United States of America v. Ben Tan

San Francisco, CA - import Agricultural Merchandise lawyer represented defendant with appealing from a district court order enforcing an administrative summons issued by the United States Customs and Border Protection division of the Department of HomeLand Security ("Customs”).

Ben Ghee Tan appeals from a district court order

enforcing an administrative summons issued by the United

States Customs and Border Protection division of the

Department of Homeland Security ("Customs”). He argues

that 19 U.S.C. § 1509(a)(2) requires that a summons to

compel testimony include a detailed description of the subject

matter of the investigation and the requested testimony,

which the summons here did not, and that in any event

Customs failed to meet the criteria for enforcement of a

summons established in United States v. Powell, 379 U.S. 48

(1964). We disagree with both contentions and, therefore,

affirm.

Tan operates businesses that import agricultural

merchandise. The director of a section within Customs that

specializes in agricultural imports served on Tan an

administrative summons to compel him to provide testimony.

UNITED STATES V. TAN 5

The summons contained no requirement that he produce

records. The summons directed Tan to appear before a

specified individual at a specified place, date, and time to

testify. "Your testimony . . . is required in connection with an

investigation or inquiry to ascertain the correctness of entries,

to determine the liability for duties, taxes, fines, penalties, or

forfeitures, and/or to ensure compliance with the laws or

regulations administered by [Customs] . . . .” After Tan

refused to appear, the government filed a petition in the

district court to enforce the summons, as provided by

19 U.S.C. § 1510. The district court granted the

government's petition, and this timely appeal followed.

A. Statutory Interpretation1

Tan first argues that the command in 19 U.S.C.

§ 1509(a)(2)—that the government provide "reasonable

notice” when issuing an administrative summons for

testimony—requires the government to provide a notice that

describes with "reasonable particularity” the subjects about

which it intends to question the summoned person, so that the

person can prepare ahead of time. As always, our analysis

begins with the text of the statute. Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999). We must construe the

text in the "specific context in which that language is used,

and the broader context of the statute as a whole.” J.B. v.

United States, 916 F.3d 1161, 1168 (9th Cir. 2019) (quoting

Yates v. United States, 574 U.S. 528, 537 (2015)).

1 We review de novo the district court's interpretation of statutes.

United States v. Jefferson, 791 F.3d 1013, 1015 (2015).

6 UNITED STATES V. TAN

Title 19 U.S.C. § 1509 provides in relevant part:

(a) In any investigation or inquiry

conducted for the purpose of ascertaining the

correctness of any entry, for determining the

liability of any person for duty, fees and taxes

due or duties, fees and taxes which may be

due the United States, for determining liability

for fines and penalties, or for insuring

compliance with the laws of the United States

administered by the United States Customs

Service, the Secretary . . . may—

(1) examine, or cause to be examined,

upon reasonable notice, any record . . .

described in the notice with reasonable

specificity, which may be relevant to such

investigation or inquiry . . .

. . . .

(2) summon, upon reasonable notice—

(A) the person who—

(i) imported, or knowingly caused to be

imported, merchandise into the customs

territory of the United States, . . .

. . . .

(B) any officer, employee, or agent of any

person described in subparagraph (A); [or]

UNITED STATES V. TAN 7

. . . .

(D) any other person he may deem proper;

to appear before the appropriate customs

officer at the time and place within the

customs territory of the United States

specified in the summons (except that no

witness may be required to appear at any

place more than one hundred miles distant

from the place where he was served with the

summons), to produce records, as defined in

subsection (d)(1)(A), and to give such

testimony, under oath, as may be relevant to

such investigation or inquiry; and

(3) take, or cause to be taken, such

testimony of the person concerned, under

oath, as may be relevant to such investigation

or inquiry.

. . . .

(c) A summons issued pursuant to this

section may be served by any person

designated in the summons to serve it. . . .

When the summons requires the production of

records, such records shall be described in

the summons with reasonable specificity.

Id. (emphases added.)

It is clear from the foregoing text that Congress requires

two things when Customs summons the production of

8 UNITED STATES V. TAN

records: "reasonable notice” of the examination of records

and "reasonable specificity” in the description of the records

sought. Id. § 1509(a)(1). But Congress requires only one of

those things with regard to testimony: the government may

summon a person to appear "upon reasonable notice.” Id.

§ 1509(a)(2). Subsection 1509(c) emphasizes the same

distinction by mandating a description of records "with

reasonable specificity” only "[w]hen the summons requires

the production of records.” We must give effect to that

textual difference. See Russello v. United States, 464 U.S. 16,

23 (1983) ("[W]here Congress includes particular language

in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” (brackets in original) (internal quotation marks

omitted)). Tan's reading would ignore the different wording

of the two related provisions.

