View PDF Version

No. 05-1231

In the Supreme Court of the United States

JEROME GIPPETTI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
EILEEN J. O'CONNOR
Assistant Attorney General
FRANK P. CIHLAR
RANDOLPH HUTTER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly concluded that the Fifth Amendment privilege against self- incrimination is not violated by requiring a taxpayer, in responding to an IRS summons seeking production of records pertaining to offshore accounts, to bear the burden of producing evidence in support of his claim that the records pertaining to those accounts are not in his possession or control.

In the Supreme Court of the United States

No. 05-1231

JEROME GIPPETTI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-9a) is not published in an official reporter, but it is available at 153 Fed. Appx. 865. The order of the district court (Pet. App. 10a-12a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on November 8, 2005. A petition for rehearing was denied on January 4, 2006 (Pet. App. 13a-14a). The petition for a writ of certiorari was filed on March 23, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Internal Revenue Service (IRS) began an inves tigation into petitioner's 1999 and 2000 federal income tax liabilities based on information gathered in its Offshore Credit Card Project-an ongoing effort to identify persons who conceal taxable income by transferring funds to off shore jurisdictions and use credit or debit cards to access the funds in the United States. C.A. App. 63 ¶ 11. On Feb ruary 6, 2003, the IRS issued a summons to petitioner di recting him to appear and give testimony and to produce for examination records described in the summons. Pet. App. 2a; see 26 U.S.C. 7602. Among the records requested were those pertaining to a Cayman Islands bank account that petitioner maintained at the Cayman National Bank (CNB) and two CNB Master Card credit cards that had been issued to him. Pet. App. 2a, 3a n.1. Petitioner had reported interest from the bank account on his 1999 and 2000 individual federal income tax returns and had dis closed its existence in "Reports of Foreign Bank and Finan cial Accounts" that he had filed with the IRS. Id. at 3a. The IRS had independently determined the existence of the two credit card accounts in the course of its Offshore Credit Card Project. Ibid. Petitioner failed to comply with the summons. Id. at 2a-3a.

2. The United States petitioned the United States Dis trict Court for the District of New Jersey to enforce the summons pursuant to 26 U.S.C. 7604. Petitioner conceded that the government had established a prima facie case for enforcement under United States v. Powell, 379 U.S. 48, 57- 58 (1964) (the government "must show that the investiga tion will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the in formation sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed"). C.A. App. 78, 87, 117. He submitted an affidavit, however, claiming that he did not possess any of the records sought by the IRS relating to the CNB accounts, although he did not deny that he could ob tain them. Id. at 150 ¶ 9.1 In contrast, with respect to "all other items" sought by the summons, petitioner "decline[d] to state whether there are any such documents within my possession, custody or control," id. at 150-153 ¶¶ 9-18, and further "decline[d] to produce them on the ground that my act of producing those documents may tend to incriminate me," ibid. Petitioner elaborated that requiring him to pro duce records "that the government does not independently know exist" or "know * * * are in my possession, custody and control" would "tend to incriminate" him. Id. at 153- 154 ¶ 20 (citing United States v. Hubbell, 530 U.S. 27, 45-46 (2000)). Following a hearing, the district court ordered petitioner to produce to the IRS "by whatever means," "the documents relating to those bank and credit card accounts at the [CNB] that the parties do not dispute are [peti tioner's] accounts." Pet. App. 3a-4a.2

After the district court issued its final order, petitioner "voluntarily executed and sent to CNB a written 'consent directive' in which he requested copies of the CNB records the government was seeking."3 Pet. App. 4a. Petitioner made clear in his letter that he was being forced by the court to make the request. C.A. App. 204. CNB refused petitioner's request on the ground that a "'consent' given under pain of penal sanction(s) does not constitute consent within the meaning of the [Cayman Islands Confidential Relationships] Law." Id. at 205.

