Opinion
10CR318S.
June 20, 2011
Order
This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. 636(b)(1)(A) and, pursuant to 28 U.S.C. 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. 636(b)(1)(A) (Docket No. 2).
The instant matter before the Court is Defendants' omnibus motion (Docket No. 14) which seeks the following relief: filing of a Bill of Particulars; production of discovery; hearing on Federal Rule of Evidence 702 expert testimony; voir dire of Government's experts outside the presence of the jury; Jencks Act; production of Government summaries and Brady materials, Federal Rule of Evidence 404(b) and 609 disclosure; preservation of rough notes; and disclosure of informant information.
The Government has filed responding papers (Docket No. 15), arguing that a previous action acts as law of the case for defendants' present motions (id. at 3-6, 12-17), and oral argument was heard on February 18, 2011 (Docket No. 18), further argument on dispositive portions of defense motion was held on June 7, 2011 (Docket No. 34), and the omnibus motion was deemed submitted as of June 7, 2011. A Report Recommendation was entered on the dispositive portions of the motion (Docket No. 35; see also Docket No. 28 (noting defendants withdrawal of their motion for production of Grand Jury minutes)). Familiarity with that Report (as well as prior Orders in this action, Docket Nos. 19, 23, 28) is presumed.
The Government cross moved for production from defendants (Docket No. 15, Gov't Response at 18).
BACKGROUND
As stated in the Report Recommendation (Docket No. 35), this is the Government's renewed attempt to charge these defendants with making false statements on their tax returns regarding certain corporate earnings. In 2009, the Grand Jury indicted these defendants for fraudulent and false statements, United States v. Kasper, No. 09CR91 (hereinafter "Kasper 09CR91"), Docket No. 1. After this Court issued a Report Recommendation,Kasper 09CR91, Docket No. 19, adopted, id., Docket No. 31, and Order, id., Docket No. 20, on the defense joint omnibus motion (very similar to those present in this case), id., Docket No. 8, Chief Judge Skretny dismissed that case, without prejudice, on Speedy Trial Act grounds, id., Docket Nos. 44 (Order), 45 (minute entry), see 18 U.S.C. § 3162; Bloate v. United States, 559 U.S. ___, 130 S.Ct. 1345 (2010), on defendants' motion for reconsideration and to dismiss, id. Docket No. 39. Since both defendants and the Government repeat many of the arguments fromKasper 09CR91 in the present case, the Court will consider its disposition of those arguments from the earlier case, including the Order (as described below for each distinct form of relief sought) issued in that case.
DISCUSSION
I. Discovery
Since the discovery sought here is the same sought in Kasper 09CR91 and this Court found that the Government had produced discovery (Kasper 09CR91, Docket No. 20, Order at 2), the Government's production in this renewed action is deemed sufficient for defendants' motion for similar relief in this action.II. Bill of Particulars
Again, since the allegations in this case are identical to those in Kasper 09CR91, defendants' present motion for a Bill of Particulars is denied for the reasons stated in the omnibus Order entered in Kasper 09CR91 (Docket No. 20, Order at 2).
III. Hearing on Government Experts and Voir Dire of Government Experts
IV. Brady Materials
Kasper Daubert is best decided by the District Judge presiding over the trial. Kasper Brady is sufficient 18 U.S.C. § 3500Kasper
Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).
See Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
VI. Federal Rules of Evidence 404 and 609 Materials
As previously decided in Kasper 09CR91 (Docket No. 20, Order at 6-7), the Government is to produce all Federal Rule of Evidence 404(b) evidence as directed by the District Court in its pretrial Order and, to the extent it intends to use a conviction of either defendant more than ten years old, the Government must comply with the requirements of Federal Rule of Evidence 609(b).
VII. Identity of Informants
VIII. Preservation of Evidence
Kasper is sufficient. Kasper is directed to preserve all items of evidence. 16 granted.
* * *
Attached to this Order is a copy of the Order entered in Kasper 09CR91 (Docket No. 20), which is hereby reaffirmed.CONCLUSION
For the reasons stated above, so much of defendants' joint omnibus motion seeking various discovery relief (Docket No. 14) is granted in part, denied in part, or deferred for action by the District Judge prior to trial as indicated above. The Government's cross motion for discovery (Docket No. 15, Gov't Response at 18) is granted.
So Ordered.
Decision Order
Before the Court is the defendants' joint omnibus motion seeking dismissal of the indictment and various other forms of pretrial relief (Docket No. 8).Background
On March 11, 2009, the Grand Jury for the Western District of New York issued an indictment against defendants Kenneth and Phyllis Kasper charging that they filed a fraudulent tax return reporting a loss of $7,366 for the calendar year 1999, when they had received income of approximately $104,300.38 [Count I]; that they filed a false return for the calendar year 2000 claiming a loss of $2,687 when they had income of approximately 104,301.71 [Count II]; and that they filed a false return for the calendar year of 2001 stating that they had a loss of $628 when they had income in the amount of $68,874.65 — all in violation of 26 U.S.C. § 7206(1).Discovery
The defendant has set forth a variety of items sought by way of pretrial discovery in this matter. It appears that the government has provided much of the discovery sought by the defendant. During oral argument, the parties did not identify any outstanding discovery issues. It appears that the response by the government is sufficient.
