United States of America v. Harper, et al

Filing 27

ORDER that respondents Alis K. Harper, Brent R. Harper, and Brent Harper, Inc., are in contempt of Court and warrants for their arrest will issue. Signed by Judge James A Teilborg on 9/14/09. (TLJ)

1 WO 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 v. Alis K. Harper and Brent R. Harper, Respondents. This matter is before the Court on the United States' motion for order to show cause re: Civil contempt "consists of a party's disobedience to a specific and definite court order v. Alis K. Harper, Brent R. Harper, and Brent Harper, Inc., Respondents. ___________________________________ United States of America, Petitioner, United States of America, Petitioner, ORDER UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CV-09-0703-PHX-JAT (Lead) MC-09-00035-PHX-JAT (Cons.)

22 contempt filed on July 17, 2009 (Doc. #21). 23 24 by failure to take all reasonable steps within the party's power to comply." Go-Video, Inc. v. 25 Motion Picture Ass'n of Am., 10 F.3d 693, 695 (9th Cir. 1993). Civil contempt sanctions are 26 "penalties designed to compel future compliance with a court order, are considered to be 27 coercive and avoidable through obedience, and thus may be imposed in an ordinary civil 28 proceeding upon notice and an opportunity to be heard." Int'l Union, United Mine Workers of

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Am. v. Bagwell, 512 U.S. 821, 827 (1994). Thus, a party imprisoned for civil contempt "carries the keys of his prison in his own pocket. He can end the sentence and discharge himself at any moment by doing what he had previously refused to do." Gompers v. Buck's Stove & Range

4 Co., 221 U.S. 418, 442 (1911) (citation and quote marks omitted). 5 The party alleging civil contempt must demonstrate the contemnor's violation of a court 6 order by clear and convincing evidence. United States v. Ayres, 166 F.3d 991, 994 (9th Cir. 7 1999). Once a prima facie showing of contempt is made, the burden shifts to the alleged 8 contemnor to show why he or she should not be held in contempt. United States v. Rylander, 9 460 U.S. 752, 757 (1983); Ayres, 166 F.3d at 994. To avoid a contempt finding, the alleged 10 contemnor must "present some evidence to explain or justify his refusal" to produce the 11 requested information. McPhaul v. United States, 364 U.S. 372, 379 (1960). 12 The Supreme Court and the Ninth Circuit have held that a district court may properly 13 hold in contempt, by incarceration and otherwise, a party who refuses to comply with an IRS 14 summons after being ordered to do so. See, e.g., Rylander, 460 U.S. at 760-761; United States 15 v. Wheeler, 952 F.2d 326, 326-327 (9th Cir. 1991); United States v. Brown, 918 F.2d 82, 83-84 16 (9th Cir. 1990). 17 Respondents were required to appear at the IRS on July 14, 2009, and to give testimony 18 and produce documents (Doc. ##15, 16, and 17). The orders warned respondents that their 19 failure to comply with the orders could serve as grounds for finding them in contempt. 20 Respondents failed to appear at the IRS on July 14, 2009, failed to provide required testimony, 21 and failed to produce required documents. The Court accordingly ordered respondents to 22 appear on September 14, 2009, and show cause why they should not be held in contempt (Doc. 23 #22). Although respondents were served with the order (Doc. #23), respondents failed to appear at the hearing (Doc. #24) and have not presented any evidence explaining or justifying 24 their refusal to produce the requested information. 25 Accordingly, the United States has shown that respondents have not complied with this 26 Court's orders (doc. ##15, 16, and 17) and that such non-compliance constitutes contempt. 27 28 2

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Based on the foregoing and on the papers and records on file in this case, and good cause appearing, IT IS ORDERED that respondents Alis K. Harper, Brent R. Harper, and Brent Harper,

4 Inc., are in contempt of Court and warrants for their arrest will issue. 5 DATED this 14th day of September, 2009. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3