Petition — Patmon v. United States

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Supreme Court, U.S.

FILED

Noo - 97 5 DEC 12 1983

PLEXANBER L. STEVAS

IN THE vaca

SUPREME COURT OF THE UNITED STATES

October Term, 1983

PATMON, YOUNG AND KIRK

PROFESSIONAL CORPORATION and

HALLISON H. YOUNG, Individually

and in his Capacity as an

Officer and Responsible Employee

of Patmon, Young and Kirk

Petitioners,

UNITED STATES OF AMERICA and

BONNIE BURKS, Revenue Agent of

the Internal Revenue Service,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Patmon, Young & Kirk

Professional Corporation

Hallison H. Young

In propria persona

3770 Penobscot Building

Detroit, Michigan 48226

(313) 965-2675

QUESTIONS PRESENTED

WHETHER THE COURT OF APPEALS ERRED IN

AFFIRMING THE DISTRICT COURT'S ORDERS

FINDING PETITIONERS IN CONTEMPT OF COURT

AND IMPOSING COERCIVE SANCTIONS FOR THE

PETITIONERS' ALLEGED FAILURE TO PRODUCE

SUBPOENAED AND COURT ORDERED PRIVATE PAPERS

AND BUSINESS RECORDS OF MR. YOUNG, AS A

SOLE PROPRIETOR?

WHETHER GOVERNMENT AGENTS! UNCONSTITU-

TIONAL SEARCH AND SEIZURE AND UNLAWFUL

DISCLOSURES SHOULD BAR THE IRS’ FROM

RECEIVING THE COURT'S AID IN ENFORCING

SUMMONSES ISSUED TO ASSIST INVESTIGA-

TIONS THAT WERE INTENSIFIED AS A RESULT OF

INFORMATION UNCONSTITUTIONALLY AND UNLAW-

FULLY OBTAINED?

WHETHER THE COURT OF APPEALS' FAILURE TO

DECIDE MR. YOUNG'S EXPEDITED APPEALS WITHIN

THE TIME LIMITATION IMPOSED BY 28 U.S.C.

§ 1826 VIOLATED MR. YOUNG'S FIFTH AMENDMENT

RIGHT TO DUE PROCESS OF LAW?

PARTIES

(All Names in Caption)

TABLE OF CONTENTS

Item

questions Presented .... eo «

Parties . 6 « «6» » © © © we ww

weuae GF Contenta . .« «+ « « « »

7apie Of Authorities . . . « « « «

rr UPLGM » « 6 6 © 0 ¢ © © e

Statement of Jurisdiction ....

Constitutional Provisions Involved

Statutory Provisions Involved ..

Statement of the Case ......

Reasons for Granting Writ ....

ee ee ee ee

Appendix e e e ° * e . ° e oe

Page

. 1

. i

, ii

o $as

. 2

‘ 2

. 3

° 4

. 7

° 27

‘ 54

-la=44a

iii

TABLE OF AUTHORITIES

Cases Page

Bellis v. United States

OL: Use: Be. Laer) se a 8 & Deo 53

Boyd v. United States,

116 U.S. 616 (1911) 30

Branch v. Phillips Petroleum Co.

638 F.2d 873 (5th Cir. 1981). . 43

Brown v. United States, 465

F.2d 371 (9th Cir. 1972) 51

Buffalo Forge Co. v. United Steel-

workers of America

428 U.S. 397 (1976) ee 55

Charleston v. United States,

444 F.2d 504 (9th Cir. 1971) 51

Curcio v. United States

76 U.S. 328 (95r) s 6 8S. ee 38

Detroit Edison v. N.L.R.B.

N40 U:Ss. 3028 11979) «6 es * « 55

Fisher v. United States 14,29,

425 U.S. 391 (1976) es a--@ gaheaae

36 ,37

Group Ass'n Plans, Inc., v.

Colquhorn 49,52

466 F.2d 469 (D.C. Cir. 1972). . 53

In re Doe, 711 F.2d 1187

(2nd Cir. 1983) 27

In re Grand Jury Empanelled

March 19, 1980, Tats

680 F.2d 327 (3rd Cir. 1982) 36

TABLE OF AUTHORITIES

(continued)

Cases

In re Grand Jury Empanelled

March 19, 1980, 541 F.Supp. 1,

(D. Jede 1981) e e ° ° °

In re Grand Jury Proceedings,

605 F.2d 750 (5th Cir. 1979)

In re Grand Jury Proceedings

in Matter of Fine

641 F.2d 199 (5th Cir. 1981)

In re Grand Jury Proceedings

(Johanson) 632 F.2d

1033 (3rd Cir. 1980)

In re Grand Jury Proceedings

United States (Martinez)

626 F.2d 1051 (lst Cir. 1980)

In re January 1976 Grand Jury,

534 F.2d 719 (7th Cir. 1976)

Landis v. North America Co.,

299 U.S. 248 (1936) oe

Landy v. Federal Deposit Insurance

Corp.

486 F.2d 139 (3rd Cir. 1973)

cert. den. 416 U.S. 460

Matter of Berry, 521 F.2d 179

(10th cir. 1975)

Matter of Grand Jury Empaneled

March 19, 1980

680 F.2d 327 (3rd Cir. 1982)

Nebraska Press Ass'n v. Stuart

427 U.S. 539 (1976) «ee

Parker v. Flook

437 U.S. 584 (1978) os eile

43,50

48,50

TABLE OF AUTHORITIES

(continued)

Cases Page

Patmon, Young and Kirk and

Frederick Patmon v. United

States, et al., No. 83-824

Supreme Court Petition vt a ee 7

Phillips v. Crown Cent.

Petroleum Corn.

556 F.2d 702 (4th Cir. 1977. . 41

See v. City of Seattle,

387 U. Se 541 (1967) ° . ° ° 6 ° 42

United States v. Beacon Federal

Savings & Loan

F.2d ss (2nd Cir. 1983) 29,42,

[83-2 USTC 7 9611] oe! oe

United States v. Beattie

329 (2d Cir.) 30

United States v. Claycraft Co.

408 F.2d 366 (6th Cir. 1967) .. 52

United States v. Davis, 636 F.2d

1028 (5th Cir. 1981)

(81-1 USTC 99193] 29

United States v. Doe, 628 F.2d

694, 695 (lst Cir. 1980) 29,33

United States v. Doe, [83-2 USTC

19660, 51 U.S.L.W. 3789

(U.S. May 2, 1983) 7,28

TABLE OF AUTHORITIES

(continued)

Cases Page

U.S. Vv. Fox, F.2d (2nd28,29,

Cir. 1983) [83-2 USTC 949660] 31,32,

33, 36

United States v. Fox [83-1 USTC

99196], 554 F.Supp. 422, 7,28

C30, Me Le 1983) 30,30

United States v. Greenleaf

(77-1 USTC 949168], 546 F.2d 123

(Sth Cir. 1977) 30

United States v. Harrison

654 F.2d 359 (8th Cir. 1981) . . 27, 2

United States v. Janis

428 U.S. 4 33 (1976) e o ° ° e 54

United States v. Mitchell,

556 F.2d 371 (6th Cir. 1977). . 46

United States of America, et al.

v. Patmon, Young and Kirk, et al.

(E.D. Mich. USDC No. 80-74872) 24

United States v. Peters 27,28

9.26 (Teh Cie. 1963) . . 55

United States v. Plesons,

560 F.2d 890 (8th Cir. 1977) 39

United States v. Porter,

is (7th Cir. 1983) 28 ,33

[82-2 usTc 79457] os © © ye

vii

TABLE OF AUTHORITIES

(continued)

Cases Page

United States v. Rylander et al.

51 U.S.L.W. 4367 (April 19, 24,25

1983) ° ° o ° ° 38,46

United States v. Rylander

656 F.2d 1313 (9th Cir. 1980). . 20,40

United States v. Sapp.

371 F.Supp. 532 (S.D.

Fla. 1974) e ° ° ° ° 42

United States v. Schlansky

(83-1 USTC 4q 9481], No. 82-5200, 8,25

Slip op. 1, 7 (6th Cir. 29,31

June 16, 1983) 8,25

United States v. White

gee Us Se £94 (LOR). cw kK a 53

United States v. Young

532 F.Supp. 344 (E.D. Mich.

$.D. 1981) * e« @ « * e 2

CONSTITUTIONAL PROVISIONS

U. S. Constitution,

Amendment IV 3,9,13

39,54

U. S. Constitution

Amendment V ee Fr

9,13,

28,34

38,45

U. S. Constitution

Amendment VI 13

viil

TABLE OF AUTHORITIES

(continued)

Cases

STATUTORY PROVISIONS

26 U.S.C. § 7402(a)

26 U.S.C. § 7604(a)

28 U.S.C. § 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 1826(b) .

SUPREME COURT Rule 20 ..

MISCELLANEOUS

Wigmore, 8 Evidence, §2264

McNaughton Rev. 1961)

at 380

Page

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

PATMON, YOUNG AND KIRK (81-1189

81-1318, 81-1549, 81-1804, 82-1005,

82-1006, 82-1217); and HALLISON H.

YOUNG (81-1549, 81-1804, 82-1005),

individually and in his capacity as

an officer and responsible employee

of Patmon, Young and Kirk (81-1251),

Petitioners,

UNITED STATES OF AMERICA and

BONNIE BURKS, Revenue Agent of

the Internal Revenue Service,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, Patmon, Young & Kirk

Professional Corporation and Hallison H.

young, respectfully petition for a writ of

certiorari to review the judgment of the

United States Court of Appeals for the

Sixth Circuit in these cases.

(1)

OPINIONS BELOW

The opinion of the court of appeals

(App. A » infra, p. la ) is not

reported. The orders of the district court

(App. D=-G _ , infra, pp. 91-27a ) are not

reported, except United States v. Young,

532 F.Supp. 344 (E.D. Mich. S.D. 1981).

JURISDICTION

The petition for rehearing was denied

on September 15, 1983 (App. B , infra,

p. 5a )e An order staying mandate was

filed on October 26, 1983, staying the

issuance of mandate in these cases until

December 25, 1983 (App. C , infra,

P. 7a ).

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §§ 1254(1),

2101(c), and Rule 20 of the Rules of this

Court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the Consti-

tution provides:

"The right of the people to be secure «

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describ-

ing the place to be searched, and the

persons or things to be seized."

The Fifth Amendment to the Consti-

tution provides in pertinent part:

"No person shall be *** compelled in

any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law. #*##"

STATUTORY PROVISIONS INVOLVED

26 U.S.C. § 7402(a) provides:

The district courts of the United

States at the instance of the United States

shall have such jurisdiction to make and

issue in civil actions, writs, and orders

of injunction, and of ne exeat republica,

orders appointing receivers, and such other

orders and processes, and to render such

judgments and decrees as may be necessary

Or appropriate for the enforcement of the

internal revenue laws. The remedies hereby

provided are in addition to and not exclu-

sive of any and all other remedies of the

United States in such courts or otherwise

to enforce such laws.

