United States of America v. Briseno
Filing
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ORDER Finding Respondent in Civil Contempt of Orders filed January 18, 2018 and March 16, 2018, signed by District Judge Dale A. Drozd on 4/18/2018. (1. The court finds respondent Cynthia Briseno in civil contempt of this court for her failure to co mply with the court's orders (Doc. Nos 11 , 16 ); 2. A bench warrant for the arrest of respondent Cynthia Briseno shall issue; and 3. Following arrest, respondent Cynthia Briseno is to be brought before this court for hearing on the remedies for her civil contempt.)(Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Petitioner,
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No. 1:17-cv-01288-DAD-SKO
v.
CYNTHIA BRISENO,
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Respondent.
ORDER FINDING RESPONDENT IN CIVIL
CONTEMPT OF ORDERS FILED JANUARY
18, 2018 AND MARCH 16, 2018
(Doc. Nos. 11, 16)
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This matter is before the court on the order to show cause issued March 16, 2018. (Doc.
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No. 16.) On April 17, 2018, that order came before the court for hearing. Attorney John Edwards
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appeared on behalf of petitioner United States of America. Respondent made no appearance at
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this hearing.1 For the reasons that follow, the court finds respondent in civil contempt for her
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failure to comply with the court’s order directing her to comply with a summons from the Internal
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Revenue Service (“IRS”) issued January 24, 2017 (Doc. No. 11) and for her failure to comply
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with the court’s order to show cause. (Doc. No. 16.) A bench warrant shall issue for the arrest of
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respondent.
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In the court’s minute order issued in advance of the hearing, respondent was ordered to
personally appear. (Doc. No. 18)
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On September 28, 2017, petitioner filed a petition to enforce an IRS summons. (Doc. No.
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1.) That petition stated that IRS Revenue Officer Lorena Ramos (“Ramos”) was conducting an
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investigation into respondent’s tax liability, in furtherance of which Ramos sought to examine
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books, records, papers and other data belonging to respondent. (Id. at ¶¶ 4–6.) Pursuant to that
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investigation, Ramos issued an IRS summons directing respondent to appear on February 23,
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2017 to testify and produce the books and records sought. (Id. at ¶ 6.) Though Ramos served an
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attested copy of the summons at respondent’s usual place of abode, respondent failed to appear on
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February 23, 2017. (Id. at ¶¶ 7–8.) After a hearing on the matter, the assigned magistrate judge
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issued findings and recommendations, recommending that the IRS summons be enforced and
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directing respondent to appear at the IRS offices. (Doc. No. 8.) On January 18, 2018, the
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undersigned adopted those findings and recommendations in full. (Doc. No. 11.)
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On March 14, 2018, petitioner notified the court that the government had mailed a letter to
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respondent setting a date for respondent to appear at the IRS offices. (Doc. No. 13 at ¶ 5.)
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Respondent failed to appear on the appointed date, and as of petitioner’s filing, respondent has
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still not complied with this court’s order. (Id. at ¶¶ 5–6.) Accordingly, petitioner requested that
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the court enter an order directing respondent to show cause why she should not be judged in civil
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contempt. (Id. at ¶ 1.) On March 16, 2018, the court issued its order to show cause and directed
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respondent to file and serve a written response to the court’s January 18, 2018 order within seven
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days. (Doc. No. 16.) In that order, respondent was warned that any failure to comply will subject
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her to possible further sanctions for contempt of court. (Id.) To date, plaintiff has not complied
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with the court’s order.
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“A court has the inherent power to punish for civil or criminal contempt any obstruction
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of justice relating to any judicial proceeding.” Lambert v. Montana, 545 F.2d 87, 88 (9th Cir.
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1976). “Civil contempt is characterized by the court’s desire to compel obedience to a court order
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. . . or to compensate the contemnor’s adversary for the injuries which result from the
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noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir.
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1983) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966) and Gompers v. Bucks Stove &
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Range Co., 221 U.S. 418, 448–49 (1911)). “The party alleging civil contempt must demonstrate
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that the alleged contemnor violated the court’s order by ‘clear and convincing evidence,’ not
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merely a preponderance of the evidence.” In re Dual–Deck Video Cassette Recorder Antitrust
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Litig., 10 F.3d 693, 695 (9th Cir.1993). “An alleged contemnor may defend against a finding of
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contempt by demonstrating a present inability to comply.” United States v. Ayres, 166 F.3d 991,
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994 (9th Cir. 1999) (citations omitted). “Ability to comply is the crucial inquiry, and a court
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should weigh all the evidence properly before it determines whether or not there is actually a
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present ability to obey.” United States v. Ayres, 166 F.3d 991, 994 (9th Cir. 1999) (internal
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quotation marks omitted) (citing United States v. Drollinger, 80 F.3d 389, 393 (9th Cir. 1996)).
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In support of its petition seeking an order to show cause, petitioner submits the sworn
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declaration of Ramos. (Doc. No. 13-1 (“Ramos Decl.”).) Ramos states in her Declaration that in
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accordance with this court’s January 18, 2018 order (Doc. No. 11), she followed up with
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respondent and attempted to schedule an appointment for February 9, 2018 at 1 p.m. (Id. at ¶ 3;
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Doc. No. 13-2.) After receiving no response to this correspondence, Assistant United States
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Attorney Kelli Taylor mailed a letter to respondent, reminding her of this court’s enforcement
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order and warning respondent that she will be held in contempt if she fails to comply. (Ramos
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Decl. at ¶¶ 3–4; Doc. No. 13-3 at 1.) Assistant United States Attorney Taylor gave respondent
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another opportunity to appear on March 2, 2018 at 10:00 a.m., but respondent again failed to
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appear. (Ramos Decl. at ¶¶ 5–6; Doc. No. 13-3 at 1.)
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Based upon this evidence—which respondent has not attempted to rebut—the court finds
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that petitioner has demonstrated by clear and convincing evidence that respondent has failed to
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comply with the court’s January 18, 2018 order directing respondent to appear before the IRS and
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produce the books and records sought. (Doc. No. 11.) The court also finds that respondent has
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failed to comply with the court’s March 16, 2018 order directing respondent to file and serve a
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written response to the January 18, 2018 order (Doc. No. 16), as evidenced by the absence of any
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responsive documents on the court’s docket. Respondent has provided no indication that she is
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presently unable to obey these orders, nor is the court aware of any facts that would support such
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a conclusion.
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Accordingly,
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1.
The court finds respondent Cynthia Briseno in civil contempt of this court for her
failure to comply with the court’s orders (Doc. Nos 11, 16);
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2.
A bench warrant for the arrest of respondent Cynthia Briseno shall issue; and
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3.
Following arrest, respondent Cynthia Briseno is to be brought before this court for
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hearing on the remedies for her civil contempt.
IT IS SO ORDERED.
Dated:
April 18, 2018
UNITED STATES DISTRICT JUDGE
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