                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-4764


UNITED STATES OF AMERICA,

                Petitioner - Appellee,

           v.

TAMNY WESTBROOKS,

                Respondent - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:09-mc-00191-RJC-1)


Argued:   December 9, 2014                    Decided:     March 13, 2015


Before TRAXLER,     Chief   Judge,   and   GREGORY   and   AGEE,   Circuit
Judges.


Affirmed by published opinion. Judge Gregory wrote the opinion,
in which Chief Judge Traxler and Judge Agee joined.


ARGUED:   Brian D. Boone, ALSTON & BIRD LLP, Charlotte, North
Carolina, for Appellant. William Michael Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF:    Ross Hall Richardson, Acting Executive Director,
Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; E. Bowen Reichert
Shoemaker, ALSTON & BIRD LLP, Atlanta, Georgia, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
GREGORY, Circuit Judge:

     Appellant       Tamny    Westbrooks      appeals     her   criminal      contempt

conviction under 18 U.S.C. § 401(3) for failure to comply with a

grand    jury     subpoena.        Westbrooks    contends       that    the   district

court violated her due process rights by requiring her to prove

her advice-of-counsel defense.                Because we find that the court

did not impermissibly shift the burden of proof to Westbrooks,

we affirm Westbrooks’s conviction.



                                         I.

     In the fall of 2008, the Internal Revenue Service (“IRS”)

issued summonses to Westbrooks and “Jane Doe” 1 as part of an

administrative       tax     investigation       of    “the     Business.”        Both

Westbrooks and Doe had filed tax returns representing themselves

as the owner of the Business.             When Westbrooks and Doe declined

to provide any records, lead investigator Special Agent William

Quattlebaum       obtained     a    search      warrant    for     the    Business’s

premises.       The warrant allowed agents to seize general business

records     and     certain    clients’       tax     returns     and    tax-related

information, but it did not authorize the seizure of accounting

     1
       In the interest of protecting the confidentiality of the
underlying   grand  jury   proceedings,  we   do not   refer  to
Westbrooks’s alleged co-owner or business by their proper names.
See Fed. R. Crim. P. 6(e); In re Grand Jury, John Doe No. G.J.
2005-2, 478 F.3d 581, 583 n.1 (4th Cir. 2007).



                                          2
records,     other    client      tax    files,   or   tax-related    employment

forms.

      IRS agents executed the search warrant on April 14, 2009,

and seized approximately 90% of the paper records stored at the

Business office.           In order to obtain certain records that it

believed were either excluded from the warrant or not located on

the premises, the IRS converted the administrative investigation

into a grand jury investigation in August 2009.                     On September

29, 2009, the grand jury issued a subpoena to Westbrooks and to

Doe, individually and as custodians of records for the Business,

requiring them to produce:               “Any, and all, records relevant to

[the Business], including, but not limited to” seven specific

categories of records.

      Frederic       Williams,          Westbrooks’s    attorney,     wrote     to

government counsel stating that Westbrooks was not the custodian

for the Business and that she would assert her Fifth Amendment

privilege with respect to producing documents associated with

the   Business       and   when    testifying     before   the      grand   jury. 2

Westbrooks appeared before the grand jury on October 21, 2009.

She testified that although she had represented herself as the

chief financial officer of the Business on a Schedule C form,

she was not the owner or even an employee of the Business but

      2
          Williams wrote a similar letter on behalf of Doe.



                                           3
was, rather, a subcontractor.                      She also produced a packet of

materials comprised primarily of unopened mail and refund checks

for clients.

      Two weeks later, the government moved for an order to show

cause as to why Westbrooks should not be held in contempt for

failure to comply with the subpoena.                      Agent Quattlebaum attested

in   an    affidavit      that    most    of        the    documents      Westbrooks      had

provided     were   not     responsive,            and     that      Westbrooks     had   not

produced     most   of     the    kinds        of    documents         “which,     in   [his]

experience,       would     be     maintained             by    an     ongoing      business

operation.”       The district court ordered Westbrooks to appear for

a show-cause hearing.

