United States v. Bright

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Petitioner-Appellee,
No. 07-17027
v.
 D.C. No.
CHERIE J. BRIGHT; BENJAMIN CV-07-00311-ACK
BRIGHT,
Respondents-Appellants.

UNITED STATES OF AMERICA, 
Petitioner-Appellee,
v. No. 08-16912
CHERIE J. BRIGHT,
Respondent-Appellant,  D.C. No.
1:07-cv-00311-
and ACK-KSC
BENJAMIN BRIGHT,
Respondent.

UNITED STATES OF AMERICA, 
Petitioner-Appellee,
No. 08-16913
v.
D.C. No.
BENJAMIN BRIGHT,
Respondent-Appellant,  1:07-cv-00311-
ACK-KSC
and
OPINION
CHERIE J. BRIGHT,
Respondent.

3133
3134 UNITED STATES v. BRIGHT
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Argued and Submitted
October 15, 2009—Honolulu, Hawaii
Filed February 26, 2010
Before: Robert R. Beezer, Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
UNITED STATES v. BRIGHT 3137
COUNSEL
Christopher J. Cannon (argued), Suzanne M. Morris, San
Francisco, California, Michael Jay Green, Honolulu, Hawaii,
for the respondents-appellants.
Carol A. Barthel (argued), Robert W. Metzler, John A. Dud-
eck, Jr. and David I. Pincus, Tax Division, Department of Jus-
tice, John Dicicco, Acting Assistant Attorney General, Gilbert
S. Rothenberg, Acting Deputy Assistant Attorney General,
3138 UNITED STATES v. BRIGHT
Richard T. Morrison, Deputy Assistant Attorney General,
Nathan J. Hochman, Assistant Attorney General, Washington,
D.C., and Edward Kubo, Jr., United States Attorney, Hono-
lulu, Hawaii, for the petitioner-appellee.
OPINION
FISHER, Circuit Judge:
The Fifth Amendment protects individuals from having to
disclose documents when the very act of production would
constitute self-incrimination. Cherie and Benjamin Bright (the
Brights), subjects of an Internal Revenue Service investiga-
tion concerning past tax liability, jointly appeal the district
court’s order enforcing IRS summonses requiring production
of documents, including those relating to offshore accounts.
The Brights invoked their Fifth Amendment privilege and
refused production. They also separately appeal the district
court’s subsequent order finding them in contempt for failing
to produce the documents. We hold that the district court
acted properly in enforcing the IRS summonses and finding
the Brights in contempt, although we modify the conditions
necessary to purge the contempt.
BACKGROUND
Cherie Bright is a co-owner of Bright Enterprises, a tax
consulting business. In 2007, the Department of Justice filed
a civil fraud action against Bright Enterprises and its owners,
accusing them of promoting tax shelters. Before bringing that
action, the IRS investigated Cherie and her business partner’s
personal returns, seeking information concerning the same
shelters that would appear in the fraud complaint. Specific to
this appeal, on June 19, 2006, the IRS issued and served iden-
tical summonses to Cherie and her husband, Benjamin Bright,
directing them to appear before an IRS Revenue Agent to
UNITED STATES v. BRIGHT 3139
address suspected past tax liability. The summonses also
directed the Brights to bring numerous categories of docu-
ments — including records relating to two credit cards identi-
fied with the Brights that were linked to offshore accounts and
“any other offshore credit cards.” The Brights failed to appear
or to produce any documents.
The government then filed an enforcement petition in the
United States District Court for the District of Hawaii, which
ordered the Brights to show cause why they should not be
compelled to comply with the summonses. The Brights
appeared and each asserted an “intention to evoke all rights
afforded to” them, including the Fifth Amendment right
against self-incrimination. The district court granted the IRS’s
petition on September 11, 2007, ruling that the Brights’ privi-
lege claim failed because they had not specified which por-
tions of the summonses requested privileged documents or
what facts supported a privilege claim. The court specifically
found that
[t]he IRS knows the name and location of the [off-
shore] banks, the credit card numbers, and that the
[Brights] used and maintained these cards. Thus the
existence of the offshore credit card accounts is a
foregone conclusion, and the production of the
records relating to these credit card accounts has no
testimonial significance.
After denying the Brights’ motion for reconsideration, the dis-
trict court entered an enforcement order (the enforcement
order), and the Brights jointly and timely appealed.
