* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED August 18, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 06-50103 (Sum mary Calendar)

UNITED STATES OF AMERICA, Pl aint iff- Appellee,
versus NORMAN REDHEAD, Defendant-Appellant.
Appeal from the United States District Court fo r the Western District of Texas, San Antonio Division

(5:05-CV-854)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Norman Redhead (“Redhead”) appeals from the district court’s grant of a peti tion to enforce
an IRS summo ns. The court overruled Redhead’s motion to quash based on an objection invoking his Fift h Amendment priv ilege. We conclude that the IRS has met all required elements for-2-

enforcement of th e summons, and that Redhead has failed to show that his production of the
summo ned documents amounts to self-incrimination, therefore, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY The issue before this court concerns the Unit ed States’ peti tion to enforce an IRS summo ns against Norman Redhead. The United States filed the underlying petition to enforce an IRS summons against Redhead, pursuant to 26 U.S.C. § 7602 on Septem ber 8, 2005. Redhead admitted that he has not paid taxes from 1995-2004. As a result, pursuant to 26 U.S.C. § 6020(b), the IRS prepared substitutes fo r Redhead’s tax returns fo r years 1995-1998. The IRS i s now attem pting to make a determ inat io n of Redhea d’s abilit y t o pay his o utstanding tax liability. In the summons, the IRS seeks to determ

ine whether Redhead holds any assets from which it can collect an outstanding tax liabilit y. The summons required Redhead to appear and give testimony relating to his tax liability or th e collection of his taxes from 1995-1998 and to produce and present it ems th at tend to show assets and liabilit ies–bank statem ents, checkbooks, cancelled checks, savings account passbooks, stocks, bonds, deeds, real property contracts, mo tor vehicle registration, life insurance pol icies, etc. Redhead did appear before th e IRS of ficer; however, he failed to bring the summo ned docum entation. Aft er th e Unit ed States filed it s peti tion, pursuant to an order from the Western District of Texas, Redhead
was again required to appear before the IRS and provide testimony. But again, Redhead appeared wit hout the summoned documents. On October 13, 2005, Redhead res ponded to the petition by filing a mo tion to quash, assert ing his Fourth and Fifth Amendment privileges. In support of one of the attachments to Redhead’s mo tion to quash, i s a letter dated July 6, 2005, where he challenges the authority of the
revenue of

ficer to seek information from him. In this particular letter, he acknowledges that he has-3-

not f iled inco me tax returns fo r 1995-2004. On October 27, 2005, the district court held a hearing
on th e mo tion to quas h and Redhead again asserted his Fourth and Fifth Amendment rights. The district cour t then ordered Redhead to submit the summoned documents to a United States Magistrate Judge for an in camera review. T he district court adopted the m agistrate judge’s report and recommendation and denied Redhead’s motion to quash. It f ound that the Fifth Amendment privilege against self-incrimination does not protect or prevent di sclosure of documents submitted pursuant to a United States’
summo ns. Redhead did not attempt to further substantiate his Fourth Amendment objection. STANDARD OF REVIEW Whether enf

orcem ent of the summons would violate the United States Constitutional Amendment V privilege against self-incriminat io n is a mixed question of law and fact. U nited States
v. Medlin , 986 F.2d 463, 466 (11th Cir. 1993). We review the district court’s factual findings for clear error and we review th e application of law to th ose facts de novo. Payne v. United States , 289 F.3d 377, 381 (5th Cir. 2002). DISCUSSION Fifth Amendment Objection We fir st turn to th e applicabilit y of a person’s Fift h Amendment privilege against selfincriminat io n; fo r this, a court must engage in a two pronged analysis. First, we must determine whether the summoned information is incriminat ing in nature, eit her on its face or in the context of th e circumstances th at th e info rmation is requested. H offman v. United States , 341 U.S. 479, 486-87 (1951). Second, if the information is found to be incriminating, then the court must then determine1 Because the first prong of the inquiry into self incrimination was not satisfied and this

