Handbook 9.4
Investigative Techniques
Chapter 3
Formal Written Request
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Contents
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The formal written request is a procedure which allows access to financial
information from financial institutions as defined in 12 USC, Section 3401(1).
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NOTE:
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A financial institution is defined as any office of a bank; savings bank;
credit card issuer as defined in section 1602(n) of Title 15: industrial
loan company; trust company; savings association; building and loan, or homestead
association (including cooperative banks); credit union; or consumer finance
institution, located in any state or territory of the United States, the
district of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
This chapter covers the following topics:
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Authority
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Provisions
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Use of a Formal Written Request
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Procedures to Issue a Formal Written Request Package
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Sharing Information
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Production Costs
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Record Keeping
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Treasury Directive 15-42 has delegated to the Commissioner, Internal Revenue
Service (IRS), the authority to investigate criminal violations of Title
18 USC Sections 1956 and 1957 where underlying conduct is subject to
investigation under Title 26 or the Bank Secrecy Act, Title 31 USC Sections
5311-5326 (other than violations of Section 5316). Therefore, because Criminal
Investigation (CI) has the above authority, it also has the authority to
use the Formal Written Request pursuant to Title 12 USC, Section 3408, The
Right to Financial Privacy Act (RFPA) , and the accompanying Delayed
Notice, Title 18 Section 3409.
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Formal written requests for financial records has limited use within CI.
Title 12 USC, Section 3408 provides authority for use of the formal written
request to obtain financial records from financial institutions. The information
obtained through such as request can be used in both criminal and civil matters.
A government authority may request financial records under Section 3402(5)
of this title pursuant to a formal written request only if:
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No administrative summons or subpoena authority reasonably appears to be
available to that government authority to obtains financial records for the
purpose for which such records are sought.
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The request is authorized by regulations promulgated by the head of the agency
or department.
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There is reason to believe that the records sought are relevant to a legitimate
law enforcement inquiry.
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A copy of the request has been served upon the customer or mailed to his
last known address on or before the date on which the request was made to
the financial institution along with a notice which states with reasonable
specificity the nature of the law enforcement inquiry.
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NOTE:
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Customer as defined by the Right to Financial Privacy Act, (RFPA) Section
3401(5) does not include partnerships of five or more persons or corporations.
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Non-grand jury Title 18 and Title 31 investigations, with the exception of
Title 31 investigations done solely for the purpose of perfecting a Title
18 Section 981 forfeiture, fit within the requirements of Section 3408.
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Since the Internal Revenue Code (IRC), Title 26, Section 7602 grants summons
authority for civil and criminal investigations of Title 26, the Formal Written
Request shall not be made in Title 26 investigations. When investigating
Title 26 violations, the procedures for third party record keeper summonses,
under IRC, Section 7609, still apply.
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Financial institutions have the right to refuse to comply with the formal
written request even after a customer loses a court challenge. The Right
to Financial Privacy Act, Section 3411, entitled Duty of financial institutions,
provides that financial institutions shall only deliver records requested
under Section 3405, the administrative subpoena and summons and under Section
3407, the judicial subpoena. Section 3408 is not included. The formal written
request is not equal to the mandate of a summons or subpoena and is not
enforceable. However, legislative history does indicate that the notice and
audit trails provided by the formal written request procedures fulfill the
purpose of the RFPA and should promote voluntary cooperation by the financial
institutions with Government agencies seeking records legitimately.
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The formal written request for financial records has limited use within CI.
The formal written request can be used when an administrative summons or
a grand jury subpoena cannot be used. Formal written requests can be used
for the evaluation of Title 31 or Title 18 information items and to develop
information to identify property for a civil seizure. The information obtained
through this request can be used for civil and criminal purposes and may
be shared with civil divisions of the IRS and other law enforcement agencies.
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If CI, in a Title 31 investigation, seeks to obtain a financial institution's
records for civil purposes, only, such as perfecting a Title 18 Section 981
forfeiture, it must use a Title 31 Summons, as opposed to a formal written
request. Title 12 USC, Section 3408(1) specifically provides that a formal
written request is unavailable where a government authority may obtain an
administrative summons or subpoena.
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A Formal Written Request Package has been developed for use when delay of
notice to the customer is desired. A major benefit of the formal written
request is the ability to obtain a court order delaying the notice to the
customer. Section 3409 of the Right to Financial Privacy Act (RFPA) permits
the Service to apply to the court ex parte for a delay of the notice
to the customer.
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[9.4]
3.4.1.1 (06-30-1998)
Canvas Letters differentiated from the Formal Written Request
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Canvas letters, in the context of money laundering investigations under Titles
18 and 31, are different from Formal Written Requests. Canvas letters are
written requests made by special agents to financial institutions to learn
whether a customer has an account. Section 3413(g) provides that, for legitimate
law enforcement inquiries, when a government authority seeks (only) the name,
address, account number and type of account of any customer, the notice
requirements shall not apply. Thus, unlike Formal Written Requests, the notice
requirements of RFPA do not apply to canvas letters.
