1 United States Court of Appeals,

Fifth Circuit.

No. 93-1890.

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Empire

Savings and Loan Association, Plaintiff-Appellee,

v.

Nora P. LeGRAND, et al., Defendants,

Andrew M. Roughton, Defendant-Appellant.

Jan. 26, 1995.

Appeal from United States District Court for the Northern District

of Texas.

Before GARWOOD, JOLLY and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This case involves an appeal from an order of contempt

resulting from Andrew Roughton's failure to comply with a

postjudgment discove r y order compelling the production of his

federal income tax returns. We affirm the civil portion of the

contempt order and vacate the criminal portion of the order.

Background

On July 18, 19 91, the Federal Deposit Insurance Corporation

(FDIC) obtain ed a final judgment against defendants LeGrand and

Roughton in the amount of $846,879.59, plus $1,085,44 4.30 in

interest, plus $8,585.59 in attorney's fees. The judgment was

later amended on September 6, 1991, to provide for an additional

$81,589.92 in interest the FDIC had left out of the original

judgment. When post-judgment discovery disputes arose over the

production of Roughton's federal income tax returns for the years1 The magistrate ruled that only the returns filed by

Roughton individually or jointly with his spouse Priscilla

Roughton were to be produced. Roughton's primary objection to

producing the returns was that they contained information

relating to his wife's separate income or property. The

magistrate addressed this concern in his order, noting that

Priscilla Roughton's separate returns, if any, would not have to

be produced. Additionally, the magistrate issued a

confidentiality order providing that, for any returns Roughton

filed jointly with his wife, disclosure of the contents of the

jointly-filed returns was to be limited to FDIC and its counsel

and experts.

2 1989, 1990, and 1991, Roughton filed a motion for protective order,

seeking in camera review of h is federal income tax returns and a

ruling that FDIC not be permitted to obtain copies of the returns

or to inquire into their contents. Alternatively, Roughton sought

a confidentiality order p rohibiting FDIC from disseminating the

returns or any information therein to third persons except as

required for the collection of the judgment against Roughton. The

FDIC also filed a motion to compel production of the returns. The

matter was referred to the federal magistrate. The magistrate

issued an order compelling disclosure of Roug hton's income tax

returns to counsel for FDIC within ten days. 1 Each party applied

to th e district judge for relief from this order; both parties'

motions were denied on March 22, 1993.

On May 28, 1993, the FDIC filed its Motion for Contempt. The

matter was referred to the magistrate by the district judge.

Roughton objected to the reference, claiming that the magistrate

was without authority to conduct a hearing on the motion for

contempt because such power is not vested in a magistrate under the2 28 U.S.C. § 636.

3 Although the order of reference purported to refer the

motion for contempt to the magistrate judge for determination,

the magistrate concluded that he lacked contempt powers and

instead was limited to making a report and recommendation on the

contempt motion. Roughton contends that because the order of

reference was one referring the contempt motion to the magistrate

for determination, the magistrate lacked proper authority to

issue only a report and recommendation. We disagree, finding

that the order of reference properly gave the magistrate

authority to issue a report and recommendation on the contempt

motion.

3 Federal Magistrates Act. 2 The magistrate conducted a hearing on

May 28, 1993, and issued a Report and Recommendation 3 in which he

made numerous findings of fact, including generally that Roughton

had been ordered to produce the tax r eturns, but that he had not

done so, nor had he proffered the returns to the magistrate or

offered any evidence demonstrating his inability to comply with the

order, despite threats by FDIC that it would file a mot ion for

contempt if t he returns were not produced. The magistrate's

recommendation stated as follows:

It is recommended that the District Court enter its order

directing Defendant Andrew M. Roughton to appear fo rthwith

before the District Court to show cause why he should not be

held in civil contempt for his failure to comply with the

order of the magistrate judge filed on February 24, 1993, and

in the event that Defendant fails to show cause for his

failure to comply or to produce at the hearing the subject tax

returns that the District Court hold him in civil contempt and

order that he be confined in a jail-type institution until he

purge [sic] himself of his contempt by producing his federal

tax returns, previously ordered, and by tendering the sum of

$909.00 to the FDIC. (Emphasis added.)

Roughton timely objected to the Report , reasserting his

obj ections to the magistrate's authority to make the factual

findings and also alleging a defect in the reference procedure.4

Roughton also alleged there was no testimony adduced at the hearing

to support the factual findings made by the magistrate.