protection requires satisfaction of two conjunctive prongs, Redhead has failed to assert his Fifth Amendment protection. -4- whether th e proponent’s asserted apprehension of criminal prosecution is reasonable under the circumstances. Steinbrecher v. C.I.R. , 712 F.2d 195, 198 (5th Cir. 1983). As to th e fir st prong of th e analysis, the magistrate judge determ ined af ter the i n camera review, and th e district court agreed, th at the docum ents pertaining to Redhead’s current assets are not incriminat ing in nature. Redhead has not presented any evidence to show that the district court’s determ inat io n was inco rrect. Redhead, is neither clear nor specific in his explanation of why the requested docum

ents are incriminat ing. Redhead never pointed the court to any particularized reason th at th e requested docum

entation would be self-incriminat ing; he only makes generalized com ment s about things he hears about and sees on tele visio n. The proponent must establish more than speculative or generalized allegations of the potenti al fo r self-incriminat io n. United States v. Sharp, 920 F.2d 1167, 1170 (4th Cir. 1990). The docum

ents requested by th e IRS pertain only to Redhead’s asset holdings, and thus, are not inherently incriminat ing in nature. The documents are also not incriminating based on the context in which th ey are sought. The United States brought this action in order to obtain information about Redhead’s asset holdings, not to establish his tax liabilit y. Redhead has failed to submit any other contextual proof th at th e docum ents are incriminat ing in nature, and thus, he has failed to sati sfy the fir st prong of the court’s analysis of the scope of his Fifth Amendment protection. The second prong of the analysis pertains to whether there is a reasonable apprehension of criminal prosecution. There is no need for the court to make this inquiry at this time. 1 Petition to enforce IRS summons-5-

The court now turns to th e peti tion to enforce the summo ns. The IRS is authorized to issue
summo nses to determ

ine th e liabilit y of any person fo r any int ernal revenue tax, amo ng other purposes. 26 U.S.C. § 7602. A district court may compel compliance with an IRS summons. Id
. § 7402(a) & (b). In order to obtain enforcement of an administrative summons, the IRS must sati sfy th e Powell test. U

nited States v. Powell , 379 U.S. 48, 57-58 (1964); United States v. Huckaby , 776 F.2d 564, 567 (5th Cir. 1985). P owell requires fo ur conjunctive elements: (1) the summo ns be issued fo r a legit imat e purpose; (2) th e info rmation sought be relevant to th at purpose; (3) the info rmation not be already possessed; and (4) th at the administ rative code be followed. Powell , 379 U.S. at 58. In this case all four prongs of Powell are sati sfied. Redhead’s ability to pay his outstanding tax liabilit y is a legit imat e subject fo r th e IRS to inquire about. The IRS summons attempts to gather info rmation about his abilit y t o pay his t ax liabilit y. The IRS does not currently possess the info rmation necessary to determ ine his abilit y to pay . The IRS has fo llo wed the proper procedure required under th e Internal Revenue Code fo r the issuance of a summo ns. The government has th erefore met all of the Powell factors. Aft er all elements of th e Powell test have been sati sfied, the burden shift s to the party resisting th e summo ns to show eit her th at th e Powell test has not been met , th at the summo ns has been issued fo r an improper purpose, or any oth er appropri ate ground under which the summons should not be enforced. Powell , 379 U.S. at 58; Huckaby , 776 F.2d at 567. Redhead cites his Fifth Amendment privilege against self-incriminat io n as the ground fo r non-enforcement. We have already decided that Redhead has failed to substantiate his claim of self-incrimination. Aft er conducting a review of the record and the applicable law, we conclude that the Redhead’s objections are unsubstantiated.-6- CONCLUSION For th e fo regoing reasons we affirm the district court’s grant of the peti tion to enforce the IRS summons. AFFIRMED.