UNITED STATES OF AMERICA, PETITIONER V. RICHARD W. (DICK) RYLANDER, SR. No. 83-906 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-23a) is reported at 714 F.2d 996. The opinion of the district court (App., infra, 25a-31a) is not reported. An earlier opinion of the district court denying respondent's motion for a jury trial (App., infra, 38a-39a) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 2, 1983 (App., infra, 24a). On October 24, 1983, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including December 1, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Sixth Amendment to the Constitution provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, * * * and to have the Assistance of Counsel for his defence. 18 U.S.C. 401 provides, in pertinent part: A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as -- * * * (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. 26 U.S.C. 7402(b) provides: If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data. 26 U.S.C. 7604(a) provides: If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data. QUESTIONS PRESENTED 1. Whether the court of appeals erred in holding that Rylander could not be convicted of criminal contempt for willfully failing to comply with a final court order requiring production of summoned records that was upheld by this Court last Term, unless the government relitigated and proved beyond a reasonable doubt the facts underlying the entry of the disobeyed order, despite the fact that a prima facie showing of contempt was made and respondent offered no evidence in his defense. 2. Whether the court of appeals erred in holding that respondent had not knowingly and intelligently waived his right to counsel. 3. Whether respondent was entitled to a trial by jury on a charge of criminal contempt for failure to comply with a court order, where the sentence imposed was six months' imprisonment. STATEMENT 1. This criminal contempt case is a sequel to this Court's decision in United States v. Rylander, No. 81-1120 (Apr. 19, 1983) (Rylander I), and arises out of the same factual setting and district court proceedings that resulted in Rylander I. Following a joint trial for civil and criminal contempt, the district court convicted respondent on two counts of criminal contempt, for failing to produce records and documents pursuant to a January 15, 1980 order enforcing Internal Revenue Service summonses and for failing to appear at a show cause hearing on March 24, 1980. /1/ It also held him in civil contempt for failure to comply with the court's enforcement order. Although they were tried together, the civil and criminal cases were considered separately by two different panels of the Ninth Circuit. On respondent's appeal in the civil case, the court of appeals reversed the order holding respondent in contempt. That decision was before this Court last Term in Rylander I, in which the judgment of the court of appeals was reversed and the district court's finding of civil contempt reinstated. After this Court's disposition of Rylander I, the court of appeals considered respondent's appeal from his conviction for criminal contempt. Once again, it reviewed the evidence giving rise to the enforcement order that respondent was convicted of disobeying and, despite this Court's decision to the contrary in Rylander I, held that there was insufficient evidence to support the conviction. It also reversed the conviction for failure to appear at the show cause hearing, and ordered a new trial on that charge, on the ground of an insufficient waiver of the right to counsel. The court reached this conclusion despite the fact that respondent had twice discharged counsel appointed by the district court (although he had refused to complete a financial disclosure statement), and elected to proceed pro se when the district court declined to appoint counsel of respondent's selection and instead gave him the option of accepting one of the counsel appointed by the district court, obtaining counsel of his choice, or representing himself at the contempt hearing. See Tr. 45, 61-66, 127. 2. Since the conviction for criminal contempt results from the same background and judicial proceedings as the finding of civil contempt previously considered by this Court, the facts may be summarized largely in terms of this Court's opinion in Rylander I (slip op. 1-2), as follows: In January 1979, pursuant to 26 U.S.C. 7602, the Internal Revenue Service (IRS) issued summonses to respondent Rylander as president of Rylander & Co. Realtors, Inc. and of Affiliated Investments and Mortgage Company, dba AIM Real Estate Marketing and Counseling. The summonses ordered him to appear before an IRS agent in Sacramento, California, and to produce for examination, and testify with respect to, books and records of the corporations. When he failed to comply with the summonses, the district court issued an order to show cause why the summonses should not be enforced. For several months Rylander succeeded in evading service, but in November 1979, the marshal was able personally to serve the court's fourth successive order to show cause. In January 1980, on the return date of that order, Rylander failed to file a responsive pleading and did not appear at the show cause hearing. He had sent an unsworn letter to the court claiming he was neither the president of either corporation nor associated with either of them in any way. At the hearing, the government established the factual basis for enforcing the summonses. See United States v. Powell, 379 U.S. 48 (1964). The district court, after receiving an offer of proof and hearing evidence, enforced the summonses and ordered Rylander to appear before an IRS agent in February 1980, to produce the corporate records. Rylander neither sought reconsideration of the