U.S. v. Rylander

Decision Date04 September 1981
Docket NumberNos. 80-4594,80-4595,s. 80-4594
Citation656 F.2d 1313
Parties81-2 USTC P 9662 UNITED STATES of America, Plaintiff-Appellee, v. Richard W. (Dick) RYLANDER, Sr., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph F. Harbison, III, Mandich, Clark & Barker, Sacramento, Cal., for defendant-appellant.

Michael L. Paup, Charles E. Brookharl, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE, FLETCHER and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

This is an appeal from an order holding Rylander in civil contempt for failure to comply with an IRS summons. The court below ordered Rylander incarcerated until he produces the records described in the summons or testifies as to why he cannot do so. Rylander appeals pursuant to 28 U.S.C. § 1826(b) and 28 U.S.C. § 1291. We hold that the government has not met its burden of proving that Rylander has the specified records, and we reverse and remand.

I FACTS

These contempt proceedings arose out of an IRS attempt to investigate the tax liability of two corporations, Rylander and Company Realtors, Inc., and Affiliated Investments and Mortgage Company. The IRS issued a summons to Richard W. Rylander, Sr., as president of the corporations, ordering him to testify and to produce certain records of the corporations. The IRS petitioned the district court for judicial enforcement of the summons, I.R.C. §§ 7602, 7604(b), and on November 19, 1979 the district court issued an order to show cause why the summons should not be enforced.

A show cause hearing was scheduled for January 14, 1980, and Rylander was duly served with notice. Rylander did not appear at the hearing, nor did he file pleadings in response to the show cause order. Instead, he returned the order to the court, together with a letter claiming that he was not the president of the subject corporations and had thus been improperly served. The court nevertheless proceeded with the show cause hearing on January 14. Following an offer of proof and testimony by IRS agents, the court concluded that Rylander was president of the corporations. The court then enforced the summons, ordering Rylander to appear before an IRS agent on February 4, 1980 and produce the records requested by the IRS.

Rylander appeared on February 4, but brought no records with him. He stated that he did not have any of the records called for by the summons, and that he had therefore complied with the summons as far as he was able. He then refused to answer any further questions.

The IRS petitioned for enforcement of the court's order, and the court issued an order to show cause why Rylander should not be held in contempt. Attempts to serve Rylander with this order and several subsequent orders to show cause were unsuccessful. Finally, on May 27, 1980, the court determined that Rylander was avoiding service and issued a bench warrant for his arrest. 1

On October 8, 1980, the court held a show cause hearing to determine whether Rylander should be held in contempt for failure to obey the order enforcing the summons. 2 The court concluded that, while inability to comply with the summons would constitute a defense to the contempt charges, Rylander had the burden of showing that he was unable to comply and had failed to meet his burden. The court found Rylander guilty of civil contempt, and ordered him

remanded to the custody of the Attorney General unless and until he purges himself of the civil contempt charge by either: (1) Complying with the Court Order to produce the documents; or (2) Testifies (sic) why he cannot produce the documents.

At this point, Rylander stated that he wished to purge himself of the contempt by testifying as to why he could not produce the documents. The government responded that it intended to cross-examine Rylander on his testimony. The court then continued the proceedings until the following day so that counsel could be appointed to represent Rylander. The next morning Rylander submitted a sworn "Oath in Purgation of Contempt" stating that he did not have any of the records called for by the IRS summons. Recognizing that Rylander's fifth amendment rights might be involved, the court vacated its contempt order and continued the proceedings until October 23, 1980 to give counsel an opportunity for further briefing.

On October 23, Rylander took the stand and testified that he did not have the records. When asked where the records were, he declined to answer on fifth amendment grounds. The court then reinstated its order of October 8, holding Rylander in contempt and setting the same purging conditions.

Incarceration was suspended pending this appeal. 3

II DISCUSSION

The purpose of a civil contempt sanction is to compel compliance with a court's order. United States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980); United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980). If compliance is impossible, a contempt sanction can serve no purpose. For this reason, inability to comply is generally recognized as a defense to a charge of civil contempt. Asay, 614 F.2d at 660; see United States v. Hankins, 565 F.2d 1344, 1351-52 (5th Cir. 1978); United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976). 4 In this case, the trial court's contempt order was designed to compel Rylander to produce the documents covered by the IRS summons. Rylander has claimed that he is unable to comply, but has put forth no evidence other than his own sworn statement in support of his claim. In order to determine whether Rylander was properly held in contempt, we must therefore decide two questions: First, who has the burden of proving Rylander's ability or inability to comply with the summons? And second, has that burden of proof been met? Our analysis is, of course, colored by our recognition that Rylander has asserted what appears to be a bona fide fifth amendment claim. 5

A. Res Judicata.

As a preliminary matter, we must consider the government's contention that at the time of the contempt hearing, Rylander was foreclosed from asserting that he did not have the documents. In the government's view, Rylander could have asserted this defense during the summons enforcement proceeding. Because he failed to do so, the government argues that the enforcement order is res judicata on the issue of whether Rylander actually had the documents. We disagree. As the government itself points out, enforcement proceedings under I.R.C. § 7604(b) are summary in nature. When the IRS seeks to enforce a summons, its burden is very light; it need only show "that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the (Internal Revenue) Code have been followed." United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). The IRS need not show that the information sought is in the possession of the person summoned. United States v. Freedom Church, 613 F.2d 316, 322 (1st Cir. 1979).

In the present case, the enforcement proceeding did not result in a finding that Rylander had possession of the documents. The court limited its inquiry to the issues of whether Rylander was the president of the corporations being investigated, and whether the Powell conditions had been met. As noted above, Rylander did not appear and did not raise any defenses. Since a finding on Rylander's ability to comply with the summons was unnecessary at the enforcement stage, and since no such finding was made, we hold that Rylander was not foreclosed from claiming during the contempt proceedings that he was unable to comply with the summons. 6

B. Burden of Proof.

In a civil contempt proceeding, the proof of contempt must be clear and convincing. United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980); United States v. Rizzo, 539 F.2d 458, 465 (5th Cir. 1976). To make a prima facie showing of contempt, however, the government need prove only that the defendant has failed to comply with a valid court order. It need not prove that the defendant is able to comply. As we stated in NLRB v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973) (citations omitted),

although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply. The contrary burden is upon the respondent. To satisfy this burden the respondent must show "categorically and in detail" why he is unable to comply.

We view Trans Ocean as imposing on the defendant a burden of production. This burden is normally satisfied when the defendant produces sufficient evidence of his inability to comply to raise a question of fact. Texas Department of Community Affairs v. Burdine, --- U.S. ----, ---- & n.8, 101 S.Ct. 1089, 1094 & n.8, 67 L.Ed.2d 207 (March 4, 1981); see United States v. King, 587 F.2d 956, 964-65 (9th Cir. 1978). The burden of persuasion remains on the government, but what may be required to sustain the burden varies according to the evidence produced by the defendant. Initially, the government need persuade the court only that the defendant has failed to comply with a valid court order. Once the defendant has produced detailed evidence regarding his inability to comply with the order, 7 the government has the additional burden of persuading the court that the defendant actually is able to comply. Cf. United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978) (in criminal case, government has burden of disproving only those defenses which are actually raised).

Rylander asserts...

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