United States v. Richard W. (Dick) Rylander, Sr.

714 F.2d 996, 52 A.F.T.R.2d (RIA) 5913, 1983 U.S. App. LEXIS 24301
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 2, 1983
Docket80-1813, 80-1702 and 80-1703
StatusPublished
Cited by89 cases

This text of 714 F.2d 996 (United States v. Richard W. (Dick) Rylander, Sr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Richard W. (Dick) Rylander, Sr., 714 F.2d 996, 52 A.F.T.R.2d (RIA) 5913, 1983 U.S. App. LEXIS 24301 (9th Cir. 1983).

Opinions

HUG, Circuit Judge:

Richard W. Rylander appeals his convictions of criminal contempt for willfully failing to comply with the district court’s order to produce various corporate documents in response to Internal Revenue Service summonses and for failing to appear at a hearing to show cause why he should not be held in contempt. The initial difficulty arose when the IRS tried to obtain certain corporate records and documents from Rylander in order to investigate the tax returns of two corporations of which he had been president. He did not produce the records in response to an IRS summons, contending that he did not possess them. The efforts of the IRS to enforce the summons and obtain contempt sanctions form the genesis of this case.

This case highlights the problems involved in the interrelationship of civil and criminal contempt. Rylander was tried for both civil and criminal contempt in the same proceeding. In United States v. Rylander, - U.S. -, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) (Rylander I), reversing 656 F.2d 1313 (9th Cir.1981), the Supreme Court reversed this court and affirmed the civil contempt citation. Courts frequently have difficulty distinguishing between civil and criminal contempt. See, e.g., United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980). Procedurally, the distinction is crucial because criminal contempt proceedings, unlike civil contempt proceedings, require such protections as the sixth amendment right to counsel, the fifth amendment right not to take the witness stand, the “beyond a reasonable doubt” burden of proof, and, in some instances, the right to demand a jury trial. This case illustrates the difficulties of trying civil and criminal contempt cases together.

I

FACTS

The facts demonstrate how a simple matter can mushroom into a very complex case. [999]*999It is understandable how a district judge with a busy calendar, whose contact with the case was in the form of numerous brief procedures over a period of many months, could overlook some of the complexities and subtleties.

For our purposes, this case began on January 4, 1979, when the Internal Revenue Service (“IRS”) issued administrative summonses directing Richard Rylander, as president of Rylander and Company, Realtors, Inc. and Affiliated Investments and Mortgage Company, to appear before an IRS agent and give testimony regarding his tax liability and that of the two corporations. The summonses also required Rylander to produce various corporate documents. The testimony and documents were sought pursuant to an investigation into Rylander’s federal income tax liability for the years 1973 through 1977. When Rylander failed to comply with the summonses, the Government petitioned the district court for enforcement under 26 U.S.C. §§ 7402(b) and •7604(a).

The district court issued orders on November 19 and 20, 1979, directing Rylander to appear before the court on January 14, 1980, and show cause why the administrative summonses should not be enforced. Rylander returned the orders to the court with a cover letter stating that he was not the president of either corporation and that he had, therefore, been improperly served. He did not appear at the hearing.

The district judge proceeded in Rylander’s absence and, on January 15, 1980, issued an order stating:

The Court heard an offer of proof and oral testimony and argument on the issues of (1) personal jurisdiction over the respondent corporations and (2) IRS possession of records requested in the summonses. Upon consideration of the foregoing, as well as the Declarations filed by Respondent Rylander, the verified petitions of Petitioner Van Den Berg, and the remaining records of these proceedings, the Court finds that it does have jurisdiction over the Respondents, and it is therefore hereby
ORDERED that Richard (Dick) Rylander, Sr. shall appear on Monday, February 4,1980 at 10:00 a.m. before Joan Van Den Berg, or other person designated by Petitioner, at the office of the Internal Revenue Service at 801 I Street, Room 292, Sacramento, California, and then and there produce for Petitioner’s inspection and copying the records described in the IRS summonses attached hereto as Exhibits A and B, except the following records described in Exhibit A:1

The order did not require Rylander to give testimony, only to produce documents.

Rylander appeared on February 4. He did not, however, bring with him any of the documents demanded by the IRS. After being informed of his fifth amendment rights, Rylander stated that he was not the president of either corporation and that he had none of the corporate documents sought. He then refused to answer any questions.

The district court subsequently issued an order on February 11 requiring Rylander to appear on March 10, 1980, and show cause why he should not be held in contempt for failure to comply with the order of January 15 enforcing the summonses. The order required that service be made by February 20. The marshall was unable to effect personal service by February 20, and a new show cause order was issued on February 25. Service was made by mail in accordance with Fed.R.Civ.P. 5(b) on that date. That show cause order required Rylander to appear on March 24 and show cause why he should not be held in contempt of the January 15 order and why he should not immediately produce the records. He was also directed to file a written response to the petition by March 17.

Rylander did not file a response or appear on March 24. However, on March 24 Ry-lander’s son Edwin filed a three-page statement, which had been dictated by Rylander [1000]*1000over the telephone from Oregon on Sunday, March 23. The statement informed the court that he had just received word of the order and could not appear and requested that the hearing be rescheduled. He also stated he had appeared on February 4, that he had not refused to produce the records, but that he had produced no records because he had no records.

The Government filed a petition on March 28 seeking both civil and criminal contempt. Based on that petition the court issued an order on March 28 for Rylander to show cause why he should not be adjudged guilty of criminal contempt and why he should not be adjudged guilty of civil contempt for failure to produce the documents. The portion of the order concerning criminal contempt did not specify what particular acts or orders were the basis for the charge. It did, however, refer to the Government’s petition. The petition clearly identified the failure to produce the records on February 4. It also discussed the failure to appear on March 24, although this was not singled out. The return date on this order was April 15, 1980. Repeated attempts at personal service failed and the district court continued the matter until May 27, 1980, and issued yet another order to show cause why he should not be held in both civil and criminal contempt. The order specified that constructive service be made by publication and certified mail. On May 27, when Rylander did not appear, the district judge issued a bench warrant for his arrest.

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Bluebook (online)
714 F.2d 996, 52 A.F.T.R.2d (RIA) 5913, 1983 U.S. App. LEXIS 24301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-w-dick-rylander-sr-ca9-1983.