775. Defenses—Inability Versus Refusal to Comply

The good faith inability to comply with a decree, as contrasted with the refusal to do so, is a complete defense to a criminal contempt action. United States v. Joyce, 498 F.2d 592, 596 (7th Cir. 1974); United States v. J. Myer Schine, 260 F.2d 552, 555 (2d Cir. 1958), cert. denied, 358 U.S. 934 (1959). The defendant raising this defense bears the burden, at least after some initial showing, of demonstrating an inability to comply, and defendant cannot invoke the Fifth Amendment as a justification for not meeting the burden. See United States v. Rylander, 460 U.S. 752 (1983); United States v. Hankins, 565 F.2d 1344 (5th Cir.), opinion clarified and rehearing denied, 581 F.2d 431 (1978), cert. denied, 440 U.S. 909 (1979).

[cited in USAM 9-39.000]