UNITED STATES OF AMERICA AND JOAN M. VAN DEN BERG, SPECIAL AGENT, PETITIONERS v. RICHARD W. RYLANDER, SR., AS PRESIDENT OF RYLANDER & CO. REALTORS, INC. and AFFILIATED INVESTMENTS AND MORTGAGE COMPANY No. 81-1120 In the Supreme Court of the United States October Term, 1982 On writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the Petitioners TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Summary of argument Argument: The respondent in this civil contempt proceeding, who failed to obey a final order of the court directing him to comply with Internal Revenue Service summonses, did not sustain his burden of establishing an inability to comply by simply submitting an untimely and uncross-examined statement that he did not have the summoned documents and asserting his Fifth Amendment privilege against self-incrimination A. An individual directed to respond to a summons or subpoena to produce books and records must either produce the requested documents or present defenses establishing his inability to comply B. The enforcement orders established the presumption that respondent continued to have possession or control of the records C. An alleged contemnor has the burden of establishing by clear and convincing evidence his inability to comply with a court order D. The exception to the established rules regarding the burden of proof and the competency of evidence carved out by the court of appeals is contrary to the decision of this Court E. A blanket denial of one's ability to produce documents should not be accepted as competent evidence without the opportunity for cross-examination F. If respondent's written declaration is admissible evidence, it should constitute a waiver of the Fifth Amendment privilege Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 656 F.2d 1313. The opinion of the district court (Pet. App. 14a-20a) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 4, 1981. On November 23, 1981, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including December 18, 1981. The petition was filed on December 15, 1981, and was granted on April 26, 1982 (J.A. 104). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fifth Amendment to the Constitution provides in pertinent part: No person shall be * * * compelled in any criminal case to be a witness against himself * * * . 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. QUESTION PRESENTED Whether a respondent in a civil contempt proceeding, who has failed to obey a final order of the court directing him to comply with Internal Revenue Service summonses, may sustain his burden of establishing an inability to comply by submitting an untimely and uncross-examined statement that he does not have the summoned documents and asserting his Fifth Amendment privilege against self-incrimination. STATEMENT 1. In connection with an Internal Revenue Service (IRS) investigation of the tax liabilities of respondent Richard W. Rylander, Sr., for the years 1973 through 1977, the IRS, on January 4, 1979, issued summonses to respondent, as president of Rylander & Co. Realtors, Inc. (Rylander & Co.), and as president of Affiliated Investments and Mortgage Company, dba AIM Real Estate Marketing and Counselling (AIM), to testify and to produce books and records of those corporations /1/ (Pet. App. 2a). When respondent failed to comply, the United States and Joan M. Van Den Berg, Special Agent of the IRS, petitioned the United States District Court for the Eastern District of California for enforcement of the summonses, pursuant to 26 U.S.C. 7402(b) and 7604(a) (J.A. 4-7). On August 13, 1979, the district court ordered respondent to show cause why he should not testify and produce the records as set forth in the summonses. Respondent, however, evaded service of these and subsequent orders and it was not until after a fourth set of orders to show cause was issued in November 1979 (J.A. 17-19) that the United States Marshal's office was finally able to effect personal service on the respondent on November 30, 1979 (J.A. 90). In those orders, the district court directed respondent to appear before it on January 14, 1980, to show cause why he should not be compelled to testify and to produce the records sought in the IRS summonses. The orders further directed respondent to serve a written response to the petition within 10 days of service and also provided that "(o)nly those issues * * * brought into controversy * * * will be considered at the return of this Order and any uncontested allegation in the Petition will be considered admitted" (J.A. 31). Despite these directives from the court, respondent failed to file any response other than a letter to the Deputy United States Marshal, in which he claimed that he was not the president of the subject corporations and, therefore, had been improperly served (Pet. App. 15a; J.A. 21-25). The same letter was attached to an unsworn declaration respondent submitted to the court on January 9, 1980, in which he stated that he was not the president of either corporation, was not the president at the time of issuance of the summonses, and was not associated with either corporation (J.A. 20). He filed no other written response to the orders to show cause nor did he or any other corporate representative appear at the enforcement hearing (Pet. App. 15a). In view of respondent's letter, government counsel made an offer of proof at the enforcement hearing with regard to Rylander's relationship to the corporations and their status as viable entities (J.A. 46-51). The offer of proof established, inter alia, that Rylander & Co. was incorporated as a California corporation on April 1, 1969; that respondent opened a checking account at the Security Pacific Bank as president of Rylander & Co. and wrote checks on that account; that federal income tax returns for the company's 1972 and 1973 fiscal years were signed by respondent, as president of Rylander & Co.; that respondent signed a purchase agreement as president of Rylander & Co., purporting to sell all of its assets to AIM; and that the California Secretary of State's office had no record of dissolution of the corporation (J.A. 47-48). An offer of proof also was made with respect to AIM. It showed, inter alia, that AIM was incorporated in California on July 18, 1972; that respondent was listed as one of its three directors; that AIM's federal income tax returns for fiscal years 1972 and 1973 were signed by respondent, as president; that respondent, as president, signed a fictitious name statement filed with the County of Sacramento; that respondent was the only authorized signatory for an account he opened for AIM with the Security Pacific Bank; that respondent was the president and agent of AIM for service of process; that respondent, as president, signed an application for a real estate corporation license with the California State Real Estate Board; and that there was no record in the Secretary of State's office indicating dissolution of the corporation (J.A. 50). Agent Van Den Berg stated under oath that, if called, she would testify as to the truth of these matters with regard to both Rylander & Co. and AIM (ibid.). Following this offer of proof, the court indicated it was satisfied that there was sufficient evidence that respondent was president of the corporations at all times relevant to the service upon respondent (ibid.). 2. On January 15, 1980, the court issued an order enforcing the summonses. The order required respondent to appear before the IRS agent on February 4, 1980, and to produce for inspection and copying the records and documents of Rylander & Co. and AIM, as set forth in the summonses (Pet. App. 26a-28a). /2/ Respondent was personally served with the order on January 27, 1980 (Pet. App. 16a). Although he met with Agent Van Den Berg on February 4, 1980, he failed to produce any documents (Pet. App. 2a, 16a). The government subsequently petitioned the district court for orders to show cause why respondent should not be held in contempt (Pet. App. 3a, 16a). Several show cause orders were issued, but numerous attempts by the United States Marshal to serve the respondent personally were unsuccessful (Pet. App. 3a, 16a). The court eventually determined that constructive service had been accomplished and that respondent was avoiding personal service (Tr. 20; Pet. App. 16a). /3/ It therefore issued a bench warrant resulting in respondent's arrest on July 11, 1980 (Pet. App. 3a, 16a). 