Majority Opinion >

Pagination* F.3d**BL

UNITED STATES COURT OF APPEALS FOR THESECOND CIRCUIT

UNITED STATES OF AMERICA, 26 U.S.C.SECTIONS 7402(b) and 7604(a): ENFORCEMENT OF

INTERNAL REVENUE SERVICE SUMMONS,1Plaintiff-Appellee, — v. — STEVEN GREENFIELD,

Defendant-Appellant.

Docket No. 15-543

January 25, 2016, Argued August 1, 2016, DecidedAs Amended August 24, 2016.

Defendant-Appellant Steven Greenfield was implicatedin tax evasion after a leak of documents from aLiechtenstein financial institution revealed connectionsto previously undisclosed, offshore bank accounts.Years after the leak, the Internal Revenue Serviceissued a summons for an expansive set of Greenfield'sfinancial and non-financial records, including thosepertaining to the offshore accounts referenced in theleak. Greenfield refused to comply with the summons,and the Government sought enforcement in theSouthern District of New York (Hellerstein, J.).Greenfield opposed enforcement and moved to quashthe summons, inter alia, on the basis that thecompelled production of the documents would violatehis Fifth Amendment right against self-incrimination.The District Court granted enforcement for a subset ofthe requested documents under the foregone-conclusion doctrine set out in Fisher v. United States,425 U.S. 391 , 96 S. Ct. 1569 , 48 L. Ed. 2d 39 (1976).We conclude that the Government has failed toestablish that it is a foregone conclusion that therequisite exercise, control, and authenticity of thedocuments existed as of time of the issuance of thesummons. Accordingly, we VACATE the DistrictCourt's order enforcing the summons and denyingGreenfield's motion to quash and REMAND for furtherproceedings consistent with this opinion.

ELIZABETH M. JOHNSON (Lawrence S. Goldman, onthe brief), Law Offices of Elizabeth M. Johnson, NewYork, New York, for Defendant-Appellant.

MICHAEL J. BYARS (Benjamin H. Torrance, on thebrief) Assistant United States Attorneys, for PreetBharara, United States Attorney for the SouthernDistrict of New York, New York, New York, for Plaintiff-Appellee.

Before: CALABRESI, LYNCH, and LOHIER, CircuitJudges.

CALABRESI

[*110] CALABRESI, Circuit Judge:

A remarkable amount of American wealth is heldoffshore, often in an effort to evade taxation. Onerecent study estimated that $1.2 trillion—some fourpercent of this nation's wealth—is held offshore andthat this results in an annual loss in tax revenue of $35billion. Gabriel Zucman, The Hidden Wealth of Nations:The Scourge of Tax Havens 53 (Teresa LavenderFagan trans., 2015). Such lost income diminishes theTreasury and exacerbates inequality since, generally,only the wealthiest of individuals can take advantage offoreign tax havens. Id. Recognizing this, recentmeasures, such as the Foreign Account TaxCompliance Act, 26 U.S.C. §§ 1471-1474 , havesought to strengthen the IRS's efforts to combat taxevasion through the use of foreign shelters. Butenforcement presents significant challenges given thesophistication of tax planning and the informationasymmetry between taxpayers and tax authorities.

The need to curtail tax evasion, however pressing,nevertheless cannot warrant the erosion of protections[**2] that the Constitution gives to all individuals,including those suspected of hiding assets offshore. Inthe present case, Steven Greenfield was implicated intax evasion as a result of a document leak from aLiechtenstein financial institution. Years later, theGovernment issued a summons for a broad swath ofGreenfield's records, including documents relating toall of Greenfield's financial accounts and documentspertaining to the ownership and management of

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offshore entities controlled by Greenfield.

Greenfield opposed production and moved to quashthe summons based on his Fifth Amendment rightagainst self-incrimination. But the District Court for theSouthern District of New York (Hellerstein, J.) grantedenforcement as to subset of the records demanded bythe summons. It concluded that the existence, controland authenticity of that subset of documents were aforegone conclusion and, as a result, under Fisher v.United States, 425 U.S. 391 , 96 S. Ct. 1569 , 48 L. Ed.2d 39 (1976), any Fifth Amendment challenge mustfail.

We disagree with the District Court for two reasons.First, we find that, for all but a small subset of thedocuments covered by the District Court's order, theGovernment has not demonstrated that it is a foregoneconclusion that the documents existed, were inGreenfield's control, and were authentic even in 2001.Second, we find that the Government has failed topresent any evidence that it was a foregone conclusionthat any of the documents subject to the summonsremained in Greenfield's control through 2013, whenthe summons was issued. Accordingly, because theGovernment has not made the showing that isnecessary to render Greenfield's production of thedocuments non-testimonial and, hence, exempt fromFifth Amendment challenge, we vacate the DistrictCourt's order and remand.

BACKGROUNDThis case stems from a "global tax scandal" thatcame to light in February 2008 after anemployee of Liechtenstein Global Trust ("LGT"), aprivate financial institution owned by the royal family ofLiechtenstein, [*111] leaked thousands of documentsfrom accounts held at LGT. S. Hrg. No. 110-614, at 2(2008). Many of the individuals involved in theaccounts had never disclosed the existence of theseaccounts (or the assets there held) to their domestictax authorities. The actions of the employee, HeinrichKieber, set off a wave of enforcement actions acrossEurope, and Kieber went into hiding after beingcharged with theft of information under Liechtensteinlaw.

The effects of Kieber's disclosure were felt in theUnited States as well. The PermanentSubcommittee on Investigations of the United

States Senate ("PSI") began hearings in July 2008 inresponse to the LGT disclosure and a similar leak fromUBS, a Swiss bank. In connection with these hearings,Kieber released more than 12,000 pages of documentsfrom LGT's files to the PSI. Because Kieber's currentlocation and name were unknown to the PSI, Kieberhimself did not appear at the hearings, but he did givea recorded interview with PSI counsel for theproceedings.

Defendant-Appellant Steven Greenfield (" [**3]Greenfield") was one of theindividuals implicated by Kieber'sdisclosure of LGT documents.Greenfield owns Commonwealth ToyCompany, Inc. ("Commonwealth"), a retailmarketing and licensing company thatoperates worldwide. Commonwealth wasfounded by Greenfield's father, HarveyGreenfield ("Harvey"), who ran Commonwealth as CEOuntil his death in 2009. The leak suggested that theGreenfields were involved with certain offshore entitiesthat had been used, or were being used, to evadetaxation. Indeed, the PSI twice asked Greenfield toappear before them to address the disclosure;Greenfield failed to appear at the first hearing and, atthe second, appeared but asserted his FifthAmendment right to remain silent.

Only a few of the documents disclosed by Kieberaddressed the Greenfields' connections to offshorebanking directly. These included:

1. A March 27, 2001 memorandum from LGTpersonnel that detailed a meeting inLiechtenstein between the Greenfields andLGT employees (the "LGT Memo");

2. An end-of-2001 account statementissued on January 1, 2002 for theMaverick Foundation ("Maverick"), aLiechtenstein stiftung (foundation) formed at LGTin January 1992;

3. LGT account information forms forMaverick and two entities apparently ownedby Maverick, TSF Company Limited ("TSF")and Chiu Fu (Far East) Limited ("Chiu Fu"), bothBritish Virgin Islands entities; and

4. End-of-2001 LGT profiles for Maverick and

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TSF, (collectively, the "LGT Documents").

