Case 3:09-cv-00024-JTC-SSC Document 3 Filed 03/02/2009 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
NEWNAN DIVISION
:
ANTHONY B. BELL, :
:
Movant, :
:
v. :
:
SPECIAL INSPECTOR GENERAL FOR : CIVIL ACTION NO.
IRAQ RECONSTRUCTION, : 3:09-mi-00003 and
: 3:09-mi-00002
:
:
:
Respondent. :

RESPONSE TO MOTION FOR ORDER PURSUANT TO CUSTOMER CHALLENGE

PROVISIONS OF RIGHT TO FINANCIAL PRIVACY ACT
COMES NOW, the Respondent Special Inspector General for Iraq
Reconstruction (“OIG-Iraq Reconstruction”), by its attorney, the
United States Attorney for the Northern District of Georgia,
files this response to Petitioner’s Motion for Order Pursuant to
Customer Challenge Provisions of Right to Financial Privacy Act
(“Motion”). Petitioner’s Motion is the equivalent to a motion to
quash a subpoena issued by Respondent OIG-Iraq Reconstruction,
for bank records pertaining to Petitioner’s account(s) and
transactions. There is reason to believe the law enforcement
inquiry is legitimate and that the records sought by the subpoena
are relevant to the inquiry. Therefore, the Court should dismiss
Petitioner’s challenge and order enforcement of the subpoena.
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FACTUAL AND PROCEDURAL BACKGROUND

Anthony Bell is a former Colonel in the United States Army.
Exhibit A, Declaration of Special Agency James J. Crowley
(hereinafter referred to as “Crowley Decl.”), at ¶ 5. From June
29, 2003 through March 15, 2004, Mr. Bell was the contracting
officer for the Coalition Provisional Authority (“CPA”) in
Baghdad, Iraq. Crowley Decl., at ¶ 5. As head of the
Contracting Activity, Mr. Bell entered into contracts for
reconstruction projects in Iraq. Crowley Decl., at ¶ 6. These
contracts were funded by money designated by Congress for Iraq
reconstruction. Crowley Decl., at ¶ 6.
In 2004, OIG-Iraq Reconstruction received information from a
confidential source that Mr. Bell and another individual were
receiving kickbacks in connection with contracts for
reconstruction projects in Iraq. Crowley Decl., at ¶ 7. The
confidential source was killed in Iraq. Crowley Decl., at ¶ 8.
During the course of the investigation, OIG-Iraq
Reconstruction learned that Mr. Bell may have accounts with
Suntrust Bank and the National Bank of Commerce. Crowley Decl.,
at ¶ 10. Because Mr. Bell’s bank accounts may reveal information
concerning the pending criminal investigation related to Mr.
Bell, OIG-Iraq Reconstruction determined that it was necessary to
review these accounts. Crowley Decl., at ¶ 12.
On January 9, 2009 Inspector General Stuart Bowen issued two
subpoenas on Anthony Bell, along with instructions regarding how
to challenge the subpoenas, pursuant to the Right to Financial

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Privacy Act of 1978, 12 U.S.C. §§ 3401-3422. Crowley Decl., at ¶

13.
On January 27, 2009, Anthony Bell filed the instant action
challenging the subpoenas because the account number listed on
the subpoena is incorrect. [Doc. 1]. Mr. Bell also challenged
the subpoena for records from the National Bank of Commerce
asserting that he does not have any accounts at this financial
institution. With respect to this claim, the Respondent
acknowledges that Mr. Bell is correct and therefore, the subpoena
with respect to the National Bank of Commerce is moot. Besides
these technical arguments, Mr. Bell asserts no additional basis
for his challenge.
During the pendency of this action, OIG-Iraq Reconstruction
has learned that Mr. Bell does not have any accounts with
National Bank of Commerce. Crowley Decl., at ¶ 14. However,
with respect to Suntrust, OIG-Iraq Reconstruction has confirmed
that Mr. Bell does have an account with Suntrust. Crowley Decl.,
at ¶ 16. According to Suntrust, it has identified records
responsive to the OIG-Iraq Reconstruction subpoena and is holding
the requested records pending the outcome of the above-styled
action. Crowley Decl., at ¶ 16.
RELEVANT STATUTORY SCHEME
A. Special Inspector General for Iraq Reconstruction
The Office of the Special Inspector General for Iraq
Reconstruction was created in 2004, pursuant to P.L. 108-106, as
amended, to investigate and audit funds made available for Iraq

