PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-1583

ARTHUR BEDROSIAN,

 Appellant

v.

THE UNITED STATES OF AMERICA, DEPARTMENT 

OF THE TREASURY, INTERNAL REVENUE SERVICE

 

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-15-cv-05853)

District Judge: Honorable Michael M. Baylson

________________

Argued on March 2, 2022

Before: McKEE, AMBRO, and SMITH, Circuit Judges

(Opinion filed: July 22, 2022)
2

Ian M. Comisky [Argued]

Siana Danch

Patrick J. Egan

Beth L. Weisser

Fox Rothschild

2000 Market Street

20th Floor

Philadelphia, PA 19103

Counsel for Appellant

Paul A. Alluis [Argued]

Michael J. Haungs

United States Department of Justice

Tax Division

950 Pennsylvania Avenue, N.W.

P.O. Box 502

Washington, DC 20044

Francesca Ugolini

United States Department of Justice

Tax Division

Room 4633

950 Pennsylvania Avenue, N.W.

P.O. Box 502

Washington, DC 20044

Counsel for Appellee

____________

OPINION OF THE COURT

____________
3

AMBRO, Circuit Judge

The Bank Secrecy Act, 31 U.S.C. § 5311 et seq., and its 

implementing regulations require certain individuals with 

foreign financial interests to file annual disclosures with the 

U.S. Treasury Department. Those failing to file or filing 

inaccurate reports are subject to hefty penalties. Take 

Appellant Arthur Bedrosian’s experience. In 2008, he filed an 

inaccurate Report of Foreign Bank and Financial Accounts 

(FBAR) with the Government, omitting from the report the 

larger of his two Swiss bank accounts. If this omission was 

accidental, the IRS could fine Bedrosian up to $10,000. But if 

he willfully filed an inaccurate FBAR, the penalty skyrockets: 

the greater of $100,000 or half the balance of the undisclosed 

account at the time of the Bank Secrecy Act violation. 

Believing Bedrosian’s omission was willful, the IRS took the 

latter option and imposed a $975,789.17 penalty—by its 

calculation, half the balance of Bedrosian’s undisclosed 

account.

Following Bedrosian’s refusal to pay the full assessed 

penalty, the IRS filed a claim in federal court to collect. A 

bench trial, appeal, and remand ended with the District Court 

finding Bedrosian’s omission willful and ordering him to pay 

the IRS penalty in full. Now on appeal again, Bedrosian claims 

the Court erred by finding his conduct willful and in 

calculating the penalty amount. We affirm the Court’s 

willfulness finding. And while we agree the Government 

failed to provide sufficient evidence at trial showing its

$975,789.17 penalty was no greater than half his account 

balance, Bedrosian admitted this fact during opening 

statements and thus relieved the Government of its burden of 

proof. We therefore affirm the District Court’s judgment. 
4

I. Background

Arthur Bedrosian held two bank accounts with the 

Union Bank of Switzerland (UBS). The first he opened while 

a young pharmaceutical sales executive so he could have easy 

access to cash when traveling overseas. The second he 

acquired decades later after accepting a loan and investment 

proposal from the bank. He disclosed neither to the Federal 

Government until 2008, despite his accountant telling him

years earlier that he was breaking the law by failing to note a 

foreign account on his personal tax returns. 

When Bedrosian finally disclosed his foreign holdings 

in the required FBAR, he left out a key piece of information. 

The filed form listed just one Swiss bank account with a

balance of less than $1 million, even though he later admitted 

knowing his holdings at UBS were “over a million dollars.” 

Appx. at 12, 137. The form also failed to reflect Bedrosian’s

ownership of a second Swiss bank account.

These omissions eventually surfaced, and the IRS 

assessed the maximum penalty against Bedrosian for willfully 

filing an inaccurate FBAR: 50% of the balance of the 

undisclosed account at the time of the violation, which it 

calculated to be a $975,789.17 penalty. He refused to pay. The 

dispute thus arrived at federal court when the IRS filed a claim 

to collect its civil penalty.1 See 31 U.S.C. § 5321(b)(2).

