United States of Am. & Gilbert Ledger, Revenue Officer, Internal Revenue Serv. v. Richard A. Sherlock, 756 F.2d 1145 (5th Cir. 1985). · Go Syfert
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United States of Am. & Gilbert Ledger, Revenue Officer, Internal Revenue Serv. v. Richard A. Sherlock, 756 F.2d 1145 (5th Cir. 1985). Cases Citing This Book View Copy Cite
21 citation events across 7 distinct courts.
Strongest positive: Church of Scientology of California v. United States (scotus, 1992-11-16)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Church of Scientology of California v. United States
SCOTUS · 1992 · confidence medium
Compare United States v. Zolin, 809 F. 2d, at 1416-1417 , and United States v. Author Services, Inc., 804 F. 2d 1520, 1525-1526 (CA9 1986) (district court has “considerable” discretion to set terms of enforcement order), opinion amended, 811 F. 2d 1264 (1987), with United States v. Barrett, 837 F. 2d 1341 (CA5 1988) (en banc) (district court lacks authority to “conditionally enforce” IRS summons; inquiry limited to single question of whether summons should be enforced), cert. denied, 492 U. S. 926 (1989). 8 United States v. Kersting, 891 F. 2d 1407, 1410, n. 8 (CA9 1989), cert. denied,…
discussed Cited as authority (rule) United States v. Kersting
9th Cir. · 1989 · confidence medium
See, e.g., United States v. Arthur Andersen & Co., 623 F.2d 720, 725 (1st Cir.), cert. denied, 449 U.S. 1021 , 101 S.Ct. 588 , 66 L.Ed.2d 483 (1980); United States v. Deak-Perera Int'l Banking Corp., 610 F.2d 89 , 89 (2d Cir.1979); Kurshan v. Riley, 484 F.2d 952, 952-53 (4th Cir.1973) (per curiam); United States v. Sherlock, 756 F.2d 1145, 1146-47 (5th Cir.1985); United States v. Patmon, 630 F.2d 458, 459 (6th Cir.1980) (per curiam); United States v. Kis, 658 F.2d 526, 532-34 (7th Cir.1981), ce rt. denied, 455 U.S. 1018 , 102 S.Ct. 1712 , 72 L.Ed.2d 135 (1982); United States v. Equity Farmers …
discussed Cited as authority (rule) United States Court of Appeals, Ninth Circuit
9th Cir. · 1989 · confidence medium
See, e.g., United States v. Arthur Andersen & Co., 623 F.2d 720, 725 (1st Cir.), cert. denied, 449 U.S. 1021 , 101 S.Ct. 588 , 66 L.Ed.2d 483 (1980); United States v. Deak-Perera Int'l Banking Corp., 610 F.2d 89 , 89 (2d Cir.1979); Kurshan v. Riley, 484 F.2d 952, 952-53 (4th Cir.1973) (per curiam); United States v. Sherlock, 756 F.2d 1145, 1146-47 (5th Cir.1985); United States v. Patmon, 630 F.2d 458, 459 (6th Cir.1980) (per curiam); United States v. Kis, 658 F.2d 526, 532-34 (7th Cir.1981), cert. denied, 455 U.S. 1018 , 102 S.Ct. 1712 , 72 L.Ed.2d 135 (1982); United States v. Equity Farmers E…
discussed Cited as authority (rule) United States v. Church Of World Peace
10th Cir. · 1989 · confidence medium
See, e.g., United States v. Orlowski, 808 F.2d 1283, 1287 (8th Cir.1986), cert. denied, 482 U.S. 927 , 107 S.Ct. 3210 , 96 L.Ed.2d 697 (1987); United States v. Sherlock, 756 F.2d 1145, 1147 (5th Cir.1985); United States v. Porter, 711 F.2d 1397, 1400 (7th Cir.1983); United States v. Trails End Motel, Inc., 657 F.2d 1169, 1170-71 (10th Cir.1981) (per curiam); United States v. Arthur Andersen & Co., 623 F.2d 720, 725 (1st Cir.), cert. denied, 449 U.S. 1021 , 101 S.Ct. 588 , 66 L.Ed.2d 483 (1980); United States v. Deak-Perera Int'l Banking Corp., 610 F.2d 89 (2d Cir.1979); but see Gluck v. United…
discussed Cited as authority (rule) United States v. Church of World Peace
10th Cir. · 1989 · confidence medium
See, e.g., United States v. Orlowski, 808 F.2d 1283, 1287 (8th Cir.1986), ce rt. denied, 482 U.S. 927 , 107 S.Ct. 3210 , 96 L.Ed.2d 697 (1987); United States v. Sherlock, 756 F.2d 1145, 1147 (5th Cir.1985); United States v. Porter, 711 F.2d 1397, 1400 (7th Cir.1983); United States v. Trails End Motel, Inc., 657 F.2d 1169, 1170-71 (10th Cir.1981) (per curiam); United States v. Arthur Andersen & Co., 623 F.2d 720, 725 (1st Cir.), cert. denied, 449 U.S. 1021 , 101 S.Ct. 588 , 66 L.Ed.2d 483 (1980); United States v. Deak-Perera Int’l Banking Corp., 610 F.2d 89 (2d Cir.1979); but see Gluck v. Uni…