3. The show cause hearing was held in October 8, 1980, with respondent in attendance. /4/ Without conceding that the respondent had met his burden of proving a defense, the government attempted at the hearing to adduce evidence of respondent's ability to comply (Tr. 128). The government called as witnesses two corporate officers of Rylander & Co. and AIM, with the following results: one witness, respondent's son, asserted his Fifth Amendment privilege to all but rudimentary questions; the other stated that he was not in fact an officer of the corporations; and there was evidence that both witnesses had been ordered by respondent not to comply with production orders (Tr. 167, 235-236; J.A. 84, 89). Respondent did not offer any evidence at the contempt hearing (Pet. App. 18a). Based on the record before it, the district court found that respondent had failed to comply with a valid court order and found him in civil contempt (J.A. 94). /5/ Respondent was accordingly remanded to the custody of the Attorney General "until such time as he purges himself of that contempt" (Tr. 262). The court indicated that respondent could purge himself either (1) by complying with the court's order of January 15, 1980, directing him to produce the summoned records or (2) by demonstrating his inability to produce them (Tr. 262-263). Immediately after announcing its decision, the court -- as it had on numerous occasions during the hearing -- inquired whether respondent was willing to testify why he could not produce the summoned records and thereby purge himself of contempt (J.A. 58). When respondent indicated that he would testify (ibid.), government counsel informed the court that if respondent took the stand the government would seek to cross-examine him (J.A. 59). At this point, the court adjourned the purge hearing until the following day in order that an attorney could be appointed to represent respondent (Tr. 264-267). /6/ Prior to the resumption of the purge hearing, however, respondent submitted a written statement entitled "Oath in Purgation of Contempt and Release of Records" (J.A. 91-92; Tr. 273-275, 279-280). This declaration stated in part, "I swear on oath that I have no such records as called for in the Court's Order of January 16, 1980." When this statement was brought to the court's attention, it ordered the purge hearing continued until October 23, 1980, to allow appointed counsel additional time to prepare (Pet. App. 4a; Tr. 280-287). When the hearing reconvened respondent took the stand and verified that he had submitted a statement indicating that he did not have the records (Tr. 323). He refused, however, to answer any questions as to the whereabouts of the summoned documents, asserting the Fifth Amendment privilege against self-incrimination (ibid.). At that point, the government moved to strike his written declaration on the ground that it was denied the opportunity to cross-examine with regard to its contents (Tr. 324). /7/ The following day, on October 24, 1980, the district court issued Findings of Fact and Conclusions of Law in which it found that respondent, as president or other officer of the subject corporations, had possession or control, or both, of the books and records of the corporations (Pet. App. 17a). It further held that the burden of proof was on respondent to show why he could not comply with the court's order enforcing the summonses and that he had failed to introduce any evidence on this subject at the contempt trial (id. at 18a). Accordingly, the court found respondent in contempt for failing to comply with the enforcement order. /8/ 4. The court of appeals reversed without hearing oral argument (Pet. App. 1a-11a). The court first rejected the government's contention that respondent should be estopped in the contempt proceeding, by application of the doctrine of res judicata, from litigating the issue of his ability to produce the records at the time the enforcement order was entered. Relying on the summary nature of enforcement proceedings and the absence of an express finding in the enforcement order that respondent had possession of the documents, the court ruled that respondent could raise nonpossession as a defense to contempt (id. at 6a-7a). The court of appeals further held that respondent's written statement that the documents were not in his possession or under his control was sufficient to meet his burden of proving his inability to comply with the order to produce and, in view of his claim that any further testimony might incriminate him, he could interpose his claim of Fifth Amendment privilege as a bar to cross-examination on the contents of his statement (Pet. App. 10a). Finally, the court concluded that under these circumstances the government must bear the burden of proving that the documents in question exist and are in respondent's possession or control (id. at 10a-11a). Judge Norris concurred in a separate opinion. He found it unnecessary to adjudicate the consequences of respondent's assertion of the Fifth Amendment privilege; rather, he considered respondent's written declaration sufficiently detailed to prove an inability to comply (Pet. App. 12a-13a). SUMMARY OF ARGUMENT 1. This case has its genesis in the issuance of Internal Revenue Service summonses to respondent to produce books and records of two corporations in which he held the office of president. Respondent not only refused to comply with the summonses but also failed to assert any defenses for resisting production. Following a hearing and a final, appealable order directing him to produce the summoned records, and a second hearing at which he was adjudged in contempt, respondent asserted to the court for the first time that he could not produce any of the summoned records and that any further statement might incriminate him. The court of appeals concluded that respondent's burden of proving his inability to comply could be met in the contempt proceedings by a mere denial that he possessed the records, coupled with an assertion of the Fifth Amendment privilege against self-incrimination. In so holding, the court created an exception to the established rule regarding the burden of proof in contempt cases, solely by reason of respondent's invocation of the Fifth Amendment privilege. The holding of the court of appeals would greatly hamper the IRS's ability to fulfill its statutory mandate to enforce the internal revenue laws. The adverse consequences of this decision, moreover, would not be limited to tax cases; its rationale would provide a clearly defined checklist for disobedience of any administrative or judicial order to produce unprivileged records. If investigations can be foreclosed by a simple (and belated) denial of one's ability to comply, accompanied by an assertion of the Fifth Amendment privilege, administrative summonses, grand jury subpoenas, and turnover orders can be ignored with impunity. 2. An individual ordered to respond to a summons or subpoena to produce books and records must either produce the requested documents or present defenses justifying his failure to do so. To be sure, an inability to comply is a complete defense to a summons; but that defense must be raised in a timely fashion. By timely raising defenses, a witness allows the issues to be addressed at an appropriate stage in the proceedings. If a summoned party does not raise the question of his ability to comply during a summons enforcement hearing, the court is entitled to presume that he can comply, and its enforcement order therefore establishes that the witness can produce the records. The enforcement order is final and appealable and is not subject to subsequent, collateral challenge. 3. The entry of the enforcement orders here not only established that respondent possessed the corporate records, it also gave rise to a presumption that the records continued to exist and that they remained in respondent's possession. Respondent in this case has never offered evidence to defeat the presumption upon which the government is, accordingly, entitled to rely. 4. Evidence introduced at a contempt hearing demonstrating that an alleged contemnor has failed to comply with a court order establishes a prima facie case of contempt. The burden then shifts to the alleged contemnor to go forward and to demonstrate by clear and convincing proof why he should not be held in contempt. The imposition of this burden is especially appropriate where, as here, any purported reasons for not complying with the court's orders are solely within the knowledge of the alleged contemnor. Although the court of appeals recognized that respondent must initially bear the burden of proving his defense, it held that respondent's submission of a written statement, coupled with a Fifth Amendment claim, sufficed to meet this burden. This holding altered the established rule regarding the burden of proof in contempt cases. It transformed respondent's self-serving statement -- which was not submitted until after the contempt hearing had been concluded and which was never subjected to cross-examination -- into evidence deemed sufficient to sustain the substantial burden of establishing inability to comply at the contempt stage. Contrary to the court of appeals' conclusion, the prior decisions of this Court and other courts of appeals provide no basis for holding that a naked claim of privilege can shift the burden of proof in a contempt proceeding. 