The LGT Memo is the most significant piece ofevidence documenting the Greenfields' offshorebanking.2 The LGT Memo describes a March 23, 2001meeting between Greenfield, his father Harvey, LGTemployees, and Prince Philip of Liechtenstein,concerning the Greenfields' holdings at LGT. Accordingto the LGT Memo, Maverick was established inJanuary 1992 and, as of the meeting, held $2.2 millionin cash as well as all the stock of TSF and Chiu Fu,which had been originally formed [*112] to channelassets into Maverick. In the LGT Memo Harvey isdescribed as the "sole beneficiary of the MaverickFoundation"; Greenfield and his sisters are describedas "secondary beneficiaries," with Greenfield alsoholding a "power of attorney to give instructions" overMaverick. App. 145.3 It also states that each of theGreenfields held U.S. passports and lived, part time, inNew York City.

The LGT Memo provides the following contextfor the purpose of the meeting. The Memostates that Harvey had a trust with the Bank ofBermuda in Hong Kong (the "Trust"), with assets ofabout $30 million in cash as well as the stock of anumber of operating companies. The "beneficiary rulesfor the Trust . . . [were] likely stored similarly" to thoseof Maverick. Id. Also, according to the LGT Memo, theBank of Bermuda had "indicated to the client that itwould like to end the business relationship with him asa U.S. citizen," and that the client was "now on thesearch for a safe haven for his offshore assets." Id.After that, the group discussed the advantages ofbanking in Liechtenstein as well as the currentstructure and asset status of Maverick. The LGT Memofurther states that [**4] its author proposed meetingGreenfield in Hong Kong at the end of April 2001 todiscuss the next steps, that is, whether and how theTrust's assets would be taken over by Maverick. It thenconcluded:

The clients are very careful and eager to dissolvethe Trust with the Bank of Bermuda leavingbehind as few traces as possible. The clientsreceived indications from other institutions as wellthat U.S. citizens are not those clients that onewishes for in offshore business.

App. 146.

The remainder of the LGT Documents largely reflectsthe information in the LGT Memo. The Maverickaccount statement, dated as of December 31, 2001,states that it had about $2.2 million undermanagement. The undated account information formalso states that Greenfield is "the holder of the powerof attorney to give instructions," and notes that LGTheld expired passport copies for Greenfield andHarvey, but not Greenfield's sisters. App. 149. Theforms for TSF and Chiu Fu state that they are whollyowned subsidiaries of Maverick and, after noting thatthese entities held no assets, the documents questiontheir function and propose closing the bank accountsheld by the TSF and Chiu Fu at Standard Charteredand HSBC.

Greenfield never reported income from orownership of Maverick, Chiu Fu, TSF, or theTrust. The Internal Revenue Service (the "IRS") subsequently selected Greenfield's 2005income tax return for civil audit and, on May17, 2013, issued an Information DocumentRequest for a number of documents inconnection with the audit. The IRS issued asummons on June 17, 2013 (the "Summons") thatrequired Greenfield to appear on July 26, 2013 toproduce the below-listed materials for examination.On July 25, 2013, the IRS notified Greenfield that ithad expanded the examination to the 2006 tax year.4

The Summons called for Greenfield to produce thefollowing documents:

1. Requests 1 through 5 (the "Bank RecordsRequests") sought documents relating to bothdomestic and [*113] foreign bank accounts,including "every account over which StevenGreenfield had signature authority . . . and/orover which Steven Greenfield exercised controlduring the years 2001 through 2011." TheseBank Records Requests required Greenfield toproduce "all documents" in his possession foreach bank account, including those at LGT,HSBC, Standard Chartered Bank and the Bank ofBermuda. App. 16-17.

2. Requests 6 through 8 (the "Other AccountsRequests") sought production similar to the BankRecords Requests, but for brokerage accounts,mutual funds, and security accounts held byGreenfield. App. 18.

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3. Requests 9 through 16 (the "LGT Requests")sought all documents relating to Greenfield'scontacts with and appearance at LGT,Greenfield's bank accounts at LGT, and entitiescontrolled by Greenfield. App. 19-20.

4. Requests 17 through 24 (the "OwnershipRequests") sought documents relating to legalentities or structures that Greenfield owned orover which he exercised control, includingMaverick, Chiu Fu, TSF, and the Trust's accountat the Bank of Bermuda. App. 21-22.

5. Requests 25 through 29 (the "ProfessionalServices [**5] Requests") sought documentsrelating to professional services provided toGreenfield from 2001 to 2011, including advice orservices provided by any private banker, broker,or trust advisor. App. 23.

6. Requests 30 through 32 (the "Foreign TravelRequests") sought documents, such aspassports, that relate to Greenfield's foreigntravel during the years 2001 to 2011. App. 24.

7. Requests 33 through 35 (the "Other IncomeRequests") sought documents relating toGreenfield's non-taxable income. App. 25.

8. Request 36 (the "Loan Request") soughtdocuments relating to any loans involvingGreenfield. App. 26.

Greenfield, through counsel, objected to the breadth ofthe Summons. And the Government agreed to limit theSummons in part by requiring only the production ofdocuments related to foreign entities and by limiting theBank Records Requests and Other Accounts Requeststo documents for the 2001 through 2006 tax years.

Despite these concessions, Greenfield continued torefuse to comply with the Summons. The Governmentthen brought this enforcement action on October 17,2014. Greenfield responded with a motion to quash,arguing, in relevant part, that the compelled productionof the documents sought would violate his FifthAmendment right against self-incrimination.

The Government countered that, under Fisher v.United States, 425 U.S. 391 , 96 S. Ct. 1569 , 48 L. Ed.

2d 39 (1976), the act of producing these documents didnot violate the Fifth Amendment because it was aforegone conclusion that the documents existed, thatGreenfield had control over the documents, and thatthe documents were authentic. The Government,however, did agree in its reply brief to limit theSummons further: to require only "the production ofdocuments associated with the entities and accountsidentified in the PSI Hearings Record . . . that areresponsive to the Bank Records Requests, OtherAccounts Requests, LGT Requests, OwnershipRequests, and Professional Services Requests," aswell as Greenfield's expired passport and "additionaldocumentation of [his] international travel for tripsalready reflected in his passport or in the LGTDocuments." App. 198.

[*114] On January 20, 2015, after oral argument, theDistrict Court (Hellerstein, J.) granted enforcement ofthe Summons with respect to the documents identifiedin the Government's reply brief. The District Courtsubsequently issued an order on February 11, 2015granting the Government's motion for enforcement anddenying Greenfield's motion to quash. The DistrictCourt relied in part on United States v. Gendreau, No.12 Misc. 303 , 2014 U.S. Dist. LEXIS 14979 , [2014BL 439004], 2014 WL 464754 (S.D.N.Y. Jan. 22,2014), in which another district court had grantedenforcement of a summons based on the LGTdisclosure because "the Government had specificknowledge of the accounts and the individual whocontrolled the accounts." App. 254.

The Court ordered Greenfield to

produce the following documents in hispossession, custody, or control: documentsassociated with the accounts of Maverick,Chiu Fu, TSF, Standard Chartered, HSBC,and Bank of Bermuda, that are responsiveto the [Bank Records[ ] Requests, OtherAccounts Requests, LGT Requests, [**6]Ownership Requests, and Professional ServicesRequests], as well as a copy of his passport andany additional documentation for trips alreadyreflected in his passport, as these documents fallwithin the foregone conclusion exception to theact of production privilege under the FifthAmendment .

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App. 255 (emphasis added).

This appeal followed.

DISCUSSIONWe review de novo the District Court's determination ofquestions of law as to the Fifth Amendment privilege.Green v. Scully, 850 F.2d 894 , 900 (2d Cir. 1988). Butwe will overturn the District Court's determination as towhether "the act of producing the documents wouldinvolve testimonial self-incrimination" only where sucha finding "has no support in the record." United Statesv. Doe, 465 U.S. 605 , 613-14 , 104 S. Ct. 1237 , 79 L.Ed. 2d 552 (1984).