discussed Cited "see" United States v. Barrett
5th Cir. · 1988 · signal: see · confidence high
See United States v. Sherlock, 756 F.2d 1145, 1146 (5th Cir.1985); United States v. Sweet, 655 F.2d 54, 55 (5th Cir.1981); United States v. First American Bank, 649 F.2d 288, 289 (5th Cir.1981); United States v. First State Bank of Clute, 626 F.2d 1227, 1227 (5th Cir.1980), cert. denied, 452 U.S. 908 , 101 S.Ct. 3037 , 69 L.Ed.2d 410 (1981); United States v. Carpenter, 425 F.2d 264, 264-65 (5th Cir.1970); Baldridge v. United States, 406 F.2d 526, 527 (5th Cir.1969); Grathwohl v. United States, 401 F.2d 166, 167 (5th Cir.1968); Lawhon v. United States, 390 F.2d 663, 663 (5th Cir.1968). 18 Thus,…
discussed Cited "see" United States v. Barrett
5th Cir. · 1988 · signal: see · confidence high
See United States v. Sherlock, 756 F.2d 1145, 1146 (5th Cir.1985); United States v. Sweet, 655 F.2d 54, 55 (5th Cir.1981); United States v. First American Bank, 649 F.2d 288, 289 (5th Cir.1981); United States v. First State Bank of Clute, 626 F.2d 1227, 1227 (5th Cir.1980), cert. denied, 452 U.S. 908 , 101 S.Ct. 3037 , 69 L.Ed.2d 410 (1981); United States v. Carpenter, 425 F.2d 264, 264-65 (5th Cir.1970); Baldridge v. United States, 406 F.2d 526, 527 (5th Cir.1969); Grathwohl v. United States, 401 F.2d 166, 167 (5th Cir.1968); Lawhon v. United States, 390 F.2d 663, 663 (5th Cir.1968).
discussed Cited "see" Robert G. Wray v. Internal Revenue Service, D. Randall Smith and David G. Frythe
9th Cir. · 1986 · signal: see · confidence high
See United States v. Sherlock, 756 F.2d 1145, 1147 (5th Cir.1985); United States v. Kis, 658 F.2d 526, 535 (7th Cir.1981), cert. denied, 455 U.S. 1018 , 102 S.Ct. 1712 , 72 L.Ed.2d 135 (1982); see also United States v. Munsingwear, 340 U.S. 36, 40 , 71 S.Ct. 104, 107 , 95 L.Ed. 36 (1950).
discussed Cited "see, e.g." NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Plaintiff-Appellee, v. DOLE FOOD COMPANY, INC., Defendant-Appellant (2×)
2d Cir. · 1992 · signal: see also · confidence medium
See University of Texas v. Camenisch, 451 U.S. 390, 393-94 , 101 S.Ct. 1830, 1832-33 , 68 L.Ed.2d 175 (1981) (appeal rendered moot by university’s compliance with injunction ordering it to provide interpreter for deaf student when student graduated); United States v. Board of Educ., 543 F.2d 1 , 3 (2d Cir.1976) (appeal mooted by principals’ compliance with court order requiring submission of reports to federal government); see also United States v. Sherlock, 756 F.2d 1145, 1146-47 (5th Cir.1985) (appeal mooted by taxpayer’s compliance with court order to produce documents pursuant to IRS…
discussed Cited "see, e.g." S.R. Mercantile Corporation v. Andrew Maloney v. Harold Wapnick
2d Cir. · 1990 · signal: see also · confidence medium
See C & C Prods., Inc. v. Messick, 700 F.2d 635, 637 (11th Cir.1983) (“At this point, it is too late for this court to prevent the release of the materials. [A third party] gained access to the confidential documents; no order from this court can undo that situation.”); see also United States v. Sherlock, 756 F.2d 1145, 1146-47 (5th Cir.1985) (appeal of order directing taxpayer to comply with IRS summons moot when appellant had complied with the order by disclosing documents); United States v. Deak-Perera Int’l Banking *82 Corp., 610 F.2d 89 (2d Cir.1979) (per curiam) (same).
Retrieving the full opinion text from the archive…
UNITED STATES of America and Gilbert Ledger, Revenue Officer, Internal Revenue Service, Plaintiffs-Appellees,
v.
Richard A. SHERLOCK, Defendant-Appellant
83-3488.
Court of Appeals for the Fifth Circuit.
Apr 8, 1985.
756 F.2d 1145
Joe Alfred Izen, Jr., Houston, Tex., for defendant-appellant., Glenn L. Archer, Jr., Charles E. Brook-hart, John A. Dudeck, Jr., Michael L. Paup, Chief, Appellate Sec., Gayle P. Miller, Tax Div., Washington, D.C., for plaintiffs-appel-lees.
Hill, Hinojosa, Johnson.
Cited by 15 opinions  |  Published
[*1146] JOHNSON, Circuit Judge:

