United States of America v. Stevenson
ORDER - Based on the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT the Court OVERRULES IN PART and SUSTAINS IN PART the objection of petitioner United States of America 27 and ADOPTS the Report and Reco mmendation 26 to the extent that it is consistent with this order. Accordingly, IT IS HEREBY ORDERED THAT: The administrative summons issued to respondent Scott M. Stevenson by the Internal Revenue Service on March 16, 2009, is QUASHED insofar as it directs Stevenson to produce documents.The administrative summons issued to respondent Scott M. Stevenson by the Internal Revenue Service on March 16, 2009, is ENFORCED insofar as it directs Stevenson to appear before a revenue officer for questio ning. Stevenson is ORDERED to appear before the revenue agent as directed, answer all unobjectionable questions, and make specific objections to any objectionable questions. (Written Opinion). Signed by Judge Patrick J. Schiltz on 04/22/11. (bjs)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA,
Case No. 09-MC-0074 (PJS/FLN)
SCOTT M. STEVENSON,
David W. Fuller and Ana H. Voss, UNITED STATES ATTORNEY’S OFFICE, for
Douglas Olson, OFFICE OF THE FEDERAL DEFENDER, for respondent.
The Internal Revenue Service (“IRS”) issued an administrative summons to respondent
Scott M. Stevenson on March 16, 2009, in connection with a civil investigation that the IRS is
conducting into Stevenson’s tax liabilities for the years 1997 through 2008. The summons
directed Stevenson to appear before a revenue agent and to bring with him all documents or
records in his control that reflect the receipt of taxable income for the relevant years. Stevenson
appeared before the revenue agent, but he refused to answer any questions, and he refused to
produce any of the documents identified in the summons. Beginning with his first appearance
before the revenue agent, Stevenson has consistently maintained that the Fifth Amendment to the
United States Constitution protects him from having to submit to questioning or produce the
This matter is before the Court on the objection of petitioner United States of America to
the December 23, 2010 Report and Recommendation (“R&R”) of Magistrate Judge Franklin L.
Noel. Judge Noel recommends sustaining Stevenson’s objection to the production of the
summonsed documents on the grounds that the act of producing such documents is a testimonial
act subject to Fifth Amendment protection. Judge Noel further recommends that the government
be ordered to provide a list of questions that it intends to ask Stevenson so that Stevenson may
determine, on a question-by-question basis, whether to assert his Fifth Amendment privilege.
The Court has reviewed de novo those portions of the R&R to which the government has
objected, as required by 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
The government asserts three objections to the R&R:
First, the government argues that the Fifth Amendment does not protect Stevenson from
complying with the summons because Stevenson does not have a reasonable fear that his
production of the documents will later be used against him in a criminal proceeding. The Court
overrules this objection. For the reasons described by Judge Noel, the Court agrees that
Stevenson reasonably fears that the testimonial aspects of his production of the summonsed
documents — that is, the evidence that such production would provide of the existence or
authenticity of the documents, or of Stevenson’s possession or control of the documents — will
later be used against him in a criminal proceeding.
Second, the government argues that it should not be required to submit to Stevenson a list
of all questions that it intends to ask so that Stevenson can determine in advance whether to
assert his Fifth Amendment privilege with respect to a particular question. The government
contends that requiring it to submit a list of proposed questions would unduly hamper its
investigation by precluding the type of follow-up questions that typically occur during in-person
interviews. The Court agrees and sustains the government’s objection.
A person summonsed to appear before an IRS agent must “appear in obedience to the
summons, answer all unobjectionable questions, and make specific objections to specific
questions . . . . If that is done, proper review of any claims of privilege can be had in the district
court.” United States v. Jones, 538 F.2d 225, 226 (8th Cir. 1976). The Court has appointed a
public defender to represent Stevenson in connection with this matter. Docket No. 19.
Stevenson, in consultation with his lawyer, may choose whether to invoke his Fifth Amendment
privilege with respect to any particular question, and he may make that determination as the
question is asked by the IRS agent at the interview. Such invocations, if made, can then be
reviewed by the Court. The Court can see no reason why the government should have to submit
a list of questions.
Finally, the government claims that Stevenson’s production of some of the documents
would not implicate the Fifth Amendment because the existence and authenticity of those
documents — and Stevenson’s possession and control of those documents — is a foregone
conclusion. See United States v. Norwood, 420 F.3d 888, 895 (8th Cir. 2005); United States v.
Rue, 819 F.2d 1488, 1492-93 (8th Cir. 1987). The government complains that Judge Noel did
not give it an opportunity to present evidence that the foregone-conclusion exception applies to
some of the documents that it has summonsed.
The Court agrees with the government that, to the extent that it can show that it is a
foregone conclusion that Stevenson possesses a particular document, Stevenson may be required
to produce that document in response to a summons. The problem is, though, that the summons
that the government seeks to enforce is not limited to such documents. Instead, as Judge Noel
correctly points out, the summons is extremely broad — far broader than the summonses
addressed by the Eighth Circuit in Rue and Norwood. It appears from the government’s
submissions that the government is prepared to prove that only a small fraction of the
summonsed documents fall within the foregone-conclusion exception.
Of course, a court can choose to enforce part of a summons or give a summons a narrow
construction. Cf. Norwood, 420 F.3d at 895 (interpreting the district court’s order to enforce IRS
summons as applying only to summonsed documents that the government could prove were a
foregone conclusion). In this case, however, the summons is so vastly overbroad that what the
government asks of this Court is not so much to narrow the summons as to rewrite it. That
would neither be a wise use of judicial resources nor fair to Stevenson. The Court therefore
overrules the government’s objection and adopts Judge Noel’s recommendation that the
overbroad summons be quashed. The Court suggests that the government issue a narrower
summons to Stevenson — one limited to those documents that the government reasonably
believes fall within the foregone-conclusion exception — and then, if necessary, the government
can seek the Court’s assistance in enforcing that summons.
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT the Court OVERRULES IN PART and SUSTAINS IN PART the
objection of petitioner United States of America [Docket No. 27] and ADOPTS the Report and
Recommendation [Docket No. 26] to the extent that it is consistent with this order. Accordingly,
IT IS HEREBY ORDERED THAT:
The administrative summons issued to respondent Scott M. Stevenson by the
Internal Revenue Service on March 16, 2009, is QUASHED insofar as it directs
Stevenson to produce documents.
The administrative summons issued to respondent Scott M. Stevenson by the
Internal Revenue Service on March 16, 2009, is ENFORCED insofar as it directs
Stevenson to appear before a revenue officer for questioning. Stevenson is
ORDERED to appear before the revenue agent as directed, answer all
unobjectionable questions, and make specific objections to any objectionable
Dated: April 22 , 2011
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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