3. The court of appeals in an unpublished opinion va cated that part of the district court's order enforcing the summons and remanded the case for further proceedings. Pet. App. 1a-9a. The court of appeals concluded that the enforcement order could not be upheld in the absence of an express finding that petitioner possessed or controlled the records that the district court had ordered him to produce. Id. at 5a. The court of appeals explained that such a finding was required because of the "drastic consequences" that may attend failure to comply with an order enforcing a summons. Id. at 6a (quoting United States v. Barth, 745 F.2d 184, 187 (2d Cir. 1984), cert. denied, 470 U.S. 1004 (1985)). In instructing the district court to address the pos session and control issue, the court of appeals stated that "it is [petitioner's] burden" to establish that "[he] does not possess or have control over the records the government is seeking." Ibid. If petitioner meets his burden, the court observed, "enforcement should be denied." Ibid.

The court of appeals went on to offer additional "obser vations," Pet. App. 6a, "[i]n anticipation * * * of a renewed 'act of production' defense if, on remand, production is or dered," ibid. The court observed that petitioner had not seriously disputed "that most or all of the CNB records at issue here exist, that the government knows they exist, and that they are located at CNB." Ibid. The court further noted that petitioner had "concede[d]" that the consent directive he had sent to CNB requesting the documents in question "was non-testimonial because it asked CNB, not him, 'to locate, retrieve and collect' the relevant records." Id. at 7a (citation omitted). The court accordingly con cluded that the instant case was similar to Fisher v. United States, 425 U.S. 391 (1976), in that "[t]he existence and lo cation of the papers [sought by the IRS] are a foregone conclusion and [petitioner] adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers." Pet. App. 7a (quoting Fisher, 425 U.S. at 411). The court of appeals thus observed that "for [petitioner] to produce the CNB records would have no testimonial significance, and any Fifth Amendment claim would be without merit." Ibid. (footnote omitted).4

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Moreover, the court of appeals' decision is interlocutory. Pet. App. 5a-6a. Further review is not warranted.

1. The court of appeals vacated that part of the district court's order that enforced the IRS's summons and re manded the case to permit the district court to make an express determination whether petitioner possesses or con trols the CNB records that the district court had previously ordered petitioner to produce. Pet. App. 9a. The interlocu tory posture of this case "of itself alone furnishe[s] suffi cient ground" for denying certiorari. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); ac cord Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam) ("because the Court of Appeals remanded the case, it is not yet ripe for review by this Court"); Virginia Mili tary Inst. v. United States, 508 U.S. 946 (1993) (opinion of Scalia, J., respecting the denial of certiorari). If the district court finds in petitioner's favor, then the summons will not be enforced, Pet. App. 6a, and the issues raised by the ini tial appeal will be moot. Conversely, if the district court enters a finding adverse to petitioner and orders enforce ment of the summons, petitioner can re-assert his current claims together with any objections to the proceedings on remand in a subsequent appeal and, in the event of an ad verse final appellate judgment, in a petition for a writ of certiorari.5

2. Petitioner contends (Pet. 14-19) that the court of appeals erred in placing the burden on him to show that he lacks possession and control of the CNB records sought by the IRS summons, after the government established its case for enforcement under United States v. Powell, 379 U.S. 48, 57-58 (1964), because doing so violates his Fifth Amendment privilege against compelled self-incrimination. Petitioner's argument is without merit.