Richard A. Sherlock appeals from the district court’s dismissal of contempt proceedings against Sherlock. On appeal, Sherlock asserts that information was obtained from him by the Internal Revenue Service in violation of Sherlock’s privilege against self-incrimination. The Government responds that Sherlock’s claim of privilege is moot because Sherlock complied with the summons at issue in this appeal. This Court agrees that Sherlock’s claim is moot, and therefore, the instant appeal is dismissed.

I. Background

This case arises out of an IRS investigation of Sherlock for his failure to file income tax returns for taxable years 1974-81. Sherlock is a self-employed salesman. The investigating agent assigned to Sherlock’s case issued a summons directing Sherlock to appear before the agent and give testimony. The summons also directed Sherlock to produce books and records. Sherlock appeared before the agent but refused to answer any questions, asserting his privilege against self-incrimination “on every question.” Record Yol. 2 at 14. In addition, Sherlock brought with him a paper bag, arguably containing the requested documents; but Sherlock refused on fifth amendment grounds to let the agent examine them. Dissatisfied with Sherlock’s response to the summons, the agent sought enforcement of the summons in federal district court.

Sherlock filed a pro se motion to dismiss the enforcement proceedings. After two hearings before a magistrate, the district court denied Sherlock’s motion to dismiss, adopted the recommendations of the magistrate, and entered an order enforcing the summons. That order was not appealed.

Sherlock obtained counsel and counsel moved to set aside the district court’s order. That motion was denied. In accordance with the enforcement order, Sherlock appeared before the IRS agent, with counsel, but Sherlock refused to produce books or records, and he refused to answer numerous questions on fifth amendment grounds.

The Government then filed a motion to hold Sherlock in contempt. A hearing was held and Sherlock gave “in camera” testimony relating to the validity of his fifth amendment privilege claim. The district court ruled that Sherlock did not have a valid fifth amendment claim and ordered that Sherlpck comply with the summons or be held in contempt. Sherlock then complied with the summons by answering the Government’s questions and producing the requested documents as directed by the district court. The district court held the matter open pending the Government’s review of the sufficiency of Sherlock’s responses. The Government decided not to seek further testimony from Sherlock and filed a motion to dismiss the contempt proceedings, which was granted. Sherlock appeals from the dismissal.

II. Discussion

The Government claims that Sherlock’s claim of fifth amendment privilege is moot because Sherlock complied with the summons when faced with contempt orders. Sherlock disagrees, arguing that the Government continues to benefit from the material he gave them under coercion. This Court finds that Sherlock’s appeal is moot.