26 U.S.C. § 7604(a) provides:

Jurisdiction of district court. If

any person is summoned under the internal

revenue laws to appear, to testify, or to

prodi'ce books, papers, records, or other

data, the United States district court for

the district in which such person resides

or is found shall have jurisdiction by

appropriate process to compel such

attendance, testimony, or production of

books, papers, records, or other data.

28 U.S.C. § 1291 provides:

The courts of appeals shall have

Jurisdiction of appeals from all final

decisions of the district courts of the

United States, the United States District

Court for the District of the Canal Zone,

the District Court of Guam, and the

District Court of the Virgin Islands,

except where a direct review may be had in

the Supreme Court.

28 U.S.C. § 1826 provides:

(a) Whenever a witness in any pro-

ceeding before or ancillary to any court or

grand jury of the United States refuses

without just cause shown to comply with an

order of the court to testify or provide

other information, including any book,

paper, document, record, recording or other

material, the court, upon such refusal, or

when such refusal is duly brought to its

attention, may summarily order his confine-

ment at a suitable place until such time as

the witness is willing to give such testi-

mony or provide such information. No

period of such confinement shall exceed the

life of --

(1) the court proceeding, or

(2) the term of the grand jury

including extensions, before

which such refusal to comply with

the court order occured, but in

no event shall such confinement

exceed eighteen months.

(b) No person confined pursuant to

Subsection (a) of this section shall be

admitted to bail pending the determination

of an appeal taken by him from the order

for his confinement if it appears that the

appeal is frivolous or taken for delay.

Any appeal from an order of confinement

under this section shall be disposed of as

soon aS practicable, but not later than

thirty days from the filing of such

appeal.

STATEMENT OF THE CASE

The cases before this Court are

related to those which are the subject of

a separate Petition for Certiorari,

"Patmon, Young and Kirk and Frederick

Patmon v. United States of America, et

al., No 83-824",

It should be noted that the Supreme

Court has granted certiorari in cases

involving virtually identical issues and

claims as those of Petitioners. See,

e.g., United States v. Fox, [83-2 USTC

19660], at p. 88,371 n. 5. See United

States v. Doe, 51 U.S.L.W. 3789 (U.S.

May 2, 1983) (summarized at 51 U.S.L.W.

3424), granting cert. to In re Grand Jury

Empanelled March 19, 1980, 680 F.2d 327

(3rd Cir. 1982). But see United States v

Schlansky [83-1 USTC 49418], No. 82-5200,

slip op. 1, 7 (6th Cir. June 16, 1983),

petition for cert. filed, 83(10) Stand.

Fed. Tax Rpts. (CCH) Pp. 70,774.

These consolidated and expedited [28

U.S.C. § 1826(b)] cases involve appeals

of orders and judgments and post-judgment

orders issued in Civil Action Nos.

80-74868, 80-74869 and 80-74872 by the

District Court of the Eastern District of

Michigan, which enforced IRS summonses,

and imposed sanctions for civil contempt

against Hallison Young ("Mr. Young")

individually, Hallison Young, as a

responsible’ employee and officer of

Patmon, Young & Kirk Professional

Corporation ("PYK") and PYK,

respectively.

These cases arose out of an_ IRS

investigation into the tax liabilities of

Mr. Young, a sole proprietor, for the

calendar years 1976 and 1977. The IRS

issued two identical summonses to Hallison

H. Young, individually, and as a respon-

sible officer of Patmon, Young & Kirk

Professional Corporation and a third

summons to PYK, ordering Mr. Young to

testify and to produce certain of his

private records and certain records of PYK.

The IRS petitioned the district court for

judicial enforcement of the summonses and

on February 16, 1981, Mr. Young and PYK

filed their responses, affirmative defenses

and motion to dismiss, and Mr. Young, indi-

vidually, asserted, inter alia, that the

enforcement of the summonses violated his

fourth and fifth amendment rights and that

the bulk of the documents summoned were

never in existence and to the extent that

any such documents ever existed, the bulk

thereof, at the time the summonses were

allegedly served, were not within their

possession, custody or control and that

their whereabouts were unknown. (Jt. App.

214, 124, 125, 127,‘ 130, 131, 138, 151,

152, 153, 155, 178, 182.)}/

During the hearing before the district

court on March 6, 1981, Mr. Young gave

testimony substantiating his and PYK's

defense that the bulk of the documents

sought by the summonses were non-existent.

(Jt. App. 974 = 975, 984, 1000 = 1002.)

During Petitioner Burks' cross-

examined testimony on February 18, 1981,

She testified under oath that, with

reference to Government Exhibit No. 2 (the

summons served on Mr. Young as a respon-=

Sible officer of PYK in Civil Action No.

17. “Jt. App.” refers to Appellants'

Joint Appendix in the related cases

filed in the U.S. Court of Appeals

for the Sixth Circuit.

80-74869), she made a mistake in drafting

the rider and that "there should have been

a separation between the two ['expenses'

and . . « ‘income']". (Emphasis added.)

(Jt. App. 870.)

On March 6, 1981, during Agent Burks'

testimony in the summons enforcement

proceedings, the government withdrew from

its petition in the summons addressed to

PYK in Civil Action No. 80=-74872 the

request for production of all but the W-2

and 1099 forms. (Jt. App. 887.)

Petitioner Burks, on March 6, 1981,

also testified, in response to a question

put by Mr. Young's attorney concerning what

documents were sought by the summonses,

that:

"Having not looked at the taxpayer's

records and having not known exactly

what records the taxpayer had in his

possession then it would have been

Kind of hard. I would have had to use

a lot of imagination in order to

request specific records because every

taxpayer's records are different.

Therefore, I would have to use a

general statement in order to request

records from the taxpayer." (Jt. App.

891.)

On the same day, in response to a

question put by “Mr. Young's counsel

concerning Agent Burks’ intention in

serving the summons addressed to Mr. Young

in his capacity as a responsible employee

of PYK, requiring him to produce documents

that might be within the possession of PYK,

she stated that:

"Well, it was an oversight and I am

sorry, I didn't understand--" (Jt.

App. 925.)

During Mr. Young's direct examination

on March 6, 1981, he testified that there

were certain documents or items requested

in the summonses addressed to him individ-

ually and as a responsible employee of PYK

that were not in existence (e.g., state-

ments of W-2 income, money orders, certi-

fied checks, physical master recordings)

and not within his possession. (Emphasis

added.) (Jt. App. 984, 999, 1000, 1001.)

In the district court's opinion and

order enforcing the summonses issued April

30, 1981, the court stated that:

"The Government has withdrawn from its

petition the production of all but the

W-2 and 1099 forms, stating that the

others can be retrieved by the

Government without excessive cost."

"Respondent contends that in Civil

Action 80-74869 the summons” seeks

records maintained by Respondent

personally but is directed toward

Respondent as an officer of Patmon,

Young & Kirk, Professional

Corporation. He asserts that’ the

attempt at production by means of a

corporate officer violates his

individual rights under the fourth,

fifth, and sixth amendments.

The Government has acknowledged

clerical error in the summons directed

to Respondent as a corporate officer

and has withdrawn all but Paragraphs 6

and 9 of the rider to the summons.

The remainder of the rider relates to

business records which may properly be

compelled under a fifth amendment

claim even if they incriminate the

custodian. See Fisher v. United

States, 425 U.S. 391, 411-12 (1976),

and eae cited therein." (Jt. App.

291.

"Respondent further asserts the

invalidity of the summonses because

they seek materials that are not in

existence or not in Respondent's

custody." (Emphasis added.) (Jt.

App. 293.)

In the District Court's opinion and

order vacating order of April 22, 1981,

‘

"Respondents, Hallison Young, Hallison

Young in his capacity as officer and

responsible employee of Patmon, Young and

Kirk, P.C., and Patmon, Young, and Kirk,

P.C., [to] appear before Revenue Agent

Bonnie Burks or her designated represen-

tative at 10 o'clock a.m. on Thursday, May

14, 1981". (Emphasis added.) (Jt. App.

After the Government withdrew part of

its petition regarding the summons address-

ed to Mr. Young as a responsible officer of

PYK in Civil Action No. 80-74869, para-

graphs 6 and 9 of the rider to the summons

were extant and compelled him to produce:

"for examination the following books,

records, papers and other data: (The

documents described in the attached

rider)"

* *% #

"all documents required to substanti-

ate the following expenses claimed on

your 1976 and 1977 federal income tax

return"

"Such documents should include, but

are not limited to, the following:"

"6) Forms 1099, W-2's, K-l's,

issued to Hallison H. Young, for

years ending December 31, 1976

and December 31, 1977. Also

provide other records which would

show dollar value and source of

interest income earned, dividends

earned, salary and/or wages

earned, professional fees, direc-

tor fees, taxable income from

partnerships, Sub-Chapter s

Corporations, or income from

whatever source whether paid or

credited and whether in United

States currency or fair market

value of service."

"9) Please provide copies of all

records pertaining to all obliga-

tions owed to Hallison H. Young

by Patmon, Young and Kirk, P.C.

Such books and records’ should

include but not be limited to all

notes, contracts, or instruments

of indebtedness executed by

Patmon, Young and Kirk, P.C.

regarding all debts owed to

Hallison H. Young." (Jt. App.

32 = 34, 45 =} 48.)(Emphasis

On June 29, 1981, in Mr. Young's and

PYK's Response to Petitioner's Motion for

an Order to Show Cause why they should not

be held in contempt and their Motion to

Dismiss (Jt. App. 331, 340, 342), Mr. Young

and PYK asserted the defenses of the

government's waiver, the district court's

modification of the IRS summons, substan-

tial compliance, good faith, and past and

present inability to produce any summoned

and ordered documents, except for those

produced on May 14 and 29, 1981. (Jt.

App. 331 - 346.)

During the contempt proceedings on

June 30, 1981, Petitioner Burks gave cross-

examined testimony that Petitioners did not

have any evidence to show the existence of

the contested documents or to show that the

contested documents were then still within

the possession, custody or control of

Mr. Young or PYK. (Jt. App. 1036 - 1038,

1048 = 1051, 1057 - 1059, 1064 = 1065.)

Agent Burks _ gave further cross-=

examined testimony on June 30 and July 2,

1981 (Jt. App. 1036 =- 1038) that she had no

factual basis to believe or conclude that

Mr. Young or PYK had the originals or

copies of the contested documents in their

possession, custody or control or that

"such records are in existence", except for

information obtained from the Bank of the

Commonwealth. (Jt. App. 1036 = 1038, 1049

- 1050, 1055, 1064.)