The IRS then established a new schedule for the production
of documents. On the day the documents were due, however,
the Brights unsuccessfully moved for a stay in the district
court. This court also denied a stay.
The Brights finally began producing documents, but none
concerning offshore accounts or many other categories of
3140 UNITED STATES v. BRIGHT
documents. This refusal prompted the government to seek a
contempt order from the district court. Meanwhile, the Brights
continued to produce some documents. They also submitted
declarations outlining their attempts at compliance with the
document requests and their purported lack of possession or
control of any relevant documents not yet produced.
After affording the Brights additional time to finish produc-
tion, the district court instituted contempt proceedings. Rather
than produce documents related to offshore accounts, Cherie
reasserted her Fifth Amendment privilege, and Benjamin con-
tended that he had produced all documents in his possession
or control. Cherie eventually filed a substantial declaration
detailing compliance — with the exception of offshore
accounts — and Benjamin’s lack of involvement in the family
finances or “in any of the activities” that were the subjects of
the specific document requests.
In an August 20, 2008 order (the contempt order), the dis-
trict court found both Cherie and Benjamin Bright in con-
tempt of the enforcement order, making five key findings and
conclusions:
1. The Fifth Amendment privilege could not be
relitigated in contempt proceedings.
2. The enforcement order’s requirement that the
Brights produce documents related to “any other
offshore credit cards” mandated production of
documents concerning two additional offshore
accounts not specifically named in the summon-
ses, even though the government did not dis-
cover the connection between these accounts
and the Brights until after entry of the enforce-
ment order. However, the failure to produce
these particular documents was not necessary to
the finding of contempt.
UNITED STATES v. BRIGHT 3141
3. The government had established that other docu-
ments remained outstanding.
4. The Brights were not in substantial compliance
because they had engaged in extensive delaying
tactics and had failed to argue during the
enforcement proceeding that relevant documents
were not in their possession or control.
5. The Brights had failed to provide evidence
establishing that Benjamin did not have custody
or control of the requested documents.
The court imposed a $500 daily fine until the Brights “either
fully comply with the summonses or sufficiently establish that
they are unable to do so,” as well as a $11,593.59 compensa-
tory sanction. The court further noted that “[a] satisfactory
response would include a more definitive declaration by [the
Brights] that documents do not exist, or documentation show-
ing that despite making all reasonable efforts to comply, they
have a present inability to do so.” Benjamin and Cherie Bright
separately and timely appealed the order of contempt.
JURISDICTION
The United States brought its petition under 26 U.S.C.
§ 7604(b), and the district court had jurisdiction under 26
U.S.C. § 7604(a). The Brights’ appeals have been consoli-
dated pursuant to Federal Rule of Appellate Procedure
3(b)(2), and we review under 28 U.S.C. § 1291.
DISCUSSION
I. Entry of the Enforcement Order
The Brights first assert that the district court erred in grant-
ing the enforcement order. They advance two parallel conten-
tions. As a matter of procedure, they argue that the district
3142 UNITED STATES v. BRIGHT
court erred by issuing a “blanket denial” of their assertion of
a Fifth Amendment privilege as to the production of all
responsive documents. As a matter of substance, they argue
that the district court erred by finding that the production of
records concerning offshore bank accounts had no testimonial
significance, foreclosing a privilege claim.
We review de novo a district court’s application of the Fifth
Amendment privilege against self-incrimination. See United
States v. Chase, 340 F.3d 978, 981 (9th Cir. 2003) (privileges
generally); United States v. Rubio-Topete, 999 F.2d 1334,
1338 (9th Cir. 1993) (Fifth Amendment). Whether the exis-
tence of documents is a foregone conclusion is a question of
fact, which we review for clear error. United States v. Nor-
wood, 420 F.3d 888, 895 (8th Cir. 2005) (citing United States
v. Doe, 465 U.S. 605, 613-14 (1984)). We affirm, although
we narrow the scope of the enforcement order to encompass
only records whose existence was known to the government
at the time the IRS issued the summonses.
A. Procedure: Applying Privilege to Document
Requests
[1] “A claim of Fifth Amendment privilege may be
asserted if there are ‘substantial hazards of self-incrimination
that are real and appreciable, not merely imaginary and
unsubstantial,’ that information sought in an IRS summons
might be used to establish criminal liability.” United States v.
