Opinion of the Court

production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Moreover, in construing these provisions of the Internal Revenue Code, the Court has considered it appropriate to rely on its earlier cases involving other statutes, including the Federal Trade Commission Act. See United States v. Powell, 379 U. S. 48, 57 (1964) (citing United States v. Morton Salt Co., 338 U. S. 632, 642–643 (1950)).

We therefore conclude that the appeal was improperly dismissed as moot. In so concluding we express no opinion on the merits of the Church's argument that the Government did not establish an adequate evidentiary basis to support the District Court's determination that the tapes fell within the crime-fraud exception to the attorney-client privilege. Nor do we express any opinion about the res judicata contention advanced in the Government's brief in opposition to the petition for certiorari. Brief for United States in Opposition

1964, 63 Mich. L. Rev. 59, 90 (1964). Section 9 of the FTC Act provides, in pertinent part:

“Any of the district courts of the United States ... may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation ... to produce documentary evidence if so ordered ... 38 Stat. 722, as amended, 15 U. S. C. $ 49.

In the words of Professor Handler:

“Section 7602 of the Internal Revenue Code authorizes the Secretary of the Treasury or his delegate to summon taxpayers or other witnesses to testify and to produce relevant and material documents. Section 9 of the FTC Act grants the same power to the Commission. Should a recipient of a summons or subpoena refuse to comply, both statutes afford the same enforcement procedures. In neither case is the administrative subpoena self-executing: obedience can be obtained only by court order. In addition, both statutes, which are in pari materia, make it a criminal offense to 'neglect to appear or to produce subpoenaed documents.” 63 Mich. L. Rev., at 91 (footnotes omitted).

Opinion of the Court

13–14. We simply hold that compliance with the summons enforcement order did not moot the Church's appeal.11

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

11 In reaching this conclusion, we reject petitioner's “fall back" argument that even if compliance with a summons enforcement order by the subject of the IRS investigation moots an appeal, compliance by a disinterested third party—here, the Clerk of the Los Angeles Superior Court-does not. Brief for Petitioner 25–34; Reply Brief for Petitioner 16–18. We agree with the Government that a "difference in the method of compliance does not create a distinction for the purpose of the constitutional case or controversy requirement.” Brief for United States 30. This case presents a justiciable controversy not because a third party complied with the summons enforcement order, but because petitioner has a stake in the outcome of the proceeding and a federal court can effectuate relief should petitioner prevail on the merits.

There is a distinction in the law between the enforcement of discovery orders directed at parties and the enforcement of discovery orders directed at disinterested third parties, but that distinction derives from concerns regarding finality, not mootness. As a general rule, a district court's order enforcing a discovery request is not a "final order” subject to appellate review. A party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order. See United States v. Ryan, 402 U. S. 530 (1971). However, under the so-called Perlman doctrine, see Perlman v. United States, 247 U. S. 7 (1918), a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance. Ibid. See generally 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure $3914.23, pp. 156-167 (2d ed. 1992). This distinction has no bearing on this case because a district court order enforcing an IRS summons is an appealable final order. See Reisman v. Caplin, 375 U. S. 440 (1964). There is no "third-party exception” because there is no general rule barring immediate appeal of IRS summons enforcement orders.

Per Curiam




No. 91–6646. Argued November 4, 1992—Decided November 16, 1992 Certiorari dismissed. Reported below: 918 F. 2d 848.

John Trebon, by appointment of the Court, 503 U. S. 958, argued the cause and filed briefs for petitioner.

Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Jeffrey P. Minear, and Thomas E. Booth.


The writ of certiorari is dismissed as improvidently granted.





No. 91–719. Argued October 5, 1992—Decided December 1, 1992 In 1986, respondent Raley was charged with robbery and with being a

persistent felony offender under a Kentucky statute that enhances sentences for repeat felons. He moved to suppress the 1979 and 1981 guilty pleas that formed the basis for the latter charge, claiming that they were invalid because the records contained no transcripts of the proceedings and hence did not affirmatively show, as required by Boykin V. Alabama, 395 U. S. 238, that the pleas were knowing and voluntary. Under the state procedures governing the hearing on his motion, the ultimate burden of persuasion rested with the government, but a presumption of regularity attached to the judgments once the Commonwealth proved their existence, and the burden then shifted to Raley to produce evidence of their invalidity. As to the 1981 plea, Raley testified that, among other things, he signed a form specifying the charges to which he agreed to plead guilty and the judge at least advised him of his right to a jury trial. His suppression motion was denied, he was convicted, and he appealed. The Kentucky Court of Appeals found that Raley was fully informed of his rights in 1979 and inferred that he remained aware of them in 1981. Raley then filed a federal habeas petition. The District Court rejected his argument that the state courts had erred in shifting the burden of production to him, but the Court of Appeals reversed as to the 1981 plea, holding, inter alia, that where no transcript is available, the prosecution has the entire burden of establishing a plea's validity by clear and convincing evidence and no pre

sumption of regularity attaches to the prior judgment. Held:

1. Kentucky's burden-of-proof scheme is permissible under the Due Process Clause. Pp. 26–35.

(a) “Tolerance for a spectrum of state procedures dealing with (recidivism) is especially appropriate" given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Spencer v. Texas, 385 U. S. 554, 566. Pp. 26–28.

(b) The deeply rooted presumption of regularity that attaches to final judgments would be improperly ignored if the presumption of invalidity applied in Boykin to cases on direct review were to be imported to recidivism proceedings, in which final judgments are collaterally at


tacked. In the absence of an allegation of government misconduct, it cannot be presumed from the mere unavailability of a transcript on collateral review that a defendant was not advised of his rights. Burgett v. Texas, 389 U. S. 109, distinguished. The presumption of regularity makes it appropriate to assign a proof burden to the defendant even when a collateral attack rests on constitutional grounds. And the difficulty of proving the invalidity of convictions entered many years ago does not make it fundamentally unfair to place a burden of production on the defendant, since the government may not have superior access to evidence. Nor is Raley's position supported by the state courts' historical treatment of defendants in recidivism proceedings, the wide range of contemporary state practices regarding the allocation of the proof burden, or interpretations of analogous federal laws, see, e.g., United States v. Gallman, 907 F. 2d 639, 643–645. Pp. 28–34.

(c) Due process does not require the Commonwealth to prove the validity of a prior conviction by clear and convincing extrarecord evidence. Even if Boykin had addressed the question of measure of proof, it would not necessarily follow that the same standard should apply in recidivism proceedings. Given the difficulties of proof for both sides, it is not fundamentally unfair to require something less than clear and convincing evidence when the government is assigned the burden of persuasion. There is no historical tradition setting the standard at this particular level, and contemporary practice is far from uniform. Pp. 34-35.

2. The Kentucky courts properly concluded that Raley's 1981 guilty plea was valid. Their factual determinations are entitled to the presumption of correctness accorded state court factual findings under 28 U.S. C. $2254(d). Marshall v. Lonberger, 459 U. S. 422, 431-432. The Kentucky Court of Appeals fairly inferred from Raley's 1979 experience that he understood the consequences of his 1981 plea. See, e. g., id., at 437. That, combined with his admission that he understood the charges against him and his self-serving testimony that he could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky scheme. It cannot be said that this was

error. Pp. 35–37. 945 F. 2d 137, reversed.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 37.

« ForrigeFortsett »