As a sanction against Mr. Young, on

August 24, 1981, the district court ordered

Mr. Young "to purge himself by giving

testimony and producing documents or

account for their whereabouts, sufficient

to comply substantially with the summonses

issued to him as an individual and in his

representative capacity." (Jt. App. 89.)

As a sanction against PYK, on August

24, 1981, the district court ordered a

"responsible officer of PYK appear to give

testimony on behalf of the law firm within

forty-eight (48) hours. . ., failing which

the firm shall pay. . .($500) per day...

until such testimony is given. . ."

(Emphasis added) (Jt. App. 93.)

Mr. Young appeared individually and in

his representative capacity on August 25

and December 3, 1981 and gave full and

complete testimony as exemplified by the

following colloquy between Ms. Humphrey and

Mr. Werder on August 25, 1981:

"MS. HUMPHREY: Just to be clear, then,

as far as the Government is concerned

for the purposes of this present

examination, you have concluded your

examination of Mr. Young as an

individual, and Mr. Young in his

representative capacity as an officer

of PYK with respect to the summonses

in '4868 and '4869 for the years '76

and '77?

MR. WERDER: Yes. . ." (Emphasis

added) (Jt. App. 1335.)

On September 14, 1981, the district

court entered an order in case No. 80-

74868 (not opposed by the government) that

"Respondent Hallison Young as an individual

has purged himself of the finding of

contempt." (Jt. App. 608.)

On November 30, 1981, the district

court issued a Memorandum Opinion and Order

Imposing Sanctions for Contempt (Jt. App.

689) which reads, in part, that:

"(t]he two issues presently before the

court are (1) whether the contempt of

Mr. Young in his representative capa-

city of the company has been purged

and (2) whether the contempt of the

firm has been purged."

"Respondents have not complied sub-

stantially with the summonses and have

failed to purge themselves of the

contempt order of this Court. United

States v. Rylander, 656 F.2d 1313 (9th

Cir. 1981).

Accordingly, IT IS HEREBY ORDERED that

Respondent Hallison Young, responsible

officer of Patmon, Young & Kirk,

submit himself to the custody of the

United States Marshal unless he purges

himself either by complying with the

summons enforcement order or by

producing categorical and detailed

evidence regarding his inability to

comply with the order of this Court.

IT IS FURTHER ORDERED that Respondent

Patmon, Young & Kirk, P.C., shall pay

within seventy-two (72) hours to the

Clerk of the Court, for the use and

benefit of the United States

Government, the sum of Five Hundred

Dollars ($500) per day for each day

from the expiration of the 48-hour

purge period afforded the law firm by

the contempt order of August 24, 1981,

to the date of completion of the purge

proceedings, September 11, 1981 [for a

total of sixteen (16) days, or Eight

Thousand Dollars ($8,000)], and an

additional sum of Five Hundred Dollars

($500) per day for each day from the

date of entry of this order until they

shall purge themselves in like terms."

(Jt. App. 698 = 699.)

On December 3, 1981 (within the

72-hour deadline), Mr. Young appeared

before Petitioners (without the presence of

Judge Boyle) in his capacity as a respon-

sible officer of PYK, together with

witnesses Wainwright, Doshi and Ms.

Bronson, and gave cross-examined and

unrefuted testimony, answered fully and

completely every question asked by the

sovernment (Jt. App. 1736 = 1741) (which

demonstrated that Mr. Young and PYK

produced categorical and detailed evidence

regarding their inability to comply with

the order of the district court [i.e.,

after further diligent searches of PYK's

and Riverside Storage's premises, the

contested missing documents could not be

found or their whereabouts determined]).

(Jt. App. 678, 1636, 1672, 1704, 1729,

1743.)

The district court, on December 7,

1981, issued an order regarding contempt

purge proceedings, which reads, in part,

that:

"IT IS HEREBY FURTHER ORDERED that

payment of the $8,000.00 amount

assessed against the corporate

respondent and the incarceration of

Respondent Young be stayed until

Wednesday, December 9, 1981, at 4:00

pem." (Jt. App. 728.)

During argument on Mr. Young's and

PYK's Motion to Stay, the district court on

December 9, 1981, admitted that Mr. Young's

appeals are meritorious when Judge Boyle

stated that:

"While it may be true that much of

what has been determined here rests on

factual conclusions and credibility

determinations -- and it certainly

does -- it certainly cannot be clearly

foretold how any Court of Appeals is

going to deal with the contempt

questions because the area is one of

reat confusion and the fact that the

Sestetons of this Court rests

primarily on the factual matters

does not answer the question either

which is wholly a question as to the

quantum of proof necessary for the

Respondent to make its prima fascie

(sic) case or the quantum of evidence

necessary to purge. I think there are

issues here regarding the appropriate

legal standards to be applied in

contempt proceedings. Therefore, I

cannot conclude that the appeal would

be frivolous or taken for the purpose

of delay." a supplied.) (jt.

App. 1786 = 1787.) .

The district court orders and

judgments of March 13, April 22 and May 5,

1981, enforcing the Internal Revenue

Service (IRS) summonses and orders of

August 24, November 30 and December 7,

1981, finding PYK and Mr. Young in civil

contempt and imposing sanctions were timely

appealed to the United States Court of

Appeals for the Sixth Circuit and

docketed as Case Nos. 81-1189, 81-1190,

81-1251 and 81-1318. (Jt. App. 97, 99,

101, 103, 105, 107.)

Mr. Leonard Green, Chief Deputy Clerk

of the Sixth Circuit Court, sent a letter

to counsel of record dated May 4, 1983 in

case Nos. 81-1804, 82-1005, 82-1006 and

82-1217 informing Appellants that the panel

of judges which heard argument in these

cases in 1982 directed counsel to file

Supplemental briefs no later than June 6,

1983 “addressed to the effect of those

cases of the United States Supreme Court's

April 19, 1983 decision in the case of

United States, et al. vs. Rylander, et al.,

51 U.S.L.W. 4367." (App. 192.)

By letter dated May 25, 1983, Leonard

Green, Chief Deputy Clerk of the Sixth Cir-

cuit, wrote a letter to counsel of record

which stated, in pertinent part, that:

"We have recently received notices of

appeal from two more district court

rulings in district court case No.

80-74872, United States of America, et

al. vs. Patmon, Young and Kirk, et al.

Those appeals, filed by Patmon, Young

and Kirk and Frederick A. Patmon, have

been docketed in this court as Nos.

83-1337 and 83-1338, respectively.

I have been asked by the court to

advise you that all of these cases

will be heard in Cincinnati on June

21, 1983. . .

Cases Nos. 83-1337 and 83-1338, and

any other new appeals which might be

filed from recent district court or

magistrate actions in these matters,

will be argued on the basis of either

the supplemental brief referred to

above or an additional short brief,

and any appendix necessary for the

court's consideration." (App. G, J, K,

infra, -)

On the basis of United States v.

Schlansky, No. 82-5200 (June 16, 1983) and

United States v. Rylander, U.S.

51 U.S.L.W. 4367 (April 19, 1983), the

hearing panel summarily affirmed the order

enforcing the summonses, order finding

contempt and imposing sanctions, order

denying motion to find contempt purges and

imposing sanctions and orders denying

various motions, enforcing previous orders

(appeal Nos. 81-1189, 81-1251, 81-1318,

81-1804, 82-1005, 82-1006 and 82-1217),

except it dismissed the order enforcing the

summonses in Case No. 81-1190 (i.e., United

States of America and Bonnie Burks, Revenue

Agent of the Internal Revenue Service,

Plaintiffs-Appellees, v. Hallison H. Young,

Defendant-Appellant. Dist. Ct. No.

80-74868). (App. A ,infra, lae4a.) The

Court's opinion is stated in conclusory

terms, grossly misstates the facts,

overlooks the substantial and first

impression issues and erred on all

questions of law.

REASONS FOR GRANTING WRIT

THE SIXTH CIRCUIT ERRED IN HOLDING

THAT MR. YOUNG, A SOLE PROPRIETOR, IN

A CIVIL CONTEMPT PROCEEDING, IS IN

CONTEMPT FOR FAILURE TO PRODUCE HIS

OWN TAX RECORDS AND PRIVATE PAPERS AND

GIVE THE ORDERED TESTIMONY WHERE HE

PROPERLY INVOKED HIS FIFTH AMENDMENT

PRIVILEGE AGAINST SELF-INCRIMINATION

The decision of the Court of Appeals

as to Mr. Young's right to assert his Fifth

Amendment protection of his own tax or

business records in his possession and his

private papers is in conflict with the

decisions of the Court of Appeals for the

Third Circuit on the same matter in Matter

of Grand Jury Empaneled March 19, 1980, 680

F.2d 327 (3rd Cir. 1982), cert. granted, 51

U.S.L.W. 3789 (U.S. May 2, 1983);the Eighth

Circuit in United States v. Harrison, 654

F.2d 359, 361 (8th Cir. 1981) [81-2 USTC 4

9558]; the Seventh Circuit in U.S. v.

Peters, F.2d (7th Cir. 1983)

(82-2 USTC 4 9457]; and the Second Circuit

In re Doe, 711 F.2d 1187, 1190-91 (2nd Cir.

1983) and U.S. v. Fox, F.2d (2nd

Cir. 1983) [83-2 USTC 49660].

During the calendar years 1976 and

1977, Mr. Young as a sole proprietor, was

engaged in a business and profession. (Jt.

App. 862 - 868).

When the IRS summonses were served

upon Mr. Young and during the summons

enforcement and contempt proceedings, he

variously imposed his Fifth Amendment

privilege and asserted that it applied to

business records of a sole proprietor.

(E.g., Jt. App. 1043.)

It is now well settled among the

circuit courts that the Fifth Amendment

privilege applies to business records of a

sole proprietor as well as to documents of

@ purely personal nature. See United

States v. Harrison, 654 F.2d 359, 361 (8th

Cir. 1981) [81-2 USTC 49558]; United States

ve. Doe, 628 F.2d 694, 695 (1st Cir. 1980);

United States v. Porter, F.2d

(7th Cir. 1983) [82-2 USTC 99457]; U.S. v.

Fox, F.2d (2nd Cir. 1983) [83-2

USTC 49660]; United States v. Davis, 636

-2d 1028 (5th Cir. 1981) [81-1 USTC

99193]. Compare: U.S. Vv. Schlansky,

F.2d ss (6th Cir. 1983) (83-1 USTC 99418].

On the authority of Fisher v. United

States, 425 U.S. 391 (1976) (76-1 USTC 4

9353], the district court held that Mr.