Drollinger, 80 F.3d 389, 392 (9th Cir. 1996) (per curiam)
(quoting United States v. Rendahl, 746 F.2d 553, 555 (9th Cir.
1984). “ ‘[A] proper application of this standard requires that
the Fifth Amendment be raised in response to specific ques-
tions propounded by the investigating body.’ ” Id. (quoting
United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977));
accord United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir.
1995) (per curiam). The privilege is not limited to oral ques-
tioning; an individual may refuse to provide documents to an
investigative body if the act of production would be testimo-
UNITED STATES v. BRIGHT 3143
nial. See, e.g., In re Grand Jury Subpoena, Dated April 18,
2003, 383 F.3d 905, 909 (9th Cir. 2004). The taxpayer bears
the burden of showing that testimony or documents are privi-
leged. See United States v. Brown, 918 F.2d 82, 84 (9th Cir.
1990) (per curiam).
The Brights were able to litigate fully their asserted Fifth
Amendment privilege concerning document production in the
enforcement proceeding. The magistrate judge scheduled a
hearing over a month after the government filed its enforce-
ment petition, setting a clear and reasonable deadline for sub-
mission of briefs and documents in support of a privilege
claim. The hearing occurred over a year after the IRS issued
summonses to the Brights, allowing the Brights more than
sufficient time to search for responsive documents. Before the
hearing, the Brights submitted both opposition papers and a
surreply. The Brights’ contention that the district court
addressed the privilege prematurely is not well taken.
[2] Moreover, the scope of the Brights’ privilege claim
was clear: it applied to all documents responsive to each cate-
gory and subcategory specified in the summonses. Had the
Brights wished to narrow their privilege claim or provide tar-
geted support concerning particular documents, they had the
opportunity to produce a privilege log or turn over any con-
tested documents for in camera review. “[I]n camera review
does not destroy the privileged nature of . . . contested com-
munications . . . .” United States v. Zolin, 491 U.S. 554, 569
(1989). In the absence of such targeted support, the district
court was not precluded from making a reasoned assessment
of the claimed privilege with respect to each category of
requested documents. See Brown, 918 F.2d at 84.
[3] The application of privilege to a document production
is different from a blanket privilege claim at an interview. An
unscripted interview is undefined, so a court cannot make a
reasoned assessment of privilege before particular questions
have been posed. See, e.g., Drollinger, 80 F.3d at 392. In con-
3144 UNITED STATES v. BRIGHT
trast, a document request lays out categories of documents
requested.1 A claim of privilege over all documents can be
assessed as repeated assertions of privilege in response to
each category. See United States v. Grable, 98 F.3d 251, 255
(6th Cir. 1996) (“[T]he effect . . . was as if [the revenue agent]
had asked . . . ‘for each document listed in the summons, and
[the taxpayer] had responded by repeatedly raising his fifth
amendment privilege in response.’ ” (quoting United States v.
Argomaniz, 925 F.2d 1349, 1356 (11th Cir. 1991)). The scope
of the assertion is clear and circumscribed. Thus, although in
the context of oral questioning a taxpayer has not fully liti-
gated the privilege by issuing a general claim of privilege,
Drollinger, 80 F.3d at 392-93; Rendahl, 746 F.2d at 555, the
same cannot be said of a claim of privilege over documents.2
[4] The district court gave the Brights an opportunity to
present evidence concerning issues such as privilege, posses-
sion and control at a hearing before a magistrate judge. A tax-
payer cannot refuse to produce a privilege log or documents
for in camera review in response to an order to show cause
and then protest an insufficient opportunity to present a claim
of privilege. See United States v. W.R. Grace, 526 F.3d 499,
515 (9th Cir. 2008) (en banc) (holding that a party’s “discre-
tion to investigate and present its case does not override the
district court’s authority to manage the trial proceedings —
1
Examples in this case include “Applications for insurance” concerning
“Asia Pacific Mutual Insurance Company, Ltd.” and “All records of sales
transactions” “with respect to the Exotic Bird Business.” The merit of
privilege claims is a separate question. As discussed below, when catego-
ries are excessively broad it becomes difficult for the government to prove
the foregone conclusion exception to an act of production privilege claim.