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[9.4] 3.5 (06-30-1998)
PROCEDURES TO ISSUE A FORMAL WRITTEN REQUEST PACKAGE
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This section includes procedures for the use of the Formal Written Request
package and the documents needed. There are four different documents needed
to obtain a Formal Written Request and an Order to Delay Notice. They are:
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The Application for Delay of Notice (Exhibit 3-1)
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Ex parte Order to Delay Notice and, Order to Seal Ex Parte
Application (Exhibit 3-2)
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Formal Written Request (Exhibit 3-3)
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Affidavit of the Special Agent (Exhibit 3-4)
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After service of the Formal Written Request (Exhibit 3-3), the agent must
comply with further notice and record keeping requirements (Exhibits 3-5
and 3-6) or send notice to the customer (Exhibit 3-7).
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In the event the extension for the Delay of Notice has not been timely filed,
a Nunc Pro Tunc extension can be prepared (Exhibit 3-8).
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The Application for Delay of Notice is a request made to the court for the
Issuance of a Delay of Notice to the Financial Institution and a Request
for an Order to Seal the Application and Affidavit (Exhibit 3-1). It is important
to use the specific language contained in the Application for Delay of Notice
(Exhibit 3-1). The requirements of the Formal Written Request mandate that
certain certifications need to be made to the court. The Application for
the Delay of Notice in Exhibit 3-1 meets the requirements of the Right to
Financial Privacy Act (RFPA).
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[9.4]
3.5.2 (06-30-1998)
Ex Parte Order to Delay Notice and, Order to Seal Ex parte
Application
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The second document is the Ex Parte Order to Delay Notice and, Order
to Seal Ex Parte Application (Exhibit 3-2). This order is signed by
the U.S. Magistrate Judge and a copy of the order is given to the financial
institution. The order directs the financial institution to delay notice
to anyone concerning the Formal Written Request. The order also seals the
Application and the Affidavit prepared by the special agent.
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The third document is the actual Formal Written Request (Exhibit 3-3). The
Formal Written Request is a letter from the Chief, CI to the financial
institution requesting the specific financial information needed. The request
cannot be vague by making a general statement such as All bank records relating
to John Doe. The Formal Written Request must be signed by the Chief, CI or
designee.
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The affidavit of the special agent (Exhibit 3-4) consists of three parts:
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The investigative experience of the agent.
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The reasons the records are needed for legitimate law enforcement inquiry.
Agents typically need the records for a lawful investigation or official
proceeding inquiring into a violation of, or failure to comply with, any
criminal statute or any regulation, rule, or order issued pursuant thereto.
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The reason for delay of notice.
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Forward this package (Exhibits 3-1 through 3-4) to the United States Attorney's
office for approval. Submit the completed package, after approval, containing
the Request and accompanying Order, to the United States Magistrate Judge
or Judge. Once the Order is signed by the Magistrate Judge or Judge, serve
the Formal Written Request and accompanying Order on the financial institution.
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After service of the Formal Written Request (Exhibit 3-3), the agent must
comply with further notice and record keeping requirements. The main post-service
requirement is notice to the customer. Generally, the Order to Delay Notice
and Order to Seal Ex Parte Application (Exhibit 3-2) allow the agent
a 90 day delay after the signing of the Order by the Magistrate or Judge
before the agent must give notice to the customer that a Formal Written Request
has been served. After the expiration of the 90 days, the agent must either
apply for an extension of the Order to Delay Notice (Exhibit 3-5 and 3-6)
or send notice to the customer (Exhibit 3-7).
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Exhibits 3-5 and 3-6 are examples of an Application For Extension Of The
Delay Of Notice and the Order to Extend The Delay of Notice. Prior to the
end of the 90 days, this extension should be completed and given to the Assistant
United States Attorney responsible for the case.
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In the event the extension for the delay of notice is not timely filed, a
Nunc Pro Tunc extension can be prepared (Exhibit 3-8). A Nunc Pro
Tunc application is a request to the court to hold the government harmless
and to restore it to its original position, and treat the application for
the extension for Delay of Notice as though it was timely filed. First, determine
if the financial institution has given notice at the end of the 90 days.
If not, then the Nunc Pro Tunc application can be filed. If the financial
institution has given notice, then notify the customer of the financial
institution that a Formal Written Request was served. The Nunc Pro Tunc
procedure should not be a standard practice and utilized sparingly.
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At the expiration of the period for the Delay of Notice, the law requires
that notice be sent to the customer of the financial institution stating
his or her records were obtained pursuant to a Formal Written Request (Exhibit
3-7). Giving notice of the Formal Written Request is similar to the notice
given when a summons is served on a third party record keeper. Notice is
only required for the owner of the account, who may not be the target of
the investigation.
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The notice must state the date of the request, the reason the notice was
delayed, and the general purpose of the investigation. The example in Exhibit
3-7 illustrates that the explanations need not be lengthy or detailed. In
addition to this letter, a copy of the actual Formal Written Request (Exhibit
3-3) must be sent to the customer.