a. There is no dispute that in a summons enforcement proceeding the United States has the initial burden of meeting the requirements established in Powell. See, e.g., United States v. Huckaby, 776 F.2d 564, 569 (5th Cir. 1985), cert. denied, 475 U.S. 1085 (1986). If the United States meets its burden, as petitioner concedes it has done (e.g., C.A. App. 87), however, the burden shifts to the defendant to "challenge the summons on any appropriate ground." Powell, 379 U.S. at 58 (quoting Reisman v. Caplin, 375 U.S. 440, 449 (1964)); see United States v. Rylander, 460 U.S. 752, 757 (1983) (challenge to enforcement of IRS summons on ground of "lack of possession or control of records" can not be raised "for the first time in a contempt proceeding"). Petitioner contested enforcement here on the ground that he did not have possession of the CNB records at the time the summons was served. C.A. App. 150 ¶ 8. As the court of appeals correctly held, the summoned party bears the burden of establishing lack of possession or control. See United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 392 (1st Cir. 1988) (per curiam) ("[O]nce the dis trict court has reason to believe that the requested docu ments exist, the burden then shifts to the summonee to show that he is not in possession of them.") (internal quota tion marks omitted); Huckaby, 776 F.2d at 567 ("the party resisting enforcement bears the burden of producing credi ble evidence that he does not possess or control the docu ments sought"); cf. Rylander, 460 U.S. at 757 ("It is settled * * * that in raising this defense [of inability to comply with an order enforcing an IRS summons], the defendant has a burden of production.").

Placing the burden on the party asserting lack of pos session as a defense to a prima facie valid summons, see Powell, 379 U.S. at 58, makes eminent sense because that party is privy to the facts that would support such a de fense. As this Court explained long ago in the context of a prosecution of the defendant arising out of her refusal to produce subpoenaed records:

[T]he prosecution is under a serious practical handicap if it must prove the negative proposition-that respon dent did not or had no good reason for failing to try to comply with the subpoena insofar as she was able. The possibilities of time and circumstance are of such wide range as to defy inclusive rebuttal. On the other hand, the burden of the affirmative was not an oppressive one for respondent to undertake; the relevant facts are pe culiarly within her knowledge.

United States v. Fleischman, 339 U.S. 349, 362-363 (1950) (cited in Rylander, 460 U.S. at 757).

Petitioner may not avoid this burden by broadly invok ing the Fifth Amendment. See Pet. 15-19. As an initial matter, this is not a case in which petitioner invoked the Fifth Amendment as a basis for declining to reveal whether he had possession of the records at issue in this appeal. To the contrary, petitioner voluntarily submitted an affidavit in which he asserted that "I do not possess any documents pertaining to those [specified] accounts." C.A. App. 150 ¶ 8. Petitioner evidently did not believe that this assertion was incriminating. See ibid. By contrast, with respect to "all other items set forth without specification," id. at 150-153 ¶¶ 9-19, petitioner refused "to state whether there are any such documents within my possession, custody or control." He also asserted with respect to those "other items" that, if he had "such records" in his possession, he would decline to produce them on the ground that their production would tend to incriminate him. Ibid. Petitioner's affidavit reflects a conscious decision on his part regarding the circum stances in which he would raise a Fifth Amendment objec tion. See also id. at 18-19, 22-23; Gov't C.A. Br. 19-22. His failure to assert in the district court that the Fifth Amend ment protected him from having to make assertions about possession or control of the documents sought, on the the ory that such assertions could be incriminating, fatally un dermines any claim that placing the burden of proof on him on remand would violate the Fifth Amendment.

Moreover, it is not apparent how testimony that peti tioner does not possess or have control over his bank ac count and credit card records would tend to incriminate him. Indeed, petitioner has never laid any foundation for a claim that testimony regarding his asserted lack of posses sion or control of those records would tend to incriminate him. See Hoffman v. United States, 341 U.S. 479, 486 (1951) (The taxpayer's "say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified."). The broad Fifth Amend ment challenge that petitioner seeks to raise before this Court thus is not properly presented in this case.

In any event, "the assertion of the Fifth Amendment privilege against compulsory self-incrimination * * * has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production." Rylander, 460 U.S. at 758. Indeed, this Court has "squarely rejected the notion * * * that a possible failure of proof on an issue where the defendant had the burden of proof is a form of 'compulsion' which requires that the bur den be shifted from the defendant's shoulders to that of the government." Ibid. Petitioner's claim that the Fifth Amendment is violated by imposition of a burden of proof on summons recipients "would convert the privilege from the shield against compulsory self-incrimination which it was intended to be into a sword whereby a claimant assert ing the privilege would be freed from adducing proof in support of a burden which would otherwise have been his. None of [this Court's] cases support this view." Ibid.; see, e.g., Williams v. Florida, 399 U.S. 78, 84 (1970) ("That the defendant faces such a dilemma demanding a choice be tween complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination"). And as the Court has further ob served, "[a] subpoena has never been treated as an invita tion to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, * * * the great power of testimonial compul sion * * * would be a nullity." Rylander, 460 U.S. at 762 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).

