United States v. Melina Ali

874 F.3d 825
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 3, 2017
Docket16-1655
StatusPublished
Cited by31 cases

This text of 874 F.3d 825 (United States v. Melina Ali) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Melina Ali, 874 F.3d 825 (4th Cir. 2017).

Opinion

• Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge ■ Wilkinson and Judge Diaz joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Following an investigation of Melina Ali’s income tax liability, the Internal Revenue Service issued a' summons to her seeking various documents. When Ali failed to produce certain documents, the district court held her in contempt. Ali appeals, and for the reasons that follow, we affirm.

I.

This case involves a complex factual and procedural history, which we need only briefly summarize. In 2013, the IRS began investigating Ali’s federal income tax liability, The IRS issued-an administrative summons to Ali, directing her to appear and produce documents related to financial accounts and corporate records for several business entities. Ali appeared but asserted her Fifth Amendment privilege and refused to produce any documents or provide any substantive testimony.

The Government petitioned to enforce the summons and Ali moved to quash, again asserting her Fifth Amendment privilege against self-incrimination. After a show-cause hearing, the district court determined that the Government had made a prima facie case for enforcement with respect to many of the requested documents. The court initially reserved decision on the Fifth Amendment privilege with respect to “records relating to foreign bank accounts” and “corporate records for domestic or foreign entities possessed or controlled by Ali in a representative capacity,” but ultimately held the Fifth Amendment privilege did not protect those records. Accordingly, the district court ordered Ali to produce those documents (“Enforcement Order”). Ali noted an appeal to challenge the denial of her Fifth Amendment claim but withdrew that appeal before this court could consider it.

In response to the Enforcement Order, Ali produced hundreds of pages of documents, but almost all of them related to her domestic bank accounts. With respect to her foreign bank accounts and corporate records—all clearly subject to the Enforcement Order—Ali produced only four pages of information: a one-page letter from a foreign bank dated prior to the summons stating that Ali’s signature did not match the signature on file for the account in question, and three pages of correspondence showing Ali had power of attorney for one of the corporate entities. The Government, believing Ali had not fully complied with the Enforcement Order, sought an order requiring Ali to show cause why she should not be held in contempt.

In her briefing and at the show-cause hearing, Ali, through counsel, again asserted her Fifth Amendment privilege. Ali also relied for the first time on the defense of nonpossession, claiming that she had “produced the only records ... in her possession or custody.” Additionally, she claimed that the IRS had failed to prove by clear and convincing evidence that she possessed “any responsive documents that have not already been produced.”

The district court ruled that the Government had met its burden of establishing a prima facie showing of contempt. The court found that Ali knowingly or constructively violated the Enforcement Order by failing to produce responsive documents over which she had at least constructive possession or control. The court credited the Government’s evidence demonstrating that Ali was a beneficial owner of the foreign accounts and that she served in a “representational capacity” for the various corporations, which established a presumption that Ali possessed documents related to those accounts and corporations. The court also found that the Government did not have to show that Ali actually possessed specific records she had not yet produced and that Ali could not assert her nonpossession defense for the first time during the contempt proceeding.

The burden then shifted to Ali to demonstrate that she had “made in good faith all reasonable efforts to comply” with the Enforcement Order. Her effort to meet this burden consisted only of resubmitting an unsworn declaration from one of her attorneys that predated the enforcement order and listed the documents that had been produced on Ali’s behalf. The court found this declaration insufficient, noting that although the attorney could testify as to what she had done on Ali’s behalf, the attorney could not testify as to what Ali had done to demonstrate her good faith. The court explained that Ali had to “produce evidence (not argument by counsel)” to establish that she had made reasonable efforts to comply with the Enforcement Order. The district court credited the Government’s suggestion of “reasonable efforts” Ali could have taken to obtain the requested records, including contacting the banks that possessed these records, contacting family members with access to the bank accounts, or stating under oath that she had made reasonable attempts to obtain the records. Because Ali failed to take any of these steps, the court ruled that she had not satisfied her burden of production and held her in civil contempt.

Ali timely noted this appeal of the contempt order. We review a district court’s civil contempt order for abuse of discretion. Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000).

II.

The Supreme Court’s decision in United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983), guides the resolution of this case. There, the IRS issued a summons ordering Rylander to provide testimony and produce various documents. Id. at 754, 103 S.Ct. 1548. Ry-lander did not comply, so the district court ordered Rylander to appear and produce the requested records. Id. When Rylander failed to comply with the court’s enforcement order, the court initiated civil contempt proceedings. Id. During the contempt proceeding, Rylander asserted for the first time that he did not possess the documents in question. Id. The district court found this defense inadequate and held Rylander in contempt. Id. at 755, 103 S.Ct. 1548. The Supreme Court affirmed the district court, holding that if a defendant wishes to contest a summons on the ground that he lacks “possession or control” of the subpoenaed records, he must raise that issue at the enforcement stage— it cannot “be raised for the first time in a contempt proceeding.” Id. at 757, 103 S.Ct. 1548. That is because a taxpayer must assert all applicable defenses at the enforcement stage; the only exception is “present inability to comply” i.e., an inability to comply that arises after the enforcement proceeding and exists at the time of the contempt proceeding. Id. at 756-57, 103 S.Ct. 1548.

In Rylander, the Supreme Court found the defendant had failed to meet his burden of establishing “present inability to comply.” The Court found that Rylander presumptively still possessed the documents subject to the enforcement order. The Court credited the district court’s findings that “Rylander possessed the documents [he had been ordered to produce] at the time of the enforcement proceeding” and that “as president or other corporate officer [Rylander] had possession or control, or both, of the books and records of said corporations.” Id. at 761 n.3, 103 S.Ct. 1548 (second alteration in original) (internal quotation marks omitted).

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874 F.3d 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-melina-ali-ca4-2017.