A.The Fifth Amendment provides, in relevant part, that"[n]o person . . . shall be compelled in any criminalcase to be a witness against himself." U.S. Const.amend. 5 . "To qualify for the Fifth Amendmentprivilege, a communication must be testimonial,incriminating, and compelled." Hiibel v. Sixth JudicialDist. Court of Nev., Humboldt Cty., 542 U.S. 177 , 189 ,124 S. Ct. 2451 , 159 L. Ed. 2d 292 (2004). TheSupreme Court has recognized that the privilege "hasconsistently been accorded a liberal construction,"Miranda v. Arizona, 384 U.S. 436 , 461 , 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and, in accordance with thisprinciple, the Fifth Amendment privilege has beenfound to extend not only to answers that are directlyincriminatory but also to those that, while notthemselves inculpatory, "would furnish a link in thechain of evidence needed to prosecute the claimant,"Ohio v. Reiner, 532 U.S. 17 , 20 , 121 S. Ct. 1252 , 149L. Ed. 2d 158 (2001) (per curiam) (quoting Hoffman v.United States, 341 U.S. 479 , 486 , 71 S. Ct. 814 , 95L. Ed. 1118 (1951)).

Fisher v. United States, 425 U.S. 391 , 96 S. Ct. 1569 ,48 L. Ed. 2d 39 (1976) provides the framework forapplying the Fifth Amendment privilege to theproduction of documents in response to a summons. InFisher, the government issued summonses for therecords of two taxpayers; in each case, the recordswere created by the taxpayers' accountants but latertransferred to and held by attorneys for tax preparation.425 U.S. at 394-95 . In concluding that enforcement ofthe summonses [*115] did not violate the FifthAmendment , the Court distinguished between twopotentially incriminating types of communication that

were inherent in the production of the records.

On the one hand, the Court, departing from priorprecedent that had suggested otherwise, see Boyd v.United States, 116 U.S. 616 , 6 S. Ct. 524 , 29 L. Ed.746 (1886), held that the contents of the records didnot implicate the Fifth Amendment. The Court soconcluded because the documents had beenvoluntarily prepared prior to the issuance of thesummonses by accountants and were therefore not thetaxpayers' compelled testimony. Fisher, 425 U.S. at409-10 .

On the other hand, the Court recognized that the act ofproduction itself could communicate incriminatorystatements of fact. Id. at 410 . Specifically,"[c]ompliance with the subpoena tacitly concede[d] theexistence of the papers demanded and theirpossession or control by the taxpayer [as well as] thetaxpayer's belief that the papers [were] those describedin the subpoena." Id . 5

While recognizing that the question of whether suchcommunications are testimonial and incriminatory "may. . . depend on the facts and circumstances ofparticular [**7] cases or classes thereof," the Courtconcluded that, in the case before it, "[t]he existenceand location of the papers [were] a foregoneconclusion and the taxpayer add[ed] little or nothing tothe sum total of the Government's information byconceding that he in fact ha[d] the papers." Id. at 411 .Thus because these communicative elements—(1) theexistence of the documents, (2) the taxpayer'spossession or control of the documents and (3) theauthenticity of the documents—were a foregoneconclusion, compliance with the summons became a"question . . . not of testimony but of surrender." Id .(quoting In re Harris, 221 U.S. 274 , 279 , 31 S. Ct. 557, 55 L. Ed. 732 (1911)).

The Supreme Court most recently addressed the act-of-production doctrine in United States v. Hubbell, 530U.S. 27 , 120 S. Ct. 2037 , 147 L. Ed. 2d 24 (2000).There, in a prosecution related to the Whitewaterinvestigation, Hubbell, the defendant, was served witha subpoena requesting a vast array of documents,including all those "reflecting, referring, or relating toany direct or indirect sources of money or other thingsof value received by or provided to [Hubbell], his wife,or children" in the previous three years. Hubbell, 530U.S. at 46 . Prosecutors granted immunity to Hubbell

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as to the act of production but indicted him based onthe contents of the 13,120 pages of documents hewent on to produce. Id. at 31 .

The Court held that Hubbell could not be prosecutedon the contents of the documents because, even ifprosecutors made no use of act-of-production evidenceat trial, the Government had already made "derivativeuse" of the documents in its investigation of Hubbell. Id. at 43 . In other words, because it was"unquestionably necessary for [Hubbell] to makeextensive use of 'the contents of his own mind' inidentifying the hundreds of documents responsive tothe requests in the subpoena," Hubbell effectivelyprovided a "catalog of existing documents" that was a"link in the chain" of his prosecution. Id. at 42-43(quoting Curcio v. United States, 354 U.S. 118 , 128 ,77 S. Ct. 1145 , 1 L. Ed. 2d 1225 (1957)). In soconcluding, the Court distinguished Fisher:

[*116] Whatever the scope of this "foregoneconclusion" rationale, the facts of this case plainlyfall outside of it. While in Fisher the Governmentalready knew that the documents were in theattorneys' possession and could independentlyconfirm their existence and authenticity throughthe accountants who created them, here theGovernment has not shown that it had any priorknowledge of either the existence or thewhereabouts of the 13,120 pages of documentsultimately produced by respondent. TheGovernment cannot cure this deficiency throughthe overbroad argument that a businessman suchas respondent will always possess generalbusiness and tax records that fall within the broadcategories described in this subpoena.

Id. at 44-45.

The question before us, therefore, is whether theinstant case is more like Fisher or Hubbell.6 That is, wemust examine whether the LGT Documentsindependently establish the communicative elementsinherent in Greenfield's production of the soughtrecords or whether Greenfield's production of thedocuments is a necessary part of the chain ofpotentially incriminatory [**8] evidence. In doing this werecognize that both our court and our sister circuitshave struggled with the extent of Governmentknowledge necessary for a foregone-conclusionrationale to apply. See, e.g., In re Grand Jury

Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d87 (2d Cir. 1993); United States v. Fox, 721 F.2d 32(2d Cir. 1983); see also United States v. Bright, 596F.3d 683 (9th Cir. 2010); United States v. Ponds, 454F.3d 313 , 372 U.S. App. D.C. 117 (D.C. Cir. 2006);United States v. Norwood, 420 F.3d 888 (8th Cir.2005).

On the one hand, with respect to the requirementrelating to existence and control, we, and otherCircuits, have held that the Government must establishits knowledge only "with reasonable particularity." Oct.29, 1 F.3d at 93 .7 Thus, the Government need notdemonstrate perfect knowledge of each specificresponsive document covered by the Summons. Seealso In re Grand Jury Subpoena Dated Apr. 18, 2003,383 F.3d 905 , 910 (9th Cir. 2004) (holding thatGovernment is "not required to have actual knowledgeof the existence and location of each and everyresponsive document" to satisfy reasonable-particularity standard).

On the other hand, the Government must know, andnot merely infer, that the sought documents exist, thatthey are under the control of defendant, and that theyare authentic. Oct. 29, 1 F.3d at 93 (requiringGovernment to establish "with reasonable particularitythat it knows of the existence and location ofsubpoenaed documents" (emphasis added)); Fox, 721F.2d at 36-38 ("[M]erely [*117] because the IRSobtained some information . . . does not mean that thegovernment now knows enough to eliminate anypossibility that Fox's production would constitute anincriminating testimonial act." (emphasis added));Hubbell, 530 U.S. at 45 (rejecting application offoregone-conclusion doctrine where Government hadnot "shown that it had any prior knowledge of eitherthe existence or the whereabouts" of documents).8 Assuch, the "reasonable particularity" standard does notreduce the level of certainty with which theGovernment must establish knowledge, but rather theextent to which that certainty relates to each documentresponsive to the summons.