5. The construction of the privilege adopted by the court of appeals relieves the respondent of all risk and all obligation. By construing the Fifth Amendment privilege to prohibit any inquiry after its invocation, the court has concluded that a sworn denial of possession followed by a claim of privilege must be accepted as establishing compliance with the summons. This erroneous conclusion was based on the insupportable assumption that the only course available to respondent in order to purge his contempt was to forgo his Fifth Amendment privilege. This is simply not the case. Respondent had at least three alternatives: (1) to produce the documents that the district court found to exist, (2) to prove his inability to comply by adducing credible evidence, i.e., through the testimony of third parties, or (3) to take the stand and testify concerning the whereabouts of the documents and face cross-examination on that subject. He chose not to meet his burden but only to raise the issue by unverified denial. 6. Respondent's written statement was not evidence and therefore in no way satisfied his burden of proof. Conversely, if the statement was properly admitted as evidence, then respondent waived his Fifth Amendment privileges and should have been compelled to submitt to cross-examination as to subjects raised in the statement. The decision below allows respondent to have it both ways: his uncross-examined statement, coupled with his assertion of the privilege against self-incrimination, has been held to satisfy his burden of proof and to block further inquiry by the government. In effect, then, the respondent can stymie the government's investigation with impunity despite his failure to meet the burden imposed upon him by decisions of this Court. ARGUMENT THE RESPONDENT IN THIS CIVIL CONTEMPT PROCEEDING, WHO FAILED TO OBEY A FINAL ORDER OF THE COURT DIRECTING HIM TO COMPLY WITH INTERNAL REVENUE SERVICE SUMMONSES, DID NOT SUSTAIN HIS BURDEN OF ESTABLISHING AN INABILITY TO COMPLY BY SIMPLY SUBMITTING AN UNTIMELY AND UNCROSS-EXAMINED, STATEMENT THAT HE DID NOT HAVE THE SUMMONED DOCUMENTS AND ASSERTING HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION The government's orderly efforts to obtain non-privileged corporate records /9/ in this case have been frustrated by respondent's tactics of evasion. From the start of this process, respondent had every opportunity to present all defenses to compliance he could muster; rather than offer those defenses at appropriate times and in a proper manner, respondent opted instead to engage in a protracted series of ploys that resulted in the district court's adjudication of civil contempt. First, he made the wholly specious suggestion that he was not president of the corporations; this the government rebutted at the enforcement hearing respondent chose not to attend. Next, he avoided personal service of a series of orders to show cause. When he was eventually tried for civil contempt for failure to comply with the court's enforcement orders, respondent chose to present no evidence whatsoever; his participation in the contempt hearing consisted of frivolous challenges to the court's jurisdiction. In addition, he took affirmative steps to block the government from obtaining records from other corporate officers. In the face of this intransigence, the government and the district court proceeded patiently and deliberately, affording respondent many more opportunities than he was entitled to in order to state and prove his case. Respondent refused. Finally, after he was found to be in civil contempt on the basis of overwhelming and unrebutted evidence, respondent drew the last arrow from his quiver of tactics: in an attempt to purge himself of contempt, respondent asserted to the court for the first time that he was unable to comply. He did this by filing a self-serving, conclusory statement denying possession of the records and simultaneously refusing to be cross-examined on the very subject he belatedly raised. Against the backdrop of respondent's long-standing resistance to lawful process, the district court properly rejected respondent's untimely and unpersuasive submission and concluded that the contempt had not been purged. In reversing the finding of civil contempt, the court of appeals reached a conclusion at odds with the decisions of this Court and other courts of appeals. The decision below, which misconstrued in fundamental ways the proceedings in the district court, not only rewards respondent's unjustified intransigence, but also provides a roadmap for avoidance of any lawful process. A. An individual directed to respond to a summons or subpoena to produce books and records must either produce the requested documents or present defenses establishing his inability to comply The United States has a system of taxation that relies on self assessment and the good faith and integrity of each taxpayer to disclose completely and honestly all information relevant to his tax liability. Nonetheless, "it would be naive to ignore the reality that some persons attempt to outwit the system." United States v. Bisceglia, 420 U.S. 141, 145 (1975). Thus, Congress has recognized that the tax laws are not entirely self-enforcing and, in Section 7801 of the Internal Revenue Code, 26 U.S.C. 7801, has charged the Department of the Treasury with the duty to administer and enforce the internal revenue laws. Section 7602 of the Code provides the Treasury's principal information gathering mechanism, authorizing the Secretary of the Treasury or his delegate to examine records, to summon the submission of books and records, and to take testimony relevant to an inquiry as to the correctness of any return, for the purpose of making a return where none has been made, and for determining the liability of any person for any internal revenue tax. An IRS summons can be enforced only by invocation of the process of the court, pursuant to Sections 7402 and 7604 (26 U.S.C. (& Supp. IV)). Reisman v. Caplin, 375 U.S. 440 (1964). To obtain enforcement of a summons, the government must first establish, as it did here, that the summons was issued for a proper purpose, that the material sought is relevant to that purpose, that the information sought is not already in the Commissioner's possession, and that the administrative steps required by the Internal Revenue Code have been followed. United States v. Powell, 379 U.S. 48, 57-58 (1964). As it did here, the government generally makes the materiality and relevancy showing required by Powell in its petition to enforce the summons and the accompanying affidavit or declaration of the IRS agent. United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981), cert. denied, No. 81-1272 (Mar. 22, 1982); United States v. Moon, 616 F.2d 1043 (8th Cir. 1980); United States v. Garden State National Bank, 607 F.2d 61 (3d Cir. 1979); United States v. Newman, 441 F.2d 165 (5th Cir. 1971). The issuance of an order to show cause puts the summoned party on notice that the requirements of Powell have been met and shifts to the summoned party the burden of showing "substantial deficiencies in the summons proceedings," as justification for not enforcing the summons. United States v. Newman, supra, 441 F.2d at 169 (footnote omitted); United States v. Zack, 521 F.2d 1366, 1368 (9th Cir. 1975). See also United States v. LaSalle National Bank, 437 U.S. 298 (1978); United States v. Holmes, 614 F.2d 985, 988 (5th Cir. 1980); United States v. Moon, supra, 616 F.2d at 1046; United States v. Garden State National Bank, supra, 607 F.2d at 68; United States v. Moll, 602 F.2d 134, 138 (7th Cir. 1979). At that time the summoned party must assert any and all defenses he has to the summons. United States v. Newman, supra; United States v. McCarthy, 514 F.2d 368 (3d Cir. 1975). Although the case law envisions a summons enforcement proceeding to be of a summary nature, Donaldson v. United States, 400 U.S. 517, 529 (1971), this in no way diminishes the significance of the adversary hearing to which the taxpayer is entitled before enforcement is ordered. /10/United States v. Powell, supra, 379 U.S. at 58. At the hearing, the taxpayer may contest the summons on any appropriate ground. Reisman v. Caplin, supra, 375 U.S. at 449. The burden of challenging the summons, however, rests with the taxpayer, United States v. Powell, supra, who is afforded the right to a judicial determination of any challenges to the summons. Reisman v. Caplin, supra; United States v. Euge, 444 U.S. 707, 719 (1980). For example, if a summoned witness raises and proves the non-existence or his lack of control of the records, he has established an absolute defense. United States v. Bryan, 339 U.S. 323, 330-331 (1950); United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980). In