United States v. Melick

959 F. Supp. 2d 193, 2011 WL 10934145, 108 A.F.T.R.2d (RIA) 6780, 2011 U.S. Dist. LEXIS 116600
CourtDistrict Court, D. New Hampshire
DecidedOctober 6, 2011
DocketCivil No. 10-cv-308-JD
StatusPublished

This text of 959 F. Supp. 2d 193 (United States v. Melick) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Melick, 959 F. Supp. 2d 193, 2011 WL 10934145, 108 A.F.T.R.2d (RIA) 6780, 2011 U.S. Dist. LEXIS 116600 (D.N.H. 2011).

Opinion

ORDER ON PETITION FOR CIVIL CONTEMPT

JOSEPH A. DiCLERICO, JR., District Judge.

The government has filed a petition for civil contempt (Doc. no. 20) alleging that C. Gregory Melick, a/k/a Charles Gregory Melick, has failed to comply with the court’s August 6, 2010, order, (Doc. no. 16), requiring him to comply with the Internal Revenue Service (“IRS”) summons that was the subject of the government’s petition to enforce filed on May 11, 2010. (Doc. no. 1). Melick was ordered to appear at the Internal Revenue Office at 80 Daniel Street, Portsmouth, New Hampshire, on August 20, 2010, at 9:30 a.m., before Revenue Officer David Kalinowski or any other authorized Revenue Officer of the IRS, to give testimony and produce all books and records in his possession or control required and called for by the terms of the summons.1 See Attachment A.

Background

IRS Revenue Agent Sonia J. Cryan conducted an investigation of Melick’s tax liability for 2003. The IRS seeks Melick’s testimony and documents within his control in connection with the investigation. On February 26, 2010, Cryan issued an IRS summons ordering C. Gregory Melick to appear at the IRS’s office in Laconia, New Hampshire, on March 16, 2010, to testify and produce all documents or records in his possession or control regarding “assets, liabilities, or accounts held in the taxpayer’s name or for the taxpayer’s benefit which the taxpayer wholly or partially owns, or in which the taxpayer has a security interest” for the period from September 1, 2009, to February 25, 2010. (Doc. no. 1, Ex. 2). Cryan served the summons on Melick on March 2, by taping it to his apartment, door in a secured, confidential envelope. Melick failed to appear pursuant to the summons.

On May 11, 2010, the government filed a petition in this court to enforce the IRS summons. On May 17, this court issued an order for Melick to show cause why the petition should not be granted and scheduled a hearing for July 7, 2010, before the magistrate judge. The order gave Melick ten days to file a' written response supported by affidavit and tó file any motions. The order provided that the court would consider “[ojnly those issues raised by motion or brought into controversy by the responsive pleadings and supported by affidavit ...” and that “any uncontested allegations in the petition [would] be considered as admitted.” On May 24, a deputy sheriff with the Carroll County Sheriffs Office served Melick with the May 17 show cause order by handing it, to him, along [196]*196with the IRS petition and exhibits, at his Tamworth, New Hampshire, home.

In response to the order, on June 2 Melick filed a motion to dismiss under Rule 12(b), alleging, inter alia, lack of personal and subject matter jurisdiction. He also claimed that process and service of process were inadequate because the summons bore neither the signature of the Clerk of Court nor the court seal. The government objected.

On July 6, 2010, Melick returned the show cause order, petition, and exhibits to the court. On the first page of the order, he scrawled that the order was refused for insufficient process, lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim.

Melick did not appear at the July 7, 2010, show cause hearing. On July 6, he filed a second motion to dismiss, again challenging the court’s jurisdiction and asserting the same arguments he had made in his first motion to dismiss. The government again objected.

On July 8, 2010, the magistrate judge issued a report and recommendation addressing the IRS summons and Melick’s June 2 motion to dismiss.2 The magistrate judge found that the government had satisfied the factors set forth in United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), and that Melick had not met his burden of showing that the summons was invalid or that enforcement would be an abuse of the court’s process. See Powell, 379 U.S. at 58, 85 S.Ct. 248. The magistrate judge recommended that Melick be ordered to obey the summons and that his June 2 motion to dismiss be denied for the reasons set forth in the government’s objection. The magistrate judge also recommended that the government be awarded its costs. The court mailed the report and recommendation to Melick at his home address.

On July 12, 2010, Melick filed a notice of a change of address, informing the court that his mailing address was P.O. Box 422, Chocorua, New Hampshire. Melick stated that he might return mail addressed to the wrong party or sent to a different address. The court resent the magistrate judge’s report and recommendation to the post office box address.

On July 22, 2010, Melick filed a second notice of change of address, stating that his correct mailing address was “Charles Gregory Melick, Sui Juris, c/o P.O. Box 422, Chocorua [03817-0422], New Hampshire, U.S.A.” (Doc. no. 12). Melick again said that mail addressed to another name or to an address other than the one given would not be “received or accepted” by him. Id.3 On July 30, the court sent Melick the report and recommendation for the third time. The court noted that Melick had returned mail sent to both his post office box and his street address and that the court had called the U.S. Post Office to confirm his address.4

On August 5, 2010, Melick filed a third notice of change of address, in which he [197]*197provided a new mailing address, a post office box in North Conway, New Hampshire. (Doc. no. 15). The court sent the report and recommendation to the North Conway address.

On August 6, 2010, the court granted the government’s petition to enforce its summons and denied both of Melick’s motions to dismiss. The court observed that neither party had filed a timely objection to the magistrate judge’s report and recommendation, concerning Melick’s June 2 motion to dismiss and the government’s petition and, therefore, approved the recommended decision without further analysis. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir.2010). The court denied Melick’s July 6, 2010, motion to dismiss, holding that the court had jurisdiction to enforce the IRS summons, awarded costs to the government, and ordered Melick to appear before an authorized Revenue Officer of the IRS at the IRS’s Portsmouth, New Hampshire, office on August 20, 2010, at 9:30 a.m., to give testimony and produce the books and records called for by the February 26, 2 010, summons. The order directed the United States Marshal or his deputy to deliver service to Melick in hand and to file a return of service with the court. Melick was personally served on August 19, in accordance with the court’s order.

Melick failed to appear at the IRS office on August 20, 2010, in response to the court’s order. Three hours after his ordered appointment, Melick left a telephone message with the Taxpayer Walk-in Service that he would need to reschedule his appointment. On September 6, 2010, Melick wrote a letter to the IRS indicating that he had hired an “IRS Enrolled Agent Tax Preparer” to “compose a completed report of pertinent financial records for submission to the Internal Revenue Service” for the 2003 tax year.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Powershare, Inc. v. Syntel, Inc.
597 F.3d 10 (First Circuit, 2010)
United States v. Elmes
532 F.3d 1138 (Eleventh Circuit, 2008)
United States v. Powell
379 U.S. 48 (Supreme Court, 1964)
Donaldson v. United States
400 U.S. 517 (Supreme Court, 1971)
Ford v. Pryor
552 F.3d 1174 (Tenth Circuit, 2008)
United States v. Winter
70 F.3d 655 (First Circuit, 1995)
Goya Foods, Inc. v. Wallack Management Co.
290 F.3d 63 (First Circuit, 2002)
United States v. Saccoccia
433 F.3d 19 (First Circuit, 2005)
In Re Grand Jury Investigation
545 F.3d 21 (First Circuit, 2008)
George J. Novak v. World Bank
703 F.2d 1305 (D.C. Circuit, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
959 F. Supp. 2d 193, 2011 WL 10934145, 108 A.F.T.R.2d (RIA) 6780, 2011 U.S. Dist. LEXIS 116600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-melick-nhd-2011.