June 18, 2013
UNITED STATES OF AMERICA, Petitioner,
DENNIS JOHNS, Respondent.
BENJAMIN B. WAGNER, United States Attorney, YOSHINORI H. T. HIMEL, #66194, Assistant United States Attorneys, Sacramento, CA, Attorneys for Petitioner United States of America.
ORDER FINDING RESPONDENT IN CIVIL CONTEMPT OF ORDERS FILED OCTOBER 9, 2012, AND MAY 16, 2013
ANTHONY W. ISHII, Senior District Judge.
This matter came before me on June 17, 2013, under the Contempt Order to Show Cause filed May 16, 2013. Assistant United States Attorney Yoshinori H. T. Himel and investigating Revenue Officer Michael J. Papasergia were present. Respondent did not file opposition to contempt and did not appear at the show-cause hearing. Based upon the entire record and oral proceedings, I make the following findings:
1. By Order filed October 9, 2012, I enforced an IRS summons issued February 23, 2012, directed to the respondent, Dennis Johns, and seeking testimony, books, checks, records, papers and other data to aid Revenue Officer Papasergia's investigation to determine financial information relevant to the IRS' efforts to collect Form 1040 delinquent taxes for the tax years ending December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, and December 31, 2007. I ordered respondent to meet with the investigating Revenue Officer on the 21st day after the issuance of the Order, or at a later date to be set in writing by the Revenue Officer, and to produce all testimony, and bring with him and produce for examination documents in obedience to the summons issued February 23, 2012.
2. On October 24, 2012, the Revenue Officer wrote the respondent setting the compliance date for October 30, 2012, at 11:00 a.m., in the Bakersfield IRS Office, as agreed.
3. The respondent failed to appear.
4. On January 2, 2013, Assistant U.S. Attorney Yoshinori H. T. Himel wrote to Respondent setting a further opportunity for compliance for January 22, 2013, at 11:00 a.m. in the Bakersfield IRS Office.
5. The respondent failed to appear for the appointment and failed to contact Petitioner to reschedule.
6. On May 14, 2013, Petitioner filed a Petition for Contempt of Order Filed on October 9, 2012. This Court's Order filed May 16, 2013, required respondent to appear before this Court on June 17, 2013, at 1:30 p.m., and show cause as to why he should not be held in contempt for failure to comply with the Order filed October 9, 2012. This order further set a date certain for a written response by the respondent. This order was duly served by mail on the respondent.
7. Respondent failed to file a written response, and failed to appear at the hearing.
8. Respondent's failure to comply with the Orders filed October 9, 2012 and May 16, 2013, 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 Michael J. Papasergia, Petitioner has met this burden.
Based upon the foregoing, I find, order and adjudge as follows:
A. Respondent, DENNIS JOHNS, is in civil contempt of this Court for his failure to comply with the Order filed on October 9, 2012, directing Respondent to comply with the IRS summons issued February 23, 2012, and with the Order filed May 16, 2013, ordering respondent to appear before me for the trial of his contempt.
B. A no-bail Bench Warrant for the arrest of Respondent, DENNIS JOHNS, will issue.
C. After arrest, Respondent, DENNIS JOHNS, is to be incarcerated and brought before me for hearing on the remedies for his civil contempt.
IT IS SO ORDERED.