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Information obtained via a Formal Written Request can be shared with the
Examination and Collection Divisions without notice to customers. This
information can also be shared with other local, state, and federal law
enforcement agencies. Prior to sharing the financial information with anyone
else, the receiving agency must certify in writing that there is a reason
to believe the records are relevant to a legitimate law enforcement inquiry
within their jurisdiction. Title 12 USC Section 3412(a).
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Within 14 days after the records are transferred to another agency, notice
must be sent to the customers advising them of the transfer. A copy of the
aforementioned certification from the receiving agency must accompany this
notice. The notice sent to the customer must specify the nature of the law
enforcement inquiry, who the records were transferred to, and a brief statement
concerning their appeal rights. If a Delay of Notice has been obtained, this
notice does not have to be sent until 14 days after the expiration of the
Order to Delay Notice.
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The IRS must reimburse the financial institution for expenses incurred in
producing the records requested. The guidelines that are followed for the
rate of payment to the financial institution are the same as for a grand
jury subpoena. When bills are received pursuant to a Title 12 Ex Parte
Order (Formal Written Request), they should be referred immediately to the
Administrative Assistant, who pays the financial institution under the IRS,
Sub Object Code, (SOC) 2505, Securing Evidence Expense.
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Keep all Ex Parte (Formal Written Requests) and the information separate
from other records. Information obtained with a Formal Written Request can
later be used in a grand jury investigation or for civil
forfeiture.
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Exhibit [9.4] 3-1 (06/30/98)
The Application for Delay of Notice
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UNITED STATES DISTRICT COURT
(JUDICIAL DISTRICT) |
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IN RE: DELAY OF NOTICE ORDER FOR FINANCIAL PRIVACY
ACT INFORMATION/RECORDS
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MISC. NO. |
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EX PARTE
APPLICATION FOR ISSUANCE OF DELAY OF NOTICE ORDER.
PURSUANT TO TITLE 12 USC SECTION 3401 ET SEQ.,
AND
REQUEST TO SEAL APPLICATION AND AFFIDAVIT |
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| NOW COMES the United States of America, (U.S.
ATTORNEY), United States Attorney, by (AUSA), Assistant United States Attorney,
on behalf of the Internal Revenue Service (IRS), Criminal Investigation,
an agency of the Department of the Treasury, and makes the following Application: |
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| (1) Application is made pursuant to Title 12 USC, Section
3401-3422 and 31 CFR Section 14.1 et seq., for the issuance of an order of
this Court which (a) orders that notice of the service of the formal written
request for information prepared in compliance with Title 12 USC Section
3401 et seq. be delayed for the period of ninety (90) days as provided by
statute; (b) directs that notice of the production of documents pursuant
to such formal written request be delayed for a period of ninety (90) days
as allowed by Title 12 USC Section 3409; and (c) that the Ex Parte
Application and its supporting documents be sealed until the further order
of this Court, or until the expiration of the delay of notice period, whichever
occurs first. |
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| (2) The requested financial records are obtainable from
the named institution as such institution is a "financial institution" as
defined in Title 12 USC Section 3401(1). |
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| (3) The requested financial records are discloseable
in accord with the terms and provisions of Title 12 USC Section 3402(5) which
provides in relevant part that: |
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Except as provided by 3403(c) or (d), 3413, or 3414 of this
title, no government authority may have access to or obtain copies of, the
information contained in the financial records of any customer from a financial
institution unless the financial records are reasonably described and such
financial records are disclosed in response to a formal written request which
meets the requirements of section 3408 of this title. |
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| (4) Title 12 USC Section 3408 permits the government
to request and obtain financial records pursuant to Section 3402(5) by means
of a "formal written request" where: (a) no administrative summons or
subpoena authority reasonably appears to be available to that governmental
authority to obtain the records for the purpose for which they are sought;
(b) the request is authorized by regulations of the requesting agency
or department; (c) there is reason to believe that the records sought
are relevant to a legitimate law enforcement inquiry; and (d) a copy
of the request has been served or mailed to the targeted customer. |
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| (5) The United States asserts that in light of the specific
nature of the present investigation, there is no administrative summons or
subpoena authority existing which is available to the governmental authority
on whose behalf this Ex Parte Application is being made. |
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| (6) The formal written request which underlies this
Ex Parte Application is authorized by the regulations of the requesting
governmental agency or department (31 CFR Section 14.3). |
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| (7) There is reason to believe that the records requested
are relevant to a legitimate law enforcement inquiry. "Law enforcement inquiry"
is defined in Title 12 USC Section 3401(8) as a lawful investigation or official
proceeding into a violation of, or failure to comply with, and criminal or
civil statute or any regulation, rule, or order issued pursuant thereto. |
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| (8) As more fully set forth in the affidavit attached
to this Ex Parte Application, the law enforcement inquiry involved