1 Bedrosian also brought his own suit for unlawful exaction. 

Bedrosian v. United States, 912 F.3d 144, 149 (3d Cir. 2018). 

Yet we expressed skepticism about our jurisdiction over that 

claim. Id. Instead, we focused on the Government’s 

counterclaim. Id. at 150.
5

At first, Bedrosian prevailed. After a one-day bench 

trial, the District Court found the Government failed to prove 

he willfully filed an inaccurate FBAR. The evidence, it said, 

did not reflect “conduct meant to conceal or mislead or a 

conscious effort to avoid learning about the reporting 

requirements.” Appx. at 598 (internal quotation marks 

omitted). So the omission of the second Swiss account was, if 

anything, negligent. 

Bedrosian’s victory was short-lived. On appeal, we

remanded after explaining “willfulness” for an FBAR violation 

was more expansive (and less forgiving) than the District Court 

may have allowed. Bedrosian v. United States, 912 F.3d 144, 

153 (3d Cir. 2018). At bottom, willfulness includes not only 

knowing, but reckless, conduct. Id. at 152. And, we said,

courts should use an objective standard to determine whether a 

person knew or should have known about an “unjustifiably 

high risk of harm.” Id. at 152–53 (quoting Safeco Ins. Co. of 

Am. v. Burr, 551 U.S. 47, 68 (2007)). In layman’s language, if 

the Government could show Bedrosian (1) “clearly ought to 

have known” (2) “there was a grave risk” the FBAR filing 

requirement “was not being met,” and if (3) he “was in a 

position to find out for certain very easily,” it would satisfy the 

willfulness element. Id. at 153 (quoting United States v. 

Carrigan, 31 F.3d 130, 134 (3d Cir. 1994)). Because we were 

unsure whether the Court applied this test, we remanded “for 

further proceedings consistent with our opinion” and for the 

Court to “render a new judgment.” Id. at 147, 153.

The IRS prevailed on remand. The District Court said 

its earlier decision focused too heavily on Bedrosian’s 

subjective intent. But after reevaluating the trial record from 

an objective viewpoint, it determined Bedrosian acted willfully

because he “recklessly disregarded the risk that his FBAR was 
6

inaccurate.” Appx. at 11. The Court also ordered him to pay 

the penalty in the amount the IRS calculated (plus interest)

because the agency had “not abused its discretion in the amount 

of the penalty imposed.” Id. at 17. He now appeals.

II. Analysis2

The amount of a civil penalty for a violation of the Bank 

Secrecy Act depends on three things: (1) whether the violation 

was willful, (2) the calculation of the maximum penalty 

permitted by law, and (3) the IRS’s discretionary decision 

whether to assess a penalty at or below the statutory maximum. 

31 U.S.C. § 5321(a)(5). This appeal focuses on the first two 

components. Bedrosian argues, first, that the District Court 

clearly erred in finding his conduct willful, and second, that the 

Court incorrectly affirmed a penalty beyond what the IRS 

proved was permitted by law. We address each in turn.

A. Willfulness

So far, Bedrosian’s case has turned mainly on the 

meaning of “willfulness” in the penalty provisions for 

violations of the Bank Secrecy Act. As already explained, we

set out the definition of “willfulness” in Bedrosian and left it 

to the District Court to apply that definition as it reconsidered 

the trial evidence. 912 F.3d at 153–54. The Court did so—

making supplemental factual findings where needed—and 

concluded Bedrosian’s conduct was indeed willful. Bedrosian

now challenges that finding on two fronts: (1) the Court 

2 As we explained in Bedrosian, the District Court had 

jurisdiction under 28 U.S.C. § 1345. 912 F.3d at 150. And we 

have appellate jurisdiction under 28 U.S.C. § 1291 to review 

the Court’s final judgment. Id.
7

exceeded the scope of the remand by making supplemental 

findings that led to its conclusion he acted willfully, and (2) his 

conduct was not willful. We disagree on both.

