## Facts

- A federal grand jury in the District of Columbia investigated an alleged money-laundering scheme involving U.S. citizens and entities under 18 U.S.C. § 371 and 31 U.S.C. § 5322.
- A subpoena duces tecum demanded (1) bank documents created and held at a branch in “Country Y” and (2) testimony from the bank’s U.S.-agency manager about customer transactions and related matters.
- “Country Y” had a bank-secrecy law making it a crime to disclose, to anyone other than the customer, information about transactions and bank documents created in Country Y relating to that customer.
- The bank was owned by the government of “Country X” and did business in multiple countries, including the United States and Country Y.
- The manager was a citizen of Country X with substantial ties to Country Y and had previously served as assistant manager at the bank’s Country Y branch; some subpoenaed transactions occurred during that time.
- The bank and manager provided limited cooperation, including meetings with prosecutors and the manager’s grand jury testimony about information learned in a personal capacity.
- Both ultimately refused to produce the Country Y documents or provide testimony revealing Country Y customer banking activities, citing Country Y criminal penalties; the manager also asserted the Fifth Amendment; both invoked international comity.

## Issues

1. Whether a witness may invoke the Fifth Amendment privilege against self-incrimination based on fear of prosecution under a foreign nation’s criminal law.
2. Whether international comity and a direct conflict with a foreign criminal bank-secrecy law barred holding a foreign, government-owned bank in civil contempt for noncompliance with a U.S. grand jury subpoena.

## Decision

- The court affirmed the civil contempt order against the manager.
- The court held the manager could not rely on a fear of prosecution in Country Y to invoke the Fifth Amendment on these facts.
- The court reversed the civil contempt order against the bank.
- The court concluded that, given the specific circumstances and comity concerns, contempt sanctions against the bank were inappropriate where compliance would require violating Country Y’s criminal law.

## Legal Principles

- A Fifth Amendment claim premised on foreign prosecution requires a sufficiently real and substantial risk; a speculative or avoidable risk does not justify refusal to comply with compelled testimony or production.
- When fear of foreign prosecution depends on the witness’s voluntary return to the foreign country, and the witness cannot be extradited from the United States for the foreign offense, the risk may be treated as too remote for Fifth Amendment protection.
- In enforcing subpoenas that conflict with foreign criminal laws, courts may weigh international comity and the severity of the conflict in deciding whether contempt sanctions are appropriate.
- Comity considerations may carry added weight where the subpoenaed entity is foreign and government-owned, is not suspected of wrongdoing in the underlying investigation, and has shown good-faith efforts to cooperate short of violating foreign criminal law.

## Conclusion

The D.C. Circuit upheld contempt against a bank manager who refused compliance based on an avoidable fear of foreign prosecution, but it declined to sanction a foreign state-owned bank where compliance would directly violate a foreign criminal bank-secrecy statute and comity considerations counseled against contempt.


In re Sealed Case, 825 F.2d 494 (D.C. Cir. 1987)