in this matter relates to violations or potential violations of the following
statutes: (18 USC Section 1956, Section 1957); and other related offenses. |
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| (9) Pursuant to Title 12 USC Section 3409(a), the government
may obtain an order permitting the delay of notice to the customer whose
records are being sought, such notice being otherwise required, if certain
conditions are met: |
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| (i) the investigation being conducted is
within the lawful jurisdiction of the governmental authority seeking the
financial records; |
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| (ii) there is reason to believe that the
records being sought are relevant to a legitimate law enforcement inquiry;
and |
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| (iii) there is reason to believe that such
notice, if not delayed, will result in: |
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| (a) endangering the life or
physical safety of any person; |
| (b) flight from prosecution; |
| (c) destruction or tampering
with evidence; |
| (d) intimidation of potential
witnesses; or |
| (e) otherwise seriously jeopardizing
an investigation or official proceeding. |
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| (10) As defined in Title 12 USC Section 3401(3), a
"governmental authority" means any agency or department of the United States
or any officer, employee, or agent thereof. This Ex Parte Application
is being made on behalf of, and at the instance of, a Special Agent of the
United States Internal Revenue Service, Criminal Investigation, which is
an agency of the Department of the Treasury, being a branch of the government
of the United States. |
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| (11) In support of this Ex Parte Application,
the affiant asserts that the records being sought will establish not only
the existence of assets belonging to the above-named parties, but the existence
of transactions and/or attempted transactions in violation of the laws of
the United States and/or evidence which will help prove violations of other
federal statutes. The investigation of those statutes and regulations is
within the authority of the Department of Treasury and the United States
Internal Revenue Service, to wit, Title 18 USC Sections 981 and 982; Section
1956; Section 1957; and Title 31 USC Sections 5313 and 5324. |
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| (12) The affiant asserts that if a delay of notice is
not obtained from this Court, there is a likelihood that evidence may be
destroyed or tampered with, and that the investigation will be jeopardized
or hindered by the transfer or secretion of assets and/or evidence of violations
of the statutes and regulations set forth above. |
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| (13) Based upon the above noted facts, and on the assertions
contained in the affidavit in support of this Ex Parte Application,
the Plaintiff United States asserts that: (1) the investigation being
conducted is within the lawful authority of the named federal law enforcement
inquiry; and (2) notice to the named individual(s) would likely result
in the destruction or tampering of evidence and would likely result in impeding
or jeopardizing the current investigation to the detriment of the government. |
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| (14) Based on the nature of this investigation and on
the risk that public disclosure of an investigation would compromise it,
the United States also requests that this Court seal this Ex Parte
Application, the affidavit filed in support of it, and the Order granting
the application until the further order of this Court except, of course,
for purposes of service of the Order on the named financial institution(s). |
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| CONCLUSION AND RELIEF |
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| WHEREFORE, the Plaintiff United States respectfully requests
that this Honorable Court issue the attached order. |
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Respectfully Submitted;
(U.S. ATTORNEY)
United States Attorney |
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(AUSA)
Assistant United States Attorney |
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| VERIFICATION |
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| I, (AUSA), an Assistant United States
Attorney for the (JUDICIAL DISTRICT), declare that the foregoing Application
is based upon information provided to me by agents of the Internal Revenue
Service, Criminal Investigation and that said information is, to the best
of my knowledge and belief, true and accurate. |
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(AUSA)
Assistant United States Attorney |
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| DATED: MONTH/DAY/YEAR |
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Exhibit [9.4] 3-2 (06/30/98)
Ex Parte Order to Delay Notice and, Order to Seal Ex Parte
Application
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UNITED STATES DISTRICT COURT
(JUDICIAL DISTRICT) |
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IN RE: DELAY OF NOTICE ORDER FOR FINANCIAL PRIVACY ACT
INFORMATION/RECORDS
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MISC. NO. |
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EX PARTE ORDER TO DELAY NOTICE
AND;
ORDER TO SEAL EX PARTE APPLICATION |
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| This matter has come before this Court pursuant
to the Ex Parte Application of the Plaintiff United States requesting
the entry of an order by this Court which: (1) orders that notice of
the service of one or more formal written requests for information
prepared in compliance with Title 12 USC Section 3401 et. seq. be delayed
for the period of ninety (90) days as provided by statute; (2) directs
that notice of the production of documents pursuant to such formal
written request be delayed for a period of ninety (90) days as allowed by
Title 12 USC Section 3409; and (3) that the Ex Parte Application
and its supporting documents be sealed until the further order of this Court,
or until the expiration of the delay of notice period, whichever occurs first. |
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| This Court, having read the Ex Parte
Application and its supporting affidavit, having reviewed the formal written