It is unremarkable to say that, on remand, a district court 

must comply with the “letter and spirit of the mandate” issued 

by the court of appeals. Bankers Tr. Co. v. Bethlehem Steel 

Corp., 761 F.2d 943, 949 (3d Cir. 1985). So what was the 

scope of our Bedrosian mandate? Bedrosian insists we

remanded only “to confirm that the District Court’s result 

would be the same under the now-settled standard,” not for it 

to reopen the evidentiary record and make or reconsider factual 

findings. Bedrosian Br. at 26. But we read our opinion 

differently.

Bedrosian imposed few remand restraints on the 

District Court. After stating our willfulness rule, because we 

were “unsure whether the District Court evaluated Bedrosian’s 

conduct under this objective standard,” we decided it was best 

to give the trial court the opportunity to reassess the evidence. 

912 F.3d at 153–54. So we “remand[ed] the case for further 

proceedings consistent with [our] opinion.” Id. at 54. We 

placed no limitation on these proceedings. Instead, our opinion 

actually anticipated that the Court would reconsider its factual 

findings and its judgment. For example, after answering the 

legal question in the appeal, we declined to address potential

factual errors raised by the Government, choosing instead to 

“leave it to the District Court if it needs to [correct these issues] 

on remand.” Id. at 151 n.3. We then “remand[ed] for further 

consideration” and for the Court “to render a new judgment”

(allowing it to change its mind on its ultimate holding). Id. at 

153. Though our opinion did not explicitly state the Court 

could review the full record and make supplemental factual 
8

findings, doing so was well within the “spirit of the mandate.” 

Bankers Tr. Co., 761 F.2d at 949.

We also are not convinced the District Court erred in 

finding Bedrosian’s conduct willful. We review this factual 

determination for clear error. Bedrosian, 912 F.3d at 152. It 

“exists only if a finding is completely devoid of a credible 

evidentiary basis or bears no rational relationship to the 

supporting data.” Interfaith Cmty. Org. v. Honeywell Int’l, 

Inc., 399 F.3d 248, 254 (3d Cir. 2005) (internal quotation 

marks omitted) (alterations adopted).

Here the Court’s rational decision was grounded in 

credible evidence. Its thorough and well-reasoned opinion 

reconsidered whether—based on the evidence presented at the 

bench trial—Bedrosian “clearly ought to have known that 

. . . there was a grave risk that an accurate FBAR was not being 

filed and if . . . he was in a position to find out for certain very 

easily.” Bedrosian, 912 F.3d at 153 (internal quotation marks 

omitted) (alterations adopted). To aid this analysis, the Court

made five supplemental findings:

1. “Bedrosian’s cooperation with the Government

. . . began only after he was exposed as having 

hidden foreign accounts.” Appx. at 5.

2. “Shortly after filing the 2007 FBAR, Bedrosian 

sent two letters to his Swiss bank directing 

closure of two accounts, but only one of these 

accounts had been disclosed on his FBAR.” Id.

at 5; see also id. at 139.

3. “Bedrosian does not dispute he saw an article in 

The Wall Street Journal about the federal 
9

government tracing mail coming into the United 

States and was therefore alerted to the possibility 

of the United States finding out about his foreign 

bank accounts if the bank sent information 

through the mail.” Id.; see also id. at 96.

4. “Bedrosian’s Swiss accounts were subject to a 

‘mail hold.’ He does not dispute the existence of 

the mail hold or that he signed a form and paid a 

fee to the bank for this benefit.” Id. at 6; see also 

id. at 135.

5. “Bedrosian also acknowledged that he was 

aware of the significant amount of money held in 

his foreign bank accounts.” Id. at 6; see also id.

at 137.