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reconstruction. Crowley Decl., ¶ 2. Pursuant to P.L. 108-106,

as amended, the OIG-Iraq Reconstruction has the same authority
and duties of an Inspector General as defined by the Inspector
General Act of 1978, 5 U.S.C.A. App. 3. Crowley Decl., ¶ 3.
Among other things, OIG-Iraq Reconstruction is authorized to
conduct criminal investigations related to funds used for Iraq
reconstruction and to issue subpoenas in furtherance of its
investigations. Crowley Decl., ¶ 4.
B. The Inspector General Act
The Inspector General Act of 1978 (IG Act), 5 U.S.C.A. App.
3, establishes the Inspector General’s authority to issue a
subpoena. The IG Act gives each Inspector General a mandate to
conduct investigations, and to prevent and detect waste, fraud
and abuse in his or her agency’s programs and operations. 5
U.S.C. Appx. 3 §§ 2, 4 (1988). Section 4(a) of the IG Act grants
broad authority to Inspectors General “to conduct, supervise, and
coordinate audits and investigations relating to the programs and
operations of the [agency within which the IG Inspectors General
authority to issue subpoenas for purposes coextensive with the
IG’s general investigative authority.1 Id. at § 4(a)(4). The

1
The IG’s investigative and subpoena authority extends
to civil and criminal matters. See e.g., United States v. Aero
Mayflower Transit Co., Inc., 831 F.2d 1142, 1146 (D.C. Cir.
1987)(“the Act gives the Inspector General both civil and
criminal investigative authority and subpoena powers coextensive
with the authority.”); United States v. Medic House, Inc., 736 F.
Supp. 1531, 1535 (W.D. Mo. 1989)(“The courts have recognized the
IG’s authority to conduct criminal investigations and to issue

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Inspector General of the Iraq Reconstruction must:

* Prevent and detect fraud and abuse related to the funds
used for Iraq reconstruction activities. 5 U.S.C. App.
3 § 4(a)(1); Crowley Decl., ¶¶ 2 and 4.
* Help identify and prosecute those participating in
fraudand abuse related to the expenditures
specifically allocated for Iraq Reconstruction
activities. 5 U.S.C. App. 3 § 4(a)(5); Crowley Decl.,
¶ 4.
* Report to the Attorney General and possible violations
of Federal criminal law that the Inspector General’s
Office has discovered.
5 U.S.C. App. 3 § 4(d).
Congress gave the Inspectors General broad subpoena power to
carry out these mandates:
[E]ach Inspector General, in carrying out the provisions of
this Act, is authorized * * * to require by subpoena [sic] the
production of all information, documents, reports, answers,
records, accounts, papers, and other data and documentary
evidence necessary in the performance of the functions assigned
by this Act, which subpoena [sic], in the case of contumacy or
refusal to obey, shall be enforceable by order of any appropriate
United States district court. Id. at § 6(a)(4).
C. The Right to Financial Privacy Act
Congress enacted the Right to Financial Privacy Act
(“RFPA”)2 in response to United States v. Miller, 425 U.S. 435

subpoenas in conjunction with those investigations.”).

2
H.R. Rep. No. 1383, 95th Cong., 2d Sess. 33-34,
reprinted in 1978 U.S.C.C.A.N. 9273, 9305-9306.

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(1976), which held that a bank customer had no constitutional

right under the Fourth Amendment to privacy in banking records
related to his accounts. See Davidov v. U.S. Securities and
Exchange Commission, 415 F. Supp. 2d 386 (S.D.N.Y., Feb. 17,
2006). In enacting RFPA, Congress gave bank customers protection
beyond what was afforded in the Constitution. See Young v. U.S.
Department of Justice, 882 F.2d 633 (2d Cir. 1989)(cert. denied,
493 U.S. 1073; McDonough v. Widnall, 891 F.Supp. 1439 (D. Colo.
1985).
The RFPA permits government authorities to obtain bank
records by a subpoena authorized by law as long as there is
reason to believe the records “are relevant to a legitimate law
enforcement inquiry,” 12 U.S.C. § 3407(1), and appropriate notice
is given to the bank customer whose records are sought. 12
U.S.C. § 3407(2). See In re Grand Jury Subpoena, 41 F.Supp.2d
1026, 1032 (D. Alaska 1999).3 Appropriate notice under the
statute consists of a copy of the subpoena and reasonably
specific notice of the nature of the law enforcement inquiry. 12
U.S.C. § 3405(2).4 The customer has the opportunity to challenge
the subpoena “within ten days of service or within fourteen days
of mailing” of the subpoena or summons. 12 U.S.C. § 3410. Any

3
Notice is not required for grand jury subpoenas. Id.
4
The RFPA requires only “substantial complaince.” 12
U.S.C. § 3410(a)(2). This standard is intended to ensure that
minor violations do not prevent access to records sought. H.R.
Rep. No. 1383, 95th Cong., 2ds Sess. 224 (1978)(additional views
of Mr. LaFalce), reprinted in 1978 U.S. Cong. & Ad. News 9354.