On October 4, 1993, a show cause hearing was held before the

district judge. Counsel for FDIC stated in open court that

Roughton had not produced the returns to him as required by the

order. Counsel for Roughton did not object to FDIC's counsel's

comments regardin g Roughton's noncompliance with the order. The

district court adopted the recommendation of the magistrate judge

and held Roughton in contempt. Accordingly, Roughton was

immediately taken into custody by the United States Marshal. The

order issued by the district judge stated that:

Defendant did not show just cause for his failure to comply

with the February 24, 1993 order directing him to produce to

the FDIC tax returns for the years 1989, 1990, and 1991.

Accordingly, the Court found Defendant in contempt and ordered

that he be taken into custody for a period of 72 hours and

until he produces the subject tax returns and pays attorneys'

fees in the amount of $909.00. (Emphasis added.)

Notwithstanding the literal wording of the or der requiring

that Roughton be taken into custody f or 72 hours a nd until he

produced the tax returns, Roughton was released from custody

i mmediately upon producing the returns and paying $909.00 to the

FDIC on the day of the hearing.

On appeal, Roughton alleges that the above order was one of

criminal contempt, and that he was found guilty without the

requisite protections which must be afforded to one in jeopardy of

a criminal sanction, including proper notice and the appointment of

an independent prosecutor. Roughton also alleges that no testimony

or other evidence was requested or received at either of the5

hearings on the Motion for Contempt. Thus, even if the order was

one of civil contempt, Roughton alleges it is not supported by the

record. Roughton also alleges that the magistrate was without

authority to conduct the hearing on the motion for contempt.

We conclude that the district judge's order contained both a

civil element and a criminal element, but that the order was

executed as though it were entirely civil. We vacate the criminal

element of the contempt order and affirm the civil element.

Standard of Review

We review a contempt order for abuse of discretion, and we

review the district court's underlying factual findings under the

clear ly erroneous standard. M artin v. Trinity Industries, Inc.,

959 F.2d 45, 46-47 (5th Cir.1992).

Analysis

Magistrate's Authority under 28 U.S.C. § 636 to enter a

postjudgment discovery order and submit a report and recommendation

concerning a contempt determination

As noted abo ve, Roughton questions the sufficiency of the

district court's referrals to the magistrate and the statutory and

constitutional bases for the magistrate's authority. We conclude

that the district court properly referred the motions relating to

postjudgment discovery of the tax returns for determination. We

also conclude that the district court properly referred the motion

for contempt to the magistrate, who issued a postjudgment discovery

order and a report/recommendation on Roughton's contempt in

accordance with 28 U.S.C. § 636(b)(3).4 Miscellaneous Order No. 6, Rule 2(f) of that court provides

that upon entry of an order of reference by a district judge, or

when required to do so under the provisions of a local rule or

general order of this Court, a magistrate may perform "[a]ny

other duties assigned by the Court, or any Judge thereof, which

are not inconsistent with the Constitution and laws of the United

States."

6

The Federal Magistrates Act was passed to assist the

judiciary in its overload by permitting the assignment of various

judicial duties to magistrates. Several specific duties that may

be assigned to magistrates are outlined in the statute. To

encourage experimentation with delegations to magistrates, Congress

allowed district courts to assign magistrates "such additional

duties as are not inconsistent with the Constitution and laws of

the United States". 28 U.S.C. § 636(b)(3).

In this case, the district court referred Roughton's motion

for protective order and the FDIC's motion to compel to the

Magistrate for hearing and determ ination pursuant to 28 U.S.C. §

636(b) and Local Rule 1.3 of the Northern District Court of Texas.

Section 636(b) provides for the referral of various matters without

the parties' consent. The District Court's Local Rule incorporates

an order of that court, which delineates additional powers and

duties of Magistrates under § 636(b). 4

This statutory provision and local rule provide a

jurisdictional basis for the magistrate's entry of a postjudgment

discovery order. See, Merritt v. Int'l Bhd. of Boilermakers, 649

F.2d 1013, 1018 (5th Cir.1981).