The trial record supported each finding.

Relying on these facts, the Court found Bedrosian acted 

recklessly (and therefore willfully under our test) because he 

“knew or should have known the form which he signed was 

inaccurate.” Id. at 13. He checked a box on the FBAR 

reflecting there was less than $1 million in his account. Yet at 

trial he said he knew his main account had “over a million 

dollars in it.” Id. at 12, 137. So even if he did not know he had 

two accounts, the FBAR stating the account held less than a 

million dollars “should have prompted him to investigate 

further, which he could have done easily by contacting the 

bank.” Id. at 12. Indeed, had he “looked at the forms he 

signed,” Bedrosian “should have noticed the amount stated for 

the accounts was not accurate.” Id. Further, he was warned by 

his accountant that he was breaking the law by not disclosing 
10

his accounts to the Government, yet he made no change. Id. at 

12, 98. 

Applying the Bedrosian definition of willfulness to 

these facts, the District Court properly determined Bedrosian 

acted willfully by failing to disclose his second Swiss bank 

account on the FBAR.3 We certainly cannot conclude it clearly

erred.

One further note. Bedrosian invites us to revisit our 

Bedrosian test for willfulness, but we decline to do so under 

the law-of-the-case doctrine. That doctrine prevents 

reconsideration of legal issues already decided in earlier stages 

of a case. Pub. Int. Rsch. Grp. v. Magnesium Elektron, 123 

F.3d 111, 116 (3d Cir. 1997). Though Bedrosian correctly 

notes an exception when the earlier decision was “clearly 

erroneous,” id. at 117, he identifies no on-point binding 

precedent with which Bedrosian conflicts,

4

see Pardini v. 

3 Bedrosian also criticizes the District Court for the analogies 

it drew between his case and the Fourth Circuit’s decision in 

United States v. Horowitz, 978 F.3d 80 (4th Cir. 2020), where 

that Court found the defendant’s FBAR violation willful. Even 

if he is correct that the District Court incorrectly likened his 

case to Horowitz, this makes no difference. Horowitz is an outof-circuit, non-binding precedent, so the similarity or 

dissimilarity of his case is irrelevant. All that matters here is

that the District Court found Bedrosian’s conduct satisfied our

test for willfulness.

4 Even had he shown our decision was wrong, it likely would 

be up to our Court en banc, not our panel, to modify that 

decision. See 3d Cir. I.O.P. 9.1. This is especially true now 

that another of our Court’s precedential opinions has adopted 

and applied the test we set out in Bedrosian. See United States 

v. Collins, 36 F.4th 487, 491 (3d Cir. 2022).
11

Allegheny Intermediate Unit, 524 F.3d 419, 426–27 (3d Cir. 

2008) (noting we would not have to follow the law-of-the-case 

doctrine if a prior opinion clearly erred by disregarding binding 

precedent). Our earlier decision thus stands.

B. Maximum Penalty

Willfulness, though, is just the first hurdle the 

Government must overcome to collect the penalty it assessed

against Bedrosian. The statute also limits the IRS’s authority 

in other ways, particularly by setting a maximum penalty. 

Once a violation of the Bank Secrecy Act is found to be willful, 

the IRS has two options: impose up to the greater of a $100,000

penalty or assess a penalty of up to “50 percent of the amount

. . . [of] the balance in the account at the time of the violation.” 

31 U.S.C. § 5321(a)(5)(C), (D). The Government has 

discretion to assess a penalty up to the statutory maximum. 

