572 F2d 656 United States v. L Ofe

572 F.2d 656

UNITED STATES of America and Beverly Walters, Revenue
Officer, Internal Revenue Service, Appellees,
v.
Harold L. OFE, Appellant.

No. 77-1381.

United States Court of Appeals,
Eighth Circuit.

Submitted March 23, 1978.
Decided March 30, 1978.

Harold L. Ofe, pro se.

Daniel E. Wherry (former U. S. Atty.) and Paul W. Madgett, Asst. U. S. Atty., Omaha, Neb., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Robert E. Lindsay and James A. Bruton, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief, for appellees.

Before LAY, BRIGHT and ROSS, Circuit Judges.

PER CURIAM.

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1

Harold L. Ofe, proceeding pro se, appeals from the district court1 order adjudging him in civil contempt for failure to obey an earlier order of the district court. On December 10, 1976, the court had ordered enforcement of an Internal Revenue Service summons which required Ofe to appear, give testimony, and produce documents relevant to the determination of his tax liability for the calendar year 1975. Ofe claims that the contempt order, which was entered in a proceeding separate and apart from the summons enforcement proceeding, was entered in violation of his fifth amendment rights. He also claims that there was no evidence to show that his disobedience of the court's order was wilful.

2

Ofe's fifth amendment claim was rejected by the district court in its December 10 order enforcing the summons. That order was final and appealable. Ofe was so notified, but he did not appeal. His fifth amendment claim is thus barred by res judicata. See, e. g., United States v. Wodtke, 543 F.2d 43, 44 (8th Cir. 1976); Daly v. United States, 393 F.2d 873, 876 (8th Cir. 1968).

3

Ofe's claim that there was no showing of wilfulness is without merit. Wilfulness need not be proven in a civil, as opposed to a criminal, contempt proceeding. See, e. g., McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949).

4

Affirmed.

1

The Honorable Albert G. Schatz, United States District Judge for the District of Nebraska