Invesco High Yield Fund v. Hans Jecklin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INVESCO HIGH YIELD FUND;
INVESCO V.I. HIGH YIELD
FUND; MORGAN STANLEY
GLOBAL FIXED INCOME
OPPORTUNITIES FUND; and
MORGAN STANLEY VARIABLE
INSURANCE FUND, INC. CORE
PLUS FIXED INCOME
PORTFOLIO,
Plaintiffs-Appellees,
v.
HANS JECKLIN,
Defendant-Appellant,
and
SWISS LEISURE GROUP AG;
JPC HOLDING AG; GEORGE
HAEBERLING; JOHN TIPTON;
CHRISTIANE JECKLIN,
Defendants.
No. 21-15809
D.C. No.
2:05 cv-1364-RFB
OPINION

-- 1 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 2
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted July 7, 2021
San Francisco, California
Filed August 25, 2021
Before: A. Wallace Tashima and Susan P. Graber, Circuit
Judges, and Kathryn H. Vratil,* District Judge.
Opinion by Judge Tashima
SUMMARY**
Recalcitrant Witness Statute
The panel affirmed the district court’s order granting
plaintiff’s motion to compel and holding Hans Jecklin in
contempt as a recalcitrant witness.
The panel held that the federal recalcitrant witness statute,
28 U.S.C. § 1826(a), applied to an individual who refused to
comply with a court order compelling responses to post-
judgment written discovery requests. The panel rejected
* The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 3
Jecklin’s contention that the statute applied only to a refusal
to provide in person testimony, not to a refusal to answer
interrogatories or produce documents. The panel also
rejected Jecklin’s contention that the statute applied to a
refusal to produce prejudgment, but not post-judgment,
discovery.
The panel affirmed the district court’s issuance of the
arrest warrant, and dissolved this court’s stay of the arrest
warrant.
The panel addressed the remaining issues in a
concurrently filed memorandum.
COUNSEL
Tamara Beatty Peterson (argued) and Nikki L. Baker,
Peterson Baker PLLC, Las Vegas, Nevada, for Defendant-
Appellant.
John M. Conlon (argued), Jean-Marie L. Atamian, Jason I.
Kirschner, and Christopher J. Mikesh, Mayer Brown LLP,
New York, New York, for Plaintiffs-Appellees.

-- 3 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 4
OPINION
TASHIMA, Circuit Judge:
Under the federal recalcitrant witness statute, when a
witness refuses to testify or provide other information,
including documentary evidence, the court “may summarily
order his confinement . . . until such time as the witness is
willing to give such testimony or provide such information.”
28 U.S.C. § 1826(a). We address whether § 1826(a) applies
to an individual who refuses to comply with a court order
compelling responses to post-judgment written discovery
requests. We hold that it does.1
I. BACKGROUND
In April 2019, the district court entered a judgment in
favor of Plaintiffs and against Defendants Hans Jecklin, a
Swiss citizen, and two business entities he controls, Swiss
Leisure Group AG, and JPC Holding AG (collective, the
“Jecklin Defendants”), in the amount of $38,489,055, plus
post-judgment interest accrued since 2003, costs, and
attorney’s fees.
Two months later, Plaintiffs propounded post-judgment
interrogatories and requests for the production of documents
on the Jecklin Defendants pursuant to Federal Rules of Civil
Procedure 69(A)(2), which authorizes a judgment creditor to
obtain discovery from a judgment debtor to aid in the
execution of a judgment. When the Jecklin Defendants failed
to produce the requested discovery, Plaintiffs moved to
1 In a concurrently filed memorandum, we address the remaining
isues in this appeal.

-- 4 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 5
compel discovery responses under Rule 37. See Fed. R. Civ.
P. 37(a). In a May 28, 2020, order, the district court granted
Plaintiffs’ motion to compel.
The Jecklin Defendants did nothing to comply with the
May 28 order. As Plaintiffs stated in a status report:
“Despite the passage of over a month since entry of this
Court’s May 28, 2020 Order, and over one year since
Plaintiffs’ post-judgment discovery requests were served,
Defendants have not made any meaningful effort to comply
with the Court’s Order, let alone acknowledged that they
would comply with the Order compelling Defendants to
respond to the discovery requests.” At a status conference
held two days later, the Jecklin Defendants advised the court,
through counsel, that “they are not going to comply with the
Court order compelling discovery because they do not accept
jurisdiction of this Court and they consider Your Honor’s
decision not to be enforceable in Switzerland.”
Plaintiffs thereafter moved for sanctions. Invoking
§ 1826(a), Plaintiffs argued that “the Court should enter an
order for the issuance of an arrest warrant as to Mr. Jecklin at
such time as he may be found in the United States until such
time as the Jecklin Defendants comply with the May 28 Order
or Mr. Jecklin has been confined for 18 months, whichever is
earlier.” In a March 2021 order, the district court granted the
motion for sanctions and held the Jecklin Defendants in civil
contempt. In addition to imposing a daily fine, the court
found that “the Jecklin Defendants’ pattern of disregarding
the Court’s Order supports the coercive sanction of arrest.”
The court stated:
The Court finds, based upon the record, that
Hans Jecklin is in possession of information