The maximum penalty amount—like willfulness—is an 

element of the cause of action to collect the penalty. See 31 

U.S.C. § 5321(a)(5)(C). So, also like a determination of 

willfulness, it is a factual finding the District Court must make 

based on the evidence presented at trial. Once that statutory 

maximum is properly calculated, the Court may only set aside

the IRS’s discretionary determination of whether to impose the 

maximum or some lesser amount “if it was arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law.” United States v. Collins, 36 F.4th 487, 

493 (3d Cir. 2022) (Collins II)

5

; see also Frisby v. U.S. Dep’t 

5

In Collins, the statutory maximum penalty was not at issue 

(as it is here) because the District Court found the defendant

admitted to his account balances. See No. 18-cv-1069, 2021 

WL 456962, at *1–2 (W.D. Pa. Feb. 8, 2021) (Collins I); see 
12

of Hous. & Urb. Dev., 755 F.2d 1052, 1055 (3d Cir. 1985)

(“Where Congress has granted an agency discretion, the 

resulting decisions are subject to judicial review only to 

determine whether the Secretary has exceeded statutory 

authority or has acted arbitrarily.”).

Facts underlying the calculation of the maximum civil 

penalty—in this instance, the account balance—must be 

proven by a preponderance of the evidence. See, e.g., Herman 

& MacLean v. Huddleston, 459 U.S. 375, 389–90 (1983)

(noting the burden of proof in civil cases is preponderance of 

the evidence and “imposition of even severe civil sanctions 

. . . has been permitted after proof by a preponderance of the 

evidence”). And because the Government brought this civil 

action under 31 U.S.C. § 5321(b)(2) “to recover a civil 

penalty,” it bore the burden of proving the account balance at 

trial—again, in the same way it did the element of willfulness.6 

Collins II, 36 F.4th at 494 (“Collins’s penalty is well below the 

amount permitted by law.”). Indeed, the IRS imposed a 

penalty 75% below the maximum penalty in that case, so there 

was no argument that the IRS exceeded its statutory authority. 

Collins II, 36 F.4th at 494; see also Kimble v. United States, 

991 F.3d 1238, 1242, 1243–44 (Fed. Cir. 2021) (reviewing for 

abuse of discretion the IRS’s decision to impose the maximum 

civil FBAR penalty and not lessen the penalty due to mitigating 

factors).

6 The Government must prove the account balance only 

because it chose the option under the statute to penalize 

Bedrosian at 50% of the balance of his undisclosed account. 

Had the Government chosen the other maximum penalty 

option—$100,000 for each violation—the account balance 
13

The Government contends Bedrosian’s undisclosed 

bank account held $1,951,578.34, making its $975,789.17

penalty lawful. But Bedrosian claims it failed to prove this 

fact, particularly because it pulls this figure from arguably

inadmissible evidence. And, he says, the District Court abused 

its discretion by admitting and ultimately relying on this 

evidence to uphold the IRS’s imposition of the civil penalty. 

1. Admissibility of Evidence

At trial, the Government presented no live testimony 

discussing Bedrosian’s bank accounts.7 Instead, at the close of 

its case and without a witness, it tried to introduce a series of 

documents, including Exhibit R (the record the Government 

claims establishes the balance in Bedrosian’s Swiss account),

Exhibit S (showing the Swiss Franc to U.S. Dollar exchange 

rates for 2006 through 2011), and Exhibit T (converting the 

account balances in Exhibit R into U.S. Dollars using the 

Exhibit S exchange rates). Bedrosian objected, claiming there 

was a lack of foundation to introduce these exhibits. And the

Court reserved its ruling on the admissibility of the documents 

until the parties provided more briefing. Ultimately, it only 

resolved this issue after our remand, when it appears to have 

would be irrelevant. Instead, it would only need to prove a 

willful violation of the Bank Secrecy Act.

7 The Government offered only one witness: an IRS employee 

who prepared the letter assessing the penalty against 

Bedrosian. She explained that she had no role in calculating 

the penalty amount and no idea how the penalty was calculated. 

She simply received a sheet of paper from an IRS agent stating 

the penalty amount and entered it into the system to generate 

the official penalty certificate. 
14

admitted the documents and relied on them to uphold the IRS’s 

penalty.