Young could be compelled to incriminate

himself through the production of his

business and personal records. Compare:

U.S. v. Fox, supra, at p. 88,317 and U.S.

v. Schlansky, Supra, at pp. 87,219-221.2/

Other courts have agreed with the Porter

case's rationale that Fisher's "implied

authentication" test affords protection to

2/. The Sixth Circuit's purported reliance

upon United States v. Schlansky,

supra, is misplaced since the

Government and the district court

admitted that there were questions as

to the existence or location of

documents. (Jt.App. 1036 - 1065.)

business records generated by a_e sole

proprietor taxpayer. See, .e.g., United

States v. Doe, 628 F.2d 694, 695 (1st Cir.

1980). (accountant's personal business

records); In re Grand Jury Proceedings

United States (Martinez), 626 F.2d 1051,

1055-56 (lst Cir. 1980) (physician's

appointment logs); United States Ve

Greenleaf [77-1 USTC @ 9168] 546 F.2d 123,

125 n. 1, 126 n.7 (5th Cir. 1977) (inter

alia, cancelled checks, cash receipt

books); United States v. Plesons, 560 F.2d

890, 892 n. 3, 893 (8th Cir. 1977)

(physician's appointment records); United

States v. Beattie [76-2 USTC 49667], 541

F.2d 329 (2d Cir.), cert. denied, 425 U.S.

960 (1976) (taxpayer's letters to

accountant); United States v. Fox [83-1

USTC 49196], 554 F.Supp. 422, 425 (S.D.

N.Y. 1983) (all documents bearing tax-

payer's own writing); In re Grand Jury

Empanelled March 19, 1980, 541 F.Supp. l, 2

- 3 (D. NJ. 1981) (inter alia, bank

statements, cancelled checks, bank deposit

tickets). See also Wigmore, 8 Evidence, §

2264 at 380 (McNaughton Rev. 1961). These

courts have not relied on any wholesale

protection for "private papers" stemming

from Boyd v. United States, 116 U.S. 616

(1911), but have rather found that taxpayer

~generated materials such as checks, bank

deposit slips and appointment logs contain

the potential for implicit authentication

through production that Fisher prohibits.

Therefore, since the IRS summonses

called for and the district court ordered

that Mr. Young produce all books = and

records of his sole proprietorship (i.e.,

business and professional) and all bank and

related records, Mr. Young was compelled to

implicitly authenticate the summoned

documents and in doing so provide a link in

the chain of incrimination. Fisher v.

United States, supra, at 412-13; U.S. v.

Fox, supra, at 88,372. The inference that

should have been drawn from the broad

Sweeping summons is that the Government was

attempting to compensate for its lack of

Knowledge by requiring Mr. Young to become

a primary informant against himself. See

U.S. v. Fox, supra, at 88,373.

The IRS had no way of knowing from

the face of Mr. Young's returns whether he

had records to support all of his claimed

business deductions or whether he possessed

records that reflected reported income.

The mere fact that Mr. Young's returns

reveal on their face certain information

did not give the IRS any information about

whether he had records of bank accounts.

When asked to explain what information was

deing sought by the summonses, the

Government agent stated:

"Having not looked at the taxpayer's

records and having not known exactly

what records the taxpayer had in his

possession then it would have been

kind of hard. I would have had to use

a lot of imagination in order to re-

quest specific records because every

taxpayer's records are different.

Therefore, I would have to use a gen-

eral statement in order to request

og ta from the taxpayer." (Jt. Ap.

91.

It is precisely the sort of fishing

expedition involved in the cases below that

the Fifth Amendment was designed to pre-

vent. Accordingly, the Sixth Circuit and

the district court should have held that

enforcement of the summonses would result

in conpelled testimonial communications by

Mr. Young. Accord: U.S. Vv. Fox, supra,

at 88,373; In re Grand Jury Empaneled March

19, 1980, supra; United States v. Doe,

Supra, U.S. v. Porter, supra.

The Sixth Circuit's reliance upon

Schlansky as a basis for granting summary

affirmance of the district court orders

implicitly held that testimonial communica-

tions were not compelled by the enforcement

of the IRS summonses calling for all of Mr.

Young's records pertaining to his business,

his finances, and his income tax deduce

tions. However, as demonstrated by the

massive summons enforcement, contempt and

purge proceedings following the entry of

the orders and judgments enforcing the IRS

Summonses, the Government and the district

court used the very compelled testimony and

proprietary documents of Mr. Young as a

basis for finding him and PYK in civil

contempt and imposing sanctions. In fact,

the district court specifically found that

Mr. Young's failure to disclose and

identify his personal records evidenced his

contempt. (App. F » infra, 2la-23a ,)

The compulsory production of the

"business records" of Mr. Young, as a sole

proprietorship, was protected by the Fifth

Amendment privilege against self~

incrimination. U.S. Vv. Fox, supra.

Properly construing U.S. v. Fisher, the

court below should have ruled that

enforcement of the summonses would force

Mr. Young to perform both types of

incriminating testimonial acts identified

in U.S. v. Fisher in that he would be and

in fact was required to acknowledge the

existence of records of which the

Government was not aware and to implicitly

authenticate the records as his own. Even

though the Government may have had

knowledge of the existence of some of Mr.

Young's records, the summonses calling for

"all" of his books and records should have

been characterized by the court below as an

attempt by the Government to make Mr.

Young the primary informant against himself

by requiring him to add "to the sum total

of its information".

Moreover, the “implicit authentica-

tion" standard of Fisher extends the Fifth

Amendment protection beyond records hand-

written by a taxpayer. U.S. Vv. Fox,

Supra. As the Second Circuit did in Fox,

the Sixth Circuit and the district court

should have extended the protection to

include any records in Mr. Young's posses-

sion the compulsory production of which

would implicitly authenticate them as

records pertaining to his business, his

finances, or his income tax deductions.

U.S. ve. Fox, supra. Accord: United States

v. Porter; In re Grand Jury Empaneled March

19, (1980, supra; In _re Grand Jury

Proceedings (Johanson), 632 F.2d 1033 (3rd

Cir. 1980).

In the cases below, the compelled

production of Mr. Young's own papers as a

sole proprietor was clearly testimony as to

their identity and genuineness. (App. D,

E, infra, 9a-18a). Mr. Young's compelled

delivery of the summoned records to the

IRS, in and of itself, was clearly suffi-

cient to authenticate the records of the

subsequent criminal trial against him. U.S.

v. Fox, supra, at 88,374.

Therefore, both the Sixth Circuit and

the district court erred in ruling that

none of Mr. Young's "business records" were

potentially privileged under the Fifth

Amendment. U.S. v. Fisher, supra; U.S. v.

Fox, supra. Accord: U.S. v. Porter, supra

(cancelled checks and deposit slips are

entitled to limited Fifth Amendment

protection).

Both the Sixth Circuit's affirmance of

the district court's orders and judgments

holding the Petitioners in contempt of

court and imposing sanctions by reason of

Mr. Young's failure to produce summoned and

ordered private papers and business records

and his failure to explain why he could not

produce the documents was inimical to Mr.

Young's Fifth Amendment privilege and

effectively subjected him to such contempt

Sanctions for conduct within the protection

of the Fifth Amendment. See Curcio v.

United States, 354 U.S. 118, 128 (1957);

cf. United States v. Rylander, U.S.

(1983) (83-1 USTC 9300 at p.

86,760 j.

Although Mr. Young, as an officer and

employee of PYK, could not assert the Fifth

Amendment to prevent production of records

of PYK, he did retain his personal

privilege against self-incrimination. id.

THE SIXTH CIRCUIT ERRED IN AFFIRMING

THE DISTRICT COURT'S ORDERS ENFORCING

THE IRS SUMMONSES, IMPOSING CONTEMPT

SANCTIONS AND REJECTING PETITIONERS'

FOURTH AMENDMENT DEFENSE (AS A MATTER

OF LAW)

As defenses to the IRS summons

enforcement and contempt proceedings,

petitioners asserted that the summonses

were vague and overbroad and that’ the

contempt proceedings were based upon Burks’

perjured affidavits and testimony, unlawful

disclosures of petitioners' tax returns and

return information and evidence illegally

obtained from the Bank of the Commonwealth,

all in violation of their Fourth Amendment

rights.3/ (Jt.App. 2, items 14 & 17)

(App. I - K, infra, 30a-37a) (App.

vy infra, 4la = 44a )e

On June 28, 1982, petitioners

submitted to the Sixth Circuit a Motion to

Remand and to Take Judicial Notice,

3/ See Appendix in Sixth Circuit Court

cases 82-1006 and 82-1217, at pp.

193-201, 210-211.

claiming that newly discovered evidence

showed that the Government already had in

its possession before and during the

enforcement and contempt proceedings,

copies of all of the contested bank

records, which were unlawfully obtained by

the Government (without issuing a summons

and complying with 26 U.S.C. § 7609) from

the Bank of the Commonwealth in May, June

and July, 1981. (App. infra,

Lia = 4a ). Petitioners' request to

take judicial notice was based upon the

authorities of Landy v. Federal Deposit

Insurance Corporation, 486 F.2d 139, 151

(3rd Cir. 1973) cert denied, 416 U.S. 460;

Landis v. North America Co., 299 U.S. 248,

258 (1936). Petitioners also contended

that the Government relied upon perjurious

testimony and affidavits (that were

relevant to the issues involved in the

contempt proceeding) and unlawful dis-

closures of petitioners' tax returns,

return information and confidential infor-

mation. Petitioners contend that said

evidence was materially relied upon by the

district court in issuing the orders

enforcing the summonses, finding peti-

tioners in civil contempt and imposing

Sanctions. (Jt.App. 1391). See Phillips v.

Crown Cent. Petroleum Corp., 556 F.2d 702

(4th Cir. 1977), later app., 602 F.2d 616,

cert denied, 62 L.Ed.2d 756.

Although repeatedly raised in these

cases and the related cases, the Sixth

Circuit and district court rejected

petitioners’ claims of unconstitutional

search and seizure and unlawful disclosures

of tax returns, return information § and

confidential information, without con-=

ducting any factual inquiry or evidentiary

hearing. (Jt. App. 2, items 14 & 17) (App.

4, infra, 4ia - 4ha ).

Like all other governmental agencies,

the IRS must obey the Constitution and

Statutes. Whetner the Government's enforce-

ment objective is civil or criminal, or

both, the IRS agents in these cases should

not have used means that infringed the

prohibitions of the Fourth Amendment

against unreasonable searches and seizures

of petitioners’ papers and should not have

violated 26 U.S.C. §§ 6103, 7213 and 18

U.S.C. § 1905. U.S. v. Beacon Federal

Savings & Loan, supra, F.2d (2nd

Cir. 1983) (83-2 USTC 4 9611] at p. 88,227;

cf. United States v. Sapp, 371 F.Supp. 532,

5 36 ($.D. Fla. 1974). By granting

enforcement to the summonses and imposing

contempt sanctions that resulted from the

unconstitutional searches and unlawful

disclosures, the Sixth Circuit and the

district court furthered the effects of, if

not actually encouraged, unconstitutional

and illegal conduct. Id. See, See v. City

of Seattle, 387 U.S. 541, 544 (1967) (an

agency subpoena must conform to fourth

amendment requirements).