Two of our cases well illustrate the application of theseprinciples in practice with respect to the requirement ofknowledge of the existence and control of documents.In Jamil v. United States (In re Katz), 623 F.2d 122 ,123 (2d Cir. 1980), we considered a summonsrequiring Katz, a lawyer who was thought to have

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helped create a series of sham corporations, to testifyand bring with him "all documents relating to anydealings or business with . . . any company owned,operated or controlled by [Katz's client, Jamil]." Wedenied enforcement, recognizing that, because "theGovernment obviously does not know the identity ofthese corporations or [Jamil's] relationship to them, the'existence and location of the papers' is not a 'foregoneconclusion,' and their production may well add much 'tothe sum total of the Government's information.'" Id. at126 (quoting Fisher, 425 U.S. at 411 ).

Similarly, in Fox, the Government sought enforcementof a summons against a doctor operating a soleproprietorship for (1) all records "pertaining to theoperation of the sole proprietorship," (2) all bankingrecords for Fox and his wife, and (3) all " [**9] evidenceverifying contributions claimed as a deduction" on theFox's joint tax return. 721 F.2d at 33-34 . TheGovernment relied on three sources of information toestablish the existence and control (as well as, in thiscase, authenticity) of these documents: (1) Fox's prior-year tax returns, (2) an affidavit of a revenue agentaverring to the average taxpayer's document-retentionpolicies, and (3) a transcript of prior payments to Foxfrom a prior tax year. We found this informationinsufficient to establish the existence and control of thesought documents:

[M]erely because the IRS obtained someinformation from the face of Fox's tax returnsdoes not mean that the government now knowsenough to eliminate any possibility that Fox'sproduction would constitute an incriminatingtestimonial act. For example, the IRS has no wayof knowing from the face of Fox's return whetherhe has records to support all of his claimedbusiness deductions; whether he possessesrecords that reflect unreported taxable income; orwhether he possesses records that evidencepossible crimes committed in the course of hissole proprietorship. Similarly, the mere fact that atax return reveals on its face that a taxpayer had"at least one bank account" or "brokerageaccount" does not give the IRS any informationabout whether the taxpayer [*118] has records ofother bank accounts showing income that wasnever reported in his return.

Id. at 37-38 . In addition, in Fox, we specificallyrejected the Government's reliance on the agent's

affidavit because "the government's awareness of thepractices of other taxpayers [had] nothing to do with . .. what the act of production would reveal to the IRSabout [Fox]." Id. at 37 .

Moreover, two other Circuits have specificallyconsidered the application of this doctrine to an IRSsummons for bank account documents. In both cases,enforcement was granted only to the extent thesummons called for customary account documentsrelated to financial accounts that investigators knewexisted. See Norwood, 420 F.3d at 891 , 895-96(construing district court as enforcing summons only tothe extent of documents related to identified bank andcharge-card accounts); Bright, 596 F.3d at 692-93(granting enforcement for records connected to twoknown offshore accounts but not for records related tocredit cards identified after the summons' issuance).

Additionally, and dealing specifically with therequirement of authenticity, we have recognized that"[i]mplicit authentication occurs when an individual whoreceives a summons demanding production ofdocuments complies with the summons and therebyimplicitly testifies that he owns or at least possessesthe documents." Fox, 721 F.2d at 38 . Here, theGovernment must establish not only that thedocuments "are in fact what they purport to be," butalso that the taxpayer will not be forced "to use hisdiscretion in selecting . . . the responsive documents, .. . thereby tacitly providing identifying information."United States v. Sideman & Bancroft, LLP, 704 F.3d1197 , 1203 (9th Cir. 2013) (internal quotation marksomitted). Authenticity can be independentlyestablished, for instance, a) through [**10] thetestimony of third parties familiar with that type ofdocument, see Bright, 596 F.3d at 693 (holding thatbank officials can authenticate bank records), b) bycomparison to a prior version of the document, Oct. 29,1 F.3d at 93 (allowing authentication of calendaragainst prior copy), or c) by comparison to otherrelated documents, see United States v. Rue, 819 F.2d1488 , 1494 (8th Cir. 1987) (compelling production ofpatient signature cards based on authentication againstpatient records).

B.Greenfield contends both that (1) the Government hasnot established with reasonable particularity theexistence, control, and authenticity of the sought

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documents as of the documents' creation beginning in2001, and (2) assuming arguendo that the Governmentcould demonstrate this as of 2001, it cannot point toany evidence that the documents remained inGreenfield's control through to 2013, when theSummons was issued.9 For these reasons he arguesthat the compelled production of the sought documentswould violate his Fifth Amendment right against self-incrimination.

As discussed more fully below, the critical issue indetermining whether the act of producing thedocuments would violate Greenfield's right against self-incrimination [*119] is whether the Government canprove that it is a foregone conclusion that thedocuments existed, were in Greenfield's control, andcould be authenticated by the Governmentindependent of Greenfield's production of them whenthe subpoena was issued in 2013. It is, of course,relevant to that inquiry whether the Government candemonstrate that the documents ever existed. Wetherefore begin our inquiry by addressing whether theGovernment can establish the existence, control, andauthenticity of each category of sought documents in2001. We must then examine, with respect to thosecategories of documents for which the Government'sevidence suffices as of 2001, whether there is sufficientevidence of their existence and Greenfield's control in2013, when the Summons was issued.

The categories of documents we discuss are: a) theLGT bank records related to Maverick, b) the bankdocuments related to Maverick's subsidiaries, Chiu Fuand TSF, c) the Trust's account documents from theBank of Bermuda, d) the non-bank documentsresponsive to the Summons, and e) Greenfield'sexpired passport and travel documentation.

1. As of 2001a) The Government has a strong case for enforcement,at least as of 2001, for documents responsive to theBank Records Requests and Other Accounts Requeststhat relate to Maverick's account at LGT (the "BankDocuments").

The Government knows that Maverick had an accountat LGT that existed as of 2001; it also knows, based onthe documents revealed in the LGT disclosure, thatLGT issued documents, such as bank statements, inconnection with the accounts. See Bright, 596 F.3d at

693 (foregone conclusion that account documentsexisted based on "information showing that[defendants] maintained accounts" at certain banksand that banks "provided their account holders withspecific account documents"); Norwood, 420 F.3d at895-96 (foregone conclusion that account [**11]documents existed based on government's knowledgethat defendant had specific financial accounts and thatdocuments requested were "possessed by the ownersof financial accounts as a matter of course"). Thoughthe Government does not have specific knowledge ofevery document that is responsive to the Summons,such specific knowledge exceeds what is requiredunder a "reasonable particularity" standard.

Moreover, it is a foregone conclusion that Greenfieldcontrolled the Bank Documents as of 2001. Both theLGT Memo and another LGT summary documentstate that Greenfield held "a power of attorney togive instructions" over Maverick. App. 145.10 Whilethis designation does [*120] not explicitly state thatGreenfield had the authority to receive Maverickaccount documents, the ability to receive suchdocuments is an essential part of being able to instructthe entity. Greenfield contends that, because LGTfailed to have Greenfield sign certain accountdocuments after Harvey refused, the LGT Memodemonstrates that he in fact lacked signatory authority.But the LGT Memo in fact suggests the opposite for itstates that LGT personnel intended to meet withGreenfield concerning the possible transfer of Trustassets to Maverick. Given this evidence, the DistrictCourt's determination as to control of these documentshad support in the record. See Doe, 465 U.S. at 614 .