2
The taxpayer in Grable had not fully litigated the privilege because he
raised privilege concerns only before the revenue agent. 98 F.3d at 253.
When the taxpayer raised Fifth Amendment concerns to the district judge
for the first time during contempt proceedings, the judge replied, “There
is no [F]ifth [A]mendment right not to share information with the Internal
Revenue Service, period.” Id. at 254. The Sixth Circuit remanded for
proper consideration of the privilege. Id. at 258.
 UNITED STATES v. BRIGHT 3145
including by setting discovery and disclosure deadlines”).
Such dilatory tactics would undermine efficient tax enforce-
ment, which appears to have been the Brights’ goal.
B. Substance: Fifth Amendment Privilege
[5] “The Fifth Amendment grants persons the privilege not
to ‘provide the State with [self-incriminatory] evidence of a
testimonial or communicative nature.’ ” United States v.
Rodriguez-Rodriguez, 441 F.3d 767, 772 (9th Cir. 2006)
(quoting Schmerber v. California, 384 U.S. 757, 761 (1966)).
The act of producing evidence in response to a sub-
poena . . . has communicative aspects of its own,
wholly aside from the contents of the papers pro-
duced. Compliance with the subpoena tacitly con-
cedes 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 v. United States, 425 U.S. 391, 410 (1976). However,
where “[t]he existence and location of the papers are a fore-
gone 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[,] . . . enforcement of the summons”
does not touch upon constitutional rights. Id. at 411 (citing In
re Harris, 221 U.S. 274, 279 (1911)). For this foregone con-
clusion exception to apply, the government must establish its
independent knowledge of three elements: the documents’
existence, the documents’ authenticity and respondent’s pos-
session or control of the documents. See United States v. Hub-
ble, 530 U.S. 27, 40-41 (2000). The government bears the
burden of proof and must have had the requisite knowledge
before issuing the summons or subpoena. See In re Grand
Jury Subpoena, 383 F.3d at 910.
The Brights argue that the district court clearly erred in
finding that the act of producing records concerning offshore
3146 UNITED STATES v. BRIGHT
bank accounts had no testimonial significance, foreclosing a
claim of privilege under the Fifth Amendment. We conclude
that the foregone conclusion exception does apply to docu-
ments related to the two credit cards expressly named in the
summonses. The exception, however, does not apply to docu-
ments concerning the two additional credit cards named dur-
ing contempt proceedings, and the production of those
documents is therefore privileged under the Fifth Amend-
ment.
The IRS independently knew about the existence of docu-
ments related to the first two credit cards before it issued the
summonses. In the initial enforcement proceeding, an IRS
agent declared under oath that the IRS Offshore Credit Card
Project had gathered information showing that the Brights
maintained accounts at both Hallmark Trust and Butterfield
Bank and provided the Brights’ account numbers to the court.3
The government also showed that Hallmark Trust and Butter-
field Bank provided their account holders with specific
account documents, demonstrating the existence of particular
documents responsive to the summonses. See Norwood, 420
F.3d at 895-96 (applying foregone conclusion exception when
the government could demonstrate the existence of accounts
and account documents even though it did not enumerate spe-
cific responsive documents); cf. Hubbell, 530 U.S. at 44-45
(holding foregone conclusion exception did not apply to
request for broad categories such as “tax records” when the
government made no showing “that it had any prior knowl-
edge of either the existence or the whereabouts of the 13,120
pages of documents ultimately produced” under an immunity
agreement); Doe, 465 U.S. at 607 n.1, 612-14 & n.13 (holding
foregone conclusion exception did not apply to subpoena
3
Although the government did not need to produce documentation of
transactions carried out using the cards in order to carry its burden, when
the Brights attempted to relitigate the privilege during contempt proceed-
ings, the government produced its documentation, which predated the
summonses.
UNITED STATES v. BRIGHT 3147
naming 28 broad categories of documents such as “financial
statements” and “workpapers”).
[6] The government did not need the Brights to authenti-
cate such documents, because the records could be indepen-
dently authenticated by banking officials. See, e.g., United
States v. Sand, 541 F.2d 1370, 1376-77 (9th Cir. 1976). Nor
did the government need to prove that it had previously
authenticated the same documents or that it had used these
same bank officials in the past; it needed to show only that it
could do so without the taxpayer’s assistance, including with-
out information gleaned from the documents. See In re Grand
Jury Subpoena, 383 F.3d at 912.4
[7] Finally, the government showed that account-holders at
both banks have access to basic account records through the
internet, thus demonstrating that the records were in the
Brights’ custody and control. In sum, the district court cor-
rectly found that the existence of offshore account records
was a foregone conclusion.
