninth, and Eleventh Circuits hold the individuals who are targets of criminal investigations are required to produce their personal foreign bank records over an assertion of their Fifth Amendment rights.

A petition for certiorari filed with the United States Supreme Court in In re T.W. v. United States, No. 12-853 is requesting the Court to review the Fifth Amendment issue.

I, along with 19 other attorneys, recently submitted this Amici Curiae brief in the matter urging the Supreme Court to review and rule on the issue in support of upholding an individual’s Fifth Amendment right to withhold personal foreign bank account records.

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