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BOTERO-ZEA v. UNITED STATES

January 31, 1996

FERNANDO BOTERO-ZEA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: PATTERSON

 ROBERT P. PATTERSON, JR., U.S.D.J.

 Plaintiff Fernando Botero-Zea, a citizen and resident of the Republic of Colombia has moved, pursuant to 12 U.S.C. § 3418, for a preliminary injunction enjoining the United States Government ("the Government"), as well as all of its agents and employees, [1] from violating his rights under the Right to Financial Privacy Act ("RFPA" or "the Act"), 12 U.S.C. § 3401 et seq.; [2] from obtaining financial records relating to bank accounts maintained in the Southern District of New York and for which he is either the person who utilized the resources of the bank or the authorized representative of such a person ("the accounts"); [3] from disclosing financial records or information derived from such records relating to the accounts; and [4] directing that notification be given to Plaintiff and his counsel of the issuance of any administrative subpoena seeking financial records relating to the accounts. Jurisdiction is predicated upon 12 U.S.C. § 3416. *fn1"

 Background

 In August 1995, Plaintiff was forced to resign from his position as Colombia's Minister of Defense amidst allegations that he had been involved in the receipt of illegal campaign contributions from the Cali drug cartel. Allegations of Plaintiff's illegal activities received media attention. (Abrams Reply Aff. Ex. 4.) Specifically, the August 14, 1995, issue of Time Magazine stated that the Drug Enforcement Agency ("DEA") had confirmed that bank accounts at Chase Manhattan Bank in New York appeared to be linked to illegal campaign contributions. (Abrams Reply Aff. Ex. 4.)

 Counsel for Plaintiff also learned in September 1995 that at least one New York bank had been served by the DEA with an administrative subpoena concerning an account on which Botero-Zea was a customer within the meaning of the Act. (Abrams Reply Aff. P3.) An official from Barclay's Bank in New York represented to Plaintiff's counsel that, at the time it received an administrative subpoena requesting records on an account on which Plaintiff is a customer, it had not received an order barring disclosure of the subpoena to the customer or dispensing with customer notification as required by the Act. (Abrams Reply Aff. P3.) Based upon this knowledge, Plaintiff contends that Defendant is seeking to obtain records of bank accounts protected under the RFPA by administrative subpoena without providing the notification required by law.

 Neither in the Complaint nor in the moving papers does Plaintiff disclose the identity of the accounts he claims have been subpoenaed. Instead, he asks that the Government be ordered to identify the accounts. At oral argument, counsel for Plaintiff contended that if Plaintiff provided the numbers of the accounts, no useful purpose would be served and the Government would be provided access to information regarding accounts of which it previously had not been aware.

 The Government has informed Plaintiff that it is relying upon § 3409 of the Act, which reads, in relevant part:

 
§ 3409 Delayed Notice
 
(a) Application by Government authority; findings
 
Upon application of the Government authority, the customer notice required under [the provisions of the Act] may be delayed by order of an appropriate court if the presiding judge or magistrate finds that--
 
(1) the investigation being conducted is within the lawful jurisdiction of the Government authority seeking the financial records;
 
(2) there is reason to believe that the records being sought are relevant to a legitimate law enforcement inquiry; and
 
(3) there is reason to believe that such notice will result in--
 
[A] endangering life or physical safety of any person;
 
[B] flight from prosecution;
 
[C] destruction of or tampering with evidence;
 
[D] intimidation of potential witnesses; or
 
[E] otherwise seriously jeopardizing an investigation or official proceeding or unduly delaying a trial or ongoing official proceeding to the same extent as the circumstances in the preceeding subparagraphs.
 
An application for delay must be made with reasonable specificity.

 12 U.S.C. § 3409(a). Plaintiff argues that the information he received from Barclay's Bank indicates that the Government did not follow the procedures set forth in the Act for obtaining an order delaying disclosure of the issuance of an administrative subpoena and that the Government is statutorily bound to provide Plaintiff notice of the records subpoenaed and an opportunity to move to quash the subpoenas. Defendant does not deny that the substance of the information received by Plaintiff's counsel from Barclay's Bank.

 Plaintiff seeks injunctive relief prohibiting the Government from violating his rights under the Act or from obtaining his financial records in violation of the Act and directing the Government to provide notice of any records it seeks which fall within the category of records protected by the Act. Additionally, Plaintiff seeks a preliminary injunction prohibiting the Government from transferring any records obtained pursuant to the ...


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