18 U.S.C. § 986: Subpoenas for bank records

Summary

Allows a party in an in rem forfeiture case under 18 U.S.C. 1956, 1957, 1960, 31 U.S.C. 5322 or 5324, or the Controlled Substances Act to ask the court clerk to order a financial institution (as defined in 31 U.S.C. 5312(a)) to hand over books, records, and other documents to a place chosen by the person asking. All parties must be told when the order is issued. The rules in 18 U.S.C. 985 also apply. The order must be served by certified mail. Records can be delivered in person, by mail or carrier, or another agreed way. The requester may ask the bank’s recordkeeper for a sworn statement saying the records are complete and explaining any missing items. If foreign bank records might matter to a claim, or to the government’s case in civil forfeiture or certain criminal forfeiture proceedings, and the claimant can waive foreign secrecy laws or get the records, then refusing to provide or to secure those records can lead a judge to punish the claimant, up to throwing the claim out for good. A claimant can still refuse to produce records based on any constitutional or other federal privilege.

Title 18, §986

Crimes and Criminal Procedure, Source: USLM XML via OLRC

(a)At any time after the commencement of any action for forfeiture in rem brought by the United States under section 1956, 1957, or 1960 of this title, section 5322 or 5324 of title 31, United States Code, or the Controlled Substances Act, any party may request the Clerk of the Court in the district in which the proceeding is pending to issue a subpoena duces tecum to any financial institution, as defined in section 5312(a) of title 31, United States Code, to produce books, records and any other documents at any place designated by the requesting party. All parties to the proceeding shall be notified of the issuance of any such subpoena. The procedures and limitations set forth in section 985 of this title shall apply to subpoenas issued under this section.

(b)Service of a subpoena issued pursuant to this section shall be by certified mail. Records produced in response to such a subpoena may be produced in person or by mail, common carrier, or such other method as may be agreed upon by the party requesting the subpoena and the custodian of records. The party requesting the subpoena may require the custodian of records to submit an affidavit certifying the authenticity and completeness of the records and explaining the omission of any record called for in the subpoena.

(c)Nothing in this section shall preclude any party from pursuing any form of discovery pursuant to the Federal Rules of Civil Procedure.

(d)Access to Records in Bank Secrecy Jurisdictions.—

(1)In general.—

In any civil forfeiture case, or in any ancillary proceeding in any criminal forfeiture case governed by section 413(n) of the Controlled Substances Act (21 U.S.C. 853(n)), in which—

(A)financial records located in a foreign country may be material—

(i)to any claim or to the ability of the Government to respond to such claim; or

(ii)in a civil forfeiture case, to the ability of the Government to establish the forfeitability of the property; and

(B)it is within the capacity of the claimant to waive the claimant’s rights under applicable financial secrecy laws, or to obtain the records so that such records can be made available notwithstanding such secrecy laws,

the refusal of the claimant to provide the records in response to a discovery request or to take the action necessary otherwise to make the records available shall be grounds for judicial sanctions, up to and including dismissal of the claim with prejudice.

(2)Privilege.—

This subsection shall not affect the right of the claimant to refuse production on the basis of any privilege guaranteed by the Constitution of the United States or any other provision of Federal law.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Controlled Substances Act, referred to in subsec. (a), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see

Short Title

note set out under section 801 of Title 21 and Tables. section 985 of this title, referred to in subsec. (a), was enacted by Pub. L. 106–185, and relates to civil forfeitures of real property and not to procedures and limitations for subpoenas. The reference to section 985 was included in this section when it was enacted by Pub. L. 102–550, but at that time there was no section 985 of this title. The Federal Rules of Civil Procedure, referred to in subsec. (c), are set out in Title 28, Appendix, Judiciary and Judicial Procedure.

Amendments

2000—Subsec. (d). Pub. L. 106–185 added subsec. (d). 1994—Subsec. (a). Pub. L. 103–325 substituted “section 5322 or 5324 of title 31” for “section 5322 of title 31”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2000 AmendmentAmendment by Pub. L. 106–185 applicable to any forfeiture proceeding commenced on or after the date that is 120 days after Apr. 25, 2000, see section 21 of Pub. L. 106–185, set out as a note under section 1324 of Title 8, Aliens and Nationality.

§986 Subpoenas for Bank Records