United States v. Paul W. Graber ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2973
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Paul W. Graber, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 2, 1998
Filed: January 9, 1998
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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Paul W. Graber appeals from the district court&s1 civil contempt order entered
against him for failure to provide the Internal Revenue Service (IRS) documents in
compliance with the court&s April 1996 order, enforcing an IRS summons for
documents and testimony regarding Graber&s 1988-1994 tax liability. We affirm.
1
The Honorable R. E. Longstaff, United States District Judge for the Southern
District of Iowa, adopting the report and recommendations of the Honorable Ross A.
Walters, United States Magistrate Judge for the Southern District of Iowa.
Graber argues that the enforcement order was invalid. We find that the
government&s petition and attachments sufficiently supported a good faith basis for
enforcement. See United States v. Powell, 379 U.S. 48, 57-58 (1964); Tax Liabs. of:
John Does, All Unknown Employees of Boundary Waters Restaurant v. United States,
866 F.2d 1015, 1018-19 (8th Cir. 1989). Graber&s response, including his claim that
he had not “elected” to be treated as a United States citizen and was not born “subject
to the Internal Revenue Tax,” as well as his denial of possession of pertinent
documents “for lack of information to form a belief,” failed to create a fact question or
to meet his burden of showing a legitimate basis for contesting the summons. See
United States v. Lawn Builders of New England, 856 F.2d 388, 392-93 (1st Cir. 1988)
(summoned party&s denial based on “lack [of] knowledge or information sufficient to
form a belief” insufficient to meet burden of proving nonpossession).
We conclude the contempt order was proper. At the contempt hearing, the
government produced clear and convincing evidence that Graber did not produce the
documents in compliance with the enforcement order. See Wycoff v. Hedgepeth, 34
F.3d 614, 616 (8th Cir. 1994) (burden of proof). Although Graber denied having the
documents, he provided no further explanation or evidence. Graber failed to object to
the magistrate judge&s report and recommendation finding him in contempt, and the
district court did not clearly or plainly err in finding Graber did not meet his burden of
proving a “present inability to comply with the earlier enforcement order.” See United
States v. Rylander, 460 U.S. 752, 757, 760-61 (1983) (enforcement order contains
“implied finding that no defense of lack of possession or control had been raised and
sustained,” and gives rise to “presumption of continuing possession arising from the
enforcement order”; in contempt proceeding, defendant bears burden of producing
evidence establishing his present inability to comply with court order); Wright v.
Nichols, 80 F.3d 1248, 1250 (8th Cir. 1996) (factual findings in contempt order
reviewed for clear error); Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994)
(reviewing factual findings for plain error where no objections to magistrate judge&s
report).
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Accordingly we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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