      At    the   hearing,       Westbrooks          testified        that   she    did   not

produce     other   materials        responsive            to   the    subpoena     because

Williams had advised her that the government “had everything,”

and because, before her court appearance, Williams had told her

to go to the Business office, secure it, and bring to court any

mail that had arrived.               She also testified that some of the

documents     the   IRS     sought       did       not     exist.        Ultimately,      the

district    court    found       Westbrooks         guilty      of    criminal     contempt.

Westbrooks moved for a new trial on the ground that the district

court, in unexpectedly assigning her the burden of proving her

advice-of-counsel         defense,    had          not    afforded     her   a    sufficient

opportunity to present supporting evidence.                            Specifically, she

                                               4
sought    to    introduce         testimony       from      her    attorney.        The    court

denied the motion, finding that “[t]he defendant was invited to

and should have presented all evidence relevant to an advice of

counsel    defense         during    her    case-in-chief . . . .”                  J.A.    428.

Westbrooks was fined $500.                She timely appealed.



                                              II.

     On     appeal,         Westbrooks       argues         that    the     district       court

improperly assigned her the burden of proving her advice-of-

counsel defense, a burden she claims belonged to the government

because    such       a    defense        negates      the    willfulness       element      of

criminal contempt.               We review questions of law de novo.                      United

States     v.    Han,       74    F.3d     537,     540      (4th    Cir.     1996).        The

government, however, urges us to apply a plain-error standard of

review because Westbrooks failed to preserve her due process

argument for appeal.               See United States v. Jones, 716 F.3d 851,

855 (4th Cir. 2013) (“We generally limit our review of claims

not properly preserved in the district court to plain error.”).

     “To       preserve      an    argument       on     appeal,     the    defendant      must

object    on    the       same    basis    below       as    he    contends    is   error     on

appeal.”        United States v. Zayyad, 741 F.3d 452, 459 (4th Cir.

2014).     In her motion for a new judgment, Westbrooks argued that

she had not expected to bear the burden of proving her advice-

of-counsel defense, and that therefore she had not had a fair

                                               5
opportunity to present evidence satisfying that burden.                                       J.A.

371-74.       She did not challenge the district court’s assignment

of the burden.              See id.       In her reply memorandum in support of

her motion, however, she explicitly argued that the court had

“impermissibly shifted the burden to the defense to disprove the

element of willfulness, in violation of In re Winship, 397 U.S.

358    (1970),”             which    held      that      due     process         requires        the

prosecution            to    bear   the     burden       of    proving      guilt        beyond     a

reasonable doubt.                J.A. 417-18; see also Winship, 397 U.S. at

364.       Therefore, Westbrooks preserved her due process claim, and

we review it de novo.



                                               III.

       A    court       may   punish      “contempt       of    its   authority”          such     as

“[d]isobedience             or    resistance        to   its    lawful          writ,    process,

order, rule, decree, or command.”                        18 U.S.C. § 401(3).              One may

be    found       in    contempt     under     § 401(3)        only    if       she     “willfully

violated a decree that was clear and left no uncertainty in the

minds of those that heard it.”                       In re Gates, 600 F.3d 333, 338

(4th       Cir.    2010)         (emphasis     in     original).            This      Court      has

indicated         that      “[a]dvice     of    counsel        may    be    a    defense      in    a

criminal contempt proceeding because it negates the element of




                                                 6
willfulness.”        In re Walters, 868 F.2d 665, 668 (4th Cir. 1989). 3

And the Supreme Court has made it clear that “[t]he [government]

is    foreclosed      from     shifting      the   burden       of    proof     to   the

defendant . . . when         an    affirmative     defense . . . negate[s]            an

element of the crime.”            Smith v. United States, 133 S. Ct. 714,

719   (2013)    (internal         quotation     marks    omitted).        Therefore,

Westbrooks argues that the district court erred by assigning her

the   burden    of     proving      her    advice-of-counsel         defense.        The

government raises two objections to this argument.                            First, it

contends that an advice-of-counsel defense is not available for

a failure to comply with an “unambiguous” subpoena.                       Second, it

argues that, contrary to Westbrooks’s claim, the district court

properly placed the burden on the government.                        We do not reach

the   issue    of    whether      the     advice-of-counsel      defense       applies,

because   we    find     that      the     district     court    did    not     require




      3
       Walters was a case involving civil contempt, which does
not include a willfulness element.       Therefore, the Walters
Court’s observation that reliance on counsel may serve as a
defense to criminal contempt was not central to its holding.
Other circuits have discussed the extent to which an advice-of-
counsel defense applies to criminal contempt. See, e.g., United
States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992); United
States v. Armstrong, 781 F.2d 700, 706 (9th Cir. 1986); United
States v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973); In re
Eskay, 122 F.2d 819, 822 n.17 (3d Cir. 1941). Because we affirm
Westbrooks’s conviction on other grounds, we leave that
discussion for another day.