The legitimacy of the IRS’s penalty centers on the 

admissibility and the contents of Exhibit R. This exhibit 

consists of a single page and appears to be a record of some 

account. See Appx. at 528. The heading reads “monthly 

balances” and below it is a monthly breakdown of numbers 

from 2001 to 2008. On the left side of the page is a string of 

numbers, “D3.US.642/174-D1540_2_00001,” which looks

like a Bates stamp identifier from discovery.

See id. 

Exhibit R is admissible only if relevant. See Fed. R. 

Evid. 402. And here the relevance of this document hinges on 

whether it reflects the balance of Bedrosian’s undisclosed 

Swiss bank account, as the Government claims it does. After 

all, the random account statement of some other person
15

banking with UBS or any other bank would have no bearing on 

what civil penalty Bedrosian owes the IRS. The Government, 

though, offered no foundation tying Bedrosian or his UBS 

account to this exhibit.8 

Take a closer look at the exhibit. There is no name on 

the page. No account number. Not even a bank mentioned. 

There are numbers on the page, but no listed currency. 

Presumably because it is a “monthly statement,” it is showing 

an account balance (though it could even be a balance for an 

unpaid bill). And are the stated balancesin Swiss Francs? U.S. 

Dollars? Euros? We simply don’t know. There is a Bates 

number on the side of the page stating, “D3.US.642/174-

D1540_2_00001,” but nothing in the record explains what that 

number means.

9

 Indeed, because the Government tried to enter 

8 The Government explains that Exhibit R was a selfauthenticating business record that could be submitted into 

evidence without a live witness under Federal Rule of 

Evidence 902(12) because it was accompanied by a custodian 

certification (Exhibit U). Perhaps so. But authenticity and 

relevance are “two separate matters.” United States v. 

Southard, 700 F.2d 1, 23 (1st Cir. 1983). A business record 

may be self-authenticating, but there must still be “testimony 

linking the [defendant] with the documents” to establish 

relevance. Id.; see also United States v. Browne, 834 F.3d 403, 

410 (3d Cir. 2016).

9 For the first time on appeal, the Government points to the 

Bates stamp numbers to tie this document to Bedrosian. It 

claims other exhibits with similar Bates numbers “confirm that 

this Bates range concerns Bedrosian.” IRS Br. at 62. The 

problem, though, is it failed to lay this foundation through 

testimony at trial. This is simply a hypothesis; there is no 

evidence explaining the Bates number ranges or tying these 
16

Exhibit R into evidence without a witness laying a foundation, 

the Court had no help identifying or explaining its contents. 

All we know from the record is Exhibit R shows 

someone’s “monthly balance” for something somewhere. The 

Government’s attorneys in briefing now tell us it is a UBS

“statement showing monthly account balances for Bedrosian’s 

6137 account stated in Swiss francs,” IRS Br. at 60–61, but 

nothing in evidence at trial supports that claim. And without 

the Government laying the foundation to show Exhibit R states

the monthly balances for Bedrosian’s unreported bank account, 

it is just a slip of paper with no relevance to this case. We 

therefore conclude the District Court should not have admitted

Exhibit R without further foundation. And, consequently, this 

document cannot confirm that the IRS’s $975,789.17 penalty

was 50% of Bedrosian’s account balance.

2. Judicial Admissions

Exhibit R was the only evidence the Government 

submitted that purportedly showed the balance of Bedrosian’s 

undisclosed account. But it isn’t the only indication in the 

record of the account balance. The Government also argues

Bedrosian’s counsel admitted that the account contained 

$1,951,578.34, and that this was a binding judicial admission. 

Judicial admissions are “admissions in pleadings, 

stipulations or the like which do not have to be proven in the 

same litigation.” Anderson v. Commissioner, 698 F.3d 160, 

167 (3d Cir. 2012) (internal quotation marks omitted) 

(alterations adopted). They must be “unequivocal,” id., or as 

Bates numbers to Bedrosian. The Government cannot rectify 

this lack of foundation now on appeal.
17

other Circuits have said, “intentional, clear, and

unambiguous,” In re Motors Liquidation Co., 957 F.3d 357,

361 (2d Cir. 2020) (collecting cases). 