Petitioner's reliance (Pet. 15) on Curcio v. United States, 354 U.S. 118 (1957), is misplaced. In Curcio, the Court held that a union official's personal privilege against self-incrimination attached to questions regarding the loca tion of union books and workpapers that he had refused to produce in response to a subpoena. See id. at 128. The Court explained that holding the official in contempt for refusing to answer questions about the whereabouts of the subpoened records would violate his Fifth Amendment rights because "forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind." Ibid. At the same time, however, the Court made clear that the records custo dian, who claimed that the records were not in his posses sion, "might have been proceeded against for his failure to produce the records demanded." Id. at 127 n.7. Thus, the Court drew a distinction "between oral testimony and other forms of incrimination," Braswell v. United States, 487 U.S. 99, 114 (1988), and nothing in Curcio indicates that there would be anything improper in enforcing the summons "on the basis of [petitioner's] failure to introduce evidence on an issue on which he had the burden of production." Huckaby, 776 F.2d at 569.6

b. Petitioner contends (Pet. 19) that the circuits are divided on the question of which party bears the burden of proof with respect to the defense of lack of possession or control. Petitioner is mistaken. The cases on which he re lies address the distinct question whether non-compliance with a summons may be excused on the ground that the act of producing the documents will incriminate the taxpayer. In United States v. Rue, 819 F.2d 1488 (8th Cir. 1987), a taxpayer challenged a contempt finding on the ground that compliance with the summons would have violated his Fifth Amendment privilege against self-incrimination because, by producing the summoned documents (records relating to his dentistry practice), he "would acknowledge the exis tence of the documents, his possession of them, and their authenticity." Id. at 1491. The Eighth Circuit rejected that challenge, upholding the district court's finding that his act of production would not incriminate him because "the exis tence, possession, and authenticity of the documents" were a "foregone conclusion" under Fisher v. United States, 425 U.S. 391, 411 (1976) (holding that taxpayers' Fifth Amend ment privilege against self-incrimination is not violated by enforcement of a summons against the taxpayers' attorneys because "the existence and location of the papers are a fore gone conclusion" and thus compliance with the summons "adds little or nothing to the sum total of the Government's information"). 819 F.2d at 1493-1494.

With respect to the district court's "foregone conclu sion" finding, the Rue court noted that the government bears the burden of proof "on the questions of the exis tence, possession, and authenticity of the summoned docu ments." 819 F.2d at 1493 n.4. The court did not hold, how ever, that the government also bears the burden of proof with respect to the distinct question whether the summons recipient should be excused from production on the ground that he is simply unable to comply because he lacks custody or control of the documents. That question was not at issue in Rue, and accordingly the court did not address it.

The other decisions cited by petitioner in support of his claim of a circuit conflict (Pet. 19) are inapposite for the same reason. Each addressed the government's burden in the context of the "foregone conclusion" issue, not the allo cation of the burden when a summons recipient claims he is unable to comply because he lacks possession or control of the documents-the only burden-allocation issue addressed by the court of appeals in this case. Compare Pet. App. 6a with In re Grand Jury Proceedings, Subpoenas for Docu ments, 41 F.3d 377, 380-381 (8th Cir. 1994) (holding that the government did not meet its burden of establishing that taxpayers' act of production was insufficiently testimonial because a "response to [the] broad-sweeping subpoena may involve discretionary judgments"); In re Grand Jury Sub poena, Dated April 18, 2003, 383 F.3d 905, 910-913 (9th Cir. 2004) (same); In re Grand Jury Subpeona Duces Tecum Dated October 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993) (reject ing Fifth Amendment act-of-production claim because the government "demonstrate[d] with reasonable particularity that it knows of the existence and location of subpoenaed documents") (internal quotation marks omitted). Contrary to petitioner's suggestion, the decision below thus does not conflict with the Rue line of cases. Petitioner's contentions regarding the allocation of the burden of proof with respect to a taxpayer's claim that he lacks possession of summoned records thus do not merit further review.