                                            7
Westbrooks to shoulder the burden of proving willfulness.                                We

therefore affirm Westbrooks’s conviction.

    This Court has held in other contexts that to be entitled to

an advice-of-counsel defense, “the defendant must establish (a)

full disclosure of all pertinent facts to an attorney, and (b)

good faith reliance on the attorney’s advice.”                        United States v.

Powell,    680    F.3d    350,    356    (4th        Cir.   2012)    (emphasis    added)

(internal quotation marks and alterations omitted).                          This is not

inherently       inconsistent         with    Smith’s       pronouncement      that    the

government       must    bear    the     burden       of    proof:       a    burden     of

production to establish a prima facie defense is distinct from

the ultimate burden of proving an element of an offense beyond a

reasonable doubt.         See United States v. Gorski, 36 F. Supp. 3d

256, 267-68 (D. Mass. 2014) (discussing burden shifting in the

context of an advice-of-counsel defense).                        Therefore, although

the government must prove the element of willfulness, the court

may require the defendant to produce evidence supporting the

advice-of-counsel defense.

    That is all the district court did in this case.                                   When

issuing    its     verdict,       the        court     clearly      stated    that     the

government bore the ultimate burden of proving the elements of

criminal    contempt.           See    J.A.    359     (“[T]he      burden   is   on   the

government to prove beyond a reasonable doubt that each of the

elements         of . . . criminal             contempt        have      [sic]         been

                                              8
established.”);          J.A.    365    (“So        having     found    the    Government

established       the     elements        of        criminal     contempt          beyond     a

reasonable doubt, and that the affirmative defenses of mistaken

construction of [sic] advice of counsel are not warranted by

these    facts,    the    Court    will       find    Ms.    Westbrooks       in    criminal

contempt.”).

       The court also explained its conclusion that the advice-of-

counsel defense did not apply:

        [T]he second affirmative defense is the advice of
        counsel[.  T]o be available, the following two things
        must be proved:    A full disclosure of all pertinent
        facts to an expert and good faith reliance on the
        expert’s advice.    There’s little evidence produced
        today of what actually was told to the attorney, in
        terms of receiving the advice, other than bringing the
        subpoena to the attorney. There was no evidence of a
        comparison of the subpoena to the earlier issue and
        different search warrant.   And there was likewise no
        testimony from the attorney, and no indication in the
        previous testimony of the defendant, that she was
        relying upon the advice of counsel . . . for her
        reasons for her conduct before the grand jury.     The
        Court finds that the first predicate for the advice of
        counsel, full disclosure of all pertinent facts, has
        not been established. And so the Court will find that
        the advice of counsel defense is not warranted in this
        case.

J.A.    365.       In    sum,     the   court        found     Westbrooks’s         evidence

insufficient       to     establish       a        prima     facie     advice-of-counsel

defense.       Clearly a court must be able to consider a defendant’s

reliability       and    the    strength       of    her    evidence     in   determining

whether    she     has    met    her    burden        of    production     regarding         an

affirmative       defense.         Such       evaluation       does     not    shift        the

                                               9
ultimate burden of proof.            Here, the district court analyzed

Westbrooks’s testimony, including her statement that she did not

disclose to her lawyer the 10% of paper records the IRS left

behind   when   it     executed   the      search    warrant,     J.A.   282,     and

concluded that Westbrooks failed to establish “full disclosure

of all pertinent facts.”          It then found that the government had

“established     the     elements     of      criminal   contempt        beyond     a

reasonable doubt.”        J.A. 365.        The court did not impermissibly

shift the burden of proving willfulness to Westbrooks.



                                        IV.

     For   the       foregoing      reasons,        we   affirm     Westbrooks’s

conviction.

                                                                          AFFIRMED




                                        10
