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Media Alerts - United States v. Westbrooks -- Fourth Circuit
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April 9, 2015
  United States v. Westbrooks -- Fourth Circuit
Headline: If Your Lawyer Made You Do It, Be Sure You Can "Prove" It

Area of Law: Evidence, Criminal Procedure

Issue Presented: Whether the burden of an advice-of-counsel defense was properly placed on the government, or improperly shifted to the defendant.

Brief Summary: Tamny Westbrooks managed JATS Tax Service, a tax preparation business in North Carolina. In 2008, the IRS issued summonses to Westbrooks and another JATS employee as part of an investigation, but Westbrooks declined to provide the requested tax records. As a result, the IRS obtained a warrant and seized general business records and clients' tax returns. The warrant did not authorize seizure of tax-related employment forms. Since the documents the government sought were not uncovered during the execution of the warrant, the IRS converted its administrative investigation into a grand jury investigation, and issued a subpoena requiring Westbrooks to produce further documentation. Westbrooks maintained she was not the owner of the business, and was merely an employee herself.

Westbrooks appeared before the grand jury and produced a packet of materials containing unopened mail related to the business, as well as refund checks for clients. The government moved to show cause as to why Westbrooks should not be held in contempt for failing to comply with the subpoena because most of the documents Westbrooks provided were not responsive to the subpoena.

During the show-cause hearing, Westbrooks testified that she did not respond to the subpoena because her attorney, Frederic Williams, told her the government "had everything," and she should just bring whatever mail may have arrived at the office. The district court found Westbrooks guilty of criminal contempt. Westbrooks moved for a new trial arguing that she was unexpectedly assigned the burden of her advice-of-counsel defense. Her motion was denied because she failed to present all evidence related to her advice-of-counsel defense during her initial hearing.

On appeal, Westbrooks argued that the district court improperly assigned her the burden of proving her advice-of-counsel defense. The United States Court of Appeals for the Fourth Circuit disagreed, holding that the burden was not improperly shifted. The court explained that a court may require the defendant to produce evidence supporting an advice-of-counsel defense, while the ultimate burden of proving the elements of criminal contempt remained with the government.

The Fourth Circuit reviewed the record and determined that although there was evidence Westbrooks had relied upon the advice of her attorney, Westbrooks failed to produce sufficient evidence to establish the other necessary element of an advice-of-counsel defense -- "full disclosure of all pertinent facts to an attorney." Therefore, Westbrooks' evidence was insufficient to establish a prima facie advice-of-counsel defense.

To read the full text of this opinion, please click here.

Panel: Chief Judge Traxler, Judges Gregory and Agee.

Argument Date: 12/09/2014

Date of Issued Opinion: 03/13/15

Docket Number: No. 13-4764

Decided: Affirmed by published opinion.

Case Alert Author: David Arnold, Univ. of Maryland Carey School of Law

Counsel: Brian D. Boone, ALSTON & BIRD LLP, Charlotte, North Carolina, for Appellant. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Acting Executive Director, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina; E. Bowen Reichert Shoemaker, ALSTON & BIRD LLP, Atlanta, Georgia, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 01:35 PM     4th Circuit  

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