The Internal Revenue Service (IRS) summoned respondent Rylander
(respondent) to appear before an IRS agent and to produce for
examination, and testify with respect to, records of two
corporations of which respondent was president. When respondent
failed to comply with the summons, the District Court enforced it
and ordered him to produce the corporate records. Subsequently,
after a hearing, the District Court held respondent in civil
contempt for failure to comply with the court's enforcement order,
finding that he had failed to introduce any evidence in support of
his claim that he did not possess the records. The Court of Appeals
reversed, holding that respondent's out-of-court declaration that
he did not possess the documents, together with his invocation of
the privilege against self-incrimination under the Fifth Amendment,
required the Government to shoulder the burden of producing
evidence that respondent was able to produce the records in
question, and that, notwithstanding the issuance of the enforcement
order, respondent was free to relitigate the question of his
possession or control of the records in the contempt
proceeding.
Held: The Court of Appeals was incorrect both in its
view of the relationship between the enforcement proceeding and the
contempt proceeding and in its view of the effect of respondent's
invocation of his Fifth Amendment privilege on the burden of
production at the contempt hearing. Pp.
460 U. S.
756-762.
(a) Because a proceeding to enforce an IRS summons is an
adversary proceeding in which the defendant may contest the summons
on any appropriate ground, and because lack of possession or
control of records is such a ground, the issue may not be raised
for the first time in a contempt proceeding. In the latter
proceeding, the defendant may assert a present inability to comply
with the enforcement order, but in raising this defense, he has the
burden of production. Thus, while respondent in the contempt
hearing could not attack the enforcement order on the ground that
he lacked possession or control of the records at the time the
order was issued, he could defend the contempt charge on the ground
that he was then unable to comply because he lacked possession or
control. Pp.
460 U. S.
756-757.
Page 460 U. S. 753
(b) While assertion of the Fifth Amendment privilege may be a
valid ground upon which a witness such as respondent declines to
answer questions, it is not a substitute for evidence that would
assist in meeting a burden of production.
Curcio v. United
States, 354 U. S. 118,
distinguished. The Court of Appeals' view would convert the
privilege from the shield against compulsory self-incrimination
that it was intended to be into a sword whereby a claimant
asserting the privilege would be freed from adducing proof in
support of a burden that would otherwise have been his. Pp.
460 U. S.
757-761.
656 F.2d 1313, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and
O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion,
post, p.
460 U. S.
762.
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Rylander was held in civil contempt by the United
States District Court for the Eastern District of California
because of his failure to comply with its earlier order enforcing
an Internal Revenue Service (IRS) summons for corporate books and
records. The Court of Appeals for the Ninth Circuit reversed that
holding, concluding that Rylander's showing at the contempt
hearing, together with his invocation of the privilege against
compulsory self-incrimination, required the Government to shoulder
the burden of producing evidence that Rylander was able to produce
the documents in question. Because of a conflict among the various
Courts of Appeals on this issue, we granted certiorari, 456 U.S.
943 (1982), and we now reverse.
Page 460 U. S. 754
In January, 1979, the IRS issued a summons to Rylander pursuant
to 26 U.S.C. ยง 7602. The summons ordered him to appear before an
agent of the Service in Sacramento, Cal., and to produce for
examination, and testify with respect to, books and records of two
corporations. Rylander was the president of each corporation. When
he failed to comply with the summons, the District Court issued an
order to show cause why the summons should not be enforced.
Rylander for several months succeeded in evading service, but in
November, 1979, the Marshal was able to personally serve the fourth
successive order to show cause issued by the court. In January,
1980, on the return date of that order, Rylander failed to file a
responsive pleading and did not appear at the show cause hearing.
He had sent an unsworn letter to the court claiming he was neither
the president of either corporation nor associated with them in any
way. The District Court enforced the IRS summons and ordered
Rylander to appear before an agent of the Service in February,
1980, to produce the corporate records.
Rylander neither sought reconsideration of the enforcement order
nor did he appeal from it. He appeared as ordered before the agent,
but failed to produce the records. After this encounter, the
District Court issued an order to show cause why Rylander should
not be held in contempt. Rylander again successfully evaded service
of the court's order, and the court, in May, 1980, found that he
was willfully avoiding service and issued a bench warrant for his
arrest.
The contempt hearing took place on two different dates in
October, 1980. After an initial skirmish, Rylander took the witness
stand and verified an "Oath in Purgation of Contempt" which he had
earlier submitted to the court. The essence of this declaration was
that he did not possess the records and had not disposed of them to
other persons. He refused to submit to additional questioning under
oath from the Government, asserting the privilege against
compulsory
Page 460 U. S. 755
self-incrimination conferred by the Fifth Amendment to the
United States Constitution.