enforcement order no did he appeal from it. He appeared on February 4 before the agent, but failed to produce the records. On February 11, the district court issued an order requiring Rylander to appear on March 10, 1980, to show cause why he should not be held in contempt for failure to comply with the order enforcing the summonses. The order required service by February 20, but the marshal was unable to effect personal service by that date, and a new show cause order was issued on February 25, and served by mail on that date in accordance with Fed. R. Civ. P. 5(b). That show cause order required Rylander to appear on March 24 and show cause why he should not be held in contempt of the January 15 order and why he should not immediately produce the records. Rylander did not file a response or appear on March 24. His son filed a three-page statement said to have been dictated by Rylander by telephone from Oregon. On March 28, 1980, and on April 21, 1980, the district court issued orders that Rylander show cause why he should not be adjudged guilty of criminal contempt and held also in civil contempt. The latter order was served by mail on April 22, 1980. In May 1980, the district court found that Rylander was willfully avoiding service, and issued a bench warrant for his arrest. A hearing was held on the criminal and civil contempt charges on October 8, 1980. Prior to that time, the district court had appointed counsel to represent Rylander because Rylander had not obtainec counsel, despite the fact that Rylander refused to complete a financial disclosure statement. Rylander discharged two court-appointed lawyers, and filed a demand for appointment of "competent and effective counsel." The district court informed him (Tr. 45) that his choices were representing himself, obtaining counsel of his choice, or appearing with one of the court-appointed lawyers. Although Rylander would not explicitly waive his right to counsel, he chose to represent himself, and the district court found that he had "knowingly, intelligently and competently waived counsel" (Tr. 66). Rylander also demanded a jury trial on both criminal and civil contempt charges. The district court, by order of September 24, 1980, denied the demand, reciting that there was no right to a jury trial on the civil contempt chrage, and that, if Rylander were found guilty of criminal contempt, the punishment would not exceed six months' imprisonment and/or a $500 fine (App., infra, 38a-39a). After a nonjury trial on October 8, 1980, the district court found Rylander guilty of criminal contempt for his failure to produce the docuemnts required by the order of January 15 enforcing the summonses and also guilty of criminal contempt for his failure to appear at the hearing to show cause on March 24 (App., infra, 32a-33a). In addition, he was held in civil contempt for his continued failure to produce the documents (App., infra, 30a). At a subsequent hearing held the next day to give respondent an opportunity to purge himself of civil contempt, Rylander verified an "Oath in Purgation of Contempt" that he had submitted to the court earlier that day. The essence of this declaration was that he did not possess the records and had not disposed of them to other persons, but he refused to submit to additional questioning under oath from the government (Rylander I, slip. op. 2). At the conclusion of these proceedings, Rylander was ordered incarcerated until he produced the summoned records or testified as to why he could not do so. On the criminal contempt charges, he was sentenced to six months' imprisonment, to commence upon his release from the civil contempt incarceration, for disobeying the court's order to produce the summoned documents, and to an additional six months' imprisonment, to run concurrently with the first six months' sentence, for failing to appear at the March 24 show cause hearing (App., infra, 34a-35a). /2/ 3. The court of appeals reversed the conviction for criminal contempt for failure to produce documents on the ground that the evidence to support the order that Rylander was convicted of violating was "not sufficient to establish beyond a reasonable doubt his ability to produce the summoned documents in January 1980" (App., infra, 11a). The court held that while, under this Court's decision in Rylander I, the prior proceeding precluded Rylander's lack of possession defense to the civil contempt citation, that was not true of the criminal contempt conviction. "In the criminal contempt proceeding, the Government was required to prove all elements of the offense, including an ability to comply with the order, beyond a reasonable doubt" (App., infra, 9a-10a). The government's evidence supporting the district court's order to produce, the court held, was insufficient to meet that standard (id. at 10a-11a). The court of appeals reversed the conviction for failure to appear at the show cause hearing of March 24 on the ground that "the record does not indicate that Rylander understood the nature of the charges or the possible penalties at the time he waived counsel" (App., infra, 16a). The court reached this conclusion and remanded for a new trial on this charge, although it acknowledged that "the district judge exhibited great patience with Rylander on the matter of Rylander's representation" (id. at 15a-16a). In dictum, the court also stated that respondent was entitled to have the charge of failure to comply with the enforcement order tried by a jury. (App., infra, 16a-18a). Since the conviction on this charge was reversed on a ground that precluded retrial, the court's comments on the right to a jury trial played no role in the disposition of that charge. On the remaining criminal charge (failure to appear at the March 24 hearing), the court of appeals stated that