request, being familiar with the statute under which this Order is sought,
having found the investigation being conducted is within the lawful authority
of the governmental authority seeking the information, that there is no
administrative summons or subpoena authority available to acquire the requested
information, finds there does exist reason to believe the records requested
are relevant to a legitimate law enforcement inquiry, and there exists reason
to believe notice of such document request and of any production of documents
pursuant to it will likely result in the destruction of, or tampering with,
evidence, and/or will otherwise seriously jeopardize or impede an investigation. |
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| IT IS HEREBY ORDERED THAT service of the Formal
Written Request for information be delayed for ninety (90) days. |
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| IT IS FURTHER ORDERED THAT the named financial
institution, its officers, employees, and agents shall not provide notice
to any customer(s) whose records are the subject of the formal written request,
either of the service of that request, or of the production of any such documents
or information pursuant to that request, or of the existence of this order,
for a period of ninety (90) days from the date of this order. |
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| IT IS FURTHER ORDERED THAT the Ex Parte
Application and all related documents shall be sealed from public view until
the further order of this Court, or until the expiration of the delay of
notice period, excepting the service of this Order and the formal written
request to which it applies on the involved financial institution. |
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UNITED STATES MAGISTRATE JUDGE/JUDGE
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| DATED: _____ |
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Exhibit [9.4] 3-3 (06/30/98)
Formal Written Request
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| Internal Revenue Service |
Department of the Treasury |
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Criminal Investigation
(ADDRESS) |
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| District |
| Director |
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Person to Contact:
Special Agent (Name)
Telephone Number:
(Phone Number)
Refer Reply To:
CI
Date: |
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| IN RE: |
FORMAL WRITTEN REQUEST FOR PRODUCTION OF INFORMATION PURSUANT
TO RIGHT TO FINANCIAL PRIVACY ACT, TITLE 12 USC, SECTION 3401-3422 ET SEQ. |
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| To Whom It May Concern: |
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This letter is a formal written request to you to provide
any and all records, documents, and other information in your possession,
or within your control, relating to the following persons or entities: |
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NAME:
ADDRESS:
SSN: |
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You are hereby requested to produce all documents listed
in the attachment to this FORMAL WRITTEN REQUEST. |
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Production and or disclosure of the above records, documents,
and information is to be made to: |
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Special Agent (NAME)
Internal Revenue Service
(ADDRESS FOR PRODUCTION)
(ADDRESS) |
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| The date set for the production of the records is _____ . |
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| As noted in the attached Order of the United States District
Court for the _____ District of _____ , you are ordered to delay providing
any notice of the service of this formal written request, or of your production
of documents, records or information pursuant to it, to your customer for
a period of ninety days unless such delay period is extended by further order
of the Court. You will be notified if such an extension is obtained. |
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| Should you have any questions regarding this formal written
request, you may contact Special Agent (NAME) at (TELEPHONE NUMBER). |
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| As required by the Right to Financial Privacy Act, Title
12 USC, Section 3401 et seq., and the applicable Code of Federal Regulations
31 CFR, Section 14.1 et. seq., certification is hereby made that the requesting
governmental agency has complied with the applicable provisions of that Act
and Regulation. |
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(Signed by Chief CI or designee)
Chief, Criminal Investigation
Internal Revenue Service
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| Attachments: As Stated |
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Exhibit [9.4] 3-4 (06/30/98)
Affidavit of Special Agent
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UNITED STATES DISTRICT COURT
(JUDICIAL DISTRICT) |
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IN RE: DELAY OF NOTICE ORDER FOR FINANCIAL PRIVACY
ACT INFORMATION AND RECORDS
_____ / |
MISC. NO. _____ |
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AFFIDAVIT SUPPORTING ORDER OF
DELAYED
CUSTOMER NOTICE RELATING TO SERVICE OF
FORMAL WRITTEN REQUEST ON FINANCIAL INSTITUTION |
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| I,
(Special
Agent), being duly sworn, depose and say
as follows: |
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| I. |
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| Background of Affiant |
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| 1. I am a special agent
of the Criminal Investigation of the Internal Revenue Service and have been
so employed for approximately seventeen years. my responsibilities include
the investigation of possible criminal violations of the Internal Revenue
Laws (Title 26, United States Code), the Foreign Bank Secrecy Act (Title
31, United States Code), the Money Laundering Control Act (Title 18, United
States Code), and related offenses |
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| 2. As a special agent
of the Internal Revenue Service, I have received approximately 19 weeks of
basic training at the U.S. Treasury, Federal Law Enforcement Training Center
in Glynco, Georgia. This training covered all aspects of financial investigation.