The District Court held Rylander in contempt, finding that he
had "fail[ed] to introduce any evidence" in support of his claim
that he did not possess the records. The court affirmatively found
that Rylander "as president or other corporate officer, had
possession or control, or both, of the books and records of said
corporations." App. to Pet. for Cert. 17a-18a. Thus, 21 months
after the IRS had issued a summons to him, Rylander was finally
faced with a civil contempt order directing him to either produce
the subpoenaed records or face imprisonment.
Rylander appealed to the Court of Appeals, which reversed the
District Court. 656 F.2d 1313 (CA9 1981). The Court of Appeals
agreed that the Government, in a contempt proceeding, meets its
initial burden by showing only a failure to comply, and the burden
is then on the defendant to come forward with evidence showing
"
categorically and in detail'" why he is unable to comply.
Id. at 1318. But the Court of Appeals concluded that a
defendant need not meet this burden where "he properly claims that
his testimony as to the whereabouts of the documents might be
incriminatory." Id. at 1319. The court stated
further:
"When the defendant has made a
bona fide fifth
amendment claim, his statement that the documents are not in his
possession or under his control is sufficient to satisfy his burden
of production. The burden then shifts to the government to produce
evidence showing that the documents in question actually exist and
are in the defendant's possession or under his control."
Ibid. After concluding that Rylander's failure to raise
this defense in the enforcement proceeding did not limit his
argument in the contempt proceeding, the court determined that, if
Rylander's Fifth Amendment claim is valid, his burden of
Page 460 U. S. 756
production had been met. [
Footnote 1] We think the Court of Appeals was incorrect
both in its view of the relationship between the enforcement
proceeding and the contempt proceeding and in its view of the
effect of Rylander's invocation of his Fifth Amendment privilege on
the burden of production at the latter hearing.
On numerous occasions, this Court has been called upon to review
the statutory authorization for the IRS to summon witnesses and
records and seek judicial enforcement of such summons.
See,
e.g., United States v. LaSalle National Bank, 437 U.
S. 298 (1978);
Fisher v. United States,
425 U. S. 391
(1976);
United States v. Powell, 379 U. S.
48 (1964);
Reisman v. Caplin, 375 U.
S. 440 (1964). There is no disagreement here concerning
that basic statutory scheme. In the present case, the Court of
Appeals held that, notwithstanding the issuance of the enforcement
order, Rylander was free to relitigate the question of his
possession or control of the records in the contempt proceeding.
The Court of Appeals emphasized that the enforcement proceeding was
summary in nature, that the Government's burden was light, and that
there had been no express finding in the enforcement proceeding
that Rylander was in possession or control of the records.
We think the Court of Appeals' view of the matter gave
insufficient weight to this Court's observations in
Maggio v.
Zeitz, 333 U. S. 56,
333 U. S. 69
(1948):
"It would be a disservice to the law if we were to depart from
the longstanding rule that a contempt proceeding does not open to
reconsideration the legal or factual basis of the order alleged to
have been disobeyed, and thus become a retrial of the original
controversy. The procedure to enforce a court's order commanding or
forbidding
Page 460 U. S. 757
an act should not be so inconclusive as to foster
experimentation with disobedience."
See also id. at
333 U. S. 75.
Because a proceeding to enforce an IRS summons is an adversary
proceeding in which the defendant may contest the summons "on any
appropriate ground,"
Reisman v. Caplin, supra, at
375 U. S. 449,
and because lack of possession or control of records is surely such
a ground, the issue may not be raised for the first time in a
contempt proceeding.
Cf. United States v. Bryan,
339 U. S. 323
(1950);
United States v. Fleischman, 339 U.
S. 349 (1950).
See also United States v. Euge,
444 U. S. 707
(1980).
In a civil contempt proceeding such as this, of course, a
defendant may assert a present inability to comply with the order
in question.
Maggio v. Zeitz, supra, at
333 U. S. 75-76;
Oriel v. Russell, 278 U. S. 358,
278 U. S. 366
(1929). While the court is bound by the enforcement order, it will
not be blind to evidence that compliance is now factually
impossible. Where compliance is impossible, neither the moving
party nor the court has any reason to proceed with the civil
contempt action. It is settled, however, that, in raising this
defense, the defendant has a burden of production.
McPhaul v.
