UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF No. 20-56399 AMERICA, Plaintiff-Appellee, D.C. No. 8:20-cv-02165-JVS-ADS v. BEN GHEE TAN, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted October 6, 2021 Pasadena, California

Filed November 1, 2021

Before: Susan P. Graber, Morgan Christen, and John B. Owens, Circuit Judges.

Opinion by Judge Graber 2 UNITED STATES V. TAN

SUMMARY*

Administrative Subpoena

The panel affirmed the district court’s order enforcing an administrative summons issued by the U.S. Customs and Border Protection division of the Department of Homeland Security.

Appellant Ben Tan operates businesses that import agricultural merchandise, and the director of a section within Customs that specializes in agricultural imports served him with an administrative summons to compel him to provide testimony. 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.

Tan argued that the provision in 19 U.S.C. § 1509(a)(2) – that the government provide “reasonable notice” when issuing an administrative summons for testimony – required the government to provide a notice that described with “reasonable probability” the subjects about which it intended to question the summoned person. The panel rejected Tan’s interpretation. Looking at the text of the statute, the panel held – with regard to testimony – that Congress required the government to summon a person to appear “upon reasonable notice” 19 U.S.C. § 1509(a)(2), but the requirement of records being described “with reasonable specificity” only applied when the summons required the production of records. The panel rejected Tan’s assertion that the court

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. TAN 3 borrow the requirements of Fed. R. Civ. P. 30(b)(6), which allows a party to notice the deposition of a corporation and to list proposed areas of inquiry, and further provides that such a notice must specify the areas of inquiry with “reasonable particularity.”

Tan next asked the panel to consider the legislative history of § 1509. The panel held that because the statute’s text was clear, they need not consider the legislative history. Nevertheless, even upon examination of the legislative history, it did not alter the panel’s conclusion.

Finally, the panel examined the enforcement of the summons. In United States v. Powell, 379 U.S. 48 (1964), the Supreme Court – in a case concerning an Internal Revenue Service summons – articulated the substantive elements that the government must establish for enforcing a summons. The panel held that the same criteria applied to administrative summons issued by Customs. Here, Customs supported its position with a sworn declaration, on personal knowledge, from the director of the Customs section that covers agricultural imports. The record confirmed that Customs complied with all statutory criteria – for example, personal service, and details concerning the date, time and location of the interview. The panel disagreed with Tan’s argument that the declaration contained too little detail to permit the district court to assess compliance with the Powell requirements. The panel found no precedent requiring greater detail in a testimony-only administrative summons from Customs. The panel concluded that there was no clear error in the district court’s decision to enf