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such challenge “shall contain” an affidavit or sworn statement

that the “the applicant is a customer of the financial
institution from which financial records pertaining to him have
been sought,” and also stating the petitioner’s “reasons for
believing that the financial records sought are not relevant to
the legitimate inquiry stated by the government” in its notice or
that the government authority has not substantially complied with
the RFPA. 12 U.S.C. § 3410(a)(1) and (2).
The challenge provisions were drafted “‘in a fashion that
minimizes the risk that the customers’ objections to subpoenas
will delay or frustrate agency investigations.’” Irani v. United
States, 448 F.3d 507, (2d Cir. May 11, 2006)(quoting SEC v. Jerry
T. O’Brien, Inc., 467 U.S. 735, 745-46(1984). The court shall
deny such a challenge if it finds that ‘there is a demonstrable
reason to believe that the law enforcement inquiry is legitimate
and a reasonable belief [by the agency] that the records sought
are relevant to that inquiry.” 12 U.S.C. § 3410(c).
The customer has the initial burden of showing a prima facie
case of impropriety. In other words, the customer must show a
“factual basis for his conclusion that the records are
irrelevant.” In re U.S. SEC Private Investigation., 1990 WL
119321 (S.D.N.Y. August 10, 1990), citing and quoting Hancock v.
Marshall, 86 F.R.D. 209, 211 (D.C.D.C. 1980)). Absent such a
showing, th court may deny the motion without further inquiry.
Even if the customer makes such a showing, the RFPA “does

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not require the agency to show that the records are relevant, but
only that there is ‘a reasonable belief that the records sought
are relevant’ . . . What need be shown is not probable cause, but
good reason to investigate. A mere belief is not enough, but a
reasonable belief is.” Id.
ARGUMENT
A. Introduction
The court should deny Bell’s motion because (1) the
investigation and the issuance of the subpoena are within the
authority of the agency; (2) the documents sought are reasonably
related to the inquiry; and (3) the demands are not unduly
burdensome or unreasonably broad. United States v. Morton Salt
Co., 388 U.S. 632, 652 (1950); Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186, 208-209 (1946); Endicott v. Perkins, 317
U.S. 501, 509 (1943). See also United States v. Florida Azalea
Specialists, 19 F.3d 620, 623 (11th Cir. 1994)(“an administrative
subpoena should be enforced ‘if the inquiry is within the
authority of the agency, the demand is not too indefinite and the
information sought is reasonably relevant’”).
B. The Supoena Satisfies the RFPA Standards
When a financial institution subpoena is challenged under
the RFPA, the court’s inquiry is limited to determining whether:
(1) the RFPA procedures were followed; (2) the law enforcement
inquiry is legitimate; and (3) there is a reasonable belief that
the records sought are relevant to the inquiry. See 12 U.S.C. §
3410(c); Douglas v. United States, 410 F. Supp. 2d 294 (S.D.N.Y.

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Jan. 25, 2006). The subpoena passes muster on all three fronts.
First, the OIG-Iraq Reconstruction followed the RFPA
procedures by serving a copy and all the relevant forms to Bell.
See Crowley Decl. ¶ 13.
Second, the law enforcement inquiry is legitimate. The
Inspector General has broad authority under the IG Act to conduct
audits and investigations related to agency programs and
operations, and subpoena records in connection with such
inquiries. 5 U.S.C. app. 3 §§ 4(a)(1), 6(a)(4). In establishing
the Inspector General, “Congress conferred very broad audit,
investigatory, and subpoena powers on each department or agency,
to help promote efficiency and prevent fraud, waste, abuse and
mismanagement in federal government programs.” Winters Ranch
Partnership v. Viadero, 123 F.3d 327, 330 (5th Cir. 1997).
The investigation into allegations of fraud concerning the
expenditure of money allocated for Iraq reconstruction falls well
within that broad grant of authority. Investigations of this
nature safeguard the integrity of government funds and programs.
An investigation is legitimate if it is one the agency is
authorized to make and is not being conducted solely for an
improper purpose, such as political harassment or intimidation,
or is otherwise in bad faith. Pennington v. Donovan, 574 F.Supp.
708, 709 (S.D. Tex. 1983). An investigation into whether a
former Colonel of the United States Army received kickbacks while
he was performing his duties as a contracting officer responsible
for safeguarding the funds allocated for Iraq reconstruction

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satisfies this standard.