United States, 364 U. S. 372,
364 U. S. 379
(1960);
Maggio v. Zeitz, supra, at
333 U. S. 75-76;
Oriel v. Russell, supra, at
278 U. S. 366.
See also United States v. Fleischman, supra, at
339 U. S. 362-363.
Thus while Rylander could not attack the enforcement order on the
ground that he lacked possession or control of the records at the
time the order was issued, he could defend the contempt charge on
the ground that he was then unable to comply because he lacked
possession or control.
The Court of Appeals, while recognizing that Rylander was
obligated to assume the burden of production in making this
defense, felt that the showing made by Rylander at the October,
1980, hearing was sufficient to shift the burden back to the
Government. We disagree. We first analyze the effect of Rylander's
denial of possession when he took the witness stand at the contempt
hearing and when he submitted the
Page 460 U. S. 758
"Oath in Purgation of Contempt." Since he declined to be
cross-examined with respect to his assertions of nonpossession, the
District Court was entirely justified in concluding, as it did,
that Rylander "fail[ed] to introduce any evidence at the contempt
trial." This was a time for testimony, and Rylander's
ex
parte affidavit and uncross-examined testimony were properly
disregarded by the District Court.
McGautha v. California,
402 U. S. 183,
402 U. S. 215
(1971);
Brown v. United States, 356 U.
S. 148,
356 U. S. 155
(1958).
The Court of Appeals also gave weight to the fact that
Rylander's asserted reason for refusing to allow cross-examination
was his claim that answering such questions might lead him to
incriminate himself. But while the assertion of the Fifth Amendment
privilege against compulsory self-incrimination may be a valid
ground upon which a witness such as Rylander declines to answer
questions, it has never been thought to be, in itself, a substitute
for evidence that would assist in meeting a burden of production.
We think the view of the Court of Appeals would convert the
privilege from the shield against compulsory self-incrimination
which it was intended to be into a sword whereby a claimant
asserting the privilege would be freed from adducing proof in
support of a burden which would otherwise have been his. None of
our cases support this view.
We have squarely rejected the notion, apparently subscribed to
by the Court of Appeals, that a possible failure of proof on an
issue where the defendant had the burden of proof is a form of
"compulsion" which requires that the burden be shifted from the
defendant's shoulders to that of the government.
McGautha v.
California, supra; Williams v. Florida, 399 U. S.
78 (1970);
see also Barnes v. United States,
412 U. S. 837
(1973);
Turner v. United States, 396 U.
S. 398 (1970);
Yee Hem v. United States,
268 U. S. 178
(1925);
Wilson v. United States, 162 U.
S. 613 (1896). In
Williams, the Court said:
Page 460 U. S. 759
"The defendant in a criminal trial is frequently forced to
testify himself and to call other witnesses in an effort to reduce
the risk of conviction. When he presents his witnesses, he must
reveal their identity and submit them to cross-examination, which,
in itself, may prove incriminating, or which may furnish the State
with leads to incriminating rebuttal evidence.
That the
defendant faces such a dilemma demanding a choice between complete
silence and presenting a defense has never been thought an invasion
of the privilege against compelled self-incrimination. The
pressures generated by the State's evidence may be severe, but they
do not vitiate the defendant's choice to present an alibi defense
and witnesses to prove it, even though the attempted defense ends
in catastrophe for the defendant. However 'testimonial' or
'incriminating' the alibi defense proves to be, it cannot be
considered 'compelled' within the meaning of the Fifth and
Fourteenth Amendments."
399 U.S. at
399 U. S. 83-84
(emphasis added).
The Court of Appeals nonetheless thought that this Court's
decision in
Curcio v. United States, 354 U.
S. 118 (1957), prevented Rylander from being required to
carry his burden of production or risk the consequences from his
failure of proof. We do not read the case that way. The issue in
Curcio, as stated by the Court in its opinion in that
case, was
"whether petitioner's personal privilege against
self-incrimination attaches to questions relating to the
whereabouts of the union books and records which he did not produce
pursuant to subpoena."
Id. at
354 U. S. 122.
The Court went on to distinguish cases such as
Hale v.
Henkel, 201 U. S. 43
(1906), holding that a corporation had no Fifth Amendment privilege
against self-incrimination, and cases such as
Wilson v. United
States, 221 U. S. 361
(1911), and
United States v. White, 322 U.