the absence or failure of such proof, the entry of an order enforcing the summons becomes a final, appealable order, Reisman v. Caplin, supra, 375 U.S. at 449, that bars the taxpayer from relitigating whether he had possession and control of the summoned records when the enforcement order was entered. Maggio v. Zeitz, 333 U.S. 56, 75-76 (1948); United States v. Peter, 479 F.2d 147 (6th Cir. 1973); United States v. Secor, 476 F.2d 766 (2d Cir. 1973). This Court has recognized that by raising defenses on a timely basis a witness not only demonstrates a proper respect for the legal process, but also allows those defenses to be addressed at an appropriate time. United States v. Bryan, supra, 339 U.S. at 332-333; United States v. Fleischman, 339 U.S. 349, 352 (1950); cf. Fisher v. United States, 425 U.S. 391, 395 (1976). If a summoned party does not, however, raise the question of his ability to comply at the appropriate proceeding, the court is entitled to presume he can comply and the court's enforcement order conclusively establishes that the witness can produce the records. Maggio v. Zeitz, supra, 333 U.S. at 74. Respondent failed to raise any colorable defenses to enforcement of the summonses. /11/Nevertheless, the government established by an offer of proof that respondent was the president of both corporations whose records were summoned and, in that capacity, had conducted numerous transactions on behalf of the corporations. Respondent had an absolute right to contest those summonses at the enforcement proceeding. However, despite notice and a hearing he failed even to appear, thereby forgoing the opportunity to assert his constitutional rights or any factual defenses, such as an inability to comply. Reisman v. Caplin, supra; United States v. Euge, 444 U.S. 707, 719 (1980); United States v. Secor, supra. The orders issued by the district court following that hearing directed respondent to comply with the summonses by producing the documents set forth therein. These became final, appealable orders upon their entry. United States v. Asay, supra. Respondent, however, did not take an appeal from these orders, and therefore must be precluded by res judicata from later relitigating those issues determined by the district court's orders. The opinion of the court of appeals, however, gives no effect to the orders enforcing the summonses. It thus is in conflict with the decision of this Court in Maggio v. Zeitz, supra, /12/and with the decisions of the Second and Sixth Circuits in United States v. Secor, supra, and United States v. Peter, supra. The court of appeals determined that because respondent did not appear and "actually litigate" (Pet. App. 7a & n.6) any defenses at the enforcement stage, he was not foreclosed at the contempt hearing from raising defenses that were available to him at that earlier time. In so holding, the court concluded that the enforcement proceeding did not result in a finding that respondent had the ability to comply with the summonses at that time (id. at 6a-7a). This holding ignores the orders of the district court enforcing the summonses and the facts surrounding the entry of those orders. Although the orders did not explicitly state that respondent was able to comply, implicit in such enforcement orders is a determination that respondent did, in fact, have the records sought. See Clinkenbeard v. Central Southwest Oil Corp., 562 F.2d 649, 651 (5th Cir. 1976). Moreover, the district court's Findings of Fact and Conclusions of Law, entered after the contempt hearing, explicitly found that respondent had possession or control of the records at all relevant times (Pet. App. 17a). /13/Inasmuch as there had been a final adjudication rejecting any defenses to the summonses, respondent cannot in the later contempt proceeding turn back the clock and try anew the question whether the underlying enforcement order should have been entered. To permit such a collateral attack would "make a mockery of the well settled doctrine of res judicata." United States v. Secor, supra, 476 F.2d at 770. The situation here is no different from that addressed in this Court's opinion in Maggio v. Zeitz, supra, a civil contempt proceeding arising from a bankrupt's failure to comply with a turnover order (333 U.S. at 75-76, footnote omitted): We agree with the Court of Appeals that the turnover order may not be attacked in the contempt proceedings because it is res judicata on this issue of possession at the time as of which it speaks. But application of that rule in these civil contempt cases means only that the bankrupt, confronted by the order establishing prior possession, at a time when continuance thereof is the reasonable inference, is thereby confronted by a prima facie case which he can successfully meet only with a showing of present inability to comply. He cannot challenge the previous adjudication of possession, but that does not prevent him from establishing lack of present possession. Of course, if he offers no evidence as to his inability to comply with the turnover order, or stands mute, he does not meet the issue. Nor does he do so by evidence or by his own denials which the court finds incredible in context. B. The enforcement orders established the presumption that respondent continued to have possession or control of the records Once the government established its prima facie case for enforcement of the summonses, the court's enforcement order gave rise to the presumption that the documents existed and that respondent continued to have possession or control of those documents. While this presumption is rebuttable, it cannot be overcome unless and until respondent submits clear and convincing evidence that the records have been destroyed or that he no longer has possession or control of them. Maggio v. Zeitz, supra, 333 U.S. at 69-76; Oriel v. Russell, 278 U.S. 358, 366 (1929); NLRB v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973); Lopiparo v. United States, 216 F.2d 87, 91 (8th Cir. 1954), cert. denied, 348 U.S. 916 (1955); Sigety v. Abrams, 632 F.2d 969, 974-975 (2d Cir. 1980). In this case, respondent offered no evidence whatever at the contempt hearing. Under the governing decisional law he therefore failed to rebut the presumption. Hence, the contempt hearing ended just as it began -- with the government entitled to rely on the presumption (buttressed by its proof at the enforcement hearing) that the documents existed and that respondent had them in his possession or control. Because the court of appeals ignored this presumption, it misunderstood the nature of the evidence required at the contempt hearing. In the absence of any defense by respondent, the government was not required to adduce additional evidence to prove either that respondent possessed the documents at the time of the enforcement hearing or that respondent continued to be in possession. After all, the government cannot and should not be required to devine all unasserted defenses and respond to each of them. Yet, that is the inevitable result of the opinion below. C. An alleged contemnor has the burden of establishing by clear and convincing evidence his inability to comply with a court order Order the district court issued the order to show cause, the burden was placed on respondent to show why he should not be held in contempt (McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Fleischman, 339 U.S. 349 (1950); Morrison v. California, 291 U.S. 82, 88-89 (1934); NLRB v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973)). In these circumstances, if an alleged contemnor does not rebut the prima facie showing of non-compliance, the evidence supporting the order to show cause establishes the contempt. If the respondent rebuts the showing, the moving party must then proceed and prove its case by clear and convincing evidence. United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976); United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980). Prior to the decision of the court of appeals in this case, no court had held that the petitioner in a contempt proceeding must establish the respondent's ability to comply. See, e.g., United States v. Fleischman, supra, 339 U.S. at 362-363; NLRB v. Trans Ocean Export Packing, Inc., supra, 473 F.2d at 616. Rather, the burden was properly placed on the respondent to show categorically and in detail why he was unable to do so. Ibid.; United States v. Hankins, 565 F.2d 1344 (5th Cir.), opinion clarified and rehearing denied, 581 F.2d 431 (5th Cir. 1978), cert. denied, 440 U.S. 909 (1979); United States v. Hansen Niederhauser Co., 522 F.2d 1037, 1040 (10th Cir. 1975). This burden is especially appropriate where, as here, the purported reasons for not fully complying with the court's orders are solely within the knowledge of the alleged contemnor. In United States v. Fleischman, this Court discussed the burden of proof in