United States v. Tamny Westbrooks ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4764
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
TAMNY WESTBROOKS,
Respondent - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:09-mc-00191-RJC-1)
Argued: December 9, 2014 Decided: March 13, 2015
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion,
in which Chief Judge Traxler and Judge Agee joined.
ARGUED: Brian D. Boone, ALSTON & BIRD LLP, Charlotte, North
Carolina, for Appellant. William Michael Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF: Ross Hall Richardson, Acting Executive Director,
Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; E. Bowen Reichert
Shoemaker, ALSTON & BIRD LLP, Atlanta, Georgia, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
GREGORY, Circuit Judge:
Appellant Tamny Westbrooks appeals her criminal contempt
conviction under 18 U.S.C. § 401(3) for failure to comply with a
grand jury subpoena. Westbrooks contends that the district
court violated her due process rights by requiring her to prove
her advice-of-counsel defense. Because we find that the court
did not impermissibly shift the burden of proof to Westbrooks,
we affirm Westbrooks’s conviction.
I.
In the fall of 2008, the Internal Revenue Service (“IRS”)
issued summonses to Westbrooks and “Jane Doe” 1 as part of an
administrative tax investigation of “the Business.” Both
Westbrooks and Doe had filed tax returns representing themselves
as the owner of the Business. When Westbrooks and Doe declined
to provide any records, lead investigator Special Agent William
Quattlebaum obtained a search warrant for the Business’s
premises. The warrant allowed agents to seize general business
records and certain clients’ tax returns and tax-related
information, but it did not authorize the seizure of accounting
1
In the interest of protecting the confidentiality of the
underlying grand jury proceedings, we do not refer to
Westbrooks’s alleged co-owner or business by their proper names.
See Fed. R. Crim. P. 6(e); In re Grand Jury, John Doe No. G.J.
2005-2, 478 F.3d 581, 583 n.1 (4th Cir. 2007).
2
records, other client tax files, or tax-related employment
forms.
IRS agents executed the search warrant on April 14, 2009,
and seized approximately 90% of the paper records stored at the
Business office. In order to obtain certain records that it
believed were either excluded from the warrant or not located on
the premises, the IRS converted the administrative investigation
into a grand jury investigation in August 2009. On September
29, 2009, the grand jury issued a subpoena to Westbrooks and to
Doe, individually and as custodians of records for the Business,
requiring them to produce: “Any, and all, records relevant to
[the Business], including, but not limited to” seven specific
categories of records.
Frederic Williams, Westbrooks’s attorney, wrote to
government counsel stating that Westbrooks was not the custodian
for the Business and that she would assert her Fifth Amendment
privilege with respect to producing documents associated with
the Business and when testifying before the grand jury. 2
Westbrooks appeared before the grand jury on October 21, 2009.
She testified that although she had represented herself as the
chief financial officer of the Business on a Schedule C form,
she was not the owner or even an employee of the Business but
2
Williams wrote a similar letter on behalf of Doe.
3
was, rather, a subcontractor. She also produced a packet of
materials comprised primarily of unopened mail and refund checks
for clients.
Two weeks later, the government moved for an order to show
cause as to why Westbrooks should not be held in contempt for
failure to comply with the subpoena. Agent Quattlebaum attested
in an affidavit that most of the documents Westbrooks had
provided were not responsive, and that Westbrooks had not
produced most of the kinds of documents “which, in [his]
experience, would be maintained by an ongoing business
operation.” The district court ordered Westbrooks to appear for
a show-cause hearing.
At the hearing, Westbrooks testified that she did not
produce other materials responsive to the subpoena because
Williams had advised her that the government “had everything,”
and because, before her court appearance, Williams had told her
to go to the Business office, secure it, and bring to court any
mail that had arrived. She also testified that some of the
documents the IRS sought did not exist. Ultimately, the
district court found Westbrooks guilty of criminal contempt.
Westbrooks moved for a new trial on the ground that the district
court, in unexpectedly assigning her the burden of proving her
advice-of-counsel defense, had not afforded her a sufficient
opportunity to present supporting evidence. Specifically, she
4
sought to introduce testimony from her attorney. The court
denied the motion, finding that “[t]he defendant was invited to
and should have presented all evidence relevant to an advice of
counsel defense during her case-in-chief . . . .” J.A. 428.
Westbrooks was fined $500. She timely appealed.
II.
On appeal, Westbrooks argues that the district court
improperly assigned her the burden of proving her advice-of-
counsel defense, a burden she claims belonged to the government
because such a defense negates the willfulness element of
criminal contempt. We review questions of law de novo. United
States v. Han, 74 F.3d 537, 540 (4th Cir. 1996). The
government, however, urges us to apply a plain-error standard of
review because Westbrooks failed to preserve her due process
argument for appeal. See United States v. Jones, 716 F.3d 851,
855 (4th Cir. 2013) (“We generally limit our review of claims
not properly preserved in the district court to plain error.”).
“To preserve an argument on appeal, the defendant must
object on the same basis below as he contends is error on
appeal.” United States v. Zayyad, 741 F.3d 452, 459 (4th Cir.
2014). In her motion for a new judgment, Westbrooks argued that
she had not expected to bear the burden of proving her advice-
of-counsel defense, and that therefore she had not had a fair
5
opportunity to present evidence satisfying that burden. J.A.
371-74. She did not challenge the district court’s assignment
of the burden. See id. In her reply memorandum in support of
her motion, however, she explicitly argued that the court had
“impermissibly shifted the burden to the defense to disprove the
element of willfulness, in violation of In re Winship, 397 U.S.