Tan's proposed interpretation suffers from an additional

flaw. We "strive to give meaning to every word in a statute

and to avoid constructions that render words, phrases, or

clauses superfluous.” Edgerly v. City & Cnty. of San

Francisco, 713 F.3d 976, 984 (9th Cir. 2013) (internal

quotation marks omitted). As just noted, Customs may

"examine, or cause to be examined, upon reasonable notice,

any record . . . described in the notice with reasonable

specificity . . . .” § 1509(a)(1) (emphases added). If

"reasonable notice” encompassed "reasonable specificity,”

the clause concerning reasonable specificity would serve no

function. And even though the testimonial provision appears

in paragraph (a)(2), rather than in paragraph (a)(1), a statutory

phrase "ordinarily retain[s] the same meaning wherever used

in the same statute.” Nat'l Aeronautics & Space Admin. v.

Fed. Labor Rels. Auth., 527 U.S. 229, 235 (1999).

UNITED STATES V. TAN 9

Tan also asserts that we should borrow the requirements

of Federal Rule of Civil Procedure 30(b)(6), which allows a

party to notice the deposition of a corporation and to list

proposed areas of inquiry. Such a notice must specify the

areas of inquiry with "reasonable particularity.” Id. We

decline Tan's invitation for three reasons. First, the Rules of

Civil Procedure do not apply to, or supplant, the complete and

self-contained statutory process that Congress established in

§ 1509. Second, Rule 30(b)(6) uses the phrase "reasonable

particularity,” which is notably absent from § 1509(a)(2) and

is, instead, akin to "reasonable specificity,” which is found

only in §§ 1509(a)(1) and 1509(c). Third, the purpose of the

requirement in Rule 30(b)(6) is to help a corporation identify

an appropriate representative to attend the deposition; there

is no similar uncertainty when an individual receives a

summons to testify.2

After carefully examining the statutory text of

§ 1509(a)(2) in context, we conclude that "reasonable notice”

is a temporal requirement; an interviewee must have

sufficient time to arrange to attend the interview. Cf. J.B.,

916 F.3d at 1167–68 (discussing the temporal nature of a

"reasonable notice in advance” provision).3 By contrast,

"reasonable specificity” in § 1509 is a substantive

requirement. Cases such as United States v. Rubin, 2 F.3d

974 (9th Cir. 1993), on which Tan relies, pertain to

2 Tan argues, in addition, that he is a third-party recordkeeper. But he

clearly does not meet the definition found in 19 U.S.C. § 1509(d), because

he is not a customhouse broker who is not an importer; a lawyer; or an

accountant.

3 Tan does not argue that he failed to receive "reasonable notice” in

that sense.

10 UNITED STATES V. TAN

enforcement of a summons seeking records and are thus

inapt.

Tan next asks us to consider the legislative history of

§ 1509. Because the statute's text is clear, we need not do so.

See Chamber of Com. of the U.S. v. Whiting, 563 U.S. 582,

599 (2011) ("Congress's authoritative statement is the

statutory text, not the legislative history.” (internal quotation

marks omitted)).

Even whenwe examine legislative history, though, it does

not alter our conclusion. We have found only two potential

clues to the meaning of the disputed phrase, and neither

undermines our analysis.

First, Tan cites a small portion of testimony by

Commissioner of Customs Robert E. Chasen before the

House Ways and Means Committee in 1977. The committee

was considering proposed amendments to 19 U.S.C. § 1509,

which resulted in the statutory phrases that we are

considering. Customs Procedural Reform Act of 1977:

Hearings on H.R. 8149 and H.R. 8222 Before the Subcomm.

on Trade of the H. Comm. on Ways & Means, 95th Cong.,

First Session (1977). Commissioner Chasen said, among

other things, that "[i]mporters will, under the administrative

subpoena provided for in section 509, be specifically advised

of the information sought from them.” Id. at 53 (statement by

Robert E. Chasen, Commissioner of Customs). But

Commissioner Chasen primarily discussed records and

record-keeping, not testimony. Id. at 52–53. Accordingly,

the quoted comment cannot reasonably be understood to refer

to a summons for testimony only; at a minimum, the

comment is ambiguous.

UNITED STATES V. TAN 11

Second, the committee received two suggestions that, in

the provision dealing with a summons for testimony, another

requirement be added. Id. at 282 (statement of William G.

Pennell, Chair of the Nat'l Comm. on Int'l Trade

Documentation, "[w]e suggest the following additional

phrase be included in Sub-Section 509(a)(2): [i]mmediately

following 'upon reasonable notice' the phrase 'and with

reasonable specificity' be added”); 338 (statement of the JFK

Airport Customs Brokers Assoc., Inc. that "[i]n addition to

reasonable notice, the person summoned should be given an

indication of the purpose of the investigation or inquiry”).

One of the commenting parties reasoned that such an addition

would prevent fishing expeditions by Customs investigators

and that the person summoned would come to the interview

better prepared. Id. at 338. The Chair of the House Ways

and Means Committee raised this issue and received the

following response from a member of the committee:

"Mr. Chairman, in [section 1509(c)], there is a requirement

that the summons require the production of records and such

records will be described in the summons with reasonable

certainty. So it seems to me we have already covered that

point.” Id. at 534–35. The discussion stopped there.