S. 694 (1944), holding respectively that the custodians
of neither records belonging to unions nor those belonging to
corporations
Page 460 U. S. 760
might withhold production of such records on the ground that the
custodian might be incriminated by their production. The Court
refused to accept the Government's contention, based on those
cases, that the custodian had no privilege to refuse to testify
about such records on grounds that testimony might incriminate him.
In reversing the contempt conviction, however, the Court pointedly
noted:
"This conviction related solely to petitioner's failure to
answer questions pursuant to the personal subpoena
ad
testificandum. He has not been charged with failing to produce
the books and records demanded in the subpoena
duces
tecum."
354 U.S. at
354 U. S.
121.
The instant proceeding is exactly the converse of the one in
Curcio. Rylander was originally ordered both to produce
books and records and to testify about them. But the only order
against him remaining at the time of the contempt hearing was the
order to produce books and records. The Court of Appeals assumed,
as we do, that Rylander's claim of privilege "attached" to
questions about the whereabouts of the records; that was the issue
decided in
Curcio. But that is to say no more than if
Rylander asserted a valid claim of privilege at the contempt
hearing, then the claim could not be overruled by the court and the
respondent incarcerated for failure to answer such questions.
Rylander was not, however, incarcerated because he refused to
submit himself to cross-examination by the Government at the
contempt hearing. He was held in contempt for failure to comply
with a previous order of the District Court enforcing an IRS
summons against him. This order, unappealed from, necessarily
contained an implied finding that no defense of lack of possession
or control had been raised and sustained in that proceeding. The
only issue open to Rylander in defending the contempt proceeding
was to show inability to
then produce, and, because of the
presumption of continuing possession arising from the enforcement
order,
Maggio v. Zeitz, 333 U. S. 56
(1948), if he sought to
Page 460 U. S. 761
defend on that ground, he was required to come forward with
evidence in support of it. The fact that his refusal to come
forward with such evidence was accompanied by a claim of Fifth
Amendment privilege may be an adequate reason for the court's not
compelling him to respond to cross-examination at the contempt
hearing, [
Footnote 2] but the
claim of privilege is not a substitute for relevant evidence.
Rylander was found by the District Court to be in contempt of
the enforcement order which required him to produce documents --
documents justifiably found by the District Court to be in his
possession. [
Footnote 3] He was
committed to custody until such time as he should produce the
documents, but the District Court again saved him the additional
alternative of adducing evidence to show lack of possession or
control. Rylander is thus not compelled "to submit to incarceration
or run the risk of incriminating himself," 656 F.2d at 1319; he is
committed until he either produces the documents which the District
Court found to be in his possession or adduces evidence as to his
present inability to comply with that order.
We think our cases plainly support this result, and we are frank
to say that we have no regret that they do. After 21 months of
successfully avoiding sanctions for refusing to respond
Page 460 U. S. 762
to an IRS summons, or show cause why he should not do so, with
the District Court at each step patiently assuring itself that
Rylander's procedural rights were protected, he was finally held in
contempt. The Court of Appeals' view of the matter would require
still additional hearings on the issue of possession or control of
the corporate books or records, with the Government having the
burden of production at the reopened contempt hearing. Given the
oft-stated reliance of the federal income tax system on
self-assessment, a plainer guide to the successful frustration of
this system could hardly be imagined. As we said in an analogous
context in
United States v. Bryan:
"A subpoena has never been treated as an invitation to a game of
hare and hounds, in which the witness must testify only if cornered
at the end of the chase. If that were the case, then, indeed, the
great power of testimonial compulsion, so necessary to the
effective functioning of courts and legislatures, would be a
nullity."
339 U.S. at
339 U. S.
331.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
The Court of Appeals remanded to the District Court for a
finding concerning the validity of Rylander's Fifth Amendment claim
and, provided the claim is sustained, an opportunity for the
Government to introduce additional evidence concerning Rylander's
ability to comply.
[
Footnote 2]
The Government has argued that, by submitting the
ex
parte declaration and by taking the witness stand to verify
that declaration, Rylander waived his Fifth Amendment privilege.
See Brown v. United States, 356 U.
S. 148 (1958). Because of our disposition of the case,
we need not decide this question.
[
Footnote 3]
While the District Court did not state explicitly that Rylander
still possessed the documents at the time of the contempt
proceeding, we believe such a finding to be plainly implicit in the
court's conclusion that, "as president or other corporate officer,
[Rylander] had possession or control, or both, of the books and
records of said corporations." App. to Pet. for Cert. 17a-18a. A
finding of present possession was supported in this case; the
District Court found that Rylander possessed the documents at the
time of the enforcement proceeding, and the circumstances
themselves warranted an inference of continuing possession.