3. Contrary to petitioner's contention (Pet. 5-13), the court of appeals' "observation[]" that petitioner's act of pro ducing the CNB records "would have no testimonial signifi cance" does not conflict with this Court's decisions in Fisher, United States v. Hubbell, 530 U.S. 27 (2000), or Doe v. United States, 487 U.S. 201 (1988).7 In Fisher, the IRS had issued a summons to taxpayers' attorneys seeking the production of documents created by the taxpayers' accoun tants. While recognizing that "[t]he act of producing evi dence in response to a subpoena" may have "communicative aspects," 425 U.S. at 410, this Court held that because "[t]he 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," enforcement of the sum mons did not violate the taxpayers' Fifth Amendment privi lege against self-incrimination, id. at 411. The Court ex plained that, in the circumstances presented, "[t]he ques tion is not of testimony but of surrender." Ibid. (quoting In re Harris, 221 U.S. 274, 279 (1911)). The same is true in this case, where petitioner's act of production would add nothing to the government's knowledge. The existence and location of records pertaining to petitioner's CNB bank and credit card accounts are a foregone conclusion, because the accounts have already been either disclosed by the peti tioner or discovered through independent investigation by the IRS. See Pet. App. 6a-7a.

In Hubbell, the Court held that, in contrast to Fisher, the act of production required of the respondent was testi monial and protected by the Fifth Amendment because the government failed to show "that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by respondent" (530 U.S. at 45), and because it was "necessary for respon dent to make extensive use of 'the contents of his own mind'" (id. at 43 (quoting Curcio, 354 U.S. at 128)) to com ply with the government's "broadly worded" subpoena. Id. at 42. Petitioner's contention (Pet. 13) that he must "use his mind * * * to convince CNB to release the records to him" hardly equates with using "the contents of his own mind" within the meaning of Hubbell. A request that CNB re lease the records pertaining to the three identified accounts would not be testimonial. Such a request would seek action, not impart information. "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself." Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990) (quoting Doe, 487 U.S. at 210). As petitioner would not be required to relate any information to CNB that the government does not already possess, see p. 2, supra, any communication with CNB would not be testimonial and would thus not be protected under the Fifth Amendment.

Finally, in Doe, the United States sought to compel the target of a federal grand jury investigation to sign a con sent directive to be sent to banks in the Cayman Islands and Bermuda directing the banks to "disclose all informa tion and deliver [to the Grand Jury] copies of all documents of every nature in your possession or control which relate" to any bank account on which he was authorized to draw. Doe, 487 U.S. 202-205 & n.2 (citation omitted). The consent directive did not identify any particular account owned by Doe. The Court upheld a finding of contempt against Doe for refusing to execute the consent directive, rejecting his contention that forcing him to sign the consent directive violated his Fifth Amendment rights. The Court found that the consent directive itself was not testimonial because the government was "not relying on the 'truthtelling' of Doe's directive to show the existence of, or his control over, for eign bank account records." Id. at 215 (quoting Fisher, 425 U.S. at 411).

Petitioner mistakenly contends (Pet. 11) that requiring him to obtain the CNB records "by whatever means" (the language used in the district court's now-vacated order) conflicts with Doe because it requires more of him than the Court required of Doe and it "necessarily requires him to make a 'testimonial communication' to CNB in order to convince it to comply." As discussed above, any communi cation with CNB would not include any information that the government does not already have. Because the govern ment is aware of petitioner's CNB accounts, both through its own efforts and from petitioner's voluntary disclosures, and because a court may take judicial notice that banks keep records of such accounts, see Kaggen v. IRS, 71 F.3d 1018, 1020 (2d Cir. 1995), petitioner's privilege against com pelled self-incrimination will not be violated by his request ing CNB to supply him with the records pertaining to those identified accounts. Doe, 487 U.S. at 216-217. See, e.g., United States v. Teeple, 286 F.3d 1047, 1050-1051 (8th Cir. 2002).

4. CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
EILEEN J. O'CONNOR
Assistant Attorney General
FRANK P. CIHLAR
RANDOLPH HUTTER
Attorneys

1 In a March 25, 2004, letter to the district court, petitioner's counsel asserted that petitioner "does not have possession, custody or control of the foreign account records sought," C.A. App. 78, but that assertion did not comply with the district court's order to show cause, see id. at 72 (court will consider only those issues "supported by affidavit(s)").

2 The district court denied without prejudice the government's petition to enforce the summons with respect to "the balance of the records sought"-that is, records other than those pertaining to the identified CNB accounts and those previously shown to the IRS. C.A. App. 3. Contrary to petitioner's assertion (Pet. 4), the district court did not find that petitioner had "established a legitimate basis for asserting his Fifth Amendment privilege against self-incrimination" with respect to the CNB records at issue. In fact, the court expressly found that its resolution of the matter left the court with "no issue * * * to resolve regarding petitioner's Fifth Amendment rights." C.A. App. 8.

3 The district court entered an opinion and order on August 2, 2004, directing petitioner to produce the CNB records. C.A. App. 6-8. On August 6, 2004, the district court issued a final order enforcing its August 2, 2004 opinion and order. Id. at 2-4. Because petitioner sent his consent directive to CNB on August 16, 2004, after the district court had issued its final order, the directive itself was not part of the record that had been considered by the district court. Id. at 204.

4 The court of appeals declined to address the government's conten tion that petitioner had waived any Fifth Amendment claim with respect to the CNB records that the district court had ordered him to produce. Pet. App. 8a n.7; see pp. 2-3, supra (citing C.A. App. 150-154); Gov't C.A. Br. 19-22.

5 For similar reasons, this Court ordinarily denies petitions by criminal defendants challenging interlocutory decisions. See Robert L. Stern et al., Supreme Court Practice § 4.18, at 258-259 n.59 (8th ed. 2002).

6 Petitioner's reliance on In re Grand Jury Subpoena Dated April 9, 1996, 87 F.3d 1198, 1204 (11th Cir. 1996), is misplaced for the same reason. There, the district court had held a custodian of corporate records in contempt for refusing to testify about the whereabouts of the subpoenaed records, which she had previously indicated were not in her possession. The Eleventh Circuit reversed, holding that the custodian "may not be compelled to testify as to the location of docu ments not in [her] possession," id. at 1202, and that the custodian's assertion that she did not possess the records did not waive her pri vilege with respect to providing testimony regarding their current location, id. at 1202-1204. The court of appeals here did not hold that petitioner could be compelled to testify about the present location of the documents, nor did it hold that petitioner waived his Fifth Amendment rights as to the whereabouts of the documents by asserting non-pos session. Moreover, it is far from clear that the Eleventh Circuit dis agrees with the court of appeals' holding here on the burden of proof to establish non-possession. See United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988) ("[The taxpayer] raised the issue of possession in his answer to the Service's petition for an enforcement order, but he failed to sustain the allegation at the hearing before the magistrate.") (emphasis added).

7 Petitioner also mistakenly contends (Pet. 8-9) that the court of appeals' decision is in conflict with Kastigar v. United States, 406 U.S. 441 (1972), which held that the government may compel testimony by granting immunity that prevents the government from using the testimony or its fruits in a criminal proceeding. This case involves a requirement to meet a burden of proof in a civil summons enforcement proceeding, not an order compelling testimony. In addition, under the court of appeals' view on the "foregone conclusion" issue, petitioner would have no legitimate basis to invoke the Fifth Amendment. Ac cordingly, Kastigar is irrelevant.