Criminal Practice — No Burden-Shifting on Lawyer-Advice Defense

U.S. v. Westbrooks (Lawyers Weekly No. 15-01-0250, 10 pp.) (Gregory, J.) No. 13-4764, March 13, 2015; USDC at Charlotte, N.C. (Conrad, J.) 4^th Cir.

Holding: The 4^th Circuit affirms a defendant’s criminal contempt conviction for failure to comply with a grand jury subpoena, despite her claim that the district court violated her due process rights by requiring her to prove her advice-of-counsel defense.

Defendant received a grand jury subpoena in connection with an IRS investigation, requiring her to produce specific categories of business records. Her lawyer wrote to government counsel stating defendant 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.

Defendant appeared before the grand jury. She testified that although she had represented herself as the business’s chief financial officer on a Schedule C form, she was not the owner or even an employee of the business but was a subcontractor. She also produced a packet of materials comprised primarily of unopened mail and refund checks for clients.

Two weeks later, the district court granted the government’s motion for a show cause order. At the hearing, defendant testified she did not produce documents responsive to the subpoena because her lawyer had advised her that the government “had everything,” and because, before her court appearance, the lawyer 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 convicted her of criminal contempt.

On appeal, defendant argues the district court erred by assigning her the burden to prove her advice-of-counsel defense. The government contends that an advice-of-counsel defense is not available for a failure to comply with an “unambiguous” subpoena. It also argues that, contrary to defendant’s claim, the district court properly placed the burden on the government. We do not reach the first issue, because we find the district court did not require defendant to shoulder the burden of proving willfulness.

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. The burden is on the government to prove beyond a reasonable doubt that each of the elements of criminal contempt has been established.

In sum, the court found defendant’s evidence insufficient to establish a prima facie advice-of-counsel defense. The district court analyzed defendant’s testimony, including her statement that she did not disclose to her lawyer the 10 percent of paper records the IRS left behind when it executed the search warrant, and concluded defendant failed to establish full disclosure of all pertinent facts.

Conviction affirmed.