contempt proceedings in language that is applicable here /14/(339 U.S. at 362-363): In this situation, manifestly, the prosecution is under a serious practical handicap if it must prove the negative proposition -- that respondent did not or had no good reason for failing to try to comply with the subpoena insofar as she was able. The possibilities of time and circumstances are of such wide range as to defy inclusive rebuttal. On the other hand, the burden of the affirmative was not an oppressive one for respondent to undertake; the relevant facts are peculiarly within her knowledge. She was called upon merely to introduce evidence as to what steps she took after receiving the subpoena, or, if she took no action, any evidence tending to excuse her omission. Respondent does not lose the presumption of innocence that surrounds the defendant in a criminal prosecution. That presumption continues to operate until overcome by proof of guilt beyond a reasonable doubt and is not to be confused with burden of proof, which is a rule affecting merely the time and manner of proof. The findings of fact of the district court established the existence of the books and records of the corporations and respondent's possession or control, or both, of those books and records (Pet. App. 17a). The presumption that the records are still in existence and that respondent continues to control and possess those records (see pages 22-23, supra) governs unless and until respondent meets his burden of conclusively demonstrating that the records have been destroyed or that he no longer has possession and control of them. Maggio v. Zeitz, supra, 333 U.S. at 69-76; Oriel v. Russell, 278 U.S. 358, 366 (1929); NLRB v. Trans Ocean Export Packing, Inc., supra, 473 F.2d at 616. Although the court of appeals recognized that the burden of proof ordinarily shifts only after the respondent has made this showing, it held that respondent's submission of a written statement, coupled with a Fifth Amendment claim, satisfied his burden. By thus converting the assertion of the Fifth Amendment privilege from a shield to a sword helping to satisfy the claimant's own burden, the court created an unjustified exception to the established rule regarding the burden of proof in contempt cases. In nullifying respondent's burden, the court of appeals incorrectly placed on the government the burden of making an affirmative showing at the contempt hearing that respondent had possession or control of the corporate records -- a defense respondent had never presented to the court prior to the adjudication of contempt. /15/This imposes an obligation on the government that is in conflict with the standard set forth in United States v. Fleischman, supra, a case in which this Court recognized that the government would be saddled with a serious practical handicap if it must prove a negative, i.e., that respondent had no good reason for failing to comply. 339 U.S. at 362-363. D. The exception to the established rules regarding the burden of proof and the competency of evidence carved out by the court of appeals is contrary to the decisions of this Court The court of appeals perceived a conflict between respondent's assertion of the Fifth Amendment privilege and his burden of proving an inability to comply. In fact, there is no inevitable tension between the privilege and the burden. A witness who seeks to meet his burden of proving an inability to comply may do so in one of two ways: by presenting the testimony of others or by testifying himself. In this case, respondent chose not to use third party evidence. /16/Had he done so, respondent's Fifth Amendment rights would not have been implicated. Only because respondent opted to rely on his own statement did the self-incrimination issue arise. There was no coercion from the government or the court; /17/it was respondent's voluntary act of submitting his written declaration that manufactured this issue. Once respondent submitted his statement and asserted the privilege as a bar to cross-examination, the decisive question was whether the court was required to accept and credit the proffered excuse for non-compliance, thereby imposing on the government the burden of proving respondent's ability to comply. We submit the court of appeals erred in elevating the uncross-examined statement to the status of admissible evidence and further erred in ruling that respondent's manipulation of the judicial process could shift the burden of proof onto the government. Under the decision below, witnesses who duplicate respondent's tactics will be rewarded for their gamesmanship. A witness who forthrightly presents a defense, unencumbered by assertions of privilege and based on evidence the court in its discretion chooses not to believe, may be held in contempt. Yet, witnesses such as respondent who offer no evidence, and who affirmatively thwart the government's efforts to obtain evidence from third parties or through cross-examination, are immunized from the consequences of their behavior. 1. In the context of a summons enforcement proceeding, a motion to quash a grand jury subpoena, a motion to compel civil discovery, or a proceeding to direct a bankrupt to turn over records to the trustee, the obligation rests with the respondent in each case to provide some defense or excuse, if he is to avoid entry of a production order. In each of these situations, the mere assertion of the privilege neither relieves the respondent of his burden of proving a defense nor does it require the trial judge to accept the bald assertion of an excuse if respondent refuses, for whatever reason, to establish his defense with admissible evidence. The interest protected by the privilege has never been held to be absolute or of such magnitude that all inquiry of those claiming its protections may be foreclosed merely by its assertion. It is well established, even with respect to testimony, that the person claiming the privilege has some burden of presenting a sufficent factual basis so that the trier of fact can determine from "the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 4860487 (1951). If the claim is made in response to questions seemingly innocuous on their face, the claimant must go further and provide evidence that there exists substantial danger of incrimination from the information sought from him. Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478 (1972); Haner v. United States, 440 U.S. 1308, 1309-1310 (1979) (Rehnquist, Circuit Justice). Although providing the facts necessary to establish the danger of incrimination may involve some risk that the claimant will be forced to disclose portions of the very information he seeks to protect, he nevertheless is forced to decide how much information to disclose, and to elect between disclosure and the risk that his claim will be rejected. 2. The construction of the privilege adopted by the court of appeals here, as well as by three other courts of appeals in similar fact situations, relieves the respondent of all risk and all obligations. See United States v. Meeks, 642 F.2d 733 (5th Cir. 1981), petition for cert. pending, No. 81-1063 (filed Dec. 7, 1981); United States v. O'Henry's Film Works, Inc., 598 F.2d 313 (2d Cir. 1979); Traub v. United States, 232 F.2d 43 (D.C. Cir. 1955). By permitting the assertion of the privilege to prohibit all inquiry, these courts have held that a sworn denial of possession followed by a claim of privilege "must be accepted as establishing compliance with the subpoena." Traub v. United States, supra, 232 F.2d at 47; United States v. Meeks, supra, 642 F.2d at 734-735; United States v. O'Henry's Film Works, Inc., supra, 598 F.2d at 318. The authority generally cited in support of that result is this Court's decision in Curcio v. United States, 354 U.S. 118 (1957). Far from mandating that result, however, the rationale of Curcio is to the contrary. In Curcio this Court held that the custodian of union records could not be compelled to give testimony regarding the location, custody or control of the union records he had been subpoenaed to produce. Curcio had been served with two subpoenas -- one requiring production of records and the other requiring his testimony. He refused to honor the subpoena duces tecum, and no attempt was made to compel him to do so. At his appearance in response to the subpoena ad testificandum he was asked a series of questions designed to ascertain the whereabouts and control of the records. Curcio refused to answer those questions on the ground that to do so would incriminate him. He was convinced of criminal contempt for his refusal. 