United States v. Stephen B. Teeple ( 2002 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-2811
    ___________
    United States of America,               *
    *
    Appellee,                  *
    *    Appeal from the United States
    v.                                *    District Court for the Western
    *    District of Missouri.
    Stephen B. Teeple,                      *
    *    [TO BE PUBLISHED]
    Appellant.                 *
    ___________
    Submitted: February 14, 2002
    Filed: April 18, 2002
    ___________
    Before BYE, HEANEY, and RICHARD S. ARNOLD, Circuit Judges.
    ___________
    BYE, Circuit Judge.
    This case is about the Fifth Amendment privilege against self-incrimination as
    applied to documents. Stephen B. Teeple has been incarcerated for more than eight
    months because he refuses to turn over business documents requested by the Internal
    Revenue Service (IRS), in violation of a court order. His incarceration continues to
    this very day. For reasons explained below, we affirm the district court's1 contempt
    citation and order of incarceration.
    1
    The Honorable Ortrie D. Smith, United States District Judge for the Western
    District of Missouri.
    I
    This case originated in 1997. On November 24 of that year, Teeple received
    a notice from the IRS informing him of his failure to file tax returns. The IRS was
    conducting an investigation into his tax liability for 1996 and 1997. He did not
    respond to the notice. Almost a year later, the IRS issued him an administrative
    summons, which requested specified business documents and required him to appear
    before an IRS agent on September 18, 1998. Teeple failed to comply with that
    summons, and on November 20, 1998, the government filed a petition in federal court
    to enforce the summons. The matter was referred to a magistrate judge,2 and on
    October 8, 1999, the magistrate judge issued a report finding the issuance of the
    summons proper and recommending its enforcement. On November 12, 1999, the
    district court issued an order overruling Teeple's objections to the magistrate judge's
    report and directing him to comply with the summons within 60 days.
    Teeple filed a motion to dismiss, arguing he had complied with the summons.
    The government opposed the motion and a hearing regarding the extent of the
    taxpayer's compliance was held on April 3, 2000, during which the government
    presented evidence of Teeple's non-compliance. His response was "he is not a
    taxpayer." The court took a recess for the parties to discuss the matter in the hope of
    resolving it. After the recess, Teeple agreed, on the record, to produce the requested
    documents and records. Based on this representation, the magistrate judge recessed
    the proceeding until June 8, 2000.
    On June 8, 2000, the government argued to the magistrate judge that Teeple
    still had not complied with the summons. He responded that he had complied with
    the summons as best he could, stating the requested documents and records were with
    2
    The Honorable James C. England, United States Magistrate Judge for the
    Western District of Missouri.
    -2-
    him in the courtroom, but conceded he had not produced them. In fact, he still
    refused to produce them, declaring he was not obligated to produce the documents
    because he did not owe taxes, a determination based on his belief that money earned
    from the "common law practice of chiropractic" is not taxable income. He also
    refused to produce the documents, invoking his Fifth Amendment privilege against
    self-incrimination.
    On June 19, 2000, the magistrate judge issued yet another report
    recommending that Teeple be ordered to appear before the district court to face
    contempt proceedings. He objected. On August 2, 2000, the district court found him
    to be in contempt and gave him until August 12, 2000, to comply with the court's
    order. Following that order, Teeple partially complied with the IRS summons. On
    February 26, 2001, another hearing was held before the magistrate judge, after which
    another report and recommendation was issued. In that March 27, 2001, report the
    magistrate judge recommended incarceration for his contempt until he complied with
    the court's order. The district court adopted the report and recommendation, but held
    a hearing on June 25, 2001, before ordering Teeple's incarceration. At that hearing,
    he admitted he had not produced the records ordered by the court. The district court
    concluded Teeple's Fifth Amendment privilege against self-incrimination would not
    be violated, found him in contempt once again, and ordered him remanded to the
    custody of the United States Marshal's Service until he turned over the requested
    documents.
    II
    We have jurisdiction to hear this interlocutory appeal pursuant to 28 U.S.C. §
    1292(b). We review both the grant and the denial of a contempt order for abuse of
    discretion, but an order of contempt is reviewed more searchingly. Indep. Fed'n of
    Flight Attendants v. Cooper, 
    134 F.3d 917
    , 920 (8th Cir. 1998).
    -3-
    III
    A.     The Act of Production Doctrine
    In refusing to turn over the requested documents, Teeple relies on the act of
    production doctrine. This doctrine was first recognized by the Supreme Court in
    Fisher v. United States, which noted the "act of producing evidence" may have
    communicative aspects that can violate the Fifth Amendment. 
    425 U.S. 391
    , 410-13
    (1976). Subsequently, the Court maintained that, even when the contents of
    documents or records are unprotected by the Fifth Amendment, see United States v.
    Doe, 
    465 U.S. 605
    , 612 & n.10 (1984), the Fifth Amendment's protections may
    nevertheless be implicated by the very act of producing the documents or records. 
    Id. at 612.
    This is so, the Court reasoned, because the act of complying with the
    government's request may have testimonial aspects and an incriminating effect. 
    Id. As the
    Court explained, "[c]ompliance with the subpoena tacitly concedes the
    existence of the papers demanded and their possession or control by the taxpayer. It
    also would indicate the taxpayer's belief that the papers are those described in the
    subpoena." 
    Fisher, 425 U.S. at 410
    (citation omitted).