-- 5 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 6
and documents that are the subject of this
Court’s May 28, 2020 Order related to
post-judgment discovery. The Court further
finds that Hans Jecklin has specifically
remained outside of the territorial jurisdiction
of the United States to avoid his legal
obligations in the case before this Court. He
has indeed confirmed this through his attorney
by indicating he would no longer subject
himself to this Court’s jurisdiction.
Therefore, an arrest warrant shall be issued for
Hans Jecklin, and if he is in the United States,
he shall be detained until he purges himself of
his civil contempt. Upon such arrest, he shall
be forthwith brought before this Court to
address his contempt. This arrest is intended
to be coercive and not punitive.
The court issued an arrest warrant on April 1, 2021. Jecklin
timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
Post-judgment orders of contempt are within this court’s
jurisdiction under 28 U.S.C. § 1291. Hilao v. Est. of Marcos,
103 F.3d 762, 764 (9th Cir. 1996). “We review the court’s
finding of contempt under 28 U.S.C. § 1826 for abuse of
discretion.” In re Grand Jury Proc., 801 F.2d 1164, 1167
(9th Cir. 1986) (per curiam). “Under this deferential
standard, we must affirm the district court absent ‘an error of
law or clearly erroneous findings of fact.’” In re Volkswagen
“Clean Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig.,
975 F.3d 770, 775 (9th Cir. 2020) (quoting Wilcox v. Arpaio,
753 F.3d 872, 875 (9th Cir. 2014)). “Questions of statutory

-- 6 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 7
interpretation are reviewed de novo.” United States v.
Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008) (per curiam).
III. DISCUSSION
Jecklin contends that § 1826(a) does not apply here for
two independent reasons. He argues that the statute applies
only to a refusal to provide in-person testimony, not to a
refusal to answer interrogatories or produce documents. He
further asserts that the statute applies to a refusal to produce
prejudgment, but not post-judgment, discovery. We reject
both arguments.
A. Section 1826 Applies to a Refusal to Produce
Written Discovery
We first address Jecklin’s argument that § 1826(a) is
limited to a refusal to provide “in-person testimony.” “To
answer this question we begin as we do for all questions of
statutory interpretation, by turning to the text.” United States
v. Herrera, 974 F.3d 1040, 1047 (9th Cir. 2020). Section
1826 states:
Whenever a witness in any proceeding before
or ancillary to any court or grand jury of the
United States refuses without just cause
shown to comply with an order of the court to
testify or provide other information, including
any book, paper, document, record, recording
or other material, the court, upon such
refusal, or when such refusal is duly brought
to its attention, may summarily order his
confinement at a suitable place until such time

-- 7 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 8
as the witness is willing to give such
testimony or provide such information.
28 U.S.C. § 1826(a) (emphases added).
Were we to consider only the third word of the statute, we
might agree with Jecklin that § 1826(a) does not apply to
written discovery responses. The statute refers to a
“witness,” and a “witness” is commonly understood to mean
“[s]omeone who gives testimony under oath or affirmation
(1) in person, (2) by oral or written deposition, or (3) by
affidavit.” Witness, Black’s Law Dictionary (11th ed. 2019);
see Animal Legal Def. Fund v. U.S. Dep’t of Agric., 933 F.3d
1088, 1093 (9th Cir. 2019) (“When a statute does not define
a term, we typically give the phrase its ordinary meaning.”
(quoting FCC v. AT & T Inc., 562 U.S. 397, 403 (2011))).
Jecklin does not fall within the dictionary definition of
witness.
We do not, however, consider the third word of the statute
in isolation. “Interpretation of a word or phrase depends
upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.” Dolan v.
U.S. Postal Serv., 546 U.S. 481, 486 (2006). Here, § 1826(a)
as a whole makes clear that a “witness” includes not only
someone who refuses to testify but also someone who refuses
to “provide other information.” 28 U.S.C. § 1826(a). Jecklin,
therefore, was a witness under the statute.
Our case law supports this conclusion: we have
consistently applied § 1826(a) to individuals who refused to
provide information through means other than testimony. In
In re Grand Jury Proceedings, 33 F.3d 1060, 1063 (9th Cir.