Here the Government identifies four statements

Bedrosian made through his counsel in briefing or at trial that

it believes constituted judicial admissions:

1. Bedrosian’s Response to the Government’s

Statement of Undisputed Material Facts in

Support of Summary Judgment: “Admit[ting]”

that “the penalty was calculated as 50% of

Bedrosian’s account balance for the account

ending in 6167, or fifty percent of $1,951,578.34,

which equals $975,789.17.” Doc. 22-3 ¶ 51; Doc.

26-1 ¶ 51.

2. Bedrosian’s Statement of Undisputed Material

Facts in Support of Summary Judgment: “On or

about July 18, 2013 the IRS imposed upon the

plaintiff a willful penalty for failure to file[] [an

FBAR]. . . . The maximum value of the account

was $1,951,578.34 and the amount of the penalty

was $975,789.19—half the value of the account

and the highest penalty that could be imposed.” 

Doc. 25-1 ¶ 35–36.

3. Bedrosian’s Trial Brief: “On or about July 18,

2013 the IRS imposed upon the plaintiff a willful

penalty for failure to file[] [an FBAR]. . . . The

maximum value of the account was

$1,951,578.34 and the amount of the penalty was

$975,789.19—half the value of the account and
18

the highest penalty that could be imposed.” Doc.

49 at 5.

4. Bedrosian’s Opening Statement: “Now, the

government states and we concede that at the time

there was about 2 million U.S. dollars in that

account give or take, you know, you have the

exchange rate and all, it’s like 2.6 Swiss francs

and they’ll have a witness that gets up and does

the math, but it works out to about around 2

million dollars.” Appx. at 66.

The District Court has discretion to treat a party’s

statement as a judicial admission and to bind the party to that

admission. See Cooper v. Carl A. Nelson & Co., 211 F.3d

1008, 1014 (7th Cir. 2000); Singer v. State Farm Mut. Auto.

Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). But here the Court

did not decide whether these were judicial admissions, finding

instead that the Government’s evidence (which we have now

held inadmissible) was sufficient. 

Still, even though the District Court did not address this

argument, we “may affirm on any basis supported by the

record, even if it departs from the District Court’s rationale.” 

TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019). And

while arguably some of the statements Bedrosian made in the

District Court proceedings are not judicial admissions, the

statement made in opening argument acknowledged the true

state of the facts. See, e.g., Glick v. White Motor Co., 458 F.2d

1287, 1291 (3d Cir. 1972) (“[A]n admission of counsel during

the course of trial is binding on his client.”); United States v.

McKeon, 738 F.2d 26, 30 (2d Cir. 1984) (“The binding effect

on a party of a clear and unambiguous admission of fact made

by his or her attorney in an opening statement was
19

acknowledged by the Supreme Court . . . and has been

frequently recognized in subsequent lower court decisions

involving civil cases.”). The concession that “there was about

2 million U.S. dollars” in the undisclosed account, Appx. at 66,

makes the IRS’s $975,789.17 penalty below the statutory

maximum (50% of the account balance). We therefore affirm

the District Court’s judgment on this alternative ground.

* * *

Arthur Bedrosian willfully filed an inaccurate FBAR. 

So the Government could validly penalize him under the 

penalty provisions for willful violations of the Bank Secrecy 

Act. What the Government could not do, though, is penalize 

him beyond the maximum statutory limits. The Government’s 

evidence at trial failed to prove by a preponderance that 

Bedrosian’s undisclosed bank account held $1,951,578.34. 

But acknowledging at trial an account balance of at least that 

much saves the need for a remand to make a finding of the 

obvious. We thus affirm.