(On Behalf of the Department of Motor Vehicles
and Public Safety)
January 27, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Authorizes issuance of administrative subpoenas during criminal investigations of crimes related to racketeering and money laundering. (BDR 14-464)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to subpoenas; authorizing the attorney general and the district attorney to issue administrative subpoenas during the criminal investigation of a crime related to racketeering or money laundering; providing a procedure for enforcing and complying with administrative subpoenas; making information obtained pursuant to an administrative subpoena confidential until the filing of a criminal complaint; making it unlawful to intentionally fail to comply with an administrative subpoena; providing penalties; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 Chapter 171 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 14, inclusive, of this act.
Sec. 2 As used in sections 2 to 14, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 3 to 6, inclusive, of this act, have the meanings ascribed to them in those sections.
Sec. 3 "Administrative subpoena" means a subpoena issued pursuant to section 7 of this act.
Sec. 4 "Crime related to racketeering" has the meaning ascribed to it in NRS 207.360.
Sec. 5 "Financial institution" has the meaning set forth in 31 U.S.C. § 5312(a)(2).
Sec. 6 "Money laundering" means an act that is unlawful pursuant to NRS 207.195.
Sec. 7 1. During the criminal investigation of a crime related to racketeering or money laundering, the attorney general or the district attorney may issue an administrative subpoena to:
(a) Require a person to appear before and be examined under oath by the attorney general or district attorney.
(b) Require the production of documentary evidence, including, without limitation, a book, paper, microfiche, videotape, document, information stored on a computer or other information stored in a tangible format for inspection or reproduction.
2. A subpoena issued pursuant to subsection 1 must contain a sworn statement signed by the attorney general or district attorney that the subpoena is issued as part of the criminal investigation of a crime related to racketeering or money laundering.
3. A subpoena that is issued pursuant to subsection 1 and addressed to:
(a) A person, must be served on the person by personal delivery of a copy of the subpoena to the person named therein.
(b) A financial institution, must be served by the delivery of a copy of the subpoena to:
(1) The manager of the financial institution or his equivalent;
(2) The custodian of records of the financial institution; or
(3) A person authorized to receive service of process on behalf of the financial institution.
Sec. 8 1. A person who is compelled to appear before the attorney general or the district attorney pursuant to an administrative subpoena:
(a) May be accompanied, represented and advised by legal counsel; and
(b) Must be advised of his constitutional privilege against self-incrimination before he is examined.
2. The attorney general, district attorney or a representative designated by either of them may administer the oath required to be given before an examination pursuant to an administrative subpoena.
3. An examination pursuant to an administrative subpoena may be recorded by a court reporter or a device for recording sound and may be transcribed if requested by the party being examined or the person conducting the examination.
4. During the examination of a person pursuant to an administrative subpoena, the only persons who may be present are:
(a) The person being examined;
(b) The legal counsel of the person being examined;
(c) A law enforcement officer; and
(d) A court reporter.
Sec. 9 1. A financial institution that is served with an administrative subpoena requiring the production of documentary evidence for inspection shall:
(a) Deliver the original or a certified copy of the original records to the person who caused the subpoena to be issued personally or by mail with an affidavit authenticating the records which is required by NRS 52.415; or
(b) Allow the original records to be inspected at the premises of the financial institution by the person who caused the subpoena to be issued or his designated representative.
2. If the financial institution does not deliver the original or a copy of the original records, it shall allow the original records to be removed from its premises for the purpose of copying. Any records so removed from the premises must be returned to the financial institution not later than 48 hours after the time they are removed.
Sec. 10 1. If a person or financial institution does not comply with an administrative subpoena, the attorney general or district attorney may petition the district court for an order to enforce the subpoena.
2. The district court shall issue an order requiring compliance with the subpoena if it finds that the attorney general or district attorney has reasonable grounds to believe that the evidence sought is relevant to a criminal investigation of a crime related to racketeering or money laundering.