respondent was not entitled to a jury trial so long as he is not sentenced to more than six months' imprisonment or fined more than $500 (id. at 17a). Judge Poole dissented from the reversal of the failure to appear charge (App., infra, 19a-23a). Noting that respondent's "adamant refusal to comply with any order of the court was part of a pattern" (id. at 21a), he would have found that the absence of counsel did not warrant setting aside the conviction. In addition, he disagreed with the majority's statement that Rylander was entitled to a jury trial on the failure to comply charge. REASONS FOR GRANTING THE PETITION 1. Once again, and despite the clarity of this Court's opinion in Rylander I, the Ninth Circuit has failed to understand the basis for a citation for contempt, and has undermined the ability of district courts to obtain compliance with their orders. In Rylander I, this Court reaffirmed the long-standing rule, set forth in Maggio v. Zeitz, 333 U.S. 56, 59 (1948), "that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy" (Rylander I, slip. op. 4). This is as true of criminal contempt as it is of civil contempt. United States v. Mine Workers, 330 U.S. 258, 289-295 (1947). Indeed, many citations for criminal contempt grow out of disobedience to orders issued in civil cases, and 18 U.S.C. 401(3) would do little to vindicate the authority of the court issuing the order in such cases if the judge considering criminal contempt were required to search the record of the civil proceeding to determine not only whether there was evidence to support the disobeyed order but also to apply to that evidence the standards applicable in a criminal prosecution. This Court has held that a trial court need not and an appellate court should not undertake such a search -- that a criminal contempt proceeding does not reopen the underlying civil case and subject the issues in that case to redetermination under an enhanced burden of proof. Indeed, as this Court has held, a conviction for criminal contempt by disobedience to a court's order will stand even if the order is ultimately ruled incorrect. Howat v. Kansas, 258 U.S. 181, 189-190 (1922); Maness v. Meyers, 419 U.S. 449, 458-459 (1975); Worden v. Searls, 121 U.S. 14 (1887). The orderly and expeditious administration of justice by the courts requires no less: litigants are not free to decide for themselves whether court orders should be obeyed. Such orders must be obeyed, subject only to an aggrieved party's seeking further relief by a stay or appeal. Here, however, the court of appeals rewarded Rylander's intrasigence and obstinacy by reversing his criminal contempt conviction for failure to comply with the district court's order. In so doing, the court vindicated Rylander's self-help approach to the administration of justice in preference to the integrity of the judicial process. As Judge Poole's partial dissent observes (App., infra, 21a), "it (is) difficult to comprehend how we expect obedience to valid court orders if we tolerate willful and sustained contumacy." But that is precisely what the Ninth Circuit has done, by placing on the government the burden of relitigating and proving beyond a reasonable doubt the facts that were established in the earlier summons enforcement proceeding. This decision not only conflicts with Rylander I, in which this Court held that the enforcement order established respondent's ability to comply with the summonses and observed (slip op. 5) that "the District Court was entirely justified in concluding * * * that Rylander 'failed to introduce any evidence at the contempt trial,'" but also with the decisions in McPhaul v. United States, 364 U.S. 372 (1960), and United States v. Fleischman, 339 U.S. 349 (1950), on the proper allocation of the burden of proof in criminal contempt cases. 2. In a criminal contempt case, the only elements that must be proved to establish the contempt are (1) that a valid order has been entered, (2) that the alleged contemnor has actual notice of the order, and (3) that the order was willfully disobeyed. Chapman v. Pacific Telephone & Telegraph Co., 613 F.2d 193, 195 (9th Cir. 1979); In re Allis, 531 F.2d 1391, 1392 (9th Cir.), cert., denied, 429 U.S. 900 (1976). See McPhaul v. United States, supra; United States v. Fleischman, supra. The show cause order places upon the alleged contemnor the burden of showing why he should not be convicted of contempt. McPhaul v. United States, supra; United States v. Fleischman, supra. It does not require that the order be derived from evidence that establishes its factual correctness beyond a reasonable doubt. In holding that the violated order should itself be the focus of controversy, and that the evidentiary support for that order should be tested by a standard inappropriate to the proceeding that gave rise to the order, the court of appeals in this case flew in the face not only of this Court's decision in Rylander I, but also of an unbroken line of earlier decisions. As a practical matter, the decision below gives the recipient of a summons, or of any other form of compulsory process, two bites at the apple. He may contest the summons at the enforcement hearing and raise all appropriate defenses, or he may do nothing. Then, after the enforcement order is entered he may unilaterally choose to disobey and, perhaps months later, at the contempt trial, seek to avoid any criminal contempt sanction for his contumacious behavior by reopening the questions litigated in the enforcement proceeding, while retaining the ability to avoid any civil contempt sanction by tardily producing the requested documents. If this were all the court of appeals had approved here, it would be bad enough. But the court has gone even further. Here, Rylander persisted in his obstinacy at the contempt hearing