Opinion

United States v. Duncan

Court
District Court, W.D. Tennessee
Filed
Dec 9, 2020
Cited by
0 cases
Authority
More cited than 29.7%

explaining that an imprisoned civil contemnor “carries the keys of his prison in his own pocket”

How later courts described this case

  • explaining that an imprisoned civil contemnor “carries the keys of his prison in his own pocket”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Petitioner, )

vs. ) Civil No. 1:19-cv-01293-STA-jay

)

NICKOLAS DUNCAN, )

)

Respondent. )

______________________________________________________________________________

ORDER OF CONTEMPT

______________________________________________________________________________

On December 18, 2019, the United States of America filed a Petition to Enforce Internal

Revenue Service Summons against respondent Nickolas Duncan (ECF No. 1). On January 2,

2020, the Court ordered Respondent to show cause as to why the Court should not grant the

government’s petition and set a show cause hearing for February 21, 2020 (ECF No. 5). The

Court subsequently granted the government’s motion to continue the hearing and reset it for May

19, 2020 (ECF No. 7). On April 7, 2020, the United States filed proof of service (ECF No. 9),

showing that the government had served Respondent with a copy of the Petition to Enforce the

IRS Summons and a copy of the Court’s order to show cause on March 26, 2020. When the

Respondent failed to plead or defend against the Petition, the United States moved for entry of

default under Rule 55(a) on July 24, 2020. The same day, the Clerk of Court entered a default

against Respondent (ECF No. 15).

On July 28, 2020, the Court granted the government’s motion for default judgment. As

part of its judgment, the Court ordered the Respondent to “give testimony and produce for

examination all books, records, papers, and other data described in the administrative summons, a

copy of which has been filed at ECF No. 1-3 and is incorporated by reference, within 45 days of

the entry of this Order, and shall make all necessary arrangements for compliance by contacting

Sandra Johnson, a revenue officer of the Internal Revenue Service, at 22 N. Front Street, Suite

421, Memphis, Tennessee 38103, (901) 292-1511.” See Order Granting Mot. for Default J. 3,

July 28, 2020 (ECF No. 18). The Court cautioned Respondent that “any failure to obey this order

may subject Respondent to the contempt powers of this Court. See 26 U.S.C. § 7604(b); United

States v. Rylander, 460 U.S. 752 (1983); United States v. Riewe, 676 F.2d 421 (10th Cir. 1982). If

Respondent still refuses to comply, contempt proceedings with the possibility of imprisonment

conditioned upon compliance are warranted.” Id.

On September 14, 2020, the government filed a motion for contempt (ECF No. 20),

reporting to the Court that Respondent had failed to comply with the Court’s previous order. The

United States sought sanctions to compel Respondent’s compliance with the order. On

September 18, 2020, the Court set a show cause hearing and entered a written show cause order

(ECF No. 21), directing Respondent to show cause as to why the Court should not hold him in

contempt. The Court’s written order specifically cautioned Respondent that his “failure to appear

for the show cause hearing may result in sanctions against him.” Order to Show Cause, Sept. 18,

2020 (ECF No. 21).

At the October 2, 2020, show cause hearing, the parties appeared and reported to the Court

that the government was willing to give Respondent two weeks more to comply with the summons

and the previous orders of the Court. The Court granted the United States’ request and directed

the government to file a status report in two weeks. The government did so and in an October

16, 2020 status update (ECF No. 26) indicated that Respondent had still not complied. Based on

2

the government’s report, the Court entered another show cause order, directing Respondent to

show cause as to why the Court should not hold him in contempt and again cautioned him that his

failure to do so might result in sanctions. Order to Show Cause, Oct. 19, 2020 (ECF No. 27).

The Court set a show cause hearing for December 3, 2020. Respondent appeared for the

hearing by telephone and reported that he was awaiting the results of a medical test to determine

whether he was infected with the coronavirus that causes COVID-19. The Court reset the hearing

for December 7, 2020, and ordered that in the event the Respondent tested positive, he should

present the Assistant United States Attorney with verifiable proof of his positive result before the

Court would continue the hearing further.

On December 7, 2020, the Court held the most recent show cause hearing. The parties

appeared before the Court in person. The government began by stating that Respondent had still

not produced the documentary evidence sought in the IRS summons. The government requested

then that the Court find Respondent in contempt and consider taking him into custody or assessing

a daily monetary fine. Respondent, who is acting pro se, stated that he had previously retained a

representative to assist him and that he believed his representative had produced all of the

documents to the revenue officer. When the Court questioned him about the scope and duration

of this representation, Respondent advised that the representation ended two weeks ago.

