United States v. Lee Goddard & Duffy LLP

FILED
NOT FOR PUBLICATION APR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-55124
Petitioner - Appellee, D.C. No. CV-06-00408-DOC
v.
MEMORANDUM *
LEE GODDARD & DUFFY LLP and
WILLIAM A. GODDARD,
Respondents - Appellants.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted April 13, 2011 **
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Lee, Goddard & Duffy, LLP, and William A. Goddard, IV, appeal the
district court’s November 2007 order regarding two tax summonses. As the facts
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and procedural history are familiar to the parties, we do not recite them here except
as necessary to explain our disposition.
We have jurisdiction under 28 U.S.C. § 1291. United States v. Jose, 519
U.S. 54, 55–57 (1996) (per curiam). “The Order on its face evidenced the judge’s
intention that it be final. . . . [I]t fully adjudicated the issues at bar.” Slimick v.
Silva (In re Slimick), 928 F.2d 304, 308 (9th Cir. 1990). Unlike the June 2006
order, the November 2007 order did not explicitly reserve questions of privilege
for future proceedings. Cf. Steinert v. United States, 571 F.2d 1105, 1106–07 (9th
Cir. 1978). Accordingly, we refrain from combing the record in an attempt to
divine whether the district court harbored subjective intentions that contradicted its
written order.
Appellants have waived any arguments regarding the district court’s
conclusion that the disputed documents were responsive to the summonses. “‘We
review only issues which are argued specifically and distinctly in a party’s opening
brief. We will not manufacture arguments for an appellant, and a bare assertion
does not preserve a claim. . . .’” Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543
F.3d 1050, 1065 n.17 (9th Cir. 2008) (citation omitted). Parties may not
incorporate their district court briefs by reference. 9th Cir. R. 28-1(b); 16AA
Charles Alan Wright et al., Federal Practice & Procedure § 3974.1 n.33 (4th ed.
2010 Supp.) (collecting cases). We therefore affirm the district court’s conclusion
that the disputed documents related to “tax shelter transactions” under the terms of
the summonses.
Because we affirm the district court’s determination on the underlying legal
dispute, we also conclude that the court acted within its discretion by declining to
review documents in camera or allow Appellants an opportunity to file sworn
affidavits. Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 324 n.7 (1985);
Donaldson v. United States, 400 U.S. 517, 528–29 (1971), superseded by statute
on other grounds as stated in Tiffany Fine Arts, 469 U.S. at 316.
AFFIRMED.