Reasonable specificity with respect to records was retained;

reasonable specificity with respect to testimony was not

added. That colloquy points in two directions. On the one

hand, it could suggest that a specificity requirement with

respect to a summons for testimony was missing, was

considered, and was rejected. On the other hand, the

discussion reveals that one legislator may have viewed the

specificity requirement in what became § 1509(c) as

sufficient to cover a summons for testimony.

The committee's brief discussion does not support Tan's

position. At most, one legislator seems to have thought that

12 UNITED STATES V. TAN

the specificity requirement would apply to a summons for

testimony. But "remarks of a single legislator, even the

sponsor, are not controlling in analyzing legislative history,”

Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979),

particularly when made in a committee hearing and not in a

floor debate where Congress as a whole could consider the

remarks. Even "floor statements by individual legislators

rank among the least illuminating forms of legislative

history.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 943

(2017). Most importantly, the committee's discussion could

just as easily support our view of the statute, because the

possibility of adding a specificity requirement for testimony

was broached, but the requested text was not added. "[E]ven

those of us who believe that clear legislative history can

illuminate ambiguous text won't allow ambiguous legislative

history to muddy clear statutory language.” Azar v. Allina

Health Servs., 139 S. Ct. 1804, 1814 (2019) (internal

quotation marks omitted).

Finally, Tan argues that we should interpret the statute to

contain identical notice requirements for testimony and

records because there is no principled reason to distinguish

between testimony and records. We are unpersuaded for two

reasons. First, that is a policy judgment for Congress, not us,

to make. Second, Congress could have reasoned that

different practical burdens attach to the different kinds of

summonses. An importer may possess four million

documents, and the importer may have no easy way to figure

out which ones may be relevant to the investigation and

which ones to produce. By contrast, an individual who is

asked to testify simply needs to show up and answer

truthfully (or refuse to answer on Fifth Amendment grounds)

the questions asked, from personal knowledge, which the

individual always possesses. Moreover, because the purpose

UNITED STATES V. TAN 13

of the interview is investigative, specificity ahead of time

could hinder the investigation by either encouraging evasion

or foreclosing the pursuit of new, relevant avenues of inquiry

that come to light during questioning.

B. Enforcement of the Summons4

Proceedings to enforce a summons are "summary in

nature.” United States v. Derr, 968 F.2d 943, 945 (9th Cir.

1992) (internal quotation marks omitted). To obtain a court

order enforcing an administrative summons, the government

need only make a prima facie case for enforcement, which it

may do by submitting a declaration from the investigating

agent. See Crystal v. United States, 172 F.3d 1141, 1143–44

(9th Cir. 1999) (discussing elements necessary for

government to seek enforcement of a summons). Once the

government establishes a prima facie case, the person

opposing the summons shoulders a "heavy burden” to

"disprove” the government's showing. Id. at 1144.

The Supreme Court in Powell articulated the substantive

elements that the government must establish. 379 U.S.

at 57–58 . And, although Powell concerned a summons from

the Internal Revenue Service, courts have applied the same

criteria to administrative summonses issued by Customs.

See, e.g., United States v. Frowein, 727 F.2d 227 (2d Cir.

1984). We, too, conclude that Powell applies. Customs

"must show that the investigation will be conducted pursuant

to a legitimate purpose, that the inquiry may be relevant to

the purpose, that the information sought is not already within

4 We review for clear error the district court's ruling that the

government has met the requirements to enforce a summons. United

States v. Blackman, 72 F.3d 1418, 1422 (9th Cir. 1995).

14 UNITED STATES V. TAN

[Customs'] possession, and that the administrative steps

required by the [statute] have been followed.” Id. at 230

(quoting Powell, 379 U.S. at 57–58).

Here, Customs supported its petition with a sworn

declaration, on personal knowledge, from the director of the

Customs section that covers agricultural imports. She stated,

under oath, that (1) Customs was engaged in an ongoing

investigation into whether Tan and companies that he owned,

operated, or controlled had complied with customs laws;

(2) Customs did not already possess the information sought;

and (3) Customs complied with each of the procedural

requirements of 19 U.S.C. § 1509(c) and 19 C.F.R. § 163.7.

The record confirms that Customs complied with all

statutory criteria, for example, personal service

(acknowledged byTan's signature) and details concerning the

date, time, and location of the interview. Indeed, Tan did not

attempt in the district court to refute any fact contained in the

declaration. Instead he argues that the declaration contains

too little detail to permit the district court to assess

compliance with the Powell requirements. We disagree. The

declaration explains, among other things, that Tan and

companies that he owns and operates import merchandise and

may have violated 19 U.S.C. § 1592 pertaining to the

payment of duties. The declaration describes that the

information sought in Tan's testimony includes information

about those companies' business practices and importations,

as well as the identity of decision-makers on matters

pertaining to importation of merchandise into the United

States. Tan cites, and we have found, no precedent requiring

UNITED STATES V. TAN 15

greater detail in a testimony-only administrative summons

from Customs. For all those reasons, we see no clear error in

the district court's decision to enforce the summons.

AFFIRMED