           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 29, 2008

                                       No. 08-20431                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MARK E. BATTON

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:07-MC-27


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Mark E. Batton requests a stay of detention pending appeal of an order
finding him in civil contempt for failure to comply with a district court’s order
enforcing an IRS administrative summons. We have previously affirmed the
May 7, 2007 order finding him in contempt. See United States of America v.
Batton, No. 07-20382 (5th Cir. Feb. 26, 2008). Following that review, further
proceedings were had in the district court, and the district judge again ordered
Batton jailed for civil contempt. On July 3, 2008, this court granted a temporary

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                   No. 08-20431

stay of the district court’s order detaining appellant in jail, pending further order
of this court. We requested that the government file a response to appellant’s
motion and granted appellant leave to reply to the government’s response.
Batton urges a stay of detention while he seeks certiorari review of our
affirmance and pursues an appeal of the district court’s subsequent denial of his
request to purge contempt. Because Batton has failed to make a strong showing
that he is likely to prevail on the merits of his appeal, we vacate our prior
temporary stay order and deny his motion for a stay. See FED. R. APP. P. 8;
Coastal States Gas Corp. v. Dep’t of Energy, 609 F.2d 736, 737 (5th Cir. 1979).
      By denying Batton’s motion, we do not present him the Hobson’s choice he
fears, that is, indefinite detention or coerced waiver of valid Fifth Amendment
rights.   Batton “is able to purge the contempt and obtain his release by
committing an affirmative act, and thus ‘carries the keys of his prison in his own
pocket.’” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829
(1994) (citation omitted). The district court has set forth, in two show-cause
hearings and a written order, a clear opportunity for Batton to bring himself into
compliance, renounce his contemptuous conduct, and purge himself of the
sanction imposed. See Lance v. Plummer, 353 F.2d 585, 592 (5th Cir. 1965).
Such procedure does not bar any valid invocation of constitutional rights.
      We understand the court’s oral and written orders to instruct Batton to
fully comply with the March 31, 2006 IRS summons by: (1) producing all
remaining responsive documents in his possession or control; (2) providing all
non-privileged testimony requested; (3) filing a written response to each item
requested in the summons that lists his previous production and subsequent
efforts to tender the remaining documents; and (4) specifically identifying
reasons why he has been unable to obtain particular requested documents or
furnish testimony. Implicit in this reporting requirement is the opportunity to
narrowly raise defenses and privileges for the district court’s in camera review.

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      The record makes clear that Batton has repeatedly responded to the 2006
summons and subsequent court orders by engaging in dilatory tactics and
claiming full compliance, lack of possession or control over responsive
documents, and broadly asserting the Fifth Amendment as to all questions. The
district court has determined each such response to be invalid and, at times,
implausible, and has accordingly held Batton in civil contempt and ordered him
detained. We have found no reversible error in that order.
      Between the original order affirmed by this court and the current
proceedings, Batton has received an affidavit from Sarah Sheldon, an attorney
in the Office of Chief Counsel for the IRS. The affidavit was filed in response to
Batton’s Freedom of Information Act request. In that affidavit, she states: “At
present, a referral to [Criminal Investigation] is imminent.” Whether this
affidavit presents a changed circumstance from the prior order is a matter
Batton is entitled to present to the district court in connection with his efforts
to purge contempt by narrowly raising his Fifth Amendment privilege as to any
disclosure that he “reasonably believes could be used in a criminal prosecution
or could lead to other evidence that might be so used.” Kastigar v. United States,
406 U.S. 441, 445 (1972).
      Having set forth evidence establishing the possibility of a criminal referral
and a statement from the IRS that such criminal referral is “imminent,” it
remains Batton’s obligation to “present himself with his records for questioning,
and as to each question and each record elect to raise or not to raise the defense.”
United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969). “The district court
may then determine by reviewing [the] records and by considering each question
whether, in each instance, the claim of self-incrimination is well-founded.” Id.
Certainly, the bare fact that the IRS inquiry arguably has become one with
“dominant criminal overtones” does not allow him to “draw a conjurer’s circle
around the whole matter by his own declaration that to write any word upon the

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government blank would bring him into danger of the law.” Id. at 852 & n.17
(quoting United States v. Sullivan, 274 U.S. 259, 264 (1927)). Batton is “not the
final arbiter of whether or not the information sought would tend to
incriminate.” United States v. Johnson, 577 F.2d 1304, 1311 (5th Cir. 1978).
      In lieu of Batton’s compliance with the district court’s order and narrow
invocation of privilege, his blanket assertion of the Fifth Amendment is unlikely
to prevail on appeal. Accordingly, we VACATE our prior temporary stay order
and DENY his motion for a stay of detention.




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