[8] On the other hand, application of the foregone conclu-
sion exception to records of the two additional credit cards not
named during the enforcement proceeding was clear error.
The government asserts that at the time the IRS issued the
summonses, it knew of the cards’ existence and of their use
by Cherie’s business partner. However, the government made
no showing that it knew that the Brights maintained posses-
sion or control of the accounts and thus of the account docu-
ments. The government may not issue a summons for “other”
4
At oral argument, the Brights suggested for the first time that when the
IRS issued the summonses, the government believed that it could not
authenticate the documents through bank officials because there were no
tax treaties between the United States and the jurisdictions in which the
banks were located. However, the Brights conceded that the government
can authenticate relevant documents through the American card servicing
company. Moreover, this argument was not raised in the district court or
preserved in the Brights’ briefs and is now waived.
3148 UNITED STATES v. BRIGHT
documents and then apply the foregone conclusion exception
when it becomes aware of documents through an ongoing
investigation. See In re Grand Jury Subpoena, 383 F.3d at
911. Therefore, the act of producing these documents is pro-
tected by the Fifth Amendment. The enforcement order is nar-
rowed accordingly to exclude documents related to these two
credit cards.
II. Contempt Order
Cherie and Benjamin Bright separately appeal the district
court’s contempt order. Each argues that neither of them was
in contempt of the enforcement order, and they collectively
argue that the district court’s order was deficient because it
was improperly punitive and did not specify purgation condi-
tions.
“We review the district court’s entry of sanctions for abuse
of discretion.” Mendez v. County of San Bernardino, 540 F.3d
1109, 1130 (9th Cir. 2008). We review for clear error factual
findings underlying contempt, including present inability to
comply. Irwin v. Mascott, 370 F.3d 924, 931 (9th Cir. 2004);
see also Falstaff Brewing Corp. v. Miller Brewing Co., 702
F.2d 770, 781 (9th Cir. 1983) (noting that present inability to
comply is a factual inquiry). For the reasons that follow, we
affirm, but we modify the purgation conditions to reflect our
narrowing of the enforcement order as discussed above.
A. Cherie Bright
[9] Cherie Bright was in contempt of the enforcement
order, on numerous grounds. The government bore the burden
to show “ ‘(1) that [Cherie] violated the court order, (2)
beyond substantial compliance, (3) not based on a good faith
and reasonable interpretation of the order, (4) by clear and
convincing evidence.’ ” Labor/Cmty. Strategy Ctr. v. L.A.
County Metro. Trans. Auth., 564 F.3d 1115, 1123 (9th Cir.
2009) (quoting In re Dual-Deck Video Cassette Recorder
UNITED STATES v. BRIGHT 3149
Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). When
defending against a finding of contempt after an adversary
enforcement proceeding, a taxpayer cannot relitigate the Fifth
Amendment privilege or lack of custody or control. See
United States v. Rylander, 460 U.S. 752, 757 (1983) (custody
or control); Brown, 918 F.2d at 83 (constitutional claims).
[10] The district court properly found that the government
had shown Cherie to be in violation of the enforcement order.
This finding is justifiable based solely on her failure to pro-
duce documents related to the two previously identified off-
shore accounts named in the summons. Crucially, the district
court explained “that even if it were . . . to exclude the addi-
tional offshore credit card documents as a basis for finding
contempt, the ultimate finding of contempt would remain
undisturbed.” Although we have held that the foregone con-
clusion exception does not apply to the two additional off-
shore credit cards, we agree that Cherie’s noncompliance as
to the two previously identified accounts justified the district
court’s finding of contempt. Moreover, her failure to produce
other documents named in the summonses concerning loans,
insurance claims and scholarships provided additional support
for the court’s finding.5
[11] Once the government has established a prima facie
case of contempt, a taxpayer may avoid sanctions by demon-
strating a present inability to comply with the enforcement
order. See Drollinger, 80 F.3d at 393. When a party has taken
preemptive steps to make compliance more difficult, the bur-
den to prove inability to comply is particularly high. See FTC
v. Affordable Media, LLC, 179 F.3d 1228, 1241 (9th Cir.