See
Maggio v. Zeitz, 333 U. S. 56,
333 U. S. 64-67,
33 U. S. 75-76
(1948).
JUSTICE MARSHALL, dissenting.
I will not join another opinion which creates a new exception to
a basic constitutional right -- the Fifth Amendment privilege
against self-incrimination.
Prior to the decision today, a man could not be held in civil
contempt for failure to perform an act which he is currently unable
to perform, regardless of whether he was once able to perform the
act and wrongfully failed to do so.
See Maggio v. Zeitz,
333 U. S. 56,
333 U. S. 72-74,
and n. 6 (1948), and authorities cited therein.
Here, the District Court made no finding that respondent
possessed the documents at the time of the contempt proceeding. It
stated only that, "as president or other corporate officer, [he]
had possession or control, or both, of the books and
records of said corporations." (Emphasis added.) Although,
Page 460 U. S. 763
"[u]nder some circumstances, it may be permissible . . . to
reach the conclusion of present control from proof of previous
possession,"
Maggio v. Zeitz, supra, at
333 U. S. 65,
that is a determination to be made in the first instance by the
trier of fact, not by this Court. In this case, the District Court
found only
past possession, not
present
possession.
Since the District Court did not find that respondent was
currently able to comply with the order to produce the documents,
respondent has, in effect, been held in contempt simply because he
invoked the Fifth Amendment when asked to testify at the contempt
proceeding about the whereabouts of the documents. At the hearing,
the judge appointed counsel for the express
"purposes of aiding [Rylander] in determining the propriety of
the question and whether he desired to assert Fifth Amendment
privileges to the questions which are asked."
The transcript of Rylander's testimony reads as follows:
"
EXAMINATION BY THE COURT"
"Q. Mr. Rylander, you have filed an affidavit in which you say
that you do not have the records that are the subject of this
action; is that true, sir?"
"A. That is correct your Honor."
"Q. Where are the records?"
"A. I respectfully decline to answer on the advice of counsel
and assert my Fifth Amendment."
"THE COURT: Thank you, sir, I don't have to go beyond that, do
I?"
"MR. HARBISON [counsel for Rylander]: I have no questions, your
Honor."
"THE COURT: I am not going to direct him to answer, because I
don't know whether I can, sir."
"MR. HARBISON: I am going to object if you ask him any other
questions. The sole purpose was to make your record."
"THE COURT: What else needs to be done, in your view to make the
record, Mr. Robinson? "
Page 460 U. S. 764
"MR. ROBINSON [counsel for the United States]: Your Honor, I
move to strike, then, the affidavit on the grounds that I have not
had the opportunity to cross-examine him about the contents of that
affidavit."
"THE COURT: That motion will be taken under submission. Now you
are in a position to make the motion. You may step down, Mr.
Rylander."
Respondent was entitled to invoke the Fifth Amendment privilege
if his answers might have tended to incriminate him. As this Court
stated in
Curcio v. United States, 354 U.
S. 118,
354 U. S. 128
(1957):
"[F]orcing the custodian [of corporate records] to testify
orally about the whereabouts of nonproduced records requires him to
disclose the contents of his own mind. He might be compelled to
convict himself out of his own mouth. That is contrary to the
spirit and letter of the Fifth Amendment."
If respondent's invocation of the privilege was proper, he may
not be held in contempt for failing to testify.
"[T]he power to compel testimony is not absolute. There are a
number of exemptions from the testimonial duty, the most important
of which is the Fifth Amendment privilege against compulsory
self-incrimination. The privilege reflects a complex of our
fundamental values and aspirations, and marks an important advance
in the development of our liberty. It can be asserted in any
proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory; and it protects against any
disclosures that the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be
so used. This Court has been zealous to safeguard the values that
underlie the privilege."
Kastigar v. United States, 406 U.
S. 441,
406 U. S.
444-445 (1972) (footnotes omitted).
Page 460 U. S. 765
I agree with the Court of Appeals that the proper disposition is
to
"remand for the district court to make a finding concerning the
validity of Rylander's fifth amendment claim. If the court finds
that Rylander's fifth amendment claim is valid, the government will
have an opportunity to show that the summoned records are in
Rylander's possession or under his control. The court should permit
the government to introduce additional evidence in order to meet
its burden. At this stage of the proceedings, . . . the government
has not met its burden of showing by clear and convincing evidence
that Rylander is in contempt."
656 F.2d 1313, 1319-1320 (citations omitted).