354 U.S. at 120-121. This Court held that, even though Curcio's personal privilege did not permit him to refuse to produce the union records he held in a representative capacity, Curcio could not be compelled to give incriminating oral testimony (id. at 122, 128). In reaching this conclusion, the Court clearly distinguished the refusal to give testimony from the refusal to produce records. Thus, the Court observed that Curcio "might have been proceeded against for his failure to produce the records demanded by the subpoena duces tecum" (id. at 127 n.7), and that "(t)here is a great difference between" contempts for failure to produce records and for refusing to testify (id. at 127-128). That difference was again apparent in McPhaul v. United States, 364 U.S. 372 (1960), in which this Court sustained a criminal contempt conviction for willful failure to comply with a subpoena issued by the House of Representatives. McPhaul had refused to produce subpoenaed records or to answer any questions concerning those records before a Subcommittee of the House. At his criminal contempt trial, McPhaul sought, for the first time, to interject the issue of his ability to comply with the subpoena. This Court held that since McPhaul had not raised the question before the House Subcommittee he bore the burden of proof on that issue at the trial. McPhaul's argument that he could not have raised his inability to comply before the Subcommittee because to do so would have resulted in a waiver of his privilege against self-incrimination was rejected as having "no merit" (364 U.S. at 380). Together, Curcio and McPhaul require that an individual who seeks to excuse a failure to comply with a properly issued subpoena to produce records must establish his defense. The mere fact that he may incriminate himself if he chooses to prove his defense by his own testimony does not permit a witness to avoid the burden of proving his defense by some means. Moreover, neither Curcio nor McPhaul held that a person who has failed to produce records in response to a subpoena may defend against the subpoena, or against contempt for failing to comply, by asserting that an excuse exists, but that his privilege permits him to refuse to establish its particulars. Thus, the privilege permits the witness to refuse to "utter * * * a single self-(in)criminating word" (Wilson v. United States, 221 U.S. 361, 385 (1911)) in explanation of his failure to produce subpoenaed records. By his silence, however, the individual who has failed to produce records runs the risk that contempt sanctions may be imposed for his default of the subpoena's command. Curcio v. United States, supra, 354 U.S. at 127-128 nn. 6 & 7. Similarly, the individual who seeks to justify his failure to produce documents will not be immunized by the privilege for his noncompliance. This principle has long been recognized by decisions rejecting the notion that the privilege protects the custodian of records from contempt for failure to comply with a subpoena, or permits him to avoid sanctions if he fails to provide a full justification for his default. Sigety v. Abrams, supra, 632 F.2d at 974-975; United States v. Hankins, supra, 565 F.2d at 1351-1352; Presser v. United States, 284 F.2d 233 (D.C. Cir. 1960), cert. denied, 365 U.S. 816 (1961); United States v. Johnson, 247 F.2d 5 (2d Cir.), cert. denied, 355 U.S. 867 (1957); Lopiparo v. United States, supra, 216 F.2d at 92. 3. The decision below and that of the Second Circuit in United States v. O'Henry's Film Works, Inc., supra, misapplied these principles. Although O'Henry's arose in the context of a witness's duty to testify about unproduced documents, both decisions effectively permit a corporate officer subpoenaed to produce nonprivileged corporate records to excuse his failure to comply merely by stating that he is unable to do so and that further disclosures would incriminate him. The issue presented in O'Henry's was whether a sworn denial of possession constituted a waiver of the corporate officer's privilege with respect to the location and custody of subpoenaed corporate records. The court held that the corporate officer's duty to produce nonprivileged corporate records was accompanied by a duty to deny possession, since such testimony was "auxiliary to his nonproduction" of those records. That testimony, the court reasoned (598 F.2d at 318), had been compelled from the respondent over his claim of privilege and thus did not constitute a waiver of his privilege. The court of appeals here (Pet. App. 10a) cited O'Henry's, but went a step further. It held that an assertion of nonpossession, together with a claim of privilege, precluded any further questioning and that respondent had thereby satisfied his burden of proving an inability to comply. These conclusions cannot be reconciled with this Court's governing decisions. First, the holding of O'Henry's that the respondent can be compelled to give "testimony auxiliary to nonproduction" is based on an incorrect interpretation of McPhaul and Curcio. In Curcio v. United States, supra, 354 U.S. at 123-127, this Court flatly rejected the argument that testimony regarding nonprivileged records is not protected by the Self-Incrimination Clause and held "the Fifth Amendment suggests no such exception" to the prohibition against compelling any incriminating testimony. Id. at 123. Moreover, although the Second Circuit also relied on McPhaul, /18/that case simply cannot be construed to impose on the custodian of unprivileged records the duty to give sworn testimony regarding his ability to produce them. See Fisher v. United States, supra, 425 U.S. at 408-414. Second, there is no justification for the court of appeals' holding that the privilege against self-incrimination required the lower court to accept respondent's self-serving denial as sufficient to satisfy his burden. While the privilege protects the custodian of corporate records from being compelled to give oral testimony that might incriminate him, /19/Curcio v. United States, supra, it does not relieve him of the burden of establishing his defense. Thus, the interests served by the privilege are not implicated when a witness who seeks to provide an excuse to a subpoena duces tecum is called upon to prove, like any other litigant, the facts necessary to establish his assertions. As several courts of appeals have correctly held, one who seeks to avoid the command to produce records must prove the validity of his excuse, and if he chooses to satisfy his burden by his own testimony, he must waive his privilege to permit full development of the facts. United States v. Hankins, supra, 565 F.2d at 1351, 581 F.2d at 437; Presser v. United States, supra, 284 F.2d at 235; United States v. Johnson, supra, 247 F.2d at 8; Lopiparo v. United States, supra, 216 F.2d at 92. /20/ 4. The court of appeals erroneously viewed this case as one requiring respondent to choose between contempt for failing to produce and waiver of the privilege by explaining his nonproduction. Even if that situation were present, it would provide no justification for the court's holding. To be sure, a party in that situation would have a difficult choice to make but his decision would not be nearly as perilous as that of a defendant in a criminal case who must determine whether to testify and risk incriminating himself or to remain silent and risk conviction because the trier of fact has not heard his version of the case. In McGautha v. California, 402 U.S. 183, 213 (1971) (citation omitted), this Court recognized that: The criminal process, like the rest of the legal system, is replete with situations requiring "the making of difficult judgments" as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved. * * * /21/ Requiring that election here does no violence to the policies behind the privilege against self-incrimination. E. A blanket denial of one's ability to produce documents should not be accepted as competent evidence without the opportunity for cross-examination The court of appeals held that respondent's written declaration that the documents were not in his possession or control was competent evidence to meet his burden of establishing his inability to comply, and that his Fifth Amendment claim could excuse any further questioning. If this holding is allowed to stand, it would enable an individual, whether in the context of a summons enforcement proceeding or a grand jury investigation, merely to make a blanket denial of his ability to comply with a court order and then withdraw from the fire of cross-examination before the reliability of his testimony has been tested. This is contrary to established principles. /22/See Brown v. United States, 356 U.S. 148, 155 (1958). Accordingly, in United States v. Hankins, supra, the Fifth Circuit held that if no opportunity for cross-examination were afforded, a statement by the contemnor that he could not comply with a summons was not credible evidence. There, as here, the summoned party did not assert lack of possession or the nonexistence of records as a defense in the summons enforcement proceeding. The assertion that the records could not be produced