5
Although we expressed concerns at oral argument concerning whether
the district court had considered Cherie’s final, detailed declaration, the
Brights conceded that the district court had reviewed all materials de novo
prior to finding Cherie and Benjamin in contempt. They take issue only
with the court’s finding that they were not in full compliance. This finding
was not clearly erroneous.
3150 UNITED STATES v. BRIGHT
1999). Cherie failed to show that she could not produce off-
shore credit card documents. Nor was the district court
required, in the absence of corroborating evidence, to credit
Cherie’s declaration that other documents named in the sum-
monses did not exist. See Maggio v. Zeitz, 333 U.S. 56, 75-76
(1948). Finally, although Cherie’s former business partner did
not produce some documents upon her request, the district
court properly found that Cherie’s late, perfunctory effort to
obtain documents did not satisfy her burden. Cf. United States
v. Hayes, 722 F.2d 723, 725-26 (11th Cir. 1984) (per curiam)
(holding that a request for documents is insufficient to estab-
lish present inability to comply without proof of pursuit of
legal avenues to compel production).
B. Benjamin Bright
Benjamin Bright separately argues that he was not in con-
tempt of the enforcement order, contending that he had pro-
duced all responsive documents in his custody or control.
However, Benjamin waited until six months after entry of the
enforcement order to assert that only Cherie had custody or
control of the documents. Lack of custody or control is a
defense to enforcement and “may not be raised for the first
time in a contempt proceeding.” Rylander, 460 U.S. at 757.
[12] Even if we construe Benjamin’s argument as a claim
of present inability to comply, however, he remained in con-
tempt. The Brights defended this action jointly until a change
in strategy during contempt proceedings (and even now have
filed joint briefs on appeal). Their joint defense provided a
substantial basis for the finding that Benjamin could comply
with the enforcement order, even if Cherie maintained pri-
mary possession of the documents. Moreover, Cherie’s decla-
ration that she is “solely responsible for compliance, or lack
thereof with the summons in this case” does not absolve Ben-
jamin of his responsibility to comply with his separate sum-
mons. Nor does her declaration that Benjamin was not
involved in the activities that generated the requested docu-
UNITED STATES v. BRIGHT 3151
ments demonstrate a present inability to produce those docu-
ments. Finally, the district court had the discretion to discredit
Cherie’s self-serving affidavit in light of the history of joint
litigation. Cf. FTC v. Publ’g Clearing House, Inc., 104 F.3d
1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affi-
davit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”).
C. Purgation Conditions
[13] “Civil contempt is characterized by the court’s desire
to compel obedience to a court order or to compensate the
contemnor’s adversary for the injuries which result from the
noncompliance.” Falstaff Brewing Corp., 702 F.2d at 778
(internal citations omitted). Given the remedial purpose of the
sanction, a finding of contempt must be accompanied by con-
ditions by which contempt may be purged, spelled out in
either the original order or the contempt order. Moreover,
although the district court generally must impose the mini-
mum sanction necessary to secure compliance, see Whittaker
Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992),
the district court retains discretion to establish appropriate
sanctions, see Richmark Corp. v. Timber Falling Consultants,
959 F.2d 1468, 1473 (9th Cir. 1992).
[14] Here the district court expressly stated that the Brights
would no longer be in contempt if they fully comply with the
summonses, provide a definitive declaration that documents
do not exist or furnish documentation corroborating their
present inability to comply with the summonses. Because we
have narrowed the scope of the enforcement order to exclude
documents related to the two offshore credit card accounts not
expressly named in the summonses — because they are not
subject to the foregone conclusion exception — the Brights
need not produce documents concerning those accounts in
order to purge their contempt. The district court’s imposition
of a $500 daily fine and payment of the government’s costs
3152 UNITED STATES v. BRIGHT
was well within the range of appropriate sanctions to secure
compliance with a tax summons.
CONCLUSION
The district court’s September 11, 2007 order enforcing the
IRS summonses is affirmed, as modified. The district court’s
August 20, 2008 order finding both Cherie and Benjamin
Bright in contempt and imposing sanctions is affirmed, with
modified purgation conditions.
AFFIRMED.