The decision of the Sixth Circuit as

to petitioners' right to assert as a

defense to the civil contempt proceedings

their Fourth Amendment rights as to Mr.

Young's personal papers and effects and

their tax returns, return information and

confidential information and business

records is in conflict with the decision of

the Court of Appeals for the Second Circuit

on the same matter in U.S. v. Beacon

Federal Savings & Loan, supra.

To affirm the district court's

enforcement of the IRS summonses and orders

imposing contempt sanctions required the

Sixth Circuit to accept what appears to be

the district court's unspoken premise: that

the Fourth Amendment and statutory

violations leading to the issuance of the

Summonses are irrelevant to the enforce-

ment stage, and that a suppression hearing

in any criminal proceeding that might later

result would be adequate protection against

any unconstitutional and illegal action by

the Government. Id. at p. 88,227.

Since both the district court and the

Sixth Circuit rejected petitioners’ Fourth

Amendment defense to the summonses served

on Mr. Young and PYK during the summons

enforcement and contempt proceedings,

pursuant to the rationale of U.S. v. Beacon

Federal Savings & Loan, supra, this Court

should grant petitioners' writ.

THE FAILURE OF THE COURT OF APPEALS TO

DECIDE MR. YOUNG'S EXPEDITED APPEAL OF

DECEMBER 15, 1981 WITHIN THE TIME

LIMITATION IMPOSED BY 28 U.S.C. § 1826,

VIOLATED MR. YOUNG'S FIFTH AMENDMENT

RIGHT TO DUE PROCESS OF LAW

The district court at the December 9,

1981 hearing held that Mr. Young's appeals

to the Sixth Circuit pursuant to 28 U.S.C.

§ 1826 (which requires that appeals from

contempt citations must be determined by

the court of appeals within thirty (30)

days of the date of the filing of the

notice of appeal) were not frivolous and

that:

"(i]t certainly cannot be clearly

foretold how any Court of Appeals is

going to deal with the contempt ques-

tions because the area is one of great

confusion and the fact that the de-

cisions of this Court rests primarily

on the factual matters does not answer

the question either which is wholly a

question as to the quantum of proof

necessary for the Respondent to make

its prima fascie (sic) case or the

quantum of evidence necessary to

purge. I think there are issues here

regarding the appropriate legal

Standards to be applied in contempt

proceedings. Therefore, I cannot

conclude that the appeal would be

frivolops or taken for the purpose of

delay.""/ (Jt. App. 1786 ).

The district court found, on December

9, 1981, that Mr. Young's said appeals

present "some very fundamental and

important issues that need to be addressed

by the court of appeals with respect. . .to

the standards as applied in this case con-

cerning contempt, concerning the purged

(sic) proceedings" and are not "frivolous".

On December 15, 1981, Mr. Young and

PYK filed their notice of appeal and an

amended notice of expedited appeal pursuant

to 28 U.S.C. § 1826(b) from the district

court's 12/14/81 order denying motion to

vacate, enforcing sanctions for contempt,

denying in part motion to stay, and denying

4/ Since the district court found Mr.

Young guilty of civil contempt and

imposed sanctions against him as an

officer of PYK, he is a "witness"

within the ambit of 28 4JU.S.C.

§ 1826(a) and therefore entitled to

its protections. See United States v.

Mitchell, 556 F.2d 371, 384 (6th Cir.

1977).

motion to quash, and order admitting

respondent Young to bail. (Jt. App. 105.)

(App. H, infra, 28a.)

Mr. Young submitted to the court of

appeals on December 24, 1981, his motion to

Stay, for supersedeas bond pending appeal

made pursuant to 28 U.S.C. § 182€, for

advancement of heacing, immediate consider-

ation and emergency relief.,.

On December 3, 7, 9, 15, 16 24, 29,

30, 31, 1981 ana January 4, 5, 6, ta ae;

1982, Mr. Young's counsel, by telephone, in

writing and in his motions for Stay and

expedited appeal, brought to the attention

of the Sixth Circuit and the district court

the pendency of his expedited appeals pur-

Suant to 28 U.S.C. § 1826(b).

On January 13, 1982, the Sixth Circuit

referred Mr. Young's motion to Stay and to

have an expedited appeal to a hearing panel

for consideration, together with the merits

of his appeals.

Over appellants’ objections, the

panel consolidated all twelve (12) appeals

for reargument and argument which did not

involve common questions of law or fact.

Case Nos. 82-1006, 82-1217, 83-1337 and

83-1338 involve different taxpayers, tax

years, issues of fact and law and subject

matter (i.e., areas of testimony and nature

of documents). AS a consequence, the panel

confused the taxpayers, the subject matter

involved, the issues of fact and law and

overlooked or misapprehended the points of

fact and law discussed herein. (App. A,

B, infra, la - 6a.)

The opinion of the court of appeals

does not reflect a "thcrough consideration

and an informed decision". In re January

1976 Grand Jury, supra. AS a consequence,

an intelligent review by this court en banc

and the Supreme Court is impossible. Cf.

Group Ass'n Plans, Inc. v. Colquhorn, 466

F.2d 469 (D.C. Cir. 1972).

On May 28, 1983, during oral argument,

Circuit Judge Krupansky stated that the

panel would immediately grant appellants’

motion to remand submitted June 28, 1982

because (in light of the Supreme Court's

decision in Rylander) the district court

did not make any factual determination as

to appellants' defense of "present inabil-

ity" and did not make a distinction between

past and present inability. As a result,

the panel did not permit argument by appel-

lants' counsel of their defenses of past

and present inability.

The 30-day time limitation expired in

Case No. 81-1804 on January 3, 1982 and in

Case No. 82-1005 on Saturday, January 16,

1982. The Sixth Circuit declined to act on

Mr. Young's appeals until August 1, 1983.

Such inaction presented "serious constitu-

tional” problems since the Sixth Circuit

did not decide Vir. Young's appeals within

thirty days. The 30-day period is

mandatory and therefore constitutionally

grounded, the inaction of this Court effec-

tively denied Mr. Young his constitutional

and statutory rights. See Matter of Berry,

521 F.2d 179, 181 (10th Cir. 1975), cert.

denied 423 U.S. 928, rehearing denied 423

U.S. 1039; In re Grand Jury Proceedings,

605 F.2d 750, 752 n. 1 (5th Cir. 1979); In

re January 1976 Grand Jury, 534 F.2d 719,

730 n. 11 (7th Cir. 1976).

The court of appeals violated its duty

to insure through consideration of Mr.

Young's appeal and make an informed deci-

sion. The 18-month delay despite Mr.

Young's insistance on expeditiousness,

violated his right to due process of law

and was therefore fundamentally preju-

dicial. See In re January 1976 Grand Jury,

Supra. The effect of the Sixth Circuit's

inaction resulted in petitioners being

subjected to post-judgment execution

proceedings, a multiplicity of duplicitous,

vexatious and unlawful summons proceedings

(without the protection of an impartial

Judge and tribunal) and encouraged the

Government's unlawful disclosures and

unconstitutional searches and_ seizures,

deprived Mr. Young of his right to an

expedited appeal under 28 U.S.C. § 1826 to

challenge the validity and propriety of the

IRS summons enforcement, contempt and purge

proceedings, and of his Fourth and Fifth

Amendment rights. See Brown v. United

States, 465 F.2d 371, 372 (9th Cir. 1972);

Charleston v. United States, 444 F.2d 504

(9th Cir. 1971); In re January 1976 Grand

Jury, supra.

THE SIXTH CIRCUIT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW

WHICH HAS NOT BEEN, BUT SHOULD BE

LECIDED BY THIS COURT

There is nothing in the Sixth

Circuit's opinion which indicates the facts

on which it based its clearly erroneous

conclusions. Thus, an intelligent review

of the court of appeals' ultimate decision

is impossible.

The failure of the Sixth Circuit to

make specific findings of fact and conclu-

Sions of law, constitutes such a departure

from the accepted and usual course of

judicial proceedings so as to call for an

exercise of this Court's power of super-

vision. See United States v. Claycraft

Co., 408 F.2d 366 (6th Cir. 1969); Group

Ass'n Plans, Inc. v. Colquhorn, 466 F.2d

469, 471-72 (D.C. Cir. 1972).

The decision of the Sixth Circuit as

to appellants' right to assert a Fifth

Amendment privilege as to Mr. Young's

personal papers, effects and personal

business records is in conflict with the

decisions of the Supreme Court on the same

matter in United States v. White, 322 U.S.

694, 701 (1944); Bellis v. United States,

417 U.S. 85, 87-88 (1974). As a result,

this Court should grant certiorari in this

matter to resolve this conflict on these

issues of importance to our system of

jurisprudence.

CONCLUSION

The Sixth Circuit's decision in these

cases involved important and first

impression questions of federal law (1.e.,

the right of a sole proprietor to assert a

Fifth Amendment protection as to his own

tax/business records and private papers in

his possession; and the right of an

individual and corporation to assert their

Fourth Amendment protection against

unreasonable searches and seizures of their

private papers and business records to an

IRS administrative summons) which should be

settled by this Court. U. S. v. Janis, 428

U.S. 433, 439 (1976); Nebraska Press Ass'n

Vv. Stuart, 427 U.S. 539, 546 (1976); Parker

ve. Flook, 437 U.S. 584 (1978).

The questions presented are important

to the administration of the federal tax

laws, of which settlement by this Court

would be in the public interest, since

Petitioners’ cases are representative of a

problem confronting many taxpayers. Detroit

Edison Co. v. N.L.R.B., 440 U.S. 301 (1979).

The Sixth Circuit's decision conflicts

with U. S. v. Beacon Federal Savings &

Loan, supra. Also, the Sixth Circuit's

decision squarely conflicts with Matter of

Grand Jury Empaneled March 19, 1980, 650

F.2d 327 (3rd Cir. 1982), cert. granted, 51

U.S.L.W. 3789 (U.S. May 2, 1983; the Eight

Circuit in United States v. Harrison,

Supra; and the Seventh Circuit in U. Ss. v.

Peters, supra; and the Seventh Circuit in

U.S. v. Fox, supra.

Disparate enforcement of the Internal

Revenue laws resulting solely from a

fortuity of forum or circuit can be

prevented only through the resolution by

this Court of the questions presented in

this petition. Buffalo Forge Co. v. United

Steelworkers of America, 428 U.S. 397, 404

(1976).