I have also received advanced training in money laundering investigations
and asset forfeitures. I have instructed other agents and government attorneys
in money laundering and asset forfeiture. |
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| 3. I have personally conducted
more than xx complex financial investigations. I have also participated in
the execution of over xx search and seizure warrants in the capacity of affiant
and/or participant. |
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| II. |
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| IRS Investigative Jurisdiction |
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| 4. Authority to investigate
possible violations of Title 31, United States Code, Section 5324 and Title
18, United States Code, Section 1956 and Section 1957, is delegated to the
Criminal Investigation of the Internal Revenue Service. Authority to seize
assets under the civil forfeiture proceedings of Title 18, United States
Code, Section 981, is currently delegated to the Chief, Criminal Investigation,
and is redelegated to Special Agents of Criminal Investigation on a case-by-case
basis. |
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| III. |
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Structuring of Currency Transactions to
Evade
Currency Reporting Requirements |
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| 5. On or about (EXPLAIN
BASIS OF INVESTIGATION/IF CASHIERS CHECKS ARE USED, USE THE FOLOWING FORMAT) |
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Purchase
Date |
Cashier's
Check # |
Issuing
Bank |
Purchaser |
Amount |
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| 6. On (DATE OF FIRST REQUEST
IF THERE WAS ONE), records were obtained from the (FINANCIAL INSTITUTION)
pursuant to the service of a Formal Written Request as authorized under Title
12 of the United States Code. An examination of these records established
that: |
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| 7. Based on my training
and the facts contained herein, I have reason to believe that a violation
of (LIST STATUTES) may have occurred and I intend to serve a formal written
request on the (FINANCIAL INSTITUTION) IN ORDER TO DETERMINE THE SOURCE OF
THE FUNDS AND ANY OTHER IDENTIFYING OR TRANSACTIONAL INFORMATION RELATIVE
TO (ASSOCIATE OR SUBJECT). The acquisition of this information is necessary
to document probable cause for seizure and forfeiture under Title 18, United
States Code, Section 981(a)(1)(A), except where such seizure would have a
Title 31 predicate, and/or to establish a violation under Title 18 or 31
of the United States Code. |
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| 8. I have reason to believe
that providing notice of the service of this formal written request to
(CUSTOMER'S NAME) (as required by 12 USC, Section 3408(4)(A)) will seriously
jeopardize the criminal case and likelihood of a successful seizure and
forfeiture under 18 USC, Section 981(a)(1)(A). During the 10 day waiting
period required under Title 12 USC, Secton 3408(4)(B), the involved parties
could easily divest themselves of the property and conceal the proceeds from
the sale. |
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| 9. I respectfully request
that the Court grant a Delayed Notice Order relating to service of this Formal
Written Request on the (FINANCIAL INSTITUTION) for records and testimony
relative to this investigation (as authorized by Title 12 USC, Section 3409). |
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| I further request that the Court
issue an order to the (FINANCIAL INSTITUTION(S)) commanding production of
the requested records and prohibiting their officers, employees, and agents
from providing notice to any customers whose records are the subject of the
formal written requests for a period of ninety days. |
|
| I further request the Court order
the Ex Parte Application and its supporting documents be sealed until
further order of this Court or until the expiration of the delay of notice
period, whichever occurs first. |
|
|
|
|
_____
(SPECIAL AGENT)
Special Agent, Internal Revenue Service
Criminal Investigation |
|
|
Subscribed and sworn to before
me this _____ day of _____ , 19 . |
|
|
_____
U.S. Magistrate Judge/Judge
(JUDICIAL DISTRICT) |
|
|
Exhibit [9.4] 3-5 (06/30/98)
Ex Parte Application for Extension of Delay of Notice and Order Sealing
Documents
| > |
UNITED STATES DISTRICT COURT
(JUDICIAL DISTRICT) |
|
IN RE: DELAY OF NOTICE ORDER FOR
FINANCIAL PRIVACY ACT INFORMATION/
RECORDS, EXTENSION OF DELAY |
MISC. NO. |
|
EX PARTE APPLICATION FOR
EXTENSION OF DELAY OF NOTICE AND
ORDER SEALING DOCUMENTS |
|
| NOW COMES the UNITED STATES OF AMERICA, Plaintiff,
(United States Attorney), by (AUSA), Assistant United States Attorney and,
in support of this Motion, states that: |
|
| 1. On (DATE OF ORDER) the United States
presented an Ex Parte Application and Affidavit in support thereof,
to the United States District Court for the (JUDICIAL DISTRICT) seeking the
entry of any order directing compliance by (FINANCIAL INSTITUTION) with a
Formal Written Request issued pursuant to Title 12 USC, Section 3401 et seq. |
|
| 2. On (DATE) U.S. Magistrate Judge/Judge
(NAME), having reviewed the Ex Parte Application and the Affidavit
in support thereof, entered an order providing notice to the customer of
the financial institution would be delayed for a period of 90 days as provided
by statute. Title 12 USC, Section 3409(a)(1), (2), and (3)(C) and (E) provides
for such delay where: |
|
|
(i) |
the investigation being conducted is within the lawful
jurisdiction of the governmental authority seeking the financial records; |
|
(ii) |
there is reason to believe that the records being sought
are relevant to a legitimate law enforcement inquiry; and |
|
(iii) |
there is reason to believe that such notice, if not delayed,
will result in; (a) the destruction or tampering with evidence, or (b) otherwise
seriously jeopardize an investigation. |
|
| 3. The investigation being conducted
by the Internal Revenue Service, Criminal Investigation, is not complete
at this time. Records and information obtained from the Formal Written Request
will assist in the investigation of (NAME OF TARGET) in the (JUDICIAL DISTRICT).