Roughton challenges Section 636(b)(3) as a basis for the

magistrate's jurisdiction, claiming that the grant of authority in7

(b)(3) cannot exceed specific jur isdictional grants in other

provisions of 28 U.S.C. § 636. Because no other provision of § 636

expressly auth orizes a federal magistrate to issue postjudgment

discovery orders or to conduct a hearing and issue a report and

recommendation on a contempt m otion in a discovery dispute,

Roughton contends that the magistrate acted without authority. He

relies upon Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237,

104 L.Ed.2d 923 (1989), Stockler v. Garratt, 974 F.2d 730 (6th

Cir.1992) and Olympia Hotels Corp. v. Johnson Wax, 908 F.2d 1363

(7th Cir.1990). These cases examine a magistrate's authorization

to conduct voir dire. Given the critical nature of voir dire and

its potentiality for affecting the outcome of a trial, these cases

should have little relevance to determining the applicability of 28

U.S.C. § 636(b)(3) in this case, where the issue is whether the

magistrate can conduct a nondispositive postjudgment discovery

motion in a collection proceeding, as FDIC correctly points out.

The legislative his tory of § 636 also illustrates that

Congress placed the "additional duties" clause in a s eparate

subsection of § 636 to emphasize that it was not tightly restricted

by other statutory grants of authority. H.R.Rep. No. 94-1609, 94th

Cong., 2d Sess. 12 (1976), U.S.Code Cong. & Admin.News 1976, 6162.

Gomez, supra, provided only that these additional duties reasonably

relate to the existing statutory scheme. Given the fact that the

discovery motions in this case are the types of nondispositive

discovery motions specifically authorized for pretrial

determination by a magistrate under § 636(b)(1)(A), jurisdiction to8

decide these types of motions postjudgment bears a reasonable

relationship to the existing statutory scheme and should be found

under § 636(b)(3).

Roughton argues that the Magistrate was not authorized to

enter a final decision without the consent of the parties, citing

Jaliwala v. United States, 945 F.2d 221 (7th Cir.1991) and Parks by

and through Parks v. Collins, 761 F. 2d 1101 (5th Cir.1985). As

FDIC points o ut, the J aliwala case is inapposite because the

judgment in that case was an appealable, final judgment, whereas in

this case the magistrate's order as well as his report and

recommendation related to a nondispositive postjudgment discovery

motion which was reviewed by the district judge.

The Parks case involved a magistrate's determination on a Rule

60(b) motion to set aside a default judgment issued by the district

court. We declined to consider the application of § 636(b)(3) as

a source for the magistrate's jurisdiction in Parks because we

found that the district court never referred the motion to the

magistrate, nor had the parties consented to have the motion heard

by a magistrate. In the instant case, we have determined that both

the motion to compel/motion for protective order and the motion to

compel were properly referred to the magistrate. Thus, Roughton's

reliance on Parks is misplaced.

Roughton also challenges the constitutio nal basis for the

magistrate's authority to issue postjudgment discovery orders,

citing Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458

U.S. 50, 57-63, 102 S.Ct. 2858, 2864-67, 73 L.Ed.2d 598 (1982).9

This and all other arguments forwarded by Roughton and pertaining

to the authority of the magistrate in this case are meritless. We

find that the matters involved herein were properly referred to the

mag istrate, who had the requisite constitutional and statutory

authority pursuant to § 636(b)(3) to order the production of the

returns and to issue a report and recommendation on the motion for

contempt.

Civil or Criminal Contempt?

Having determined that the magistrate had the authority to

issue the Report and Recommendation in this case, the next issue is

whether the district court's order that Roughton be taken into

custody for a period of 72 hours a nd until he produced his tax

returns to the FDIC and paid to the FDIC attorneys' fees in the

amount of $909.00 amounts to civil or criminal contempt. Roughton

argues that the order was one of criminal contemp t. FDIC argues

that the contempt order provided only civil relief.

A contempt order is characterized as either civil or criminal

depending on its primary purpose. L amar Financial Corp. v. Adams,

918 F.2d 564, 566 (5th Cir.1990). If the primary purpose is to

punish the contemnor and vindicate the authority of the court, the

order is viewed as criminal. If the primary purpose of the

sanction is to coerce another party for the contemnor's violation,

the order is considered purely civil. A key determinant is whether

the penalty imposed is absolute or conditional on the contemnor's

conduct. When a contempt order contains both a punitive and a

coercive dimension, for purposes of appellate review it will be10

classified as a criminal contempt order. Lamar, 918 F.2d at 566-

67.

The face of the order in this case does not indicate whether

it is civil or criminal in nature. However, the order contains

both a punitive element (the initial 72 hour imprisonment) and

coercive elements (the $909.00 attorney's fee award to FDIC and the

order that Roughton remain in custody until he produced the

returns). A civil contemnor remains imprisoned o nly until he

complies with an order or condition imposed by the court. In this

case, the 72 hour imp risonment imposed by the court reads as an

absolute punishment that would have to be served even if Roughton

immediately handed over the returns and paid the attorney's fees.