Since there now exists a clear and

express conflict of decisions among the

circuits on these important questions of

federal law affecting many people in

different parts of this Country, compelling

reasons are evident why the questions

presented here should be reviewed = and

definitively determined by this Court.

Accordingly, this Court should correct

the erroneous affirmance of the district

court's orders and judgments by . granting

the petition for a writ of certiorari.

This Court may wish to consolidate

these cases with case Nos. 83-1337 and

83-1338.

ywpopria persona

-and-

PATMON, (YOUNG, & KIR

PROFESS TONAL PO

dyads A. Patmon

n propria persona

3770 Penobscot Building

Detroit, Michigan 48226

(313) 965-2675

Dated: December 9, 1983

APPENDIX

Page

Order of the United States Court la

of Appeals for the Sixth Circuit

entered September 27, 1983 .....

Order of the United States Court of 5a

Appeals for the Sixth Circuit,

Denying Petition for Rehearing

entered September 27, 1983 ......

Order of the United States Court 7a

of Appeals for the Sixth

Circuit, Staying Mandate

entered October 26, 1983 ......

Memorandum Opinion and Order 9a

Denying Respondent Hallison

Young's Motion to Dismiss

Petition and Granting

Enforcement of Summons

entered April 30, 1981 ....e«..e

Opinion and Order Vacating l6a

Order of April 22, 1981, and

Granting Stay of Five (5) days

Gated ‘Way 3, 90h0: 6 eka e e 6s

Opinion and Order Holding 19a

Respondents in Civil Contempt

of Court entered August 24, 1981. .

Order Denying Motion to Vacate 24a

Enforcing Sanctions for Contempt

Denying in Part and Granting in

Part Motion to Stay, and Denying

a to Quash entered December 14,

19 l o ° a . . . . ° oe eo ° o oe e o .

APPENODI X

(continued)

Page

Amended Notice of Expedited

Appeal filed December 15, 1981... 28a

Summons Form 2039 and Rider to

Hallison H. Young . « « «6 « « « e 30a

Summons Form 2039-.to Hallison

H. Young, in his capacity as

an officer and responsible

employee of: Patmon, Young

SG Rae, FCs 0 6 6 6H 8 eee 33a

Summons Form 2039 to Patmon,

Young and Kirk, P.Ce « « « «© ew « « 35a

Letter of Leonard Green of the

United States Court of Appeals

for the Sixth Circuit requesting

Supplemental briefs, dated

WAS Go, 2903 2) 60 6: 0 a-& es #80 38a

Motion to Remand to Correct

Omission in Record on Appeal

and to Supplement Record on

Appeal, or in the Alternative,

Motion to Take Judicial Notice

of Post-Judgment Events and

Developments dated June 28,

1982 ° 7 ° ° « e e ° . ° ° 4la

APPENDIX A

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Nos. 61-1189, 81-1190, 81-1251, 81-1318,

81-1549, 81-1804, 82-1005, 82-1006,

62-1217, 82-1827, 83-1337, 83-1338

UNITED STATES COURT OF APPEALS

POR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA and BONNIE BURKS,

Revenue Agent of the Internal Revenue

Service,

Petitioner=Appellees ORDER

[Entered September 27, 1983]

PATMON, YOUNG AND KIRK, (81-1189, 81-1318,

81-1549, 81-1804, 82-1005, 82-1006,

82-1217, 83-1337, 83-1338); PATMON AND

KIRK, (82-1217, 82=-1827,); HALLISON H.

YOUNG, (81-1190, 81-1549, 81-1804,

82-1005), individually and in his capacity

as an officer and responsible employee of

Patmon, Young and Kirk, (81-1251); and

FREDERICK PATMON, (82-1827, 83-1338);

Respondents-Appellants

Before: MARTIN, CONTIE, and KRUPANSKY,

Circuit Judges.

We have before us a group of appeals

growing out of an investigation by the

Internal Revenue Service of Hallison Young

and his Detroit law firm.

On October 31, 1980, the IRS issued a

summons to Patmon, Young and Kirk

requesting documents and records for the

tax years 1976 and 1977. Patmon, Young and

Kirk delivered some of the requested

documents but claimed that the remaining

documents either never existed or were lost

in a recent corporate relocation. Because

the IRS was unsatisfied with this response,

it petitioned the district court to enforce

the summons. After hearing, the district

court issued an enforcement order.

On June 17, 1981, the IRS moved the

district court to hold Patmon, Young and

Kirk in contempt because the corporation

failed to produce all of the requested

documents as ordered by the court. The

district court held a second hearing at the

close of which the court held the

corporation and Mr. Young in contempt. The

court ordered Mr. Young incarcerated until

he purged himself of the contempt. The

order also fined Patmon, Young and Kirk

$500.00 per day until it purged itself.

Attempting to purge himself of the

contempt, Young appeared before the

district court in August, 1981. The court,

finding that Young and the firm had failed

to purge themselves, imposed sanctions.

These twelve appeals followed, none of

which we now hold, on the basis of United

States v. Schlansky, No. 82-5200 (June 16,

1983), and United States v. Rylander, U.S.

» 51 U.S.L.W. 4367 (April 19, 1983),

has merit.

Disposition of each appeal is as

follows:

No. 81-1189 : enforcement of summons

affirmed.

No. 81-1190 : enforcement of summons

dismissed.

No. 81-1251 : enforcement of summons

affirmed.

No. 81-1318 : order directing

appearance before IRS

affirmed.

No. 81-1549 : order finding contempt

and imposing sanctions

affirmed.

No. 81-1804 : order denying motion to

find contempt purged

and imposing sanctions

affirmed.

No. 82-1005 : order denying various

motions, enforcing

previous order, and

authorizing an

additional thirty days

to purge affirmed.

No. 82-1006 : enforcement of summons

affirmed.

No. 82-1217 : enforcement of summons

ffirmed.

No. 82-1827 : the record is

incomplete;

jurisdiction is

retained pending the

parties' submission of

record and briefs.

Appealability of the

order is questionable.

Nos. 83-1337

83-1338 ; dismissed as

nonappealable.

It is so ordered

ENTERED BY ORDER OF THE

COURT |

/s/

Clerk

® This order was prepared by Judge Martin.

APPENDIX B

Nos. 81-1189/1251/1318/1549/1804

82-1005/1006/1217

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA and

BONNIE BURKS,« Revenue Agent of the

Internal Revenue Service, {Filed Sept 27,

1983/John P.

Petitioners-Appellees Hehman, Clerk]

Ve ORDER

PATMON, YOUNG AND KIRK, (81-1189, 81-1318,

81-1549, 81-1804, 82-1005, 82-1006,

82-1217); and HALLISON H. YOUNG, (81-1549,

81-1804, 82-1005), individually and in his

capacity as an officer and responsible

employee of Patmon, Young and Kirk

(81-1251);

Respondents-Appellants

Before: MARTIN, CONTIE, and KRUPANSKY,

Circuit Judges.

On receipt and consideration of a

petition for rehearing and suggestion for

rehearing en banc in the above styled case;

and

No judge in active service in this

Court having moved for rehearing en banc

_6a

and the motion therefore having been

referred to the panel which heard the case;

and

The panel having noted nothing of

Substance in said motion for rehearing

which had not been carefully considered

before issuance of the Court's opinion,

Now, therefore, the motion for

rehearing is hereby denied.

ENTERED BY ORDER OF THE COURT

/3/

Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 81-1189/1251/1318

1549/1804 & 82-1005/1217

[Entered Oct

26, 1983]

UNITED STATES OF AMERICA :

ET AL.,

Petitioners-Appellees

vs : ORDER

PATMON, YOUNG AND KIRK, :

Respondents=-Appellees.

ORDER STAYING MANDATE

ORDERED, That motion to stay mandate

herein pending application to the Supreme

Court for writ of certiorari is hereby

granted and the mandate is stayed for 60

days from this date; provided that, if

within such 60 days, the applicant shall

file with the Clerk of this Court’ the

certificate of the Clerk of the Supreme

Court that the certiorari petition, record

®}-

and brief have been filed, the stay shall

continue until the final disposition of the

case by the Supreme Court. Unless this

condition is complied with with-in ‘such 60

days or any extension thereof made by the

Court or any judge thereof, or if the

condition is complied with, then upon the

filing of copy of an order denying the writ

applied for, the mandate shall issue.

ENTERED BY ORDER OF THE COURT

JOHN P HEHMAN, CLERK

/s/

APPENDIX D

[Entered April 30, 1981]

UNITED STATES OF DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74868

Honorable Patricia J. Boyle

HALLISON H. YOUNG,

Respondent;

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74869

Honorable Patricia J. Boyle

HALLISON H. YOUNG,

Respondent;

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74870

Honorable Patricia J. Boyle

FIRST INDEPENDENCE NATIONAL BANK OF

DETROIT,

Respondent;

and

10a

APPENDIX D

[Entered April 30, 1983]

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74871

Honorable Patricia J. Boyle

BANK OF THE COMMONWEALTH,

Respondent;

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74872

Honorable Patricia J. Boyle

PATMON, YOUNG AND KIRK, P.C.

Respondent.

MEMORANDUM OPINION AND ORDER DENYING

RESPONDENT HALLISON YOUNG'S MOTION TO

DISMISS PETITION AND GRANTING ENFORCEMENT

OF SUMMONS

Respondent Hallison Young has brought

this Motion to Quash an Internal Revenue

Service (hereinafter Service or _ IRS)

Summons and to Strike and Dismiss’ the

Petition for Enforcement (hereinafter

Respondent's Motion to Dismiss) filed by

lla

the Government in connection with a tax

investigation of Respondent's civil tax

liability. (Although there are five

related actions here, each with a different

respondent, the term "Respondent" as used

in this ruling will refer to the respondent

in the firstenumbered action, Hallison

Young. )

(4) Personal Records Sought From a

Corporate Officer

Respondent contends that in Civil

Action 80-74869 the summons seeks records

maintained by Respondent personally but is

directed toward Respondent as an officer of

Patmon, Young ke Kirk, Professional

Corporation. He asserts that the attempt

at production by means of a corporate

officer violates his individual rights

under his fourth, fifth, and sixth

amendments.

12a

The Government has acknowledged

clerical error in the summons directed to

Respondent as a corporate officer and has

withdrawn all but Paragraphs 6 and 9 of the

rider to the summons. The remainder of the

rider relates to business records which may

properly be compelled over a fifth

amendment claim even if they incriminate

the custodian. See Fisher v. United

States, 425 U.S. 391, 411-12 (1976), and

cases cited therein.

