United States v. Meredith

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 11 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-3079
(D.C. No. 99-CV-1027)
GEORGE M. MEREDITH, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, the panel has determined
oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the case is ordered
submitted without oral argument.
Defendant George M. Meredith appeals from the district court’s order
enforcing an Internal Revenue Service (IRS) summons and quashing multiple
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
subpoenas issued by Meredith. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
I.
In May 1998, IRS Revenue Officer Larry Inman issued an administrative
summons to Meredith pursuant to 26 U.S.C. § 7602(a), directing that Meredith
give testimony and produce for examination various income-related documents.
Meredith refused to turn over any of the requested materials. The government
responded by filing a petition in federal court seeking judicial enforcement of the
summons under 26 U.S.C. §§ 7402(b) and 7604. Attached to the government’s
petition was a declaration from Inman stating (1) he was investigating Meredith’s
tax liability and all information sought was critical to that investigation; (2) the
requested materials were not in the possession of the IRS; (3) all administrative
prerequisites to the issuance of the summons had been satisfied; and (4) no
criminal referral had been made to the Department of Justice.
The district court referred the case to a magistrate judge to conduct a “show
cause” hearing and issue a report and recommendation. Shortly before the
hearing, Meredith, who has proceeded pro se at all times, attempted to serve
subpoenas on several IRS employees, a Kansas assistant attorney general, Kansas
Governor Bill Graves, and a private citizen allegedly involved in a conspiracy
with the IRS. Each of these individuals filed a motion to quash the subpoena and
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did not appear at the hearing. At the hearing and in written filings with the court,
Meredith argued the IRS summons should not be enforced because the IRS
refused to provide him a copy of the IRS Chief Inspector’s report regarding a
prior tax dispute he had with the agency, and the IRS actions were in retaliation
for his newspaper editorials on corporate hog farming and tobacco litigation.
In two separate orders, the magistrate recommended quashing the
subpoenas Meredith purported to issue and enforcing the IRS summons. The
magistrate found there was no relationship between Meredith’s earlier tax dispute
and the administrative summons issued in the instant action. The magistrate
further determined no evidence existed suggesting the IRS issued an
administrative summons to Meredith as a result of his vocal opposition to large-
scale corporate hog farming in Kansas and Kansas’ entry into the national tobacco
litigation. Meredith filed objections to the magistrate’s report, but the district
court adopted the magistrate’s recommendations.
II.
Subpoenas
Meredith first argues the district court improperly quashed the subpoenas
he attempted to issue. We disagree. As the court correctly held, Fed. R. Civ. P.
45(a)(2) and (3) state that a subpoena may be issued only by the court, the clerk
of the court, or an attorney as an officer of the court. A pro se litigant who is not
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a licensed attorney with the appropriate federal district court has no power to
issue subpoenas. Accordingly, the subpoenas completed by Meredith were
invalid. 1
Summons
To obtain enforcement of an administrative summons, the IRS must
establish that (1) the investigation will be conducted for a legitimate purpose; (2)
the inquiry is relevant to that purpose; (3) the material sought is not already
within the government’s possession; (4) the administrative steps required by the
Internal Revenue Code and applicable regulations have been followed; and (5) no
criminal referral regarding the taxpayer’s case has been made to the Department
of Justice. United States v. LaSalle Nat’l Bank , 437 U.S. 298, 318 (1978); United
States v. Powell , 379 U.S. 48, 57-58 (1964). The government’s burden is slight;
an affidavit from the IRS agent issuing the summons is generally sufficient to
meet that burden. United States v. Balanced Fin. Management, Inc. , 769 F.2d
1440, 1443 (10th Cir. 1985).
The affidavit of IRS Revenue Officer Inman satisfied the criteria identified
in LaSalle and Powell . The burden, therefore, which is a heavy one, is on
Meredith to show that “enforcement [of the summons] would constitute an abuse
1
Although the court articulated a number of additional reasons to support
its decision to quash the subpoenas Meredith purported to issue, we need not
extend our response to this issue by addressing this additional support.
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of the court’s process.” Balanced Fin. Management , 769 F.2d at 1444 (quotation
omitted). Like the district court, we find no competent evidence in the record
suggesting a nexus between the IRS administrative summons at issue here and
Meredith’s earlier tax dispute or his editorials on corporate hog farming and
tobacco litigation. Moreover, his accusations of a broad conspiracy among
various government officials and corporate officers are not supported by any
evidence in the record. The district court acted properly in concluding
enforcement of the IRS summons would not amount to an abuse of the court’s
process.
The judgment of the district court is AFFIRMED. Meredith’s motion to
supplement the record with miscellaneous exhibits is GRANTED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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