Sec. 11 1. If a person who has been served with an administrative subpoena informs the attorney general or district attorney that he intends to assert his constitutional privilege against self-incrimination, the attorney general or district attorney shall:
(a) Move for an order of immunity pursuant to NRS 178.572;
(b) Challenge the existence of a valid privilege by filing in a court of record a motion to compel the testimony of the person; or
(c) Withdraw the subpoena.
2. A proceeding that is held on a motion filed pursuant to subsection 1 must be closed.
3. If the existence of the privilege is challenged, the court shall hear the evidence of the attorney general or district attorney and the person invoking the privilege to determine whether a valid privilege exists and to which matters, if any, it extends. The attorney general or district attorney shall not call a person to testify regarding any matter that has been determined by the court to be within the scope of his constitutional privilege against self-incrimination.
Sec. 12 1. A person or financial institution that furnishes evidence pursuant to an administrative subpoena is not subject to civil or criminal liability based on his disclosure of confidential information.
2. The attorney general, district attorney and the respective representative of either of them are not subject to civil liability for any act or omission in carrying out their duties pursuant to sections 2 to 14, inclusive, of this act.
Sec. 13 1. Except as otherwise provided in subsection 2, documentary evidence, transcripts or testimony obtained by the attorney general or district attorney pursuant to an administrative subpoena must not be made available for public inspection before the filing of a criminal complaint relating to the evidence without the prior written consent of the person or financial institution who is the subject of the criminal investigation for which the administrative subpoena was issued.
2. A law enforcement officer or his agent may inspect any documentary evidence, transcripts or testimony obtained by the attorney general or district attorney pursuant to an administrative subpoena as part of a criminal investigation without prior written consent.
3. A person who uses or releases the information obtained pursuant to an administrative subpoena, except in the discharge of his official duties, is guilty of a gross misdemeanor.
Sec. 14 1. A person who knowingly conceals, withholds, destroys, mutilates, falsifies, removes from any place or by any other means alters documentary evidence with the intent of avoiding, evading, preventing or obstructing compliance with a duly served administrative subpoena is guilty of a gross misdemeanor.
2. The attorney general or district attorney shall investigate and prosecute any alleged violation of this section.
Sec. 15 NRS 178.572 is hereby amended to read as follows:
178.572 1. In any investigation before a grand jury , an examination of a person or financial institution pursuant to an administrative subpoena issued pursuant to section 7 of this act or [any] a preliminary examination or trial in [any] a court of record, the court on motion of the state may order that [any] a material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.
2. [Any] A motion, hearing or order regarding the immunity of a grand jury witness must not be made public before an indictment or presentment is issued in the case.
Sec. 16 NRS 704.201 is hereby amended to read as follows:
704.201 1. To further a criminal or civil investigation, the chief executive officer of [any] a law enforcement agency of this state or a command officer designated by him may [submit a written request] issue a subpoena to a public utility [that] to obtain the name and address of a person listed in the records of the customers of the public utility . [be disclosed to the agency.]
2. The [request] subpoena must:
(a) If available, contain the social security number of the person about whom the request is made;
(b) Contain a statement that the [request is made] subpoena is issued to further a criminal or civil investigation being conducted by the agency; and
(c) Be signed by the chief executive officer of the law enforcement agency or the command officer he has designated.
3. As used in this section, "command officer" means an officer in charge of a department, division or bureau of the law enforcement agency.
Sec. 17 NRS 704.202 is hereby amended to read as follows:
704.202 1. Upon receipt of a [request] subpoena by a law enforcement agency pursuant to NRS 704.201, a public utility shall disclose the name and address of the person listed in the records of customers of the public utility to the agency.
2. The public utility may charge a reasonable fee for any administrative expense related to the disclosure.
3. A disclosure made in good faith pursuant to subsection 1 does not give rise to any action for damages for the disclosure of the name and address of a customer by a public utility.
Sec. 18 The amendatory provisions of this act do not apply to offenses that are committed before the effective date of this act.
Sec. 19 1. This section and sections 1 to 15, inclusive, of this act become effective upon passage and approval.
2. Sections 16 and 17 of this act become effective on July 1, 1997.