The Government, however, has not shown that it is aforegone conclusion that it could authenticate theBank Documents. The Government speculates thatauthentication could be done through "the testimonyof a current or former bank employee, including . . .[Kieber], as well as through Letters of Requestissued under the Hague Evidence Convention."Appellee Br. 45. But the Government has notproffered evidence that LGT would be willing to allowone of its employees to testify for the Government orthat Kieber himself would be willing to testify giventhe uncertainty concerning his whereabouts. Nor hasthe Government demonstrated that it hassuccessfully used the Hague Evidence Conventionto authenticate documents from LGT (or anotherLiechtenstein financial institution) in the past.11 It may

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be possible that authentication would be available inthis manner. But, in light of the controversy surroundingthe source of the documents, a conclusory statementthat authentication is available by these means is notsufficient. Cf. Bright, 596 F.3d at 693 n.4 (suggestingthat it was a foregone conclusion that Governmentcould authenticate foreign records through "theAmerican card servicing company").12

[*121] b) A similar analysis applies to the documentsresponsive to the Bank Records Requests and OtherAccounts Requests that relate to TSF'saccount at Standard Chartered and ChiuFu's account at HSBC (the "Subsidiary BankDocuments").

As with the Bank Documents, it is a foregoneconclusion that TSF and Chiu Fu existed as of 2001.And, although the Government has not offeredevidence of the sorts of documents issued by StandardChartered and HSBC to account holders, thesebanks—large [**12] commercial financialinstitutions—naturally would have sent regular accountstatements and other disclosures to account holders.See Norwood, 420 F.3d at 895-96 (allowing productionof documents "possessed by the owners of financialaccounts as a matter of course" associated withspecific identified accounts).

It is equally clear that Greenfield had control of theSubsidiary Bank Documents in 2001. The LGTDocuments show that TSF and Chiu Fu were managedalongside Maverick in 2001. TSF and Chiu Fu wereMaverick's wholly owned subsidiaries, and wereformed "with the purpose of channeling the assets intothe Maverick Foundation." App. 145. And thoughGreenfield argues, based on cases such as Sicav v.Wang, No. 12 Civ. 6682, [2014 BL 163161], 2014U.S. Dist. LEXIS 81098 , [2014 BL 163161], 2014 WL2624753 , at *4 (S.D.N.Y. June 12, 2014), that acorporation should not be assumed to have controlover a subsidiary's documents, the identity betweenMaverick, on the one hand, and TSF and Chiu Fu, onthe other hand, makes it inescapable that Greenfieldhad control over these entities as he did over Maverick.Indeed, LGT's account notes also show that LGTpersonnel—i.e., the bank members in charge ofMaverick—maintained the subsidiary accounts, suchas by keeping the checkbooks on file. And LGT'sinternal notes for Chiu Fu state that it had an "[a]gencyagreement with Maverick," which would further suggest

Maverick's control over it. App. 153.

The Government, however, has not shown that it canauthenticate the Subsidiary Bank Documents. TheGovernment suggests that authentication is availablethrough the testimony of bank employees or throughthe Hague Evidence Convention, but again this line ofargument ignores whether either of these methods ispracticable. It may be that one or the other of thesemethods would in fact be available to authenticatedocuments received from Greenfield, but in anenvironment where many offshore financial institutionsare found to be complicit in the tax evasion of theirclientele, see Offshore Compliance Initiative, U.S.Dep't of Justice Tax Division,www.justice.gov/tax/offshore-compliance-initiative (lastmodified March 9, 2016), it cannot be a foregoneconclusion that foreign financial institutions andjurisdictions will cooperate with authenticationrequests. As a result, we hold that, in suchcircumstances, the Government must provide morethan speculation as to how authentication would occur.

c) Whether the Government can establish that theexistence and control of documents responsive to theBank Records Requests and Other Accounts Requestsrelated to the Trust's account at the Bank ofBermuda (the "Trust Bank Documents") are aforegone conclusion is uncertain.13 [*122] But evenassuming that the Government has established that itknows that the Trust Bank Documents existed andwere in Greenfield's control in 2001, it cannot establishthat the authenticity of these documents was aforegone conclusion. As with Chiu Fu and TSF, theGovernment offers no evidence that it will be able tosecure the help of current or former bank employees toauthenticate any Trust Bank Documents produced byGreenfield, [**13] or that resort to the HagueEvidence Convention is certain to be fruitful.14 Assuch, even as of 2001, the authenticity of the TrustBank Documents is not a foregone conclusion.

d) The existence, control, and authenticity of theremaining responsive documents are also not aforegone conclusion. These come in several sub-categories: (i) organizational documents for entitiescontrolled by Greenfield, (ii) emails and other materialsdocumenting communication between Greenfield andLGT, and (iii) documents relating to professionalservices (i.e., for tax and accounting advisors) for

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entities he controls.

i) Compelled production of the documentsresponsive to the Ownership Requests (the"Ownership Documents") is not justified by theforegone-conclusion exception. The OwnershipDocuments consist of organizational documents,such as bylaws or financial statements, for entitiesowned or controlled by Greenfield.15 While some ofthese items necessarily exist by virtue of the fact thatthe relevant entities exist (e.g., Maverick's bylaws), theGovernment has not offered evidence that they werekept at LGT (or were otherwise in the control ofGreenfield). Nor has the Government shown how itwould be able to authenticate these documents oncereceived; indeed, the only individuals who couldconfirm the content of these entities' organizationaldocuments are those who prepared them (Harvey andLGT personnel) or handled them (Greenfield). TheGovernment's failure to prove that it couldindependently establish control and authenticity makesenforcement as to these documents inappropriate.

ii) Moreover, the Government has failed tooffer any evidence to make the requiredshowing as to documents responsive tothe Professional Services requests (the "ProfessionalServices Documents"). The Professional ServicesDocuments, if they exist, relate to professional services(i.e., tax advisory services) provided to Greenfield inconnection with his offshore entities. But theGovernment has failed to offer any [*123] evidencethat Greenfield ever hired any tax or financialadvisors (other than LGT) in connection with hisfinancial planning.16 Nor has the Government offeredevidence that Greenfield (as opposed to his father,Harvey) would have retained any such documents.Finally, the Government offers no explanation for howdocuments such as these would be authenticated; it isdubious that the advisors implicated in thesedocuments would agree to help authenticate them. Asa result, enforcement of the Summons as to these is,once again, inappropriate.

iii) Finally, it is not a foregone conclusion thatdocuments responsive to the LGT Requests (the"Communication Documents") exist. TheCommunication Documents mainly consist ofrecords documenting Greenfield's communicationswith LGT personnel.17 While the Government candemonstrate the control and authenticity of the

Communication Documents in the same manner as forthe Bank Documents, the Government has notdemonstrated that there have been anycommunications between Greenfield [**14] and LGTpersonnel other than in the meeting evidenced in theLGT Memo. His only interaction with them, as far as weknow, was in that meeting. As a result, it is not aforegone conclusion that there exist documentsevidencing other Greenfield communications with LGT.

e) Finally, however, it is a foregone conclusion thatGreenfield's passport and related travel documentationexisted, were in his control, and were authentic asof 2001. Given Greenfield's international travel, henecessarily had a passport which was then in hisphysical possession as he traveled. And the UnitedStates Department of State can easily ensure thatthe passport is authentic. Moreover, to the extentGreenfield's passport describes travel during thisperiod, it is a foregone conclusion that, as of theend of 2001, (1) he had documents in his controlthat pertained to the travel (i.e., receipts) and (2)these documents could be authenticated by thethird parties (i.e., airlines) that had issued thesedocuments.

* * *

As such, as of the end of 2001, the existence, control,and authenticity of a small subset of the soughtdocuments—at least Greenfield's passport anddocuments closely related to the passport and,potentially, also the Bank Documents, were they tomeet the authenticity requirement as discussedabove—are a foregone conclusion. But that is notenough to negate Greenfield's Fifth Amendmentargument as to these documents. For we mustconsider whether it is a foregone conclusion that thesedocuments remained in Greenfield's control throughthe issuance of the Summons in 2013. Only if thatretention is a foregone conclusion will the issuance ofthe Summons not violate Greenfield's Fifth Amendmentprivilege.