and offered no evidence, as this Court recognized last Term. Despite this clear holding, the court of appeals found (App., infra, 10a) (footnote omitted) that "(t)here was evidence in the record that Rylander was unable to comply with the order because the documents either did not exist or were not within his possession or control." /3/ Thus, Rylander has been permitted to avoid criminal liability although he bypassed two opportunities for presenting his defenses: by failing to appear at the enforcement hearing and by choosing not to introduce evidence at the contempt trial. He goes free because the court of appeals has misconstrued the burden of proof. Once the government made a prima facie showing of Rylander's failure to comply with a valid court order, the burden shifted to respondent "to present some evidence to explain or justify his refusal." McPhaul v. United States, 364 U.S. at 379; United States v. Fleischman, 339 U.S. at 362-363. /4/ 3. The court of appeals also erred in reversing Rylander's conviction for criminal contempt for failure to appear at the March 24 hearing "(b)ecause the record does not indicate that Rylander understood the nature of the charges or the possible penalties at the time he waived counsel" (App., infra, 16a). The court, without any demonstration that it was erroneous, simply disregarded the district court's finding that Rylander "knowingly, intelligently, and competently waived counsel." It acknowledged that the district judge "exhibited great patience with Rylander on the matter of Rylander's representation" (App., infra, 15a), and twice appointed counsel whom Rylander discharged even though Rylander refused to complete a financial disclosure statement. Indeed, there is nothing to suggest that Rylander was unable to employ counsel. Moreover, when, as here, the investigation giving rise to the proceeding concerns compliance with the income tax laws, there is little basis for a court automatically to infer that the target of the investigation is unable to employ counsel. As for Rylander's understanding of the nature of the charges against him or the possible penalties, the maximum penalties were established by the district court's order denying a jury trial (App., infra, 38a-39a). And the nature of a charge that one has violated an order to appear at a hearing at a stated place on a stated day would hardly challenge the comprehension of an average person, much less one who after months of evading service was found to have been willfully avoiding service and was made the subject of a bench warrant for arrest. In short, the record amply demonstrates that the district court correctly found Rylander's waiver of counsel satisfied the standards of Faretta v. California, 422 U.S. 806, 807 (1975), and Johnson v. Zerbst, 304 U.S. 458 (1938). /5/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General GLENN L. ARCHER Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JERROLD J. GANZFRIED Assistant to the Solicitor General ERNEST J. BROWN CHARLES E. BROOKHART WILLIAM A. WHITLEDGE JO-ANN HORN Attorneys December 1983 /1/ In the same trial, Rylander was found not guilty of criminal contempt for avoiding process to appear at a show cause hearing on February 22, 1980. /2/ In a separate case, respondent was convicted on October 13, 1982, on three counts of failure to file income tax returns, in violation of 26 U.S.C. 7203. He was sentenced to consecutive six-month terms of imprisonment on each of three counts. This sentence was to be served concurrently with the sentence imposed as a result of the criminal contempt conviction. Respondent has been incarcerated at the Federal Prison Camp in Boron, California, since October 7, 1983, on his failure to file conviction. He has not begun to serve his sentence for criminal contempt. /3/ The evidence to which the court of appeals adverted (App., infra, 10a) was introduced by the government and did not establish the points the Ninth Circuit found. Indeed, on the very same record, this Court reached the contrary conclusion in Rylander I. /4/ The Ninth Circuit sought to distinguish Rylander I and Maggio v. Zeitz, supra, on the ground that the preclusive effect of the enforcement order of civil contempt proceedings has no application in a criminal case where the prosecution must prove guilt beyond a reasonable doubt. But, because Rylander never presented evidence of his ability to comply, that question need not be decided in this case. Rather, the correct analysis would proceed as follows: once the government made a prima facie showing of contempt, the burden shifted to Rylander; when he opted for silence, the case was over, as in Fleischman and McPhaul. /5/ The court of appeals also stated that Rylander was entitled to trial by jury on the failure to comply charge (App., infra, 17a). This conclusion did not form the basis for the reversal on either count because the court barred retrial on the failure to comply count and because Rylander was not entitled to a jury on the charge of failing to appear at the March 24 hearing. Nevertheless, the court's statements on this issue presumably would govern further proceedings in this case and, accordingly, should be addressed. If the decision below is reversed, the court of appeals would presumably require a new trial on the failure to comply charge because Rylander was denied a jury trial. This is incorrect; the conviction for failure to comply should be reinstated. In Cheff v. Schnackenberg, 384 U.S. 373 (1966), this Court held that a criminal contempt could be punished by a six-month sentence -- exactly what was imposed here and exactly what the district court advised Rylander was the maximum sentence -- without affording a defendant a trial by jury. See also, Muniz v. Hoffman, 422 U.S. 454 (1975). Appendix Omitted