The named individual has been identified through the investigation as being
directly or indirectly involved in the (STRUCTURING OF MONETARY INSTRUMENTS
OR MONEY LAUNDERING). |
|
| 4. Title 12 USC, Section 3409(b)(2)
of the Financial Privacy Act provides that the Court may grtant extensions
of the delay of notice, of up to ninety days each, upon application of the
United States, when such extension is in accordance with Section 3409(b). |
|
| 5. Based on the continuing nature
of this investigation, on the progress made to this point, on the likelihood
that further investigation will result in the identification of other persons
involved in violations of federal currency and money laundering laws, and
in the gathering of sufficient evidence and information to support a civil
forfeiture action and or criminal indictment, the United States requests
that this Court extend the delay period for an additional 90 days and continue
to seal all documents related to this matter. |
|
| CONCLUSION AND RELIEF |
|
| WHEREFORE, the Plaintiff United States respectfully
requests that this Honorable Court enter the Order submitted with this Ex
Parte Application. |
|
|
|
|
Respectfully submitted, |
|
|
|
|
|
(U.S. ATTORNEY)
United States Attorney |
|
|
|
|
(AUSA)
Assistant United States Attorney
(ADDRESS) |
|
|
|
|
Dated: |
|
| VERIFICATION |
|
| I, (AUSA) an Assistant United States Attorney
for the (JUDICIAL DISTRICT), declare that the foregoing Application is based
upon information provided to me by agents of the Internal Revenue Service,
Criminal Investigation, and that said information is, to the best of my knowledge
and belief, true and accurate. |
|
|
|
|
_____
Assistant U.S. Attorney |
|
| Dated: |
|
| VERIFICATION |
|
| I, (SPECIAL AGENT NAME), a special agent for
the Internal Revenue Service, Criminal Investigation; declare that the foregoing
Application is based upon information gathered by me, and that said information
is, to the best of my knowledge and belief, true and accurate. |
|
|
|
|
_____
(SPECIAL AGENT NAME)
|
|
| Dated: |
|
|
Exhibit [9.4] 3-6 (06/30/98)
Order Extending Delay of Notice and Order to Seal
| > |
UNITED STATES DISTRICT COURT
(JUDICIAL DISTRICT) |
|
IN RE: DELAY OF NOTICE ORDER FOR
FINANCIAL PRIVACY ACT INFORMATION/
RECORDS: EXTENSION OF DELAY |
MISC. NO. |
|
ORDER EXTENDING DELAY OF
NOTICE
AND
ORDER TO SEAL |
|
| This matter has come before this Court pursuant
to the Ex Parte Application of the Plaintiff United States requesting
the entry of an order by this Court which: (1) directs that notice of
the service of Formal Written Request prepared and or obtained in accord
with Title 12 USC, Section 3401 et. seq. by the Internal Revenue Service,
Criminal Investigation, be delayed for an additional 90-day period;
(2) directs that notice of production of documents pursuant to each
formal written request be delayed for an additional ninety (90) day period;
and (3) directs that all pleadings related to this matter remain sealed until
further order of this Court. |
|
| This Court, having read the Ex Parte
Application, and being familiar with this matter, and having found that the
continuing investigation being conducted is within the lawful authority of
the governmental authority seeking the information, finds that there does
exist reason to believe that the records requested are relevant to a legitimate
law enforcement inquiry, and that there exists reason to believe that notice
of such document request and of the production of any records pursuant to
it will likely result in the destruction of, or tampering with, evidence,
in the removal or hiding of assets potentially subject to seizure and forfeiture,
and/or will otherwise seriously jeopardize or impede the continuing
investigation. |
|
| IT IS HEREBY ORDERED THAT service of the Formal Written Request
for information be delayed for an additional period of ninety (90) days to
wit, and that the delay of notice period be extended until (90 DAYS FROM
DATE OF ORDER). |
|
| IT IS FURTHER ORDERED THAT neither the financial
institution(s) served with the original Formal Written Request, nor their
officer, employees, and agents shall provide notice to any customer(s) whose
records have been requested either of the service of the request or of the
production of any such documents or information pursuant to that request
for an additional period of 90 days to wit, and that the delay of notice
period is extended until (90 DAYS FROM DATE OF ORDER). |
|
| IT IS FURTHER ORDERED THAT this Ex Parte
Application and all related documents shall be sealed until the further order,
of this Court, except for the service of this Order on the involved financial
institution(s). |
|
|
_____
UNITED STATES MAGISTRATE JUDGE/JUDGE (NAME) |
|
| Entered: _____ |
|
|
Exhibit [9.4] 3-7 (06/30/98)
Notice to the Customer
| > |
| Internal Revenue Service |
Department of the Treasury |
|
|
Criminal Investigation Division
(ADDRESS) |
|
| NAME |
| ADDRESS |
|
|
Person to Contact:
Special Agent (NAME)
Telephone Number:
(Phone Number)
Refer Reply To:
CI
Date: |
|
| Dear : |
|
| Records or information concerning your accounts and/or
transactions, which are held by the financial institution named in the attached
process or request, were supplied to the Internal Revenue Service pursuant
to the service of the attached Formal Written Request(s) on (DATE). Notification
was withheld pursuant to a determination by the (TITLE OF COURT SO ORDERING)
under the Right to Financial Privacy Act of 1978, 12 USC Section 3401-3422.