2. As of 2013Assuming that the Government could show that the actof producing the sought documents in 2001 would notconstitute testimonial self-incrimination, their compelled[*124] disclosure today could still violate Greenfield'sright against self-incrimination. The act of producing

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documents in response to the Summons indicates thatsuch documents remained in the control of Greenfieldfrom 2001 to the date of the Summons. And this factcan be incriminatory of Greenfield. Thus, unless theGovernment can show that it can establish control from2001 to 2013 in some other way, the Fifth Amendmentbars enforcement of the Summons.

a) The Government advances two arguments as towhy it does not need to show that the existence,control, and authenticity of the sought documents atthe time of the issuance of the Summons are aforegone conclusion.

First, the Government points out that our case lawdoes not explicitly require such a showing. But, whilewe have not specifically held as much, such arequirement follows directly from Fisher. The act ofproduction necessarily communicates the existence,control and authenticity of the documents at the time ofproduction. And, if that communication is incriminatory,the Fifth Amendment privilege applies.

Accordingly, other courts have found that theappropriate moment for the foregone-conclusionanalysis [**15] is when the relevant summons wasissued. See Rue, 819 F.2d at 1493 ("The relevant dateon which existence and possession of the documentsmust be shown is the date on which the IRS summonsis served, for it is at that time that the rights andobligations of the parties become fixed."); cf. Apr. 18,383 F.3d at 911 ("It is the 'quantum of informationpossessed by the government before it issue[s] therelevant subpoena' that is central to the foregoneconclusion inquiry." (alteration omitted) (quoting UnitedStates v. Hubbell, 167 F.3d 552 , 569 , 334 U.S. App.D.C. 315 (D.C. Cir. 1999), aff'd, 530 U.S. 27 , 120 S.Ct. 2037 , 147 L. Ed. 2d 24 (2000))). We agree and sohold.

Second, and more convincingly, the Governmentcontends that once it has established the existence,control, and authenticity of documents as of the endof 2001, the incremental communication—that thedocuments have remained in the control ofGreenfield to the present day—is not incriminatory.18As a result, the Government continues, Greenfieldcould refuse production of the documents in 2013 onlyunder the non-possession doctrine, which allows adefendant to contest a summons in a civil-contemptproceeding based on the factual impossibility of

defendant complying with the summons. See UnitedStates v. Rylander, 460 U.S. 752 , 757 , 103 S. Ct.1548 , 75 L. Ed. 2d 521 (1983). But this argument isbased on an incorrect assumption—that, on the recordin this case, it is not incriminatory of Greenfield for thedocuments to have continued to exist until 2013 and tohave been in Greenfield's control since their creation.

In fact, instead, the documents' continued existencecould be incriminatory in a number of ways.

b) Thus, even assuming that the Government [*125]could meet its burden as of 2001,19 the existence ofdocuments thought to be held at LGT—such as theBank Documents—might indicate to the IRS thatMaverick's account at LGT is still active,notwithstanding Harvey's death in 2009. This fact couldopen Greenfield for audit for tax years after 2011, orindicate that he played a more substantive role in themanagement of Maverick during the 2001-2006 period.Similarly, the continued existence of documents held inGreenfield's personal possession—such as theProfessional Services Documents or related traveldocuments—might lead to inquiry into continuing taxevasion by Greenfield at other financial institutions.These revelations could easily constitute a "link in thechain" needed for future prosecution of Greenfield fortax fraud. Hoffman, 341 U.S. at 486 .

The fact that Greenfield retained control overresponsive documents could likewise be incriminatory.One of Greenfield's strongest defenses to a charge oftax evasion would be to argue that his father, Harvey,was the sole person with knowledge of how the family'sfinances were organized; Greenfield could then claimthat he played no active role in the operation of theLGT accounts (despite his apparent authority to do so).If Greenfield were found to have taken physicalpossession of LGT-related documents following hisfather's death, this narrative would be obviouslyundercut.

Similarly, if Greenfield was able to cause the release ofdocuments from LGT in connection with the Summons,Greenfield would appear to have [**16] had greaterpersonal responsibility for Maverick's actions during the2005-2006 period of the audit and beyond. In bothcircumstances, Greenfield's continued control overresponsive documents would implicate him in taxevasion.

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That being said, in many circumstances, theGovernment's ability to establish existence and controlas of an earlier date does permit an inference ofexistence and control as of the date of the Summons. Itall depends on the time lapse and the nature of thedocuments sought. And, indeed, the Government'sevidence establishing existence and control will alwaysbe somewhat stale, whether it be one day or onedecade. As a result, we have allowed for such aninference of continued possession in some contexts.See, e.g., Maggio v. Zeitz, 333 U.S. 56 , 64-66 , 68 S.Ct. 401 , 92 L. Ed. 476 (1948) ("Of course, the fact thata man at one time had a given item of property is acircumstance to be weighed in determining whether hemay properly be found to have it at a later date.");Sigety v. Abrams, 632 F.2d 969 , 974-75 (2d Cir. 1980)(holding that, in context of civil contempt proceeding, a"common-sense inference that the documents are stillin [contemnor's] possession" was appropriate given129-day gap while contemnor was incarcerated andlack of "intervening circumstance[s]" to justifynonproduction); United States v. Patterson, 219 F.2d659 , 661-62 (2d Cir. 1955) (rejecting the sameinference in criminal-contempt proceeding given thepossibility of destruction while the defendant wasincarcerated); Rue, 819 F.2d at 1493 .

Thus, in Rue, the Eighth Circuit found it "appropriate"to infer defendant's continued possession of certainrecords over a nine-week period. 819 F.2d at 1493 . Inso concluding, the Circuit considered four factors: (1)"the nature of the documents," (2) "the nature of thebusiness to which the documents pertained," (3) "theabsence of any indication that the documents were[*126] transferred to someone else or were destroyed,"and (4) "the relatively short time period . . . between thedate as of which possession was shown and the dateof the ensuing IRS summons." Id .

We find the Eighth Circuit's test persuasive and apply ithere. But, after considering its factors, we concludethat the record does not permit an inference ofcontinued control by Greenfield in the case before us.

The first two elements somewhat support a foregone-conclusion finding since bank documents are morelikely to be retained long term as compared todocuments like receipts or prosaic emails. See Maggio,333 U.S. at 66 . And banks do tend to maintainconsumer records.20

The final two factors, however, preclude us from findingfor the Government. There have been a number ofsignificant intervening events that might well haveresulted in the transfer or destruction of the soughtdocuments. Thus, Greenfield has proffered evidencethat TSF and Chiu Fu were dissolved in 2004. This notonly indicates that no documents were created forthese entities after 2004, but it also makes it less likelythat already-existing documents were maintained byLGT, Standard Chartered, or HSBC. Harvey's death in2009, moreover, is an intervening event that couldhave resulted in a change in the Greenfields' financialarrangements. [**17] And among the changes thatoccurred might well have been the elimination ofdocuments.

Greenfield challenges two findings of fact by theDistrict Court that are relevant to this point: first, thatGreenfield co-founded Maverick with Harvey, andsecond, that Greenfield was left "in sole control ofMaverick, Chiu Fu, and TSF" following Harvey's death.App. 250-51. Neither of these findings has any supportin the record. See Doe, 465 U.S. at 613-14 . TheDistrict Court appears to borrow the latter conclusionfrom the affidavit of an IRS revenue agent submitted inconnection with the enforcement action, which statedthat after Harvey's death, Greenfield "now wasapparently in full control of Maverick, Chiu Fu, andTSF," but the LGT Documents do not support such afinding given that the latest such document wasproduced at the beginning of 2002, seven years beforeHarvey's death.

