UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 25, 2012
UNITED STATES OF AMERICA,
FREDDY VISCARRA AND VERONICA VISCARRA,
ORDER FINDING RESPONDENTS IN CIVIL CONTEMPT OF ORDER FILED FEBRUARY 22, 2012
This matter came before the undersigned on October 22, 2012, under the Contempt Order to Show Cause filed September 21, 2012. Assistant United States Attorney Yoshinori H. T. Himel and investigating Revenue Officer David M. Lopez were present. Respondents did not file an opposition to contempt and did not appear at the show-cause hearing. Based upon the entire record and the oral proceedings, the Court makes the following findings:
(1) On November 29, 2011, Petitioner filed a Petition to enforce two IRS summonses issued July 12, 2011, directed to the respondents, Freddy Viscarra and Veronica Viscarra, and seeking testimony, books, records, papers, and other data to aid RO Lopez's investigation to determine financial information relevant to the IRS's efforts to collect Personal Income Tax (Form 1040) for the tax year ending December 31, 2006.
(2) On January 20, 2012, Magistrate Judge McAuliffe filed Findings and Recommendations in which she found that the requirements for summons enforcement had been satisfied. Magistrate Judge McAuliffe recommended that the summonses be enforced.
(3) By Order filed February 22, 2012, the undersigned adopted Magistrate Judge McAuliffe's Findings and Recommendation. The Court enforced the IRS summonses and ordered respondents to meet with the investigating Revenue Officer within 21 days after issuance of the Order, or at a later date to be set by the Revenue Officer, and to produce all testimony, books, records, and other data demanded by the IRS summonses issued July 12, 2011.
(4) On February 27, 2012, the Revenue Officer wrote the respondents setting the compliance date for March 21, 2012, at 9:00 a.m., at 2525 Capitol Street, Suite 206, Fresno, California.
(5) The respondents did not appear, and they failed to provide the testimony and documents demanded in the summonses.
(6) On April 12, 2012, government counsel mailed a letter to respondents reminding them of the need to provide the required documentation to comply with the summons enforcement order. The letter set a compliance appointment and warned of a contempt petition if respondents did not comply.
(7) On September 20, 2012, Petitioner filed a Petition for Contempt of Order filed February 22, 2012. The next day, this Court's Order, filed September 21, 2012, required respondents to appear before this Court on October 22, 2012, at 1:30 p.m., and show cause as to why they should not be held in contempt for failure to comply with the Order filed February 22, 2012. This order was duly served by mail upon respondents.
(8) Respondents' failure to comply with the Order filed February 22, 2012, continues to the present.
(9) "A court has the inherent power to punish for civil or criminal contempt any obstruction of justice relating to any judicial proceeding." Lambert v. Montana, 545 F.2d 87, 88 (9th Cir. 1976). Petitioner has the burden of proving its prima facie case by clear and convincing proof. Balla v. Idaho State Bd. Of Corrs., 869 F.2d 461, 466 (9th Cir. 1989).
(10) By the Petition for Contempt and supporting documents, including the declaration of David M. Lopez, Petitioner has met this burden.
Based upon the foregoing, the Court find as follows:
A. Respondents, FREDDY VISCARRA and VERONICA VISCARRA, are in civil contempt of this Court for their failure to comply with the Order filed on February 22, 2012, directing Respondents to comply with the IRS Summonses issued on July 12, 2011.
B. Bench Warrants for the arrest of Respondents, FREDDY VISCARRA and VERONICA VISCARRA, will issue.
C. After arrest, Respondents, FREDDY VISCARRA and VERONICA VISCARRA, are to be incarcerated until they comply with the Order filed February 22, 2012.
IT IS SO ORDERED.
CHIEF UNITED STATES DISTRICT JUDGE
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