Thus , this portion of the order is punitive in nature. The

District Judge's order stated that Roughton was to serve 72 hours

and thereafter until he produced the returns and paid the money.

Thus, the face of the contempt order reflects both a punitive and

a coercive dimension and should be classified as a criminal

contempt order, notwithstanding the fac t that the magistrate's

Report and Reco mmendation recommended that Roughton be held in

civil contempt. However, we find that the order was executed as

though it were civil.

In order for a notice of show cause hearing to be sufficient

for a hearing at which criminal contempt may be found, either the

offending conduct forming the basis for the hearing must be such

that it can only be punished by punitive or criminal sanctions, or

it must specifically state that the hearing will be a criminal5 In fact, this is exactly how the order was actually

executed, notwithstanding the face of the contempt order, which

indicated that the 72 hour imprisonment was absolute. Once the

district judge learned that Roughton had complied with the order

to produce the returns and to pay the $909.00 attorney's fee, he

immediately signed an order granting Roughton's release, finding

that he had purged himself of contempt.

11 contempt proc eeding. A merican Airlines, Inc. v. Allied Pilots

Ass'n, 968 F.2d 523, 530-531 (5th Cir.1992). Roughton argues that

the conduct described in the district court's order to show cause,

i.e., failure to produce tax returns, could have been punished with

purely coercive sanctions, of which Roughton might have been able

to purge himself through compliance. We agree. For example, the

contempt order could have provided for Roughton to be taken into

custody only until he complied with the magistrate's order, with no

absolute 72 hour imprisonment. 5

The Show Cause Order does not reflect that a crim inal

proceeding would be conducted. Rule 42(b) of the Federal Rules of

Criminal Procedure provides in relevant part:

A criminal contempt

... shall be prosecuted on notice. The

notice shall state the place and time of hearing,

... and

shall state the essential facts constituting the criminal

contempt charged and describe it as such. (Emphasis added.)

Because the offending conduct could have been eliminated by

coercive civil sanctions, notice was required if this was to be a

criminal contempt proceeding. American Airlines, supra. Because

the Order to Show Cause did not describe th e proceeding as a

criminal contempt proceeding, the notice requiremen t of F.R.C.P.

42(b) was not followed, and Roughton's due process rights were

violated. R ichmond Black Police Officers v. City of Richmond, Va.,6 In a Rule 42(b) criminal contempt proceeding, the judge may

not prosecute the contempt and at the same time act as judge. To

do so deprives the defendant of an impartial decisionmaker.

American Airlines, supra, 968 F.2d at 531.

12 548 F.2d 123, 127 (4th Cir.1977). Moreover, no independent

prosecutor was appointed, which is another procedural defect. 6

FDIC attempts to characterize the proceeding as civil in

nature based upon the fact that the magistrate had recommended in

his repor t that Roughton be held in civil contempt until the tax

returns were paid . It points out that Roughton was taken into

custody on the morning of October 4, 1993, and released later that

day after he "purged" the contempt by fulfilling the conditions of

the District Court's order. Thus, the district judge released

Roughton from the strict terms of the order, i.e., the absolute 72

hour sentence, once he produced the returns and paid the money to

FDIC. Nonetheless, the written order reads like a criminal

contempt order in that it imposes an absolute 72 hour sentence,

after which R oughton could then be released upon compliance.

Pursuant to the wording of the order, Roughton was placed in

criminal contempt, without notice. The fact that the district

j udge actually released Roughton from custody immediately upon

Roughton's compliance with the court's orders means only that the

criminal portion of the order was not in fact executed, not that it

was not imposed. As far as Roughton or anyone else can tell from

a review of the written order, Roughton appears to have been held

in criminal contempt. Roughton seeks to have the criminal portion

of the order vacated in order to avoid any negative connotation13

which might result from what appears on the face of the order to be

a conviction for criminal contempt.

FDIC also attempts to characterize the proceeding as civil

based upon the fact that the Court granted remedial relief to FDIC,

i.e., the attorney's fees, rather than a fine to be paid to the

Court. FDIC points out that typically a fine is punitive when paid

to the court and remedial when paid to the harmed party. The

contempt order in this case involves a true mixture of both

criminal and civil relief. Accordingly, it should be characterized

as criminal for purposes of appeal. L amar, supra, 918 F.2d at 567.

