United States v. Tamny Westbrooks, 2015 U.S. App. LEXIS 3986

IRS executed a search warrant at a tax-preparation business in April 2009 and seized most paper records; agents later converted the probe into a grand jury investigation and subpoenaed records from Tamny Westbrooks (and a co-custodian).
Westbrooks provided some materials and testified she was a subcontractor (not owner/employee) and that her lawyer advised her the government already had the records and told her to secure the office and bring mail to court.
The government moved to hold Westbrooks in criminal contempt under 18 U.S.C. § 401(3) for failing to produce subpoenaed documents; at a show-cause hearing the district court found her guilty and fined her $500.
Westbrooks claimed an advice-of-counsel defense negating the willfulness element, but the district court found she failed to produce evidence establishing full disclosure to counsel and good-faith reliance.
On appeal Westbrooks argued the district court impermissibly shifted the burden of proof to her (violating Winship); the Fourth Circuit reviewed de novo and affirmed, finding no unconstitutional burden shift.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court impermissibly shifted the burden to Westbrooks to prove an advice-of-counsel defense that negates willfulness in criminal contempt	Westbrooks: court required her to prove the defense; due process (Winship) requires government to prove willfulness beyond a reasonable doubt	Government: advice-of-counsel may be unavailable for unambiguous subpoenas; district court in fact placed ultimate burden on government and only required defendant to produce evidence supporting her defense	Court: affirmed — district court did not shift the ultimate burden; requiring production to establish a prima facie advice-of-counsel defense is permissible and distinct from government’s burden to prove willfulness beyond a reasonable doubt

In re Gates, 600 F.3d 333 (4th Cir. 2010) (willfulness required for contempt of clear court order)
United States v. Han, 74 F.3d 537 (4th Cir. 1996) (standard of review for legal questions)
United States v. Powell, 680 F.3d 350 (4th Cir. 2012) (elements for invoking advice-of-counsel defense: full disclosure and good-faith reliance)
Smith v. United States, 133 S. Ct. 714 (2013) (government may not shift burden of proving an element of offense to defendant)
In re Walters, 868 F.2d 665 (4th Cir. 1989) (noting that reliance on counsel can negate willfulness in contempt contexts)
In re Winship, 397 U.S. 358 (1970) (due process requires prosecution to prove guilt beyond a reasonable doubt)