(5) Summons Irregular on its Face

Respondent contends that the summonses

in these proceedings bear certain

inconsistencies and omissions that render

them invalid and unenforceable. He asserts

that the summons requires him to produce

"all documents" required to substantiate

various entries on his income tax returns

and that it is impossible to produce "all"

of anything. He further asserts that the

13a

preamble to the rider of the summonses

seeks information about "the following

expenses" but identifies income items as

well as expense items. The mutual

exclusivity of those items, Respondent

argues, renders the rider unintelligible

and therefore invalid.

B. Reasonableness of the Summons

Respondent contends that the summons

itself, apart from any improper motive of

the agent, was unreasonable and not issued

in order to determine Respondent's tax

liability but for some other purpose.

The testimony of Agent Burks

establishes that the records sought in

these proceedings are the records normally

Sought in connection with an audit of tax

returns like those filed by Respondent.

The records sought by the Government are

necessary in some cases to substantiate the

l4a

amounts noted on Respondent's forms and, in

other cases, are required in order to

determine what amounts should properly be

listed, where Respondent's return shows

merely an estimate or concedely incomplete

figures.

As for Respondent's claim, in relation

to the reasonableness of the summons, that

the items sought cannot be identified due

to inconsistencies within the summons and

rider, the court notes its ruling,

explained above, that the language of the

summons and rider are sufficiently clear to

afford Respondent the proper notice of what

material is sought.

Accordingly, for the reasons. stated

above, the Motion to Dismiss is DENIED.

»' oe

The Petitions for Enforcement of the

Summonses issued in the above-numbered

actions will be GRANTED and the summonses

will be enforced.

IT IS SO ORDERED

bate: APR 30, 1981

Detroit, Michigan

/s/ *

PATRICIA J. BOYLE

United States District Judge

l6a

APPENDIX E

(Entered May 5, 1981]

UNITED STATES OF DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74868

Honorable Patricia J. Boyle

HALLISON H. YOUNG,

Respondent; ,

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

vs. Civil Action No. 80-74869

Honorable Patricia J. Boyle

HALLISON H. YOUNG,

Respondent;

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74870

Honorable Patricia J. Boyle

FIRST INDEPENDENCE NATIONAL BANK OF

DETROIT,

Respondent;

and

17a

OPINION AND ORDER VACATING ORDER OF

APRIL 22, 1981, AND GRANTING STAY OF FIVE

(5) DAYS

The Respondents in Civil Actions

;

80-74868 and 80-74869 and the Intervenor in

Action 80-74872 have moved for a. stay of

Judgment pending appeal.

ee #

IT IS HEREBY FURTHER ORDERED that

Respondents, Hallison Young, Hallison Young

in his capacity as officer and responsible

employee of Patmon, Young and Kirk, P.C.,

“and Patmon, Young and Kirk, P.C., appear

before Revenue Agent Burks, or her

designated representative at 10:00 a.m. on

Thursday, May 14, 1981, at Room 2286,

McNamara Building, 477 Michigan Avenue,

Detroit, Michigan, then and there to be

sworn, to give testimony, and to produce

for examination and copying the books

18a

and records demanded by the summonses

served upon them on October 31, 1980, the

examination to continue from day to day

until completed.

ee May 05, 1981

Detroit, Michigan

/s/

PATRICIA J. BOYLE

United States District Judge

APPENDIX F

[Entered August 24, 1981]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74868

Honorable Patricia J. Boyle

HALLISON YOUNG,

Respondent;

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74869

Honorable Patricia J. Boyle

HALLISON H. YOUNG,

Respondent;

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

Vs. Civil Action No. 80-74872

Honorable Patricia J. Boyle

PATMON, YOUNG AND KIRK, P.C.

Respondent.

20a

OPINION AND ORDER HOLDING

RESPONDENTS IN CIVIL CONTEMPT OF COURT

The Government, Petitioner in

these related actions, has sought an

adjudication of civil contempt against the

Respondents in these tax summons

enforcement proceedings. Because’ the

history of the cases bears on the

disposition of the Orders to Show Cause,

which are the subjects of this Opinion and

Order, a brief synopsis of the past

proceedings is appropriate.

In December, 1980, the Government

filed several related actions seeking

enforcement of administrative summonses

issued to Respondent Hallison Young as an

individual, to Mr. Young as a responsible

officer of Patmon, Young & Kirk, P.C.

("PYK"), of which he is partner, and to the

law firm itself.

2la

Sanction. Mr. Young's conflicting

Statements, both in the interview with

Agent Burks and on the stand during these

contempt proceedings, together with the

false statement concerning his bank account

and the lack of satisfactory explanation of

Salary arrangements, computation and

payment of interest and principal on loans

to the firm, and the continuing failure to

produce records or to account for their

whereabouts.

* # #

Accordingly, IT IS HEREBY ORDERED That

Respondent Hallison Young be committed to

the custody of the United States Marshal

until such time as he is willing to purge

himself by giving testimony and producing

documents or accounting for their

whereabouts, sufficient to comply

Substantially with the summonses issued to

him as an individual and in his

representative capacity. An order shall be

_22a

entered forthwith directing the United

States Marshal to take Mr. Young into

custody until he shall purge himself of

contempt.

II.

In addition to the summonses issued to

Hallison Young in his individual capacity

and as a responsible officer of PYK, a

summons was enforced by order of this Court

against the law firm itself. That

Summons, like the one directed at Mr. Young

individually, required the firm "to appear

° « »« to give testimony."

* # #

Without resolving the question of

whether such a representation may actually

have been made by counsel for the

Government of whether it may have been made

during the conference call with the Court's

staff, I note that such a “waiver” by

23a

counsel could not alter the Court's

Deandaiaitine order enforcing the summonses,

modified as they were by the Government's

Statement during enforcement hearings that

it would not pursue certain areas.

* * #

Accordingly, I HEREBY FIND Respondent

PYK in civil contempt of court for having

failed to appear and give testimony as

required by the summons.

IT IS SO ORDERED.

Date: AUG 24, 1981

Detroit, Michigan

/s/

PATRICIA J. BOYLE

United States District Judge

24a

APPENDIX G

[Entered December 14, 1981]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74869

Honorable Patricia J. Boyle

HALLISON YOUNG,

Respondents.

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74872

Honorable Patricia J. Boyle

PATMON, YOUNG & KIRK, P.C.

Respondent.

ORDER DENYING MOTION TO VACATE, ENFORCING

SANCTIONS FOR CONTEMPT, DENYING IN PART

AND GRANTING IN PART MOTION TO STAY, AND

DENYING MOTION TO QUASH

Several motions having been filed by

Respondents since the issuance of this

Court's order of November 30, 1981,

imposing sanctions for contempt and the

Court having reviewed the briefs of counsel

25a

and having ruled on these motions from the

bench on December 9, 1981.

IT IS HEREBY ORDERED that for the

reasons stated on the record Respondent's

Motion to Vacate is DENIED. Having

reviewed the authorities cited by counsel,

this Court finds that its order imposing

coercive, rather than compensatory,

Sanctions is proper and that no hearing is

required for a factual determination of

either the corporate respondent's ability

to pay the amount assessed or “the cost to

the Government of these proceedings.

The Court having entered an order on

November 30, 1981, finding that Respondents

had failed to comply substantially with the

Summons and imposing sanctions until the

finding of contempt shall have been purged

and Respondents having presented witnesses

during purge proceedings and the Court

having reviewed the transcript of that

26a

testimony and having determined that it

joes not amount to categorical and detailed

evidence of the inability to comply with

the summonses, see United States v.

Rylander, 656 F.2d 1313, 1318-19 (9th Cir.

1981).

IT IS HEREBY ORDERED that Respondents

have not purged themselves of the finding

of civil contempt and that the sanctions

imposed in the November 30, 1981, order be

enforced.

IT IS HEREBY ORDERED that Respondents'

Motion to Stay is DENIED as to Respondent

Patmon, Young & Kirk, P.C., and GRANTED as

to Respondent Nallison Young for a period

of thirty (30) days. He shall be admitted

to bail for that period, on his personal

recognizance, at the expiration of which

time he shall submit himself to the custody

of the United States Marshal in accordance

with the order of November 30, 1981.

27a

The motion for stay having been denied

as to the corporate Respondent, the

Respondents’ motion for supersedeas bond is

MOOT.

IT IS HEREBY ORDERED that the Motion

to Quash be treated as a motion for

reconsideration and that no oral argument

be had. The Court having reviewed the

motion and brief, it is DENIED.

IT IS SO ORDERED.

DEC 14, 1981

Detroit, Michigan

/s/

PATRICIA J. BOYLE

United States District Judge

Date:

2ba

APPENDIX H

[Filed December 15, 1981]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74869

Honorable Patricia J. Boyle

HALLISON YOUNG,

Respondent.

and

UNITED STATES OF AMERICA, et al.,

Petitioners,

VS. Civil Action No. 80-74872

Honorable Patricia J. Boyle

PATMON, YOUNG & KIRK, P.C.

Respondent.

AMENDED NOTICE OF EXPEDITED APPEAL

Notice is hereby given that

Respondents herein, pursuant to USC §

1826(b), hereby appeal to the United States

Court of Appeals for the Sixth Circuit from

the Order > Denying Motion to Vacate,

;

29a

Enforcing Sanctions for Contempt, Denying in

part and Granting in Part Motion to Stay,

and Denying Motion to Quash entered December

14, 1981, a copy of which is attached

hereto.

KIRK AND ROBERTSON, P.C.

Bis. Fae

STANLEY R. KIRK (P 16007)

Attorneys for Hallison Young

100 Renaissance Center

Suite 2404

Detroit, Michigan 48243

(313) 259-3770

PATMON AND YOUNG

PROFESSIONAL CORPORATION

BY /s/

FREDERICK A. PATMON (P18695 )

and

BY: /s/

ULYSSES W. BOYKIN III (P11082)

Attorneys for Patmon, Young &

Kirk, P.C.

3770 Penobscot Buildin

Detroit, Michigan 4822

(313) 965-2675

Dated: December 15, 1981

Form 2039 30a

APPENDIX I

(Rev Nov. 1979) Department of the Treasury

Internal Revenue Service

SUMMONS

In the matter of the tax liability of

Hallison H. Young

Internal Revenue District of )etroit

Periods 1976 and 1977

The Commissioner of Internal Revenue !

To__Hallison H, Young

c/o Patmon, Young and Kirk, P.C.

At 3770 City National Bank Building

Detroit, Michigan 48226

You are hereby summoned and required to

appear before Bonnie Burks .

an officer of the Internal Revenue Service,

to give testimony relating to the tax

liability of the collection of the tax

liability of the person identified above

for the periods shown and to bring with you

and produce for examination the following

books, records, papers, and other data:

(The documents described in the attached

rider.)