In addition, between 2001 and 2013, therehave been significant changes in thetreatment of U.S. account holders abroad. Forinstance, legislation such as the ForeignAccount Tax Compliance Act ("FATCA") imposeddisclosure obligations on foreign financial institutionsthat deal with American citizens. See 26 U.S.C. §§1471-74 .21 And such scrutiny was likely felt intensely[*127] by the Greenfields, whose account at LGT hadspecifically been investigated by Congress. Giventhese forces, it is possible (if not likely) that Harveywould have reordered his financial affairs anddestroyed many of the files that are sought by theSummons.

Finally, an extremely long period of time has passedbetween the date control was shown and issuance ofthe summons. The latest relevant LGT Document is

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dated January 1, 2002. As a result, the Governmentwould have us infer Greenfield's continued control oversought documents for more than a decade, a periodthat is significantly longer than those in Rue (nineweeks), Maggio (twenty months), Patterson (fourmonths), and Sigety (129 days). Any number of familydisagreements or prosaic banking changes could havedivested Greenfield of control over the relevantdocuments during this extended period.

c) We reach the same conclusion for Greenfield'spassport and travel documentation. We reject theGovernment's argument that the Fifth Amendmentprivilege does not apply because there is nothingincriminating about the act of keeping an expiredpassport, so that the act of production adds noincriminating communication to what the Governmentcan already establish as to Greenfield's possession ofthe passport in 2001. Compelled testimony need not bedirectly or inherently self-incriminating to be barred bythe privilege. "Compelled testimony that communicatesinformation that may 'lead to incriminating evidence' isprivileged even if the information itself is notinculpatory," Hubbell, 530 U.S. at 38 (quoting Doe v.United States, 487 U.S. 201 , 208 n.6, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988)), and the privilege can beinvoked where the information demanded by thegovernment can furnish a link in a chain leading toinculpatory evidence that is otherwise outside thegovernment's reach, so long as the defendant "hasreasonable cause to apprehend [**18] danger,"Hoffman, 341 U.S. at 486 .

That is true here. If the Government cannotdemonstrate that it is a foregone conclusion that thepassport and related travel documents still existedand were in Greenfield's possession when thesubpoena was served, its access to thosedocuments, and to their potentially incriminatingevidence, is facilitated by Greenfield'sadmission—through the act of production—that theystill exist and that he has them.22

Thus, to defeat the act-of-production privilege, theGovernment must establish that it was a foregoneconclusion that the documents still existed, and were inGreenfield's control, in 2013. On the present record, ithas not done so. Greenfield was certain to have apassport given his documented [*128] travel and hisline of work. Moreover, individuals typically retain theirpassports while valid. But in the Government's best-

case scenario, the passport that Greenfield used in2001 expired in 2011—two years before the Summonsissued in 2013. The likelihood of Greenfield retainingthe passport for two years after it expired is smallabsent other information. Greenfield was also unlikelyto retain for more than a decade documents related tohis international travel in 2001. Thus, although theGovernment established that the existence of thepassport and related travel documents was a foregoneconclusion in 2001, it cannot benefit from an inferenceof continued existence of these materials through 2013on this record.

* * *

For all these reasons, we conclude that as to thosedocuments as to which a foregone conclusion mightapply in 2001, no such foregone conclusion can beasserted in 2013, when the Summons issued. Inholding this, we do not, however, mean to foreclose thepossibility that the Government could develop a betterrecord with respect to each of the relevantrequirements in connection with the issuance ofanother summons in the future. Indeed, it is preciselybecause of this possibility that we have examined insuch detail what is lacking in the present Summons.

CONCLUSIONThe Government has failed to establish that it knows,as of the Summons' issuance, that the responsivedocuments exist, remain in Greenfield's control, andare authentic. Accordingly, we VACATE the order ofthe District Court enforcing the summons and denyingGreenfield's motion to quash and REMAND for furtherproceedings consistent with this opinion.

fn1

The Clerk of the Court is respectfully directed toamend the caption of this case.

fn2

All of the LGT Documents are written in German.For all but a few, a translation to English is providedas part of the PSI record and, for the LGT Memo,Greenfield provided a competing translation. Theappropriate treatment of the LGT Memo's competingtranslations is discussed in notes 3 and 10 infra, butthe quoted language reflects the PSI translation

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except as otherwise noted.

fn3

Greenfield argues that the proper translation ofGreenfield's role is "person authorized to giveinstructions on behalf of Maverick Foundation." App.227.

fn4

On September 29, 2014, the IRS expanded itsexamination through the 2011 tax year.

fn5

We have subsequently made clear that "the test forthe production of documents is control, not location."Marc Rich & Co. v. United States, 707 F.2d 663 ,666-67 (2d Cir. 1983).

fn6

The documents sought in the instant case do not fallunder the so-called "required records exception" tothe act-of-production doctrine. That exceptionapplies to a subset of documents that must bemaintained by law. See In re Grand Jury SubpoenaDated Feb. 2, 2012, 741 F.3d 339 , 344 (2dCir. 2013). For example, the Government canrequire an individual to produce documentsrelated to foreign bank accounts maintainedpursuant to the Bank Secrecy Act ("BSA") and itsimplementing regulations, see 31 C.F.R. § 1010.420, without violating an individual's right against self-incrimination under the Fifth Amendment , see Feb.2, 2012, 741 F.3d at 342 . The Summons in thiscase, however, seeks documents that fall outsidethe five-year period under the BSA during which anindividual is required to maintain documents by law.

fn7

Although we have yet to apply the "reasonableparticularity" standard after Hubbell, many otherCircuits have done so, and we do so here. See United States v. Sideman & Bancroft, LLP, 704 F.3d1197 , 1202-03 (9th Cir. 2013); Ponds, 454 F.3d at321 .

fn8

Other courts have reached similar conclusions. See,e.g., Ponds, 454 F.3d at 326 (no foregoneconclusion that an individual with a sister hasdocuments pertaining to that sister); In re GrandJury Subpoena Duces Tecum Dated Mar. 25, 2011,670 F.3d 1335 , 1346-47 (11th Cir. 2012) (noforegone conclusion that encrypted hard drivecontained child pornography); Apr. 18, 383 F.3d at911 (foregone conclusion as to emails mentioned bywitness, but no such conclusion as to otherdocuments relating to sales or production of chipsthat were the subject of these emails).

fn9

Greenfield argues that the District Court was barredfrom considering inadmissible evidence in making aforegone-conclusion inquiry and that, because theLGT Documents would not be admissible underFederal Rule of Evidence 803(6) , the District Courthad no evidentiary foundation for its determination.Because Greenfield raised this argument only in afootnote before the District Court, it is, however,forfeited. See City of New York v. Mickalis PawnShop, LLC, 645 F.3d 114 , 137 (2d Cir. 2011).

fn10

Greenfield contends that the District Court erred bymaking use of the PSI's translation of the LGTMemo instead of Greenfield's own, certifiedtranslation. But our conclusion would remain thesame even if we accepted Greenfield's translation ofthis phrase as: "person authorized to giveinstructions on behalf of Maverick Foundation." App.227. And since this is the only part of theGovernment's translation that Greenfield argues issignificantly different than his, we conclude thedifference between the two translations isimmaterial.