This characterization permits the review of civil contempt orders

which would otherwise not be final and appealable. However, it

does n ot necessarily follow that, even if this is a true "mixed

relief" case, a Court must vacate and remand the whole proceeding

for failure to comply with criminal procedure. In L amar, the

reviewing court vacat ed and remanded the criminal portion of the

order but affirmed the civil portion after finding the district

court had not abused its discretion in granting the civil relief.

Ibid.

Thus, as FDIC correctly points out, even though we find that

the 72 hours custody provision is a separate criminal sanction, we

need only vacate the criminal element of the order. A remand is

not necessary because the order has already been executed as though

it were one of civil contempt, with the criminal port ion (the 72

hour sentence) of the order unimposed, and Roughton has been purged

of contempt via the district judge's order. We merely vacate the14

criminal portion to clear Roughton's name and record and to avoid

any possible negative connotation that might inure by virtue of the

criminal element of the order.

Was there sufficient evidence for a finding of civil contempt?

Having determined that we should vacate the criminal portion

of the order, we next turn our attention to t he civil aspects of

the order. Roughton argues that there was insufficient evidence to

support a finding of civil contempt, and that the civil contempt

order should be reversed. He claims that the FDIC did not present

sufficient evidence to satisfy the "clear and convi ncing"

evidentiary standard required for civil contempt. He argues that

the District Court erred in finding contempt in the absence of any

evidence, witnesses or documents demonstrating Roughton's violation

of the underlying order compelling production of tax returns. He

argues that he was denied the right to present witnesses and that

the underlying order compelling production of the returns was

"vague" and "ambiguous" and not susceptible to enforcement through

a contempt proceeding. We disagree with each of Roughton's

contentions.

In a civil contempt proceeding, the party seeking an order of

contempt need only establish (1) that a court order was in effect,

and (2) that the order required certain conduct by the respondent,

and (3) that the respondent failed to comply with the court's

order. M artin v. Trinity Industries, Inc., 959 F.2d 45, 47 (5th

Cir.1992). To determine compliance with an order, the court simply

asks whether the respondent has produced the documents. If he has15

not, the burden shifts to the respondent to rebut this conclusion,

demonstrate an inability to comply, or present other relevant

defenses. U

nited States v. Hayes, 722 F.2d 723, 725 (11th

Cir.1984); S tar Brite Distributing, Inc. v. Gavin, 746 F.Supp.

633, 643 (N.D.Miss.1990).

There was no dispute that the order compelling production of

the returns was in effect at the time of the hearing. Despite

numerous attempts, Roughton failed to obtain a stay of the order

either from the district court or from this Court. At the show

cause hearing, counsel for FDIC notified the district court of the

denial of these stays. Second, the magistrate's order clearly

required the following:

Within ten days of the date of this order Defendant Roughton

will produce his federal tax returns for 1989, 1990 and 1991

to counsel for Plaintiff. (emphasis added.)

Roughton's assertions that this order is vague have no merit.

FDIC claims it established Roughton's violation of this order

through the representations of its counsel and documentary evidence

submitted to the Court. In the FDIC's motion for contempt hearing

before the magistrate and at the show cause hearing, FDIC counsel

advised the district court of Roughto n's continuing violation of

the order. The FDIC's motion for contempt supplemented these

representations with various letters showing its efforts to secure

Roughton's tax returns and an affidavit sup porting the $909.00

attorney's fee claim.

Roughton claims this information does not provide a sufficient

basis for the District Court's finding of contempt. He points to7 Federal Rule of Civil Procedure 11 provides generally that,

in presenting a pleading, motion, etc., to the court, one is

certifying that to the best of that person's knowledge,

information, and belief, formed after reasonable inquiry, that

any factual contentions therein have evidentiary support.

Sanctions may be imposed for violations of Rule 11.

16 the fact that argument of counsel during a hearing on a motion does

not constitute evidence. He also notes that the letters between

c ounsel regarding the returns were not authenticated nor offered

into evidence. Roughton claims it was an abuse of discretion for

the district judge to have made a finding of contempt without

adducing any evidence, relying instead upon statements of counsel

for FDIC that the returns had not been produced. FDIC counters by

pointing out that the attorney had personal knowledge of Roughton's

failure to comply. The magistrate's order required that the

documents be produced to counsel for FDIC. Moreover, the attorney

for FDIC signed the motion for contempt, which stated that the

retur ns had not been produced, thereby certifying under his Rule

11 7 duty that the statements therein were well-grounded in fact.