was raised only when Hankins was called upon to show cause why he should not be held in contempt for refusing to comply with an order enforcing a summons. He then offered to testify but only under the condition that he not be cross-examined. The district court rejected this proposal and found him in comtempt. The Fifth Circuit affirmed, holding that Hankins had not met his burden of showing that he did not possess the summoned documents, and that the Fifth Amendment did not excuse him from the possibility of having to testify in order to meet his burden of proof. Under the decision below, by contrast, the district court was required to accept respondent's declaration of nonpossession as wholly truthful. In no other situation, however, is the trier of fact compelled to give substantive weight to a naked, self-serving denial. To the contrary, ex parte declarations and affidavits are generally not accepted as credible evidence. Walker v. Johnson, 312 U.S. 275, 281 (1941); Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir. 1978); Presser v. United States, supra, 284 F.2d at 235. Our adversary system of justice permits courts to reject self-serving declarations unless the credibility of the statements can be tested by cross-examination. And nothing in the privilege itself or in the decisions of this Court suggests that the Fifth Amendment requires a different rule. F. If respondent's written declaration is admissible evidence, it should constitute a waiver of the Fifth Amendment privilege. The court of appeals overlooked the fact that respondent was not forced to submit a written statement in order to meet his burden. To the contrary, he could have attempted to meet his burden through evidence from other sources (see pages 26-27, supra). Indeed, the manner in which he could have met his burden, what evidence to produce, and the means by which it was elicited, were within his control limited only by the Federal Rules of Evidence and Federal Rules of Civil Procedure. /23/ He chose, however, to submit nothing more than his own statement. In that situation, the government's right to cross-examine him as to the contents of that statement is not precluded by the Fifth Amendment. United States v. Hankins, supra. Indeed, if the role were otherwise, "by a selective reliance upon the Fifth Amendment * * * the * * * (witness) would be able to present a distorted factual picture by bringing (out) * * * only those facts favorable to (him) * * * ." United States v. Weber, 437 F.2d 327, 334-335 (3d Cir. 1970), cert. denied, 402 U.S. 932 (1971); see also Johnson v. United States, 318 U.S. 189, 196 (1943); Rogers v. United States, 340 U.S. 367, 371, 373 (1951). This Court has repeatedly held that an individual who voluntarily testifies cannot thereafter claim the Fifth Amendment privilege to avoid cross-examination on matters that reasonably relate to the subject matter of his direct examination. McGautha v. California, supra, 402 U.S. at 215; Brown v. United States, supra; Rogers v. United States, 340 U.S. 367, 373 (1951); Fitzpatrick v. United States, 178 U.S. 304, 314-316 (1900); Brown v. Walker, 161 U.S. 591, 597-598 (1896). The rationale supporting this principle relates to the very nature of our adversary system of justice, which requires full disclosure of all the facts within the framework of the rules of evidence. United States v. Nixon, 418 U.S. 683, 709 (1974). A witness's voluntary offer of testimony upon any fact operates as a waiver of the Fifth Amendment privilege as to matters reasonably related to the subject matter of the direct examination. McGautha v. California, supra, 402 U.S. at 215; Brown v. United States, supra, 356 U.S. at 154-156; Johnson v. United States, 318 U.S. 189, 195 (1943); United States v. Beechum, 582 F.2d 898, 907-910 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979); United States v. Hearst, 563 F.2d 1331, 1340 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978). Thus, "(t)he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope of limits of the privilege against self-incrimination." Brown v. United States, supra, 356 U.S. at 156 (footnote omitted). The potential for distortion of facts through selective invocation of the Fifth Amendment was well illustrated by Judge Learned Hand in United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942), cert. dismissed, 319 U.S. 41 (1943): It must be conceded that the privilege is to suppress the truth, but that does not mean that it is a privilege to garble it; although its exercise deprives the parties of evidence, it should not furnish one side with what may be false evidence and deprive the other of any means of detecting the imposition. The time for a witness to protect himself is when the decision is first presented to him; he needs nothing more; and anything more puts a mischievous instrument at his disposal. * * * In allowing respondent to submit the declaration and deprive the government of its right to cross-examination, the court of appeals misapplied the doctrine of waiver and permitted only a partial, incomplete search for the truth. Its holding is contrary to basic evidentiary principles, set forth by this Court in Brown v. United States, supra, 356 U.S. at 155-156: (W)hen a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only his choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell. * * * Thus, the court of appeals erred in concluding that respondent had not waived the privilege. It should have allowed the government to subject his testimony to "the acid test of adverse cross-examination," United States v. Beechum, supra, 582 F.2d at 907; see, e.g, United States v. Hearst, supra. Otherwise, no testimonial significance should have been accorded to respondent's uncross-examined written statement. In sum, the decision below erroneously allows respondent to have it both ways: his uncross-examined statement, coupled with his assertion of the privilege against self-incrimination, has been held to satisfy his burden of proof and to block further inquiry by the government. In effect, respondent has been allowed to stymie the government's investigation with impunity despite his failure to meet the burden imposed upon him by decisions of this Court. Since respondent failed to prove a defense or to purge himself of contempt, the court of appeals erred in reversing the district court's judgment. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General Glenn L. Archer, Jr. Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JERROLD J. GANZFRIED Assistant to the Solicitor General CHARLES E. BROOKHART JO-ANN HORN WILLIAM A. WHITLEDGE Attorneys JULY 1982 /1/ Subsequent to the filing of our petition for a writ of certiorari, respondent was indicted for willfully failing to file income tax returns for the years 1975 through 1977, in violation of 26 U.S.C. 7203 (United States v. Rylander, CV. No. 5-82-50 (E.D. Cal. Mar. 3, 1982)). That indictment has no bearing on this case since the information respondent was summoned to produce is still necessary to determine his correct tax liabilities for those and other years. Department of Justice records indicate that the Service's recommendation for criminal prosecution was not made until May 22, 1981, long after the issuance of the summonses in this case. /2/ Respondent did not appeal from the order enforcing the summonses (Pet. App. 18a). /3/ The record reflects that at least six attempts were made by the marshal's office to serve respondent personally. Therefore, the court provided for constructive service and copies of the order to show cause were mailed to respondent's address (Tr. 19-20). /4/ Respondent was not represented by counsel at the hearing. He had twice previously dismissed appointed counsel, had refused to retain private counsel, and had clearly stated that he wished to proceed without counsel (Pet. App. 3a n.2). His participation in the hearing consisted largely of repeated demands that the district judge recuse himself and denials of the court's jurisdiction (see, e.g., Tr. 54, 58-59, 104, 140, 266; see also Pet. App. 14a). /5/ Respondent was also found to be in criminal contempt for failing to produce documents pursuant to the order of the district court enforcing the summonses and for failing to appear at a March 24, 1980, show cause hearing. An appeal of the criminal contempt conviction is pending before the Ninth Circuit (Nos. 80-1813, 80-1702 and 80-1703). That case was argued on June 9, 1981. /6/ This appointment of counsel was made at the suggestion of the court. Although respondent had twice previously dismissed appointed counsel, he indicated at that time that he would accept the services of counsel (Pet. App. 21a-22a; Tr. 264, 273, 284-285; see note 4, supra). /7/ The court denied the government's motion to strike respondent's affidavit (Tr. 323), but later decided it would take the motion under submission (Tr. 324; Pet. App. 22a). It never specifically ruled on the motion thereafter. /8/ The court had earlier indicated that respondent did not insulate himself from cross-examination merely by filing an affidavit. It determined that if he so chose, he could rely on the affidavit, dispense with direct examination and then submit to cross-examination by the government (Tr. 281). However, the court observed that the government had proven that the documents should exist and likely did exist and that the most logical place for them was with respondent (Tr. 353-354). /9/ A corporate officer has a duty to produce corporate records and can assert no personal Fifth Amendment privilege to defeat production. E.g., Wilson v. United States, 221 U.S. 361 (1911); United States v. White, 322 U.S. 694 (1944); Bellis v. United States, 417 U.S. 85 (1974). /10/ When a summons is challenged, it must be scrutinized by the court to determine whether it was issued for a proper purpose, and was not meant "to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation." United States v. Powell, supra, 379 U.S. at 58. /11/ Respondent's letter to the court (J.A. 20-25) refers only to the specious contention that he was not president of the corporations whose records were sought. /12/ Maggio v. Zeitz, supra, 333 U.S. at 69: It would be a disservice to the law if we were to depart from the long-standing rule 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. The procedure to enforce a court's order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience. /13/ Contrary to the court of appeals' suggestion, the government does not argue that respondent is precluded from raising a present inability to comply with the summonses at the contempt proceeding. Rather, our contention is simply that the district court found that at the time of the enforcement hearing, respondent did, in fact, have the ability to comply. This finding created a presumption that respondent continued to possess the records. Hence, respondent had the burden of establishing at the contempt proceeding that he was currently unable to comply. See Maggio v. Zeitz, supra, 333 U.S. at 74-76; cf. Restatement of the Law of Judgments Section 68 comment q, at 312-313 (1942); see also pages 23-26, infra. /14/ Fleischman involved a criminal contempt of Congress. However, the respondent's burden of proving inability to comply should be no lower in a civil contempt case. /15/ The court reached this conclusion despite the fact that respondent made no effort to present this defense to the district court until after he was adjudicated in contempt. The district court had clearly indicated that the contempt hearing had concluded and that any submission by respondent was on the question of purging the previously found contempt (J.A. 66-67). This was understood by respondent, who labeled his written statement an "Oath of Purgation of Contempt" (J.A. 91-92). Thus, whatever the significance of the written declaration in the purge hearing, the fact remains that respondent offered no defense or evidence at the contempt hearing (see Pet. App. 18a). For these reasons, the court of appeals' decision is erroneous even under the incorrect standard it applied. However, because the court decided the case as if respondent had made some showing at the contempt hearing, we will address the remaining issues in accordance with this factually inaccurate premise. /16/ In fact, respondent went further and blocked the government's efforts to obtain such evidence. Thus, there is no basis for the court of appeals' rejection (as "merely speculative") of the government's observation that third party evidence was available to respondent (Pet. App. 9a). /17/ The government has at no time contended that respondent must meet his burden by testifying. He was not, after all, held in contempt for refusing to testify, but rather for failing to produce records in compliance with the enforcement order. Accordingly, he was presented with a three-fold choice: to produce the documents, to adduce evidence of his inability to comply, or to be incarcerated for contempt. The manner in which he elected to proceed was his to choose. /18/ Specifically, the Second Circuit noted (598 F.2d at 318) the following language in McPhaul (364 U.S. at 380): "Similarly, there is no merit in petitioner's argument that he could not have advised the Subcommittee that he was unable to produce the records without thereby inviting other questions respecting the records and thus risking waiver of his privilege against self-incrimination. See Curcio v. United States, 354 U.S. 118." This statement in McPhaul must be understood in its context. McPhaul argued that his refusal to produce the subpoenaed records could not be held to be criminally "willful" since he was privileged from answering questions with respect to his possession and control of the records, and thus the burden of providing an excuse for his default could not be placed on him. This Court rejected that contention. It concluded first that the argument had "no merit" and, then, in the next sentence (364 U.S. at 380) that McPhaul was not, by virtue of his privilege, excused "from asserting inability to produce the records (before the Subcommittee) if, at a later contempt trial for failure to produce the records, he expects to put the Government to proof on that matter." /19/ Far from being the product of compulsion, the declaration filed by the respondent came as a total surprise to the government and the court (J.A. 59-60). It was submitted in order to avoid the consequences that would flow from silence. And such testimony -- given to obtain a benefit or to avoid a detriment -- is neither involuntary as a matter of law nor "ipso facto 'compelled' within the meaning of the Self-Incrimination Clause." McGauttha v. California, 402 U.S. 183, 212 (1971); Simmons v. United States, 390 U.S. 377, 393-394 (1968). /20/ In Traub v. United States, supra, 232 F.2d at 48, the court declined to follow Lopiparo, but it is unclear whether that declination related only to the contempt for Traub's refusal to testify or also extended to the holding that he could not be required to produce records if he testified he did not possess those records and claimed the privilege thereafter. In O'Henry's the Second Circuit did not cite its own prior opinion in Johnson. The court purportedly distinguished Presser on the ground that Presser involved personal records while O'Henry's involved corporate records. We fail to see any rationale for that distinction. In either case, if the witness is unable to produce the demanded records, he must establish his inability to produce in order to avoid a court order directing compliance or a finding of contempt for his default. /21/ In McGautha, this Court, although questioning the validity of the earlier decision in Simmons v. United States, supra, indicated that Simmons was the only case in which the Court had held that an individual could be relieved of his choice between two constitutional claims (i.e., determining whether to waive the privilege against self-incrimination under the Fifth Amendment in order to testify in support of a motion to suppress based on the Fourth Amendment). Hence, of course, the witness is not forced to choose between two constitutional rights; there is no constititutional right to be free of the compulsion of a subpoena to produce records. /22/ The testimony of one who refuses to be cross-examined is subject to being stricken. Brown v. United States, supra, 356 U.S. at 156 n.5; Klein v. Harris, 667 F.2d 274, 289 (2d Cir. 1981). Since respondent presented nothing beyond his uncross-examined declaration, he failed to show cause why he should not be held in contempt. Thus, the respondent was left with only his own denials, which the court found incredible in context. Maggio v. Zeitz, supra, 333 U.S. at 76; United States v. Hankins, supra. In accepting that declaration as evidence, the court of appeals has removed from the trier of fact the discretion to disbelieve a witness or party who appears before it. /23/ Respondent made every effort to stymie the production of other available evidence in this case. He did not appear and raise any substantive challenge to the summons should not be enforced, and he affirmatively blocked the vice-president of AIM and his own son from producing whatever corporate records they might have had (J.A. 84, 89). His conduct at every stage of these proceedings demonstrated an utter disregard for the summonses and the court's process by which enforcement was sought. This is not a case where respondent has sought to litigate the government's right to examine corporate records; this is a case where respondent has sought to escape the "minimal duties" of one subpoenaed by lawful authority by leading that authority on "a game of hare and hounds." United States v. Bryan, supra, 339 U.S. at 331.