In addition, Greenfield argues that the District Courterred in finding that Greenfield was "designated ashis father's Power of Attorney for Maverick" becausethe LGT Memo provides for only a limited power togive instructions. Again, however, both a generalpower of attorney and the power to give instructionswould suffice to provide Greenfield with control overdocuments stored at Maverick's account at LGT. As

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a result, any error in the District Court's finding that,in 2001, Greenfield had a general power of attorneyrather than a more limited one would be immaterial.

fn11

The Hague Evidence Convention mandates acomplicated process that is not always successful.Indeed, district courts must consider, in part, the"likelihood that resort to [Hague Convention]procedures will prove effective" in determiningwhether to apply those procedures or the FederalRules of Civil Procedure to discovery involving aforeign national. Societe Nationale IndustrielleAerospatiale v. U.S. Dist. Court for S. Dist. of Iowa,482 U.S. 522 , 544 , 107 S. Ct. 2542 , 96 L. Ed. 2d461 (1987). Moreover, the Government haselsewhere recognized the "impracticalities" ofrequesting documents from foreign banks throughtreaties, "emphasizing in particular the length of timegenerally associated with such requests, as well asthe government's lack of information through theentire request process to the foreign government."In re Grand Jury Subpoena Dated Feb. 2, 2012, 908F. Supp. 2d 348 , 357 (E.D.N.Y. 2012).

fn12

The Government might be able to authenticate theBank Documents by comparison to the thousands ofpages of LGT's internal files already in theGovernment's possession. See Fed. R. Evid.901(b)(4) ; Rue, 819 F.2d at 1494 (allowingauthentication of patient cards based on informationin patient files and a blank patient card); Sideman,704 F.3d at 1204 ("[Defendant's] billing and paymentrecords could be verified by comparing thoserecords and [defendant's] bank records."). Thatmethod of authentication could be sufficient both forthe contents of the sought documents—which wouldreflect the detail concerning LGT's relationship withMaverick as already set out in the LGTDocuments—and for the appearance of the standardLGT account forms. See United States v. Vayner,769 F.3d 125 , 132 (2d Cir. 2014) (recognizing that"contents or 'distinctive characteristics' of adocument can sometimes alone providecircumstantial evidence sufficient forauthentication").

We do not decide whether such a method ofauthentication would be sufficient in this casebecause the Government did not make theargument, the District Court failed to make anyfactual findings as to whether it is a foregoneconclusion that the sought documents could beauthenticated in this manner, and, as detailed laterin this opinion, the Government cannot establish thatthe existence and control of the sought documentswere a foregone conclusion as of 2013 when itissued the Summons, even assuming arguendo thatit could show it was a foregone conclusion that itcould authenticate the Bank Documents throughcomparison.

fn13

As written, the District Court's order might extendfurther to documents that relate to as-yetunidentified accounts that are either (1) held at oneof the financial institutions implicated in theGovernment's investigation (i.e., LGT, StandardChartered, HSBC, or the Bank of Bermuda, or (2)owned by one of the identified entities (i.e.,Maverick, Chiu Fu, or TSF). As to these as yetunidentified accounts, no "foregone conclusion" isavailable with respect to existence and control ofdocuments. For, as we recognized in Fox, the "merefact that . . . a taxpayer had 'at least one bankaccount' or 'brokerage account' does not give theIRS any information about whether the taxpayer hasrecords of other bank accounts showing income thatwas never reported in his return." 721 F.2d at 38 .As such, the fact that the Government was certainthat Greenfield held one account at HSBC does not,for instance, provide the Government with anyinformation about other accounts at HSBC. Nor doesthe fact that Chiu Fu had such an account at HBSCmean that Chiu Fu had accounts at other financialinstitutions.

fn14

This problem is particularly acute for the Trust BankDocuments because the Bank of Bermuda wasacquired by HSBC in 2004, almost a decade beforethe issuance of the Summons. App. 221.

fn15

The Ownership Requests are actually much more

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expansive, calling for "all documents relating to" and"all books and records" for each entity controlled byGreenfield. App. 21.

fn16

In passing, the Government notes that TSF andChiu Fu had "[c]ontracts of engagement" and ChiuFu had an "agency agreement" with Maverick. App.149, 153. While these documents could have beenproduced by an outside advisor, they do not render ita foregone conclusion that any particular individualwas employed.

fn17

The LGT Requests are, in fact, somewhat broader,and call for the production of many cuments thathave already been discussed. For simplicity, thisdiscussion focuses on the cuments relating toGreenfield's communications with LGT.

fn18

Greenfield argues that this argument is forfeitedbecause the Government failed to raise it below.See Mickalis Pawn Shop, 645 F.3d at 137 . Wenonetheless consider it in the interest of judicialeconomy because, if we did not, the Governmentwould still be able simply to file another summonsand raise the argument in the subsequentproceeding.

Greenfield also contends that the Government'sargument that Greenfield's possession of his expiredpassport and related travel documents cannot beincriminatory was forfeited. For similar reasons, weexercise our discretion to consider this argument aswell.

fn19

See supra text accompanying note 12.

fn20

But, given that the Government has failed to offerany affirmative evidence of LGT's document-retention policy (as an internal matter or perLiechtenstein law), this statement about banks may

have limited significance. In lieu of such evidence,the Government attempts to rely on a declarationfiled in another enforcement action based on theLGT Documents, where an IRS agent averred to thefollowing: "In my experience with a LGT-relatedexamination of another taxpayer, the taxpayer wasable to obtain documents as far back as 1980 from[LGT's trust subsidiary], even after [that subsidiary]was acquired by First Advisory Group in March2009." Supplemental Declaration of HiroakiKobayashi, United States v. Gendreau, No. 12 Misc.303 (S.D.N.Y. Jan. 8, 2013) (ECF No. 16) at ¶ 7. Nosuch affidavit was, however, filed in the presentcase.

fn21

As Zucman notes, the administrative burden ofcomplying with the FATCA may cause foreignfinancial institutions to "choose simply not to offer orto sharply limit accounts to Americans rather thandeal with the FATCA requirements." Zucman, supra2, at 63.

fn22

The validity of this observation can be verified byunpacking the subpoena's communicative andperformative components into two steps. If theGovernment already knew (say, from an informant)that Greenfield had the passport, and had probablecause to believe that it contained valuable evidenceof crime, it could obtain a search warrant to seizethe passport (or, even without probable cause, itcould serve a subpoena for its production), since theevidence in the document itself does not constitutecompelled communication. Now suppose that,lacking such knowledge, it subpoenaed Greenfieldto a grand jury to ask him directly, "Do you still haveyour expired 2001 passport?" Greenfieldunquestionably could refuse to answer; the fact thatthere is nothing incriminating about answering thathe retains his expired passports would not defeatthe privilege, given that an affirmative answer couldbe a link in the chain leading to the Government'sacquisition of the incriminating document. There isno distinction between incriminating information inthe form of an explicit verbal answer to a questionand the same information communicated implicitlyby the act of production.

United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016), Court Opinion

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United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016), Court Opinion

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General Information

Judge(s) GERARD E. LYNCH; GUIDO CALABRESI; RAYMONDJOSEPH LOHIER, JR

Related Docket(s) 15-00543 (2d Cir.);

Topic(s) Tax & Accounting; Criminal Law

Court United States Court of Appeals for the Second Circuit

Parties UNITED STATES OF AMERICA, 26 U.S.C. SECTIONS7402(b) and 7604(a): ENFORCEMENT OF INTERNALREVENUE SERVICE SUMMONS, 1 Plaintiff-Appellee, — v. —STEVEN GREENFIELD, Defendant-Appellant.

Date Filed 2016-08-01 00:00:00

United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016), Court Opinion

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United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016), Court Opinion

Direct History

1 United States v. Greenfield, 831 F.3d 106 (2dCir. 2016) vacating the order and remanding the case in

Unpublished Opinion or Order   Case Analysis    No Treatments Found  

  Direct History Summary

Caution 0

Negative 0

  Total 0

 Case Analysis Summary

Positive 0

Distinguished 0

Caution 0

Superseded 0

Negative 0

  Total 0

  

United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016), Court Opinion

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