United States v. Robert Lund , 550 F. App'x 469 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-35351
Plaintiff - Appellee, D.C. No. 6:11-cv-06237-AA
v.
MEMORANDUM*
ROBERT A. LUND,
Respondent - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Robert A. Lund appeals pro se from the district court’s order enforcing a
summons against him issued by the Internal Revenue Service (“IRS”) in
connection with an investigation into Lund’s federal income tax liabilities. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review for clear error, United States
v. Blackman, 72 F.3d 1418, 1422 (9th Cir. 1995), and we affirm.
The district court did not clearly err by granting the petition to enforce the
summons because Lund failed to rebut the government’s showing that the
summons was issued in good faith. See Stewart v. United States, 511 F.3d 1251,
1254-55 (9th Cir. 2008) (explaining taxpayer’s “heavy” burden to show an abuse
of process or lack of good faith once government makes prima facie showing that
the summons was issued in good faith); Crystal v. United States, 172 F.3d 1141,
1144 (9th Cir. 1999) (“The government's burden is a slight one, and may be
satisfied by a declaration from the investigating agent[.]” (citation and internal
quotation marks omitted)). The district court properly rejected Lund’s contention
that the revenue agent lacked authority to issue the summons. See United States v.
Derr, 968 F.2d 943, 947 (9th Cir. 1992) (rejecting argument that the IRS revenue
agents do not have delegated authority to issue summonses under 26 U.S.C.
§ 7602). Lund’s reliance on 26 U.S.C. § 7608 is misplaced, as the summons
concerns a civil, not criminal, investigation. See 26 U.S.C. § 7608(b).
The district court properly rejected Lund’s claim of Fifth Amendment
privilege because the summons was issued in connection with a civil investigation
and Lund did not establish that there was a real and substantial danger of self-
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incrimination. See United States v. Bright, 596 F.3d 683, 690-91 (9th Cir. 2010)
(“A claim of Fifth Amendment privilege may be asserted if there are substantial
hazards of self-incrimination that are real and appreciable, not merely imaginary
and unsubstantial, that information sought in an IRS summons might be used to
establish criminal liability.” (citation and internal quotation marks omitted)).
Lund’s contentions that his due process, Fourth Amendment, and Sixth
Amendment rights were violated are also unpersuasive.
AFFIRMED.
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