                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-56929

               Petitioner - Appellee,            D.C. No. 2:07-cv-08395-GHK-SH

  v.
                                                 MEMORANDUM *
EVELYN CATHCART,

               Respondent - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                       Argued and Submitted October 6, 2010

                                 Pasadena, California

Before:        CUDAHY,** Senior Circuit Judge and WARDLAW and W.
               FLETCHER, Circuit Judges,          .




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
      Taxpayer Evelyn Cathcart appeals the district court’s order enforcing seven

IRS summonses for records. See 26 U.S.C. § 7602(a)(2). We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

      The district court correctly concluded that it had subject matter jurisdiction

under 26 U.S.C. §§ 7402(b) and 7604(a), and that venue was proper under those

provisions, because Cathcart was “found” in the Central District of California

when she was personally served there with the petition to enforce the summonses

and the district court’s order to show cause. The district court also correctly

determined that the government satisfied its burden for enforcement by introducing

Revenue Agent Jaya Balu’s sworn declaration attesting to compliance with the

requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). See Stewart v.

United States, 511 F.3d 1251, 1254 (9th Cir. 2008). We reject Cathcart’s argument

premised on United States v. Jose, 131 F.3d 1325 (9th Cir. 1997) (en banc), that

the district court lacked the authority to modify the summonses to permit Cathcart

to produce the requested documents by mail rather than by personal appearance.

Jose holds that a district court may not conditionally enforce a summons by

restricting the IRS’s use of the summoned material. Id. at 1329. Here, the district

court changed only the manner in which Cathcart was to comply; the court limited




                                           2
neither the investigative scope of the summonses nor the IRS’s ability to use the

material sought.

      We also agree with the district court that Cathcart’s speculative claims of

bad faith and harassment – most of which pertain to the IRS’s investigation of her

husband Charles – do not carry her “heavy burden” of showing that the IRS issued

the summonses for an illegitimate purpose. See United States v. Stuckey, 646 F.2d

1369, 1372 (9th Cir. 1981). The district court did not abuse its discretion by

refusing Cathcart’s request for an evidentiary hearing. Even taken as true, the

declarations submitted by Cathcart establish at most that the IRS missed two

scheduled appointments with Charles Cathcart and did not respond to several

communications from Evelyn Cathcart. Such conduct does not rise to the

“disruptive” and “damag[ing]” level that we have held to require a hearing in the

past. See, e.g., United States v. Samuels, Kramer & Co., 712 F.2d 1342, 1347 (9th

Cir. 1983).

      Nonetheless, we note the troubling nature of the IRS’s conduct. The IRS

addressed the summonses to Cathcart at a residence in Tuxedo Park, N.Y., and

served Cathcart at that residence in May 2006, but the summonses demanded that

Cathcart appear personally in San Francisco, Calif., to produce the requested

records. Two weeks after Cathcart was served with the summonses, her accountant


                                          3
Charles Bailin faxed a letter to the issuing officer, Revenue Agent Marie Allen,

suggesting that Cathcart should be allowed to produce the records by mail rather

than in person. Bailin states that he followed up with phone calls and a second

letter to Allen, but received no response. Instead, the IRS brought this enforcement

action in December 2007. The IRS eventually conceded, in August 2008, that

Cathcart could comply with the summonses by mailing the requested records to

Allen. Contrary to the government’s claim that Cathcart could have complied with

the summonses at the time of issuance “simply by mailing the summoned

documents to the IRS office in San Francisco,” the summonses clearly require

Cathcart “to appear” before Revenue Agent Allen in San Francisco. The

government’s memorandum in support of its petition to enforce the summonses

asked the district court to issue an order “compelling Respondent to appear before

an authorized representative of the IRS at a time and place to be determined by the

IRS.”

        If production of the summoned records by mail sufficed, the IRS should

have accepted Cathcart’s offer in 2006, instead of consuming scarce agency and

judicial resources in this litigation. By the same token, we note that we do not

understand why Cathcart did not take up the IRS’s belated invitation to comply by




                                          4
mail in August 2008, choosing to litigate instead. In any event, the district court’s

order is affirmed.

      AFFIRMED.




                                           5