358 (1970),” which held that due process requires the
prosecution to bear the burden of proving guilt beyond a
reasonable doubt. J.A. 417-18; see also Winship, 397 U.S. at
364. Therefore, Westbrooks preserved her due process claim, and
we review it de novo.
III.
A court may punish “contempt of its authority” such as
“[d]isobedience or resistance to its lawful writ, process,
order, rule, decree, or command.” 18 U.S.C. § 401(3). One may
be found in contempt under § 401(3) only if she “willfully
violated a decree that was clear and left no uncertainty in the
minds of those that heard it.” In re Gates, 600 F.3d 333, 338
(4th Cir. 2010) (emphasis in original). This Court has
indicated that “[a]dvice of counsel may be a defense in a
criminal contempt proceeding because it negates the element of
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willfulness.” In re Walters, 868 F.2d 665, 668 (4th Cir. 1989). 3
And the Supreme Court has made it clear that “[t]he [government]
is foreclosed from shifting the burden of proof to the
defendant . . . when an affirmative defense . . . negate[s] an
element of the crime.” Smith v. United States, 133 S. Ct. 714,
719 (2013) (internal quotation marks omitted). Therefore,
Westbrooks argues that the district court erred by assigning her
the burden of proving her advice-of-counsel defense. The
government raises two objections to this argument. First, it
contends that an advice-of-counsel defense is not available for
a failure to comply with an “unambiguous” subpoena. Second, it
argues that, contrary to Westbrooks’s claim, the district court
properly placed the burden on the government. We do not reach
the issue of whether the advice-of-counsel defense applies,
because we find that the district court did not require
3
Walters was a case involving civil contempt, which does
not include a willfulness element. Therefore, the Walters
Court’s observation that reliance on counsel may serve as a
defense to criminal contempt was not central to its holding.
Other circuits have discussed the extent to which an advice-of-
counsel defense applies to criminal contempt. See, e.g., United
States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992); United
States v. Armstrong, 781 F.2d 700, 706 (9th Cir. 1986); United
States v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973); In re
Eskay, 122 F.2d 819, 822 n.17 (3d Cir. 1941). Because we affirm
Westbrooks’s conviction on other grounds, we leave that
discussion for another day.
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Westbrooks to shoulder the burden of proving willfulness. We
therefore affirm Westbrooks’s conviction.
This Court has held in other contexts that to be entitled to
an advice-of-counsel defense, “the defendant must establish (a)
full disclosure of all pertinent facts to an attorney, and (b)
good faith reliance on the attorney’s advice.” United States v.
Powell, 680 F.3d 350, 356 (4th Cir. 2012) (emphasis added)
(internal quotation marks and alterations omitted). This is not
inherently inconsistent with Smith’s pronouncement that the
government must bear the burden of proof: a burden of
production to establish a prima facie defense is distinct from
the ultimate burden of proving an element of an offense beyond a
reasonable doubt. See United States v. Gorski, 36 F. Supp. 3d
256, 267-68 (D. Mass. 2014) (discussing burden shifting in the
context of an advice-of-counsel defense). Therefore, although
the government must prove the element of willfulness, the court
may require the defendant to produce evidence supporting the
advice-of-counsel defense.
That is all the district court did in this case. When
issuing its verdict, the court clearly stated that the
government bore the ultimate burden of proving the elements of
criminal contempt. See J.A. 359 (“[T]he burden is on the
government to prove beyond a reasonable doubt that each of the
elements of . . . criminal contempt have [sic] been
8
established.”); J.A. 365 (“So having found the Government
established the elements of criminal contempt beyond a
reasonable doubt, and that the affirmative defenses of mistaken
construction of [sic] advice of counsel are not warranted by
these facts, the Court will find Ms. Westbrooks in criminal
contempt.”).
The court also explained its conclusion that the advice-of-
counsel defense did not apply:
[T]he second affirmative defense is the advice of
counsel[. T]o be available, the following two things
must be proved: A full disclosure of all pertinent
facts to an expert and good faith reliance on the
expert’s advice. There’s little evidence produced
today of what actually was told to the attorney, in
terms of receiving the advice, other than bringing the
subpoena to the attorney. There was no evidence of a
comparison of the subpoena to the earlier issue and
different search warrant. And there was likewise no
testimony from the attorney, and no indication in the
previous testimony of the defendant, that she was
relying upon the advice of counsel . . . for her
reasons for her conduct before the grand jury. The
Court finds that the first predicate for the advice of
counsel, full disclosure of all pertinent facts, has
not been established. And so the Court will find that
the advice of counsel defense is not warranted in this
case.
J.A. 365. In sum, the court found Westbrooks’s evidence
insufficient to establish a prima facie advice-of-counsel
defense. Clearly a court must be able to consider a defendant’s
reliability and the strength of her evidence in determining
whether she has met her burden of production regarding an
affirmative defense. Such evaluation does not shift the
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ultimate burden of proof. Here, the district court analyzed
Westbrooks’s testimony, including her statement that she did not
disclose to her lawyer the 10% of paper records the IRS left
behind when it executed the search warrant, J.A. 282, and
concluded that Westbrooks failed to establish “full disclosure
of all pertinent facts.” It then found that the government had
“established the elements of criminal contempt beyond a
reasonable doubt.” J.A. 365. The court did not impermissibly
shift the burden of proving willfulness to Westbrooks.
IV.
For the foregoing reasons, we affirm Westbrooks’s
conviction.
AFFIRMED
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