Opposition Brief — Gill v. United States

j Supreme Court, US.”

ge : FILED

\9 oct 27 1888

No. 89-358 ; JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1989

GARY S. GILL, PETITIONER

V.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

GARY R. ALLEN

CHARLES E. BROOKHART

WILLIAM A. WHITLEDGE

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the courts below correctly rejected petitioner’s

contention that the enforcement of an IRS summons for

the production of his business records would violate either

the attorney-client privilege or his privilege against self-

incrimination.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Boyd v. United States, 116 U.S. 616 (1886) .... 3

Fisher v. United States, 425 U.S. 391 (1976) .... 4

Grand Jury Proceedings Subpoena to Testify to:

Wine, In re, 841 F.2d 230 (8th Cir. 1988) .... 2,4

United States v. Davis, 636 F.2d 1028 (Sth Cir.), cert.

Gemiee, 454 U.S. G62 (1961) ................ 4

United States v. Doe, 465 U.S. 605 (1984) ..... 3

United States v. Garden State Nat’! Bank, 607 F.2d

a ay cc can sass seenececcs 4

United States v. Hodge & Zweig, 548 F.2d 1347 (9th

TEE SS a 4

United States v. Kis, 658 F.2d 526 (7th Cir. 1981),

cert. denied, 455 U.S. 1018 (1982) ........... 4

Constitution:

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-358

GARY S. GILL, PETITION®R

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 16-20)

is unpublished, but the decision is noted at 881 F.2d 1079

(Table). The opinion of the district court (Pet. App. 21-27)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 28, 1989. The petition for a writ of certiorari was filed

on July 27, 1989. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, an attorney who conducts his practice as

a sole proprietorship, failed to pay his income tax liabilities

for the years 1978-1984. The collection officer assigned to

(1)

2

collect those unpaid taxes issued an IRS summons to peti-

tioner seeking a list of his accounts receivable and other

documents reflecting petitioner’s income, for the purpose

of locating sources from which the outstanding liabilities

could be collected. When petitioner refused to comply with

the summons, the government filed this enforcement action

in the United States District Court for the Southern District

of Iowa. See Pet. App. 21-22.

The district court ordered the summons enforced, reject-

ing petitioner’s blanket claims of attorney-client and Fifth

Amendment privilege (Pet. App. 21-27). The court found

that the identities of petitioner’s clients and the amount of

the fees they had paid were not “confidential professional

communications protected by the attorney-client privilege”

(id. at 24). The court explained that this information typical-

ly is not protected by the privilege unless it is shown that

“ ‘a strong probability exists that disclosure of his clients’

identity and the nature of his clients’ fee arrangements would

implicate said client in any criminal activity’ ” (ibid., quoting

In re Grand Jury Proceedings Subpoena to Testify to: Wine,

841 F.2d 230, 233 n.3 (8th Cir. 1988)). Petitioner’s mere

assertion that 10%-15% of his cases are criminal was not

sufficient to establish a strong probability that disclosure

of the information would reveai a confidential communica-

tion. Pet. App. 23-24. The court also found that produc-

tion of the summoned financial records would not in-

criminate petitioner (id. at 24-26). The court explained that

petitioner’s “tax liability was determined by the IRS from

the tax forms filed by the [petitioner] himself” and that he

had admitted liability for the outstanding taxes (id. at 26).

2. The court of appeals affirmed (Pet. App. 16-20). The

court agreed with the district court that there were no

unusua! circumstances present here that would warrant a

departure from the general rule that client identity and fee

arrangements are not confidential communications pro-

3

tected by the attorney-client privilege. Rather, the court con-

cluded that petitioner “is using the attorney-client privilege

as a Shield to prevent the IRS from collecting taxes that he

and his wife owe” (id. at 18-19). The court of appeals also

rejected petitioner’s assertion of the Fifth Amendment

privilege against self-incrimination. Noting that petitioner

had admitted his tax liabilities for the years under investiga-

tion'on documents “which he voluntarily prepared and sub-

mitted to the IRS,” the court of appeals concluded that the

summons enforcement order did not compel him to “do

anything that has testimonial aspects or will implicate him

in any criminal wrongdoing” (id. at 19).

ARGUMENT

1. The court of appeals correctly found that the sum-

mons did not implicate petitioner’s Fifth Amendment priv-

ilege against self-incrimination because his act of produc-

ing his business records had little testimonial significance

and would not implicate him in any criminal wrongdoing

(Pet. App. 19). Petitioner does not dispute that compliance

with the summons would not tend to incriminate him;

rather, his contention appears to be that the records of his

sole proprietorship are private papers that are per se pro-

tected by the privilege under Boyd v. United States, 116 U.S.

616 (1886). See Pet. 3-6. This Court, however, has clearly

rejected the view that the Fifth Amendment automatically

protects an individual’s private papers from a government

request for production. Rather, the privilege protects only

the testimonial aspects of the act of producing documents

and not the contents of the documents themselves; any sug-

gestion to the contrary in Boyd has been repudiated. United

States v. Doe, 465 U.S. 605, 610 n.8 (1984); see generally

id. at 610-613. Moreover, as the court of appeals noted (Pet.

App. 19-20), petitioner raised the privilege merely to impede

4

the IRS’s ability to collect taxes from him, not out of a fear

that the records would incriminate him. Clearly, therefore,

he did not raise a valid Fifth Amendment claim. See Fisher

v. United States, 425 U.S. 391, 399 (1976).

2. There is no merit to petitioner’s contention (Pet. 6-8)

that enforcement of the summons would infringe the

attorney-client privilege. It is well established that the

attorney-client privilege does not generally protect the iden-

tity of a client or fee information. See Jn re Grand Jury

Proceedings Subpoena to Testify to: Wine, 841 F.2d 230,

233 n.3 (8th Cir. 1988); United States v. Davis, 636 F.2d

1028, 1033-1034 (Sth Cir.), cert. denied, 454 U.S. 862 (1981);

United States v. Hodge & Zweig, 548 F.2d 1347, 1353-1354

(9th Cir. 1977). Petitioner does not suggest that there are

any unusual and special circumstances present in this case

that would make such information subject to the privilege.

Here, the summons sought only ordinary business records

of petitioner’s practice, and not, as petitioner asserts (Pet.

8), his client files. Accordingly, the privilege that protects

confidential communications between attorney and client

made for the purpose of seeking or giving legal advice is

not implicated by the summons in this case.

3. Petitioner also errs in contending (Pet. 8-12) that the

district court should have held a hearing tc resolve the merits

of his claims of privilege. The general rule in summons en-

forcement cases is that, in order to be entitled to a hearing,

the summoned party must raise issues of fact, supported

by affidavit, sufficient to cast doubt upon the enforceability

of the summons. See, e.g., United States v. Kis, 658 F.2d

526 (7th Cir. 1981), cert. denied,-455 U.S. 1018 (1982);

United States v. Garden State Nat’l Bank, 607 F.2d 61, 69-72

(3d Cir. 1979). As the court of appeals stated (Pet. App.

20), “[i]n enforcement proceedings such as this where there

are no factual disputes and the district court determines that

the defense asserted by the respondent 1s not legally sup-

portable, judgment on the pleadings is appropriate.” Here,

petitioner failed to provide any factual basis for his claims

of privilege or any other ground for denying the summons

enforcement petition. Accordingly, the district court acted

well within its discretion in enforcing the summons on the

record before it.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

GARY R. ALLEN

CHARLES E. BROOKHART

WILLIAM A. WHITLEDGE

Attorneys

OCTOBER 1989

Ww US GOVERNMENT PRINTING OFFICE 1989—262-203/00575