Respondent had no explanation for why he believed his representative had satisfied his obligation

to comply with the IRS summons and the previous court orders, even as the government had

continued to seek a contempt finding against him. Respondent stated to the Court that he could

produce the documents to the revenue officer within the next 24 hours. The Court gave

Respondent until 3:00 p.m., Tuesday, December 8, 2020, to comply fully with the IRS summons

3

and directed the government to file a notice with the Court to report any failure on Respondent’s

part to comply. The Court cautioned Respondent that should he fail to comply in any way, the

Court would issue an order finding Respondent in contempt of court and directing that Respondent

be taken into the custody of the United States Marshal as a sanction. The United States has since

reported to the Court that Respondent did not fully comply by the deadline set by the Court.

ANALYSIS

“Federal courts have broad contempt power, which exists for the preservation of order in

judicial proceedings, and to the enforcement of the judgments, orders, and writs of the

courts.” Brown v. City of Upper Arlington, 637 F.3d 668, 671 (6th Cir. 2011) (quoting Young v.

U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798 (1987)). Contempt of court is a “weapon” in a

court's “arsenal” to ensure compliance with an order or judgment of the court. Elec. Workers

Pension Tr. Fund of Local Union |58, IBEW v. Gary's Elec. Serv. Co., 340 F.3d 373, 378-79 (6th

Cir. 2003). The Supreme Court has described the power “to punish for contempts” as “a necessary

and integral part of the independence of the judiciary” and “absolutely essential to the performance

of the duties imposed on them by law.” Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450

(1911).

Contempt proceedings can be either civil in nature or criminal. Civil contempt has as its

purpose compelling a party to do “what a court had previously ordered him to do.” Turner v.

Rogers, 564 U.S. 431, 441 (2011) (quoting Gompers, 221 U.S. at 442). Criminal contempt is penal

in nature and authorizes a court to impose fines and imprisonment for “[d]isobedience or resistance

to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401(3). In other words,

“a contempt sanction is considered civil if it is remedial, and for the benefit of the complainant”

4

and criminal if it is “punitive, to vindicate the authority of the court.” Int'l Union, United Mine

Workers of Am. v. Bagwell, 512 U.S. 821, 827-28 (1994).

The Court finds Respondent Nickolas Duncan in contempt of the Court’s orders enforcing

a valid IRS summons. The Court entered a default judgment against Respondent, giving him 45

days from July 28, 2020, in which to comply with the IRS summons. See Order Granting Mot.

for Default J. 3, July 28, 2020 (ECF No. 18). The Court also warned Respondent about the

consequences of any failure to comply, i.e. a finding of contempt and the possibility of

incarceration. The government filed proof of service showing that it had served Respondent with

a copy of the Court’s order. Respondent had until September 14, 2020, to comply with the Court’s

order but failed to do so.

In the nearly three months that have passed since then, Respondent has at all times been

aware of his obligations to respond to the IRS summons. Respondent has twice appeared before

the Court for show cause hearings and received extensions of time to work with the government.

The Court, with the agreement of the government, has given Respondent every opportunity to

follow the Court’s orders, only to see Respondent disregard them again and again. The Court has

repeatedly warned Respondent of the consequences of this course of action, as recently as this

week, directly explaining to Respondent that his failure to act would assuredly result in his

incarceration. Respondent acknowledged his awareness of his duty to comply at the December

7, 2020 show cause hearing. Respondent advised the Court that he was willing and able to comply

within 24 hours. The Court gave him slightly more time. However, the United States now

reports that Respondent has still not heeded the Court’s warnings and produced the documents

sought by the IRS summons. Under all of the circumstances, it is clear to the Court that

5

Respondent knew about the Court’s previous orders, has consistently disobeyed them, and done

so with intentional disregard for the Court’s orders and prior warnings about the consequences of

his actions. For all of these reasons, the Court finds Respondent in contempt.

In light of Respondent’s contempt of the Court’s orders and the protracted nature of his

course of action, the Court finds that incarceration is an adequate and necessary sanction of civil

contempt. Consistent with the Court’s instructions at the show cause hearing, the Court will first

give Respondent an opportunity to surrender to the U.S. Marshal. Respondent has until 4:00 p.m.,

Friday, December 11, 2020, to surrender to the custody of the Marshal at the U.S. Courthouse, 111

South Highland Avenue, Jackson, Tennessee. In the event Respondent fails to surrender by that

deadline, the Court will direct the Clerk of Court to issue a warrant for Respondent’s arrest and

deliver the warrant to the Marshal.

Respondent shall remain coercively incarcerated until he has purged himself of civil

contempt by complying with the IRS summons. See Gompers, 221 U.S. at 442 (explaining that

an imprisoned civil contemnor “carries the keys of his prison in his own pocket”). As soon as

Respondent has fully complied, the United States should immediately notify the Court.

The Clerk of Court is directed to send Respondent a copy of this order by means of

overnight mail, FedEx Priority Overnight, at his home address: 1845 Barriertown Drive, Savannah,

Tennessee 38372. The Marshal is also directed to serve Respondent with a copy of the order.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

CHIEF UNITED STATES DISTRICT JUDGE

Date: December 9, 2020

6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.