Dealing with an OFAC Subpoena

An OFAC subpoena is an investigative demand by OFAC requiring a person to furnish documents and evidence related to the transactions that OFAC is investigating. In a situation involving an OFAC subpoena, OFAC has already opened an investigation against the client and is sending a demand to the client for information about possible sanctions violations. A client is usually required to respond and to provide the requested information. In such a case, it is valuable to contact a lawyer experienced in OFAC subpoenas to help you through the process.

Your Options After Receiving an OFAC Subpoena

When a subpoena is issued you usually have to respond under the law. The subpoena usually involves transactions with sanctioned countries, and by law a person has to maintain their records related to sanctions programs for five years. In essence, an OFAC subpoena is a request for those records so that OFAC can further investigate the situation and determine an appropriate enforcement response for the situation.

However, if the subpoena is too broad you can contact the specific enforcement officer on the case to see if there is a way to tailor the subpoena to something more narrow. This can help clients, especially smaller businesses that might not have the resources to do a full review of documents. Ultimately though, you have to respond and you have to respond truthfully. Getting an OFAC subpoena lawyer in DC to help you through the process will likely lessen your burden.

Potential Situations That Can Result in OFAC Subpoenas

One typical situation where OFAC would issue a subpoena is when money from the Middle East comes into your account through a middleman who has been identified in the past as someone who moves money from Iran to the U.S. People who receive money that way might find an OFAC subpoena in the mail asking questions about the source of such money. You might also get an OFAC subpoena if you are shipping something overseas. If, for example, you are sending something to Syria or Iran, and CBP or the shipping company stops the shipment and informs OFAC about the situation. OFAC might send you a subpoena requesting information about why you were sending goods to these countries.

Another common example is where you have property or money belonging to an SDN or where an SDN has an interest in such property or money, and you have to block that property because you are a U.S. person. When you send the required report to OFAC that you have blocked property OFAC might send you a subpoena to investigate the circumstances of how you ended up with this property.

The Subpoena Process

Typically somebody will receive a subpoena from OFAC in the mail  Then the person will need to start gathering the responsive information and start analyzing the information to determine whether they are exposed to any sanctions liability. A OFAC subpoena attorney can help with the process, and can help guide the client through discussions and negotiations with OFAC and the enforcement officer.

There is usually no hearing in the subpoena process because it is still at the administrative stage of enforcement. You usually just engage in talks with the enforcement officer, send letters, and share information with the agency that is responsive to the subpoena.

Burden of Proof

Since this is a civil and administrative matter, the burden of proof is by a preponderance of the evidence. This means if it is more likely than not that you committed a violation, you can be found civilly liable for a violation of the sanctions. Civil violations can expose you to financial penalties such as fines and cease and desist orders. Speak with an OFAC subpoena attorney to defend yourself right away.