                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 19 2016

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GARRETT J. ZELEN,                                No. 14-55657

               Petitioner-Appellant,             D.C. No. 2:13-cv-06430-JFW-
                                                 JEM
 v.

UNITED STATES OF AMERICA; et al.,                MEMORANDUM*

               Respondents-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                          Submitted September 13, 2016**

Before:        HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

      Garrett J. Zelen, an attorney, appeals pro se from the district court’s order

dismissing Zelen’s petition to quash an IRS summons for Zelen’s bank records.

We have jurisdiction under 28 U.S.C. § 1291. We review for clear error the

district court’s decisions regarding a summons. United States v. Richey, 632 F.3d

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
559, 563 (9th Cir. 2011). We review de novo the scope of asserted privileges. Id.

at 563-64 (attorney-client privilege and work product doctrine); United States v.

Bright, 596 F.3d 683, 690 (9th Cir. 2010) (Fifth Amendment privilege). We

affirm.

      The district court did not clearly err in denying Zelen’s petition to quash

because the United States met its burden of establishing its prima facie case for

enforcement of the IRS’s summons, and Zelen failed to rebut that showing. See

United States v. Powell, 379 U.S. 48, 57-58 (1964) (setting forth requirements for

establishing a prima facie case for enforcement, and explaining that the burden is

on the taxpayer to show an abuse of the process).

      The district court properly concluded that the attorney-client privilege did

not apply because “there is no confidentiality where a third party such as a bank

either receives or generates the documents sought by the IRS.” Reiserer v. United

States, 479 F.3d 1160, 1165 (9th Cir. 2007). Contrary to his contention, Zelen

failed to demonstrate that any exception applied. See id. (attorney-client privilege

generally does not protect a client’s identity or fee arrangements); United States v.

Blackman, 72 F.3d 1418, 1424 (9th Cir. 1995) (limited exception to the attorney-

client privilege exists “where disclosure would compromise confidential

communications between attorney and client or constitute the ‘last link’ in an


                                           2                                     14-55657
existing chain of evidence likely to lead to the client’s indictment”).

      The district court properly concluded that the Fifth Amendment privilege did

not apply because “the privilege protects a person only against being incriminated

by his own compelled testimonial communications.” Fisher v. United States, 425

U.S. 391, 409 (1976); see also Bright, 596 F.3d at 690 (“A claim of Fifth

Amendment privilege may be asserted if there are substantial hazards of self-

incrimination that are real and appreciable . . . .” (citations and internal quotation

marks omitted)).

      The district court properly concluded that the attorney work-product

doctrine did not apply because the records sought were not created in anticipation

of litigation. See Richey, 632 F.3d at 567 (outlining requirements for work-product

protection).

      We reject as unpersuasive Zelen’s contentions that his bank records are

protected from disclosure on other constitutional and state law grounds, and that

possible future disclosure requires disqualification of the United States’ attorneys

in criminal matters affecting Zelen’s clients.

      Zelen’s request for sanctions, set forth in his opening brief, is denied.

      AFFIRMED.




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