The Internal Revenue Service requested that notice be withheld because issuance
of such notice(s) may have impeded an investigation. The purpose of the
investigation was to inquire into potential violations of _____ . |
|
|
Sincerely, |
|
|
|
(Name of Chief)
Chief, Criminal Investigation |
|
| Attachment(s) |
|
|
Exhibit [9.4] 3-8 (06/30/98)
Ex Parte Application for Nunc Pro Tunc Extension of Delay of
Notice and Order Sealing Documents
| > |
UNITED STATES DISTRICT COURT
(JUDICIAL DISTRICT) |
|
IN RE: DELAY OF NOTICE ORDER FOR
FINANCIAL PRIVACY ACT INFORMATION/
RECORDS: EXTENSION OF DELAY |
MISC. NO. |
|
EX PARTE APPLICATION FOR NUNC PRO
TUNC
EXTENSION OF DELAY OF NOTICE AND
ORDER SEALING DOCUMENTS |
|
| NOW COMES the UNITED STATES OF AMERICA, Plaintiff,
(U.S. ATTORNEY), United States Attorney, by (AUSA), Assistant United States
Attorney and, in support of this Motion, states that: |
|
| 1. On (DATE OF ORIGINAL ORDER) the
United States presented an Ex Parte Application and Affidavit, in
support thereof, to the United States District Court for the (JUDICIAL DISTRICT)
seeking the entry of any order directing compliance by (FINANCIAL INSTITUTION)
with a Formal Written Request issued pursuant to Title 12 USC, Section 3401
et. seq. |
|
| 2. On (DATE), U.S. Magistrate Judge/Judge
(NAME), having reviewed the Ex Parte Application and the Affidavit
in support thereof, entered an order directing that the providing of notice
to the customer of the financial institution would be delayed for a period
of 90 days as provided by statute. Title 12 USC, Section 3409(a)(1), (2),
and (3)(c) and (e) provides for such delay where: |
|
|
(i) |
the investigation being conducted is within the lawful
jurisdiction of the governmental authority seeking the financial records; |
|
(ii) |
there is reason to believe that the records being sought
are relevant to a legitimate law enforcement inquiry, and |
|
(iii) |
there is reason to believe that such notice, if not delayed,
will result in, (a) the destruction or tampering with evidence; or (b) otherwise
seriously jeopardize an investigation. |
|
| 3. (USE THIS PRAGRAPH IF OTHER DELAYS
WERE OBTAINED) |
|
| On (DATE), U.S. Magistrate
Judge/Judge, having reviewed an Ex Parte Application for Extension
Of Delay of Notice and Order Sealing Documents, entered an Order Extending
Delay Of Notice and Order To Seal, extending the delay of notice until (DATE). |
|
| 4. The criminal investigation being
conducted by the Internal Revenue Service, Criminal Investigation is not
complete at this time. Records and information will assist in the investigation
of money laundering and other related offenses in the (JUDICIAL DISTRICT). |
|
| 5. As set forth above, the Financial
Privacy Act provides that the United States may seek a delay of notice of
the issuance of the subpoena for a period of ninety (90) days (Title 12,
Section 3409(b)). |
|
| 6. Based on the continuing nature
of this investigation, on the progress made to this point, on the likelihood
that further investigation will result in the identification of other persons
involved in violations of federal currency and money laundering laws, on
the gathering of sufficient evidence and information to support a civil
forfeiture action and/or criminal indictment, and on the fact that notice
of the existence of this Formal Written Request would provide some disclosure
of information contained in those affidavits and adversely affect the
investigation, the United States requests that this Court nunc pro tunc
extend the delay period for an additional ninety (90) days and continue to
seal all documents related to this matter. |
|
| CONCLUSION AND RELIEF |
|
| WHEREFORE, the plaintiff United States respectfully
requests that this Honorable Court enter the Order submitted with this Ex
Parte Application. |
|
|
|
|
Respectfully submitted, |
|
|
|
|
(U.S. ATTORNEY)
United States Attorney |
|
|
|
|
(AUSA)
Assistant United States Attorney
(ADDRESS) |
|
| Dated: |
|
| VERIFICATION |
|
| I, (AUSA), an Assistant United States Attorney
for the (JUDICIAL DISTRICT), declare that the foregoing Application is based
upon information provided to me by agents of the Internal Revenue Service,
Criminal Investigation and that said information is, to the best of my knowledge
and belief, true and accurate. |
|
|
|
|
_____
(AUSA) |
|
| Dated: |
|
| VERIFICATION |
|
| I, (SPECIAL AGENT), a Special Agent for the Internal
Revenue Service, Criminal Investigation, declare that the foregoing Application
is based upon information gathered by me or at my direction and that said
information is, to the best of my knowledge and belief, true and accurate. |
|
|
|
|
_____
(NAME)
|
|
| Dated: |
|
|
Internal Revenue Manual
|
Hndbk. 9.4 Chap. 3 Formal Written Request
|
(06-30-1998)
|
|
|