Business address and telephone number of

Internal Revenue Service officer named

above (313) 226-7464

Room 2286, 477 Michigan Avenue, Detroit,

Michigan 48226

3la

Place and time for appearance:

at Room 2286, 477 Michigan Avenue, Detroit,

Michigan 48226

on the 17th day of _November , 19 80

at 9:00 o'clock re

Issued under authority of the Internal

Revenue Code this 3l day of October,

19 80

Bonnie Burks

Signature of Issuing Officer

Revenue Agent

Title

Joseph W. Zimny

Signature of Approving Officer (if

applicable)

Acting Group Manager

Title

Original to be kept by IRS

Form 2039 (Rev. 11-79)

the

and

not

32a

All documents required to substantiate

following expenses claimed on your 1976

1977 federal income tax returns.

Such documents should include, but are

limited to, the following:

R..m

Forms 1099, W-2's, K-l's, issued to

Hallison H. Young, for the years ending

December 31, 1976 and December 31, 1977.

Also provide other records which would

show dollar value and source of interest

income earned, dividends earned, salary

and/or wages earned, professional fees,

director fees, taxable income from

partnerships, Sub-Chapter S Corporations,

or income from whatever source whether

paid or credited and whether in United

States currency or fair market value of

services.

** *

Please provide copies of all records

pertaining to all obligations owed to

Hallison H. Young by Patmon, Young and

Kirk, P.C. Such books and records

should include but not be limited to all

notes, contracts, or instruments of

indebtness executed by Patmon, Young

and Kirk, P.C. regarding all debts owed

to Hallison H. Young.

33a

APPENDIX J

Form 2039 Department of the Treasury

Internal Revenue Service

(Rev. Nov. 1979)

SUMMONS

In the matter of the tax liability of

Hallison H. Young

Internal Revenue District of Detroit

Periods 1976 and 1977

The Commissioner of Internal Revenue

To Hallison H. Young, in his capacity as an

officer and responsible employee

of: Patmon, Young and Kirk, P.C.

At 3770 City National Bank Building

Detroit, Michigan 48226

You are hereby summoned and required to

appear before Bonnie Burks .

an officer of the Internal Revenue Service,

to give testimony relating to the tax

liability or the collection of the tax

liability of the person identified above for

the periods shown and to bring with you and

produce for examination the following books,

records, papers, and other data:

(The documents described in the attached

rider.)

Business address and telephone number of

Internal Revenue Service officer named

above: (313) 226-7464

Room 2286, 477 Michigan Avenue, Detroit,

34a

Michigan 48226 ear

Place and time for appearance:

at Room 2286, 477 Michigan Avenue, Detroit,

Michigan 48226

on the 17th day of Noveaber » 1980

at 9:00 o'clock A .M.

Issued under authority of the Internal

Revenue Code this 31_ day of October 1980

Bonnie Burks

Signature of Issuing Officer

Revenue Agent

Title

Joseph W. Zimny

Signature of Approving Officer (if

applicable)

Manager

Title

Original to be kept by IRS

Form 2039 (Rev. 11-79)

35a

APPFNDIX K

Form 2039 Department of the Treasury

Internal Revenue Service

(Rev. Nov. 1979)

SUMMONS

In the matter of the tax liability of

Hallison H. Young

Internal Revenue District of Detroit

Periods 1976 and 1977

The Commissioner of Internal Revenue

To Patmon, Young and Kirk, P.C.

3770 City National Bank Building

At Detroit, Michigan 48226

You are hereby summoned and required to

appear before _ Bonnie Burks -

an officer of the Internal Revenue Service,

to give testimony relating to the tax

liability or the collection of the tax

liability of the person identified above for

the periods shown and to bring with you and

produce for examination the following books,

records, papers, and other data:

All payroll records, cancelled

payroll checks, records of wages or

salaries paid in cash, employees with-

holding certificates, W-2 Forms, and

all other books, records and papers ,

containing information relative to all

wages, interest, and all other payments

made to Hallison H. Young during the

years 1976 and 1977.

36a

All Employer's Quarterly Tax

Returns (Form 941) for the calendar

quarters ended March 31, 1976, June 30,

1976, September 30, 1976, December 31,

1976, March 31, 1977, June 30, 1977,

September 30, 1977, and December 31,

1977 and all Employer's Annual Unemploy-

ment Tax Returns (Form 940) for the

calendar years 1976 and 1977.

Business address and telephone number of

Internal Revenue Service officer named

above: (313) 226-7464

Room 2286, 477 Michigan Avenue, Detroit,

Michigan 48226

Place and time for appearance:

at Room 2286, 477 Michigan Avenue, Detroit,

Michigan 48226

on the 17th day of November _, 19 80

at 9:00 o'clock A 4H.

Issued under authority of the Internal

Revenue Code this 31 day of October

1980

Bonnie Burks

Signature of Issuing Officer

Revenue Agent

Title

Joseph W. Zimny

Signature of Approving Officer (if

applicable ;

Acting Group Manager

Title

Original to be kept by IRS

Form 2039 (Rev. 11-79)

38a

APPENDIX L

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

U.S. POST OFFICE & COURTHOUSE BUILDING

CINCINNATI, OHIO 45202

May 25, 1983

LEONARD GREEN TELEPHONE

CHIEF DEPUTY CLERK (513) 684-2953

FTS 684-2953

Ulysses W. Boykin, III

Stanley Kirk

James F. Miller

Michael L. Paup

Charles E, Brookhart

Gleen L. Archer

Leonard R. Gilman

Serer.

Re: United States of America, et al. vs.

Hallison H. Young, et al.

Nos. 81-1189, 81-1190, 81-1251,

81-1318, 81-1549, 81-1804, and

82-1005

United States of America, et al.vs.

Patmon, Young and Kirk

Nos. 82-1006, 82-1217

United States of America, et al. vs.

Patmon, Young and Kirk and Frederick

A. Patmon ‘

Nos. 83-1337, 83-1338

Dear Counsel:

39a

This letter will supplement my letter

to you of May 4, 1983, in which you were

instructed to file supplemental briefs in

light of the Supreme Court's decision in

United States vs. Rylander, 51 U.S.L.W.4367

(April 19, 1983). Those briefs are to be

filed by June 6, 1983.

We have recently received notices of

appeal from two more district court rulings

in district court case No. 80-74872, United

States of America, et al, vs. Patmon, Young

and Kirk, et al. Those appeals, filed by

Patmon, Young and Kirk and Frederick A, Pat-

mon, have been docketed in this court as

Nos. 83-1337 and 83-1338, respectively.

I have been asked by the court to advise

you that all of these cases will be heard in

Cincinnati on June 21, 1983, Specifically:

° Cases Nos. 81-1189, 81-1190, 81l-

40a

1251, 81-1318, and 81-1549, which

were argued on May 28, 1983, will be

reargued with the original briefs

being augmented by the supplemental

brief called for earlier;

Cases Nos. 82-1006 and 82-1217 will

be argued on the basis of the earlier

filed briefs and the supplemental

brief;

Cases Nos. 83-1337 and 82-1338, and

any other new appeals which might be

filed from recent district court or

magistrate actions in these matters,

will be argued on the basis of

either the supplemental brief referr-

ed to above or an additional short

brief, and any appendix necessary

for the court's consideration,

It is the intention of the court to have

presented to it on this occasion all pending

matters raised in all of the appeals stemming

from this litigation. The court will enter-

tain no motions to postpone the hearing date.

Very truly yours,

/s/

Leonard Green

Chief Deputy Clerk

LG/ jj

ula

APPENDIX M

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA and BONNIE BURKS,

Petitioners-Appellees

Vv. No. 81-1189

81-1318

PATMON, YOUNG AND KIRK, P.C.

Respondent=-Appellant

UNITED STATES OF AMERICA and BONNIE BURKS,

Petitioners-Appellees

Vv. No. 81-1190

HALLISON H. YOUNG,

Respondent-Appellant

YNITED STATES OF AMERICA and BONNIE BURKS,

Petitioners-Appellees

Vv. No. 81-1251

HALLISON YOUNG, In His Capacity as an

Officer and Responsible Employee of

Patmon, Young and Kirk, P.C.

Respondent—Appellant

UNITED STATES OF AMERICA and BONNIE BURKS,

Petitioners-Appellees

V. No. 81-1549

81-1804

HALLISON YOUNG and PATMON, YOUNG

AND KIRK, P.C.

Respondents-Appellants

UNITED STATES OF AMERICA and BONNIE BURKS,

Petitioners-Appellees

Vv. No. 82-1005

HALLISON YOUNG, et al.,

Respondents-Appellants

42a

MOTION TO REMAND TO CORRECT OMISSION

IN RECORD ON APPEAL AND TO SUPPLEMENT

RECORD ON APPEAL, OR IN THE ALTERNA-

TIVE, MOTION TO TAKE JUDICIAL NOTICE

OF POST=-JUDGMENT EVENTS AND DEVELOP-

MENTS

. 32

3. On June 23, 1982, Mr. Young and

PYK obtained newly discovered evidence

(part of which is submitted herewith in-

camera) which affirmatively shows that the

Appellees-Petitioners in these cases

already had in their possession before and

during contempt proceedings against Mr.

Young and PYK and before the court issued

the order finding them in contempt of court

on August 24, 1981, copies of all of the

contested bank books, records, papers or

other data. (See Exhibits 2 - 11 procuded

in-camera. )

4, As appears more particularly from

the Exhibits attached hereto and the record

On appeal (e.g., Appellees'-Petitioners'

Motion for Order to Show Cause Why

Respondents Should not be Held in Contempt

filed June 17, 1981, the transcript of

43a

testimony given by Appellee Burks on June

30 and July 2, 1981, transcript of proceed-

ings before Judge Boyle on July 24, 1981,

the Opinion and Order Holding Respondents

in Civil Contempt of Court entered August

24, 1981, the Memorandum Opinion and Order

Imposing Sanctions for Contempt entered

November 30, 1981):

(a) The contested pank books,

records, papers or other data were the

gravamen of Appellees'-Petitioners'

contempt and purge proceedings against Mr.

Young and PYK.

(b) The PYK and Young contested

Bank of the Commonwealth books, records,

papers and other data were delivered over

to the Appellees-Petitioners on June 18 and

July 16, 1982 (see Exhibits 10 and 11

produced in-camera).

aia

ae - « «The illegally disclosed,

copies and released financial records,

return information and confidential infor+-

mation comprised in excess of 11,000 copies

KIRK & ROBERTSON, P.C.

By /s/

Stanley R. Kirk (P 16007)

100 Renaissance Center,

Suite 2404

Detroit, Michigan 48243

(313) 259-3770

Attorneys for

Hallison Young

PATMON AND YOUNG

PROFESSIONAL CORPORATION

By /s/

Ulysses W. Boykin III

3770 City Natl Bank Bldg

Detroit, Michigan 48226

(313) 965-2675

Attorneys for Patmon,Young

and Kirk,P.C.

Dated: June 28, 1982

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.