United States v. First City National Bank

598 F.2d 594, 1979 U.S. App. LEXIS 16496
CourtTemporary Emergency Court of Appeals
DecidedMarch 5, 1979
DocketNo. 5-33
StatusPublished
Cited by13 cases

This text of 598 F.2d 594 (United States v. First City National Bank) is published on Counsel Stack Legal Research, covering Temporary Emergency Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. First City National Bank, 598 F.2d 594, 1979 U.S. App. LEXIS 16496 (tecoa 1979).

Opinion

PER CURIAM:

On the basis of a complaint filed by the Salt River Project,1 the Federal Energy Administration (FEA), on March 31, 1975, began a civil investigation of J. R. Adams to determine whether amounts Adams received for the sales of certain covered petroleum products were in compliance with applicable pricing regulations.2 The investigation was assigned Category A status, indicating a high investigative priority and allowing the agency to combine three separate cases into one.3 The FEA began negotiating with Kevin Hayes, an attorney representing J. R. Adams, for information concerning the investigation; and on November 15, 1977, Hayes tendered to the agency certain checks written by Adams.4 From these checks, which had been deposited in the Southwést National Bank of El Paso (now First City National Bank of El Paso), the FEA obtained the names and account numbers of James Cardwell and Gilbert R. Russell.5

The Department of Energy (DOE) took the statement of J. R. Adams, the subject of the investigation, in January, 1978.6 On January 9, 1978, Cardwell and Russell testified before the DOE that they had received from Adams the checks which Hayes had tendered to the FEA in November, 1977,7 and that these checks represented finder’s fees “developed out of a profit margin that Mr. Adams charged.” 8

A subpoena duces tecum “[i]n a matter before the Department of Energy concerning J. R. Adams et al,” was subsequently issued to the Southwest National Bank at El Paso, Texas, on March 8, 1978, requiring testimony and production of documents before the DOE on March 23, 1978, at Dallas, Texas. The Schedule of Documents Requested contained five paragraphs requesting records of various transactions of Card-well and Russell:

1. Documents in your possession that contain records of transactions in the following numbered accounts—
58-03-144
13-11-336
during the period December 1973 through December 1974.
2. Cashiers checks or Bank Money Orders purchased by either — •,
James Cardwell or Gilbert R. Russell
during the period December 1973 through December 1974.
3. Signature cards for all accounts maintained in your bank by James Card-[597]*597well or Gilbert R. Russell, individually or jointly, during the period December 1973 through December 1977.
4. Any Safe Deposit Box contract entered into with either James Cardwell or Gilbert R. Russell, or both of them, and in force during the period December 1973 through December 1977, or any portion of that time period.
5. Entry records for the Safe Deposit Boxes described in item 4 above and for the time periods in item .4.

On March 15, 1978, the Bank tendered, through its senior vice-president/cashier, Jim M. McVay, the ledger sheets for the accounts in question for the period December 1973-December 1974, as well as the requested signature cards.9 However, the Bank did not provide any of the remaining documents requested in the subpoena duces tecum.10 DOE subsequently requested certain checks from the two accounts.11 The Bank refused to comply with DOE’s request in the absence of a separate subpoena for the checks.12

On July 12, 1978, the United States of America and Harold R. Clements, II filed a petition in the United States District Court for the Western District of Texas, El Paso Division, seeking to enforce the subpoena of March 8, 1978. An amended subpoena was issued to the Bank on October 6, 1978, returnable October 25, 1978. The amended subpoena sought the same documents and contained only very minor differences: the heading read, “In a matter before the Department of Energy concerning the DOE investigation of transactions in covered petroleum products by J. R. Adams and others, and the distribution of proceeds of the transactions,” and the subpoenaed party was “First City National Bank, successor to Southwest National Bank.” The Schedule of Documents Requested was identical to that attached to the original subpoena.

The District Court held an evidentiary hearing on November 2, 1978, in which counsel for J. R. Adams was allowed to participate as a defendant-intervenor. On November 17, 1978, the District Court entered an order enforcing all paragraphs of the subpoena except that requiring production of the signature cards.13 The Appellant-Bank filed its notice of appeal to this court on December 8, 1978.

The appellant, First City National Bank of El Paso (Bank), presents the following issues for review by this Court:

1. Is the subpoena issued by DOE requiring appellant First City National Bank to produce certain documents relating to James A. Cardwell and Gilbert R. Russell violative of the Bank’s Fourth Amendment guarantees against unlawful search and seizure and did the District Court err in ordering compliance with Paragraphs 1, 2, 4 and 5 of said subpoena, particularly in the absence of an order of investigation or resolution setting forth the nature, purposes and scope of the agency’s inquiry?
2. Assuming, arguendo, that the purpose and scope of the investigation deals with unlawful profit margins on sales of product by J. R. Adams, are the documents sought irrelevant and incompetent to any such inquiry?
3. Did the Appellant Bank, by virtue of its March 15, 1978 tender of documents, comply with Paragraph 1 of the “Schedule of Documents Requested” attached to the involved subpoena?
4. Did the issuance by DOE of an amended subpoena, seeking the same documents, supersede and render unenforceable the involved subpoena?14

The DOE, however, states the issue as follows:

[598]*598Whether the district court correctly ordered the First City National Bank to comply with the Department of Energy’s subpoena.15

. The Bank argues that the absence in the subpoena of an order of investigation or other standard by which relevance can be determined constitutes a violation of the Fourth Amendment guarantee of freedom against unreasonable search and seizure; that documents from the accounts of Card-well and Russell are incompetent and irrelevant with respect to amounts received by J. R. Adams from the sale of petroleum products; that its tender of all ledger sheets for the two accounts in question for the period December 1973-December 1974 satisfies paragraph 1 of the subpoena; and that the October 6, 1978 subpoena superseded the subpoena of March 8, 1978. The Bank requests that this court reverse the District Court’s order enforcing the subpoena and render judgment in its favor, or alternatively, reform the District Court’s order to delete enforcement of paragraph 1 of the subpoena.

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Bluebook (online)
598 F.2d 594, 1979 U.S. App. LEXIS 16496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-first-city-national-bank-tecoa-1979.