    However, not every act that communicates statements of fact rises to the level
    of a protected communication under the Fifth Amendment. For example, if the
    existence, possession, and authenticity of the documents are a "foregone conclusion"
    and the taxpayer "adds little or nothing to the sum total of the Government's
    information" by his act of producing the documents, the taxpayer's Fifth Amendment
    privilege is not violated "because nothing he has said or done is deemed to be
    sufficiently testimonial for purposes of the privilege." 
    Fisher, 425 U.S. at 411
    .
    Therefore, where the government already possesses the knowledge that would
    otherwise be communicated, "[t]he question is not of testimony but of surrender." 
    Id. -4- B.
        Teeple's Act of Production Claim
    The crux of Teeple's argument on appeal concerns the potential incrimination
    that will result if he is forced to turn over the requested documents. The act of
    producing the documents, he believes, could reasonably be used against him in a
    criminal prosecution. He points to the government's refusal to grant him immunity,
    and a letter sent by the IRS stating "[p]lease contact us immediately, or we may have
    to take the following actions: 1. Summon you to bring us your books and records.
    2. Bring criminal proceedings which may include a fine, imprisonment, or both if you
    willfully fail to file a tax return." The government, however, maintains that Teeple's
    case is purely a civil matter. There has been no criminal referral made within the IRS
    regarding his case, and the government represents the criminal division of the IRS is
    not involved in this case.
    We suspect Teeple's fear of prosecution is probably more real than remote
    given his belief that money he has earned from the "common law practice of
    chiropractic" is not taxable income. See Ueckert v. Comm'r of Internal Revenue, 
    721 F.2d 248
    , 250 (8th Cir. 1983) (observing that "the Fifth Amendment privilege applies
    only where the danger of self-incrimination is real and appreciable, not remote and
    speculative"). Although the government represents that the criminal division of the
    IRS is not involved, little comfort can be found in this representation. Teeple is a tax-
    protestor. Presented with the question whether the government will prosecute him
    for willful failure to file an income tax return (or some other tax crime), we are
    constrained to answer perhaps. He is somewhat more likely to be prosecuted (than
    others) given his irrational belief, coupled with the considerable time and energy the
    government has already devoted to this case. Prosecuting him will surely send a
    message to other would-be tax-protestors, a fact that doubtless has not gone unnoticed
    by the government.
    -5-
    Our decision here, however, does not hinge upon whether Teeple's fear of
    prosecution is real because we believe his act of producing the documents is
    insufficiently testimonial. The act of producing the requested documents in this case
    falls within what the Court in Fisher described as a "foregone conclusion." In Fisher,
    the Court explained that where the "existence and location of the papers are a
    foregone conclusion and the taxpayer adds little or nothing to the sum total of the
    Government's information by conceding that he in fact has the papers," the Fifth
    Amendment offers no protection. 
    Id. at 411.
    The district court's order states Teeple "has never explained how his act of
    production will provide the Government with information . . . ," and that "[t]he IRS
    already knows the documents and records exist, that Respondent had them (or
    controls them), and that they are authentic. Respondent's production of the
    documents will not add to this knowledge." The district court thus concluded that
    Teeple's Fifth Amendment privilege against self-incrimination would not be violated
    because his act of producing the documents would add little or nothing to the sum
    total of the government's information. We agree.
    At the June 8, 2000, hearing Teeple testified that he possessed the documents
    requested in the summons; that he had received income during 1996 and 1997,
    including fees from various HMOs in his chiropractic business; that he had been paid
    by insurance companies as part of fees he received in his chiropractic business during
    those years; that he deposited some of the fees in bank accounts; that he was aware
    of Form 1099s which indicated he had received payments from various businesses
    during those years and that he received such payments; that he had not filed federal
    income tax returns in 1996 and 1997; and that he did not believe he was liable to pay
    federal income tax. See Appellant's App. 9-14. Teeple also testified that he kept
    books and records—which he called "personal accounting ledgers"—that
    demonstrated the amount of money he received from his chiropractic business in 1996
    -6-
    and 1997. 
    Id. at 13.
    Teeple admitted he brought to court all the books and records
    that were requested in the summons. 
    Id. at 6.
    Teeple rejects the comparison to Fisher and contends his case is analogous to
    Doe and United States v. Hubbell, 
    530 U.S. 27
    (2000). We disagree. In both cases
    Teeple favors, the government knew far less about the documents and records it
    sought than in the present case. See 
    Doe, 465 U.S. at 614
    n.13; 
    Hubbell, 530 U.S. at 44
    . We think the government's knowledge of the requested documents in Teeple's
    case is more akin to the government's knowledge in Fisher, not Doe or Hubbell.
    Because Teeple has admitted to the existence, possession and location of the
    documents requested by the IRS, the only remaining question is whether those
    documents can be authenticated without reference to his act of production. We
    believe they can be. Teeple has already admitted, through his own oral testimony (not
    through the act of producing), that he kept personal accounting ledgers for 1996 and
    1997. These ledgers can be authenticated by handwriting experts, see United States
    v. Fishman, 
    726 F.2d 125
    , 127 (4th Cir. 1983), or by Federal Rule of Evidence
    901(b)(4), see United States v. Rue, 
    819 F.2d 1488
    , 1494 (8th Cir. 1987) (concluding
    that the authenticity of patient cards can be established independently, citing Fed. R.
    Evid. 901(b)(4)).
    IV
    Because Teeple's act of producing the requested documents would not serve
    to prove their existence, location or authenticity, the ordered production of them does
    not violate Teeple's Fifth Amendment privilege against self-incrimination. We have
    considered Teeple's remaining argument and find it to be without merit. Accordingly,
    we affirm the district court's contempt citation and order of incarceration.
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    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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