Third, the OIG-Iraq Reconstruction has a reasonable belief
that the subpoenaed records are relevant to the investigation.
See Crowley Decl., ¶ 12. The bank records are likely to show the
source and amount of money received by Bell and that information
is directly relevant to allegations that Bell received kickbacks
while he was performing his duties as a contractor officer in
Iraq. The agency’s belief that the documents are relevant to its
inquiry into possible fraud is reasonable and entitled to
deference. Resolution Trust Corp. v. Walden, 18 F.3d 943, 946
(D.C. Cir. 1994)(court should defer to the agency’s relevancy
assessment as long as it is “‘not obviously wrong.’”).
In view of the well-established principle of
deference to agency discretion in issuing
subpoenas and in the absence of contrary
legislative history, we believe Congress
intended that the court’s accept the
Inspector General’s determination of what
information is “necessary to carry out the
functions assigned by this Act.” so long as
th information is relevant to an Inspector
General’s function.
United States v. Westinghouse Electric Corp., 788 F.2d 164 at 171
(3d Cir. 1986); see also Oklahoma Press Publishing Co. v.
Walling, 327 U.S. at 214 (agencies generally are granted broad
deference in determining scope of their investigative authority).
Moreover, as the Supreme Court has stated, production of
evidence will be ordered unless the documents are “plainly
incompetent or irrelevant to any lawful purpose” of the agency.
Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943);

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accord, United States v. Aero Mayflower Transit Co., Inc., 831

F.2d 1142, 1145 (D.C. Cir. 1987); Westinghouse Electric Corp.,
788 F.2d at 170. A court will enforce a subpoena for records
that may simply lead to other evidence which, in turn, will
establish violations of law. Pennington, 574 F.Supp. at 709.
In the context of a challenge to a RFPA subpoena, courts
have adopted a “strictly limited role” when they review
administrative subpoenas. See Sandsend Fin. Consultants Ltd.,
878 F.2d 879. The Act itself was crafted cautiously to limit a
customer’s right to challenge an administrative subpoena:
[The RFPA] carefully limits the kinds of customers to
whom it applies, §§ 3401(4), (5), and the types of
records they may seek to protect, § 3401(2). A
customer’s ability to challenge a subpoena is cabined
by strict procedural requirements. For example, he
must assert his claim within a short period of time,
§ 3402(a), and cannot appeal an adverse determination
until the Government has completed its investigation,
§ 3410(d). Perhaps most importantly, the statute is
drafted in a fashion that minimizes the risk that
customers’ objections will delay or frustrate agency
investigations.
Jerry T. O’Brien, Inc., 467 U.S. at 745-46.
Bell’s challenge to the subpoena rests solely on the ground
that the account number identified in the subpoena is incorrect.5
Bell does not deny, however, that he has an account at Suntrust.
Indeed, Bell admits that his financial records are held by

5
Moreover, Mr. Bell also challenges the subpoena for
records from the National Bank of Commerce asserting that he does
not have any accounts at this financial institution. With respect
to this claim, the Respondent acknowledges that Mr. Bell is
correct and therefore, the subpoena with respect to the National
Bank of Commerce is moot.

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Suntrust Bank and lists his bank routing number. [See Doc. 1].
Assuming that Bell is correct and the bank routing number on the
subpoena is incorrect, this is not a basis for quashing the
subpoena. Both Suntrust and Mr. Bell have confirmed that he has
an account with Suntrust. In fact, the bank has identified the
relevant records related to Mr. Bell and is ready and able to
produce them as soon as this action is resolved.
In sum, Bell has failed to establish any basis for his
challenge to the subpoena and the OIG-Iraq Reconstruction has
established the legitimacy of its investigation and the relevancy
of the records. Therefore, the court should deny Bell’s motion
and order that the subpoena be enforced.

Respectfully Submitted this 2nd day of March, 2009.

DAVID E. NAHMIAS
UNITED STATES ATTORNEY
/s/ Aileen Bell Hughes
AILEEN BELL HUGHES
ASSISTANT U.S. ATTORNEY
Georgia Bar No. 375505
600 Richard B. Russell Bldg.
75 Spring Street, SW
Atlanta, Georgia 30303
(404) 581-6133
(404) 581-6150 (facsimile)
Aileen.Bell.Hughes@usdoj.gov

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CERTIFICATE OF COMPLIANCE
I certify that the documents to which this certificate is
attached have been prepared with one of the font and point
selections approved by the Court in Local Rule 5.1B for documents
prepared by computer.
/s/ Aileen Bell Hughes
AILEEN BELL HUGHES
Assistant U.S. Attorney

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CERTIFICATE OF SERVICE
I certify that I have caused to be mailed a copy of the
RESPONSE TO MOTION FOR ORDER PURSUANT TO CUSTOMER CHALLENGE
PROVISIONS OF RIGHT TO FINANCIAL PRIVACY ACT by depositing a
copy thereof, postage prepaid, in the United States Mail
addressed as follows in the mail addressed:
Anthony B. Bell
103 Marks Style
Peachtree City, Georgia 30269

This 2nd day of March, 2009.

/s/ Aileen Bell Hughes

AILEEN BELL HUGHES
Assistant United States Attorney

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