-- 8 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 9
1994) (per curiam), for example, we applied § 1826(a) to an
individual who failed to provide documents in response to a
subpoena duces tucem issued by a grand jury. Similarly, in
In re Grand Jury Proceedings, 873 F.2d 238, 239 (9th Cir.
1989) (per curiam), we applied § 1826(a) to an individual
who refused to sign a consent form that would have given a
grand jury access to information about his bank accounts.
Neither of these cases involved a refusal to testify.
Jecklin’s position is also at odds with the Third Circuit’s
decision, which specifically addressed the meaning of the
word “witness” in § 1826(a). There, the appellant was
confined for civil contempt under § 1826(a) after he failed to
comply with a court order requiring him to produce several of
his seized electronic devices in a fully unencrypted state.
United States v. Apple MacPro Comput., 949 F.3d 102, 104
(3d Cir. 2020). The Third Circuit held that the appellant was
“a witness within the meaning of § 1826(a) both because he
is being asked to provide testimonial information and because
the statute reaches even non-testimonial acts of production.”
Id. at 107 (emphasis added). The appellant was “being asked
to provide information in a proceeding and [was] therefore a
witness under § 1826(a).” Id. at 108. Jecklin, too, is being
asked to provide information in a proceeding. He therefore
qualifies as a “witness” under the statute.
Finally, Jecklin’s position is contrary to the purposes of
the statute. As the Second Circuit has observed,
“imprisonment under the recalcitrant witness statute is a
coercive remedy, the sole purpose of which is to compel the
production of information pursuant to court order.” United
States v. Restrepo, 936 F.2d 661, 669 (2d Cir. 1991). This
purpose is achieved by compelling the production of

-- 9 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 10
information through all authorized means, not solely through
testimony.
For all of these reasons, we hold that § 1826(a) applies
not only to a refusal to testify but also to a refusal to provide
other information. This includes responding to
interrogatories and requests for the production of documents.
B. Section 1826 Applies to a Refusal to
Produce Post-judgment Discovery
Jecklin alternatively contends that § 1826(a) is limited to
a refusal to produce prejudgment discovery and does not
apply to a refusal to produce post-judgment discovery.
Jecklin’s argument finds no support in the statutory text.
Section 1826(a) refers to a refusal “to testify or provide other
information” in “any proceeding before or ancillary to any
court or grand jury of the United States.” 28 U.S.C.
§ 1826(a). It makes no distinction between prejudgment and
post-judgment proceedings, nor between prejudgment and
post-judgment information.
Likewise, our case law and the case law of other circuits
do not support Jecklin’s argument. In Danning v. Lavine,
572 F.2d 1386 (9th Cir. 1978), the defendant was confined
under § 1826(a) for refusing to answer prejudgment
deposition questions. We held that the confinement could not
continue after default judgment was entered against the
defendant, because “[t]he depositions were taken to obtain a
judgment and no further discovery for this purpose was
necessary after entry of the judgment.” Id. at 1389. In
dictum, however, we assumed that § 1826(a) would apply to
a refusal to produce post-judgment discovery:

-- 10 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 11
We acknowledge that if during the course of
discovery in aid of execution on the judgment,
Fed. R. Civ. P. 69(a), appellant had refused to
disclose the identity of the person who
received the proceeds, a contempt order
compelling her to answer might be proper.
That situation, however, is not presented by
this appeal.
Id. at 1389–90.
Other circuits also have assumed that § 1826(a) applies to
a refusal to produce post-judgment discovery. In
Martin-Trigona v. Gouletas, 634 F.2d 354, 355–56 (7th Cir.
1980) (per curiam), a judgment debtor was found in contempt
and confined after he refused to answer live questions in a
post-judgment proceeding intended to discover his assets.
The court upheld the confinement under § 1826(a). Id. at
362. The Fifth Circuit has also affirmed confinements under
§ 1826(a) based on a failure to produce post-judgment
discovery. See Nat. Gas Pipeline Co. of Am. v. Energy
Gathering, Inc., 99 F.3d 1134, at *1–2 (5th Cir. 1996) (per
curiam) (unpublished); James v. Frame, 979 F.2d 1534, at *1,
5 (5th Cir. 1992) (per curiam) (unpublished). Although none
of these decisions specifically addressed Jecklin’s argument
that § 1826(a) does not apply to post-judgment discovery, the
court in each case plainly assumed that it did. Jecklin points
to no case law to the contrary, and we are aware of none.
Finally, Jecklin once again fails to explain how the
distinction he proposes comports with § 1826’s purpose of
compelling the production of information pursuant to court
order. As the Supreme Court has observed, “[t]he rules
governing discovery in postjudgment execution proceedings

-- 11 of 12 --

INVESCO HIGH YIELD FUND V. JECKLIN 12
are quite permissive.” Republic of Argentina v. NML Cap.,
Ltd., 573 U.S. 134, 138 (2014). It would make no sense for
Congress to have excluded these important proceedings from
the reach of § 1826.
Given the statutory text, case law, and the statute’s
purpose, we hold that § 1826(a) applies to a refusal to
produce post-judgment discovery.
IV. CONCLUSION
For the reasons stated herein and in our concurrently filed
memorandum disposition, the district court’s order granting
the motion to compel, its civil contempt order, and its
issuance of the arrest warrant are AFFIRMED. The stay of
the arrest warrant entered by this court on May 25, 2021, is
DISSOLVED.

-- 12 of 12 --