Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1989)

MEMORANDUM^** 

James Buzzelli appeals the district court's judgment holding him in civil contempt and remanding him into custody for refusing to comply with its order directing him to provide information to the Internal Revenue Service (IRS) regarding his income and assets during 1985 and part of 1986. The IRS seeks the information to assist it in collecting $29,400 assessed against Buzzelli for tax years 1979 through 1982.

Buzzelli contends that he is entitled to reversal of the district court's detention order because the district court failed to inquire whether he knowingly and intelligently waived counsel at the contempt.

Buzzelli correctly notes that an indigent witness faced with civil contempt is entitled to appointed counsel. See United States v. Sun Kung Kang, 468 F.2d 1368, 1369 (9th Cir. 1972). But see United States v. Rylander, 714 F.2d 996, 998 (9th Cir. 1983) (noting in dictum that criminal, unlike civil, contempt proceedings trigger sixth amendment rights to counsel), cert. denied, 467 U.S. 1209 (1984). If a party is entitled to appointed counsel, the presiding judge must expressly inform him of the right and must question him to determine whether any waiver of the right is knowing and intelligent. See Carnley v. Cochran, 369 U.S. 506, 513 (1962); United States v. Wadsworth, 830 F.2d 1500, 1504-05 (9th Cir. 1987). In particular, the judge should discuss with the party, on the record, the nature of the claims against him, the possible penalties, and the dangers of self-representation. See Hardy v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987), cert. denied, 109 S. Ct. 182 (1988). The government provides no authority suggesting that an exception to this general rule is warranted in a civil contempt proceeding.

The district court's failure to question Buzzelli about his waiver of counsel requires reversal unless the record reveals that his waiver was knowing and intelligent. See Hardy, 834 F.2d at 857. A waiver should rarely be found to be knowing and intelligent in the absence of an explicit colloquy on the record. Id. The government contends that Buzzelli waived his right to counsel by appearing at least twice before the district court and once before this court without counsel and without requesting counsel, and that the district court was not required to ascertain at each hearing whether Buzzelli continued to waive his right to counsel. See United States v. Mortensen, 860 F.2d 948, 950 (9th Cir. 1988), cert. denied, 109 S. Ct. 1935 (1989); Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969) (once assistance of counsel has been competently waived, new waiver need not be obtained at every subsequent court appearance), cert. denied, 396 U.S. 1021 (1970). The government's contention is unpersuasive, however, because (1) Buzzelli never expressly waived his right to counsel, and (2) he was entitled to appointed counsel only at the contempt hearing and thus his prior unassisted appearances did not relieve the court of its obligation to question him about his waiver of counsel at the contempt hearing.

The government does not contend, and we are not directed to any indication in the record, that Buzzelli knowingly and intelligently waived his right to counsel. Cf. Hardy, 834 F.2d at 858-59. Accordingly, we reverse the district court's contempt order and remand to the district court with directions to conduct a new contempt hearing. The district court is further instructed that, if Buzzelli does not appear with counsel at the contempt hearing, it should inform him of his right to counsel and conduct an inquiry into whether any waiver of that right is knowing and intelligent.

Buzzelli further claims that the district court improperly rejected his assertion at the contempt hearing of his Fifth Amendment privilege against self-incrimination. We reach this contention in order to provide guidance to the district court on remand.

To be entitled to the privilege's protection, a witness must show that his testimony would "furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486 (1951). The witness must identify hazards of self-incrimination that are "real and appreciable" and not merely "imaginary and unsubstantial." United States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984); United States v. Neff, 615 F.2d 1235, 1239 (9th Cir. 1980), cert. denied, 447 U.S. 925 (1980). We have held that a witness may validly refuse to supply information concerning his income and assets if he fears that the information might be used to establish criminal failure to file a return. Rendahl, 746 F.2d at 556. Although the pendency of a criminal investigation into a witness's compliance with tax laws increases the likelihood of incrimination, absence of a criminal investigation does not give rise to a presumption against incrimination. Id.

Buzzelli apparently claimed that answering the IRS's questions might provide information showing that he had sufficient income to require him to file tax returns for the years 1985 and 1986, and thus subject him to prosecution for failure to file. If he did articulate that claim, then he asserted a valid defense. See Rendahl, 746 F.2d at 556.

There is no record before us as to the specific questions Buzzelli refused to answer or the reasons he gave for his refusal. Accordingly, we reach no decision as to whether Buzzelli is entitled to refuse to answer all of the IRS's questions. See Rendahl, 746 F.2d at 557.

The district court is instructed, on remand, to require Buzzelli to answer only those questions that are not likely to furnish evidence that could support his prosecution for failure to file income tax returns or for other federal crimes.

REVERSED AND REMANDED.