Roughton never opposed this allegation forwarded by FDIC,

either in a memorandum in opposition to the motion for contempt or

at the hearings. Roughton has never denied that, at the time of

the contempt hearing, he was in violation of the order compelling

productions. He points to nothing which would rebut the FDIC's

representations concerning his noncompliance. Until the show cause

hearing, Roughton presented no proffer of evidence to demonstrate

an inability to comply with the order. Roughton raised objections

at the show cause hearing only as to the jurisdiction and17

fact-finding of the magistrate and the purported vagueness and

ambiguity of the order compelling production of the returns.

Roughton has never offered any evidence or anything at all to rebut

the position of FDIC that the returns had not been produced. In

fact, evidence presented by Roughton at the show cause hearing

helps to establish that the returns had not been produced.

Roughton's wife, Pricilla Roughton, submitted to the district

court an a ffidavit asserting her sole possession and custody of

their joint tax returns and her unwillingness to deliver them to

her husband. This affidavit itself implicitly establishes as well

the fact that Andrew Roughton had not produced the returns to FDIC.

Although Pricilla Roughton's last-minute submission apparently was

found not to be credible in helping Roughton to avoid the contempt

ruling, it nonetheless is a part of the recor d and helps to

establish that the returns had not been produced.

Also, counsel for FDIC submitted an affidavit concerning the

attorneys' fees which had been incurred relative to the motion for

contempt. In the affidavit, counsel for FDIC reiterates that

defendant had failed to produce the returns. Thus, we squarely

reject Roughton's argument that there was not clear and convincing

evidence to support a finding that Roughton had not in fact

produced the returns.

Should Roughton have been ordered to produce the tax returns?

Roughton's final argument is that he should not have been

ordered to produce the tax returns in question. Accordingly, he

seems to request that we try to "unring the bell" and order the18

return of all documents produced, all copies thereof, and that FDIC

be ordered to expunge from its files any information which may have

been derived from the production of the returns. We do not have to

attempt this impossible task. The tax returns were relevant to the

case, and the district judge and magistrate did not err in ordering

their disclosure.

Roughton erroneously argues that state procedural rules apply

to the determination of the post-judgment discovery issue.

F.R.C.P. 69(a) permits a party to obtain postju dgment discovery

from the judgment debtor "in the manner provided in these rules or

in the manner provided by the pra ctice of the state in which the

district court is held." A judgment creditor thus has the choice

of which method to use. FDIC clearly indicated its intent to

pursue postjudgment discovery in the manner provided by the Federal

Rules of Civil Pr ocedure, thus, Texas law does not apply to the

FDIC's discovery request. Instead, federal law will apply. Texas

cases cited by Roughton to establish that production of the tax

returns should not have been ordered are irrelevant. Tax returns

are not privileged. Moreover, state privilege laws should not be

relied upon where the documents in question are sought by a

governmental agency, like the FDIC. S ee, Linde Thomson Langworthy

Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1513-14 (D.C.Cir.1993)

The scope of postjudgment discovery is very broad to permit

a judgment creditor to discover assets upon which execution may be

made. Some courts have applied a two-part test in determining

whether returns should be produced. See U nited States v. Bonanno,19

119 F.R.D. 625, 627 (E.D.N.Y.1988). The party seeking production

of the documents must show their relevance to the inquiry. Then,

the burden shifts to the party opposing production to show that

other sources exist from which the information cont ained in the

income tax returns may be readily obtained.

Under these facts, relevance of the tax returns to a judgment

creditor is virtually presumed. A tax return necessarily contains

information relating to a taxpayer's financial position, which is

highly relevant to a judgment creditor. The tax return can verify

the information provided by the judgment-debt or concerning his

assets and income, and it can reveal a judgment-debtor's attempts

to hi de assets. We find that FDIC has met its burden of showing

relevance. However, we conclude that Roughton failed to carry his

burden since he apparently failed to present any evidence at the

hearing establishing other sources by which FDIC could have

obtained a copy of Roughton's returns or otherwise could have

verified the truth of the information Roughton had given FDIC

regarding his income and/or assets. Roughton misreads Bonanno as

requiring the party seeking the documents to prove both prongs of

the test. Roughton's other arguments with reference to the

discoverability of the tax returns lack merit as well.

Conclusion

We affirm the civil portion of the contempt order and vacate

the criminal portion of that order. Remand is not necessary

because the order was executed by the district court as though it

were civil. AFFIRMED in part and VACATED in part.20