This Circuit has found appeals to be .moot when the taxpayer has complied with an IRS summons prior to appeal. See, e.g., United States v. Sweet, 655 F.2d 54 (5th Cir.1981); United States v. First American Bank, 649 F.2d 288 (5th Cir.1981); United States v. Carpenter, 425 F.2d 264 (5th Cir.1970); Baldridge v. United States, 406 F.2d 526 (5th Cir.1969); Grathwohl v. United States, 401 F.2d 166 (5th Cir.1968); Lawhon v. United States, 390 F.2d 663 (5th Cir.1968). [1]

[*1147] Lawhon and First American Bank both involved situations where the taxpayer was claiming that compliance with an IRS summons would infringe on the taxpayer’s constitutional rights. The thrust of both those cases is that the taxpayer can reassert the constitutional issue if the Government seeks to introduce the allegedly unconstitutionally obtained information into evidence in a subsequent criminal trial. As this Court has stated:

This motion, in effect, seeks to have this Court give an advisory opinion as to the admissibility in evidence of the records or their product in the event of a subsequent criminal trial. Such event may not occur. This court passes no judgment on the question whether, if the mooted records are used in a subsequent prosecution of the taxpayers, if there be one, their introduction would be forbidden as violating the constitutional rights of the defendants.

Lawhon, 390 F.2d at 663; First American Bank, 649 F.2d at 289. That rationale applies equally in the instant case.

In a case on all fours with the immediate case, the Seventh Circuit has found the privilege issue moot. United States v. Porter, 711 F.2d 1397 (7th Cir.1983). That court stated:

Respondents claim that, even though they have surrendered each of the summoned items, ... their Fifth Amendment claims with respect to the surrendered items are not moot. This court and other circuits, however, have flatly held that a taxpayer’s submission of material in compliance with an IRS summons renders any constitutional objections to that compelled submission moot.

Id. at 1399-400 (citing this Court’s decision in First American Bank). Accord EEOC v. St. Regis Paper Co., 717 F.2d 1302 (9th Cir.1983); United States v. Trails End Motel, Inc., 657 F.2d 1169 (10th Cir.1981); United States v. Equity Farmers Elevator, 652 F.2d 752 (8th Cir.1981); Kurshan v. Riley, 484 F.2d 952, 953 (4th Cir.1973); United States v. Lyons, 442 F.2d 1144 (1st Cir.1971). But see United States v. Friedman, 532 F.2d 928 (3rd Cir.1976) (appeal not moot where taxpayer has complied with court order because Government may possibly use records against taxpayer in a subsequent criminal proceeding); FTC v. Browning, 435 F.2d 96, 97 n. 1 (D.C.Cir. 1970) (appeal not moot because records remain in the possession of the FTC and appellant Browning would be entitled to their return).

Sherlock cites United States v. Doe, — U.S. -, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), and Pillsbury Company v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983), among other cases, in support of his contention that this appeal is not moot. While Doe might be helpful to Sherlock if this Court reached the merits of his privilege claim, nothing in either Doe or Pillsbury requires reevaluation of this Circuit’s established precedent that an appeal is moot once the taxpayer has complied with a summons. Furthermore, nothing Sherlock points out to this Court raises any issue which revives the moot privilege claim in this case. [2]

III. Conclusion

Since Sherlock complied with the summons in the instant case, his appeal is moot. Sherlock is not prohibited from attempting to reassert his privilege against self-incrimination in the event the Government attempts to use the information obtained against Sherlock in a subsequent proceeding. Consequently, Sherlock’s appeal is

DISMISSED.

1

. Cf. United States v. First State Bank of Clute, 626 F.2d 1227 (5th Cir.1980) (finding a challenge to the constitutionality of a summons proceeding not moot, but frivolous): Federal Trade [*1147] Commission v. Gibson Products, Inc., 569 F.2d 900 (5th Cir.1978) (finding that compliance with summons did not moot appeal when further relief was available from appellate court through order to return subpoenaed documents and to forbid use of documents in ongoing adjudication).

2

. Sherlock also claims that he is entitled to attorney’s fees under the Equal Access to Justice Act. Sherlock is not the prevailing party either at trial or on appeal. Consequently, he is not entitled to an award of attorney’s fees.