Bill of Particulars
The defendants seek a bill of particulars in this case. Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a bill of particulars. Bills of particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990). The government is not obligated to "preview its case or expose its legal theory." U.S. v. LaMorte, 744 F.Supp 573 (S.D.N.Y. 1990); U.S. v. Leonelli, 428 F.Supp 880 (S.D.N.Y. 1977); nor must it disclose the precise "manner in which the crime charged is alleged to have been committed" U.S. v. Andrews, 381 F.2d 377 (2d Cir. 1967).
Upon review of the indictment, and upon the discovery and information already provided or promised in this case, the defendants have not demonstrated that further particularization is required to protect them from double jeopardy or to enable them to adequately prepare a defense and avoid surprise at trial.
Motion for a Daubert Hearing and Motion to Conduct Voir Dire Outside the Presence of the Jury
The Kaspers seek a hearing pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In response, the government has identified two individuals employed by the IRS who will testify at trial. The government maintains that these individuals are not experts as contemplated under Rule 702. In any event, the determination as to the scope and admissibility of the testimony of these witnesses, and any hearing relating thereto, is more appropriately to be presented to the District Court Judge presiding over the trial in this case.Similarly, the defendants request to voir dire government experts outside the presence of the jury is a matter to be determined by the District Court Judge presiding over the trial in this case.
Brady and Jencks Material
The defendants also seek the disclosure of all potentially exculpatory materials, including information to be used for the impeachment of the government's witnesses, as required underBrady v. Maryland, 373 U.S. 83 (1963) and its progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching . . . [and] [a]ny and all records and information revealing prior misconduct . . . attributed to the [government's] witness." U.S. v. Kiszewski, 877 F.2d 210 (2d Cir. 1989). The defendants further seek disclosure of the statements of witnesses under the Jencks Act (15 U.S.C. § 3500).
The government has acknowledged its obligations under Brady and the Jencks Act. The government represented that at this time it dos not possess exculpatory material within the contemplation ofBrady. (Docket No. 14 at page 40). With respect to Jencks material, the government states that it will turn over such material at the time of final pretrial submissions. (Docket No. 14 at page 39).
Neither the Supreme Court, nor the Second Circuit, have ruled directly on whether there is a meaningful distinction between "exculpatory Brady" and "impeachment Brady" materials for purposes relating to the time within which such information must be disclosed. Several other courts have discussed the issue at hand, which often arises in the context of a potential, if not inherent conflict between the government's obligations to disclose under Brady, and the governments right to delay disclosure of certain information pursuant to the Jencks Act. Those cases suggest that the court has some discretion with respect to directing the timing of such disclosure. U.S. v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979) (the Court interpretedBrady to require disclosure "at the appropriate" time, which often is prior to trial); U.S. v. Perez, 870 F.2d 1222 (7th Cir. 1989) (the government's delay in disclosing Brady material violates due process only if the delay prevented the defendant from receiving a fair trial); U.S. v. Ziperstein, 601 F.2d 281 (7th Cir. 1979) (a defendant receives a fair trial, notwithstanding delayed disclosure of Brady material, as long as disclosure is made before it is too late for the defendant to make use of any benefits of the evidence). But see U.S. V. Wilson, 565 F.Supp 1416 (S.D.N.Y. 1983) (impeachment material need not be produced prior to trial); U.S. Biaggi, 675 F.Supp 790 (S.D.N.Y. 1987) (information bearing on a witness' credibility may be turned over at the same time as [Jencks Act] materials); U.S. V. Feldman, 731 F.Supp 1189 (S.D.N.Y. 1990) (it is sufficient for the government to disclose Brady impeachment materials along with [Jencks Act] materials).
In a footnote in its opinion in Lucas v. Regan, 503 F.2d 1, 3 n. 1 (1974), the Second Circuit stated that "[n]either Brady nor any other case we know of requires that disclosures under Brady be made before trial."
The Jencks Act relates only to "statements" made by government witnesses. Such statements may include inconsistencies which make them useful for impeachment purposes, and thus, subject them to disclosure under Brady principles. To this extent, it has been suggested that the constitutional requirements underlying Brady could act to modify the Jencks Act. U.S. v. Campagnuolo, 592 F.2d 852, 860 (5th Cir. 1979). But see U.S. v. Presser, 844 F.2d 1275 (6th Cir. 1988) (the government may not be compelled to pretrial disclosure of Brady or Jencks material). The record in this case does not reflect whether any of the materials withheld by the government may be considered both Brady and Jencks material. Certainly "impeachment Brady" material may include several items which are not considered "statements" under the Jencks Act.
This Court believes that fundamental fairness and the constitutional due process requirements which underlie Brady mandate that the court have some discretion with respect to the timing of the disclosure of such information, even if it may be considered combined Brady/Jencks material. Indeed, even with respect to purely Jencks Act materials, the Second Circuit has stated that "pre-trial disclosure will redound to the benefit of all parties, counsel and the court, . . . sound trial management would seem to dictate that Jencks Act material should be submitted prior to trial . . . so that those abhorrent lengthy pauses at trial to examine documents can be avoided." U.S. v. Percevault, 490 F.2d 126 (2d Cir. 1974); U.S. V. Green, 144 F.R.D. 631 (W.D.N.Y. 1992).
In the instant case, and while balancing all of the above, the Court concludes that disclosure of such inculpatory and impeachment material, if any exists, in accordance with the common practice in this district (prior to trial so long as it is disclosed in sufficient time for the defendant to have a fair opportunity to utilize the information at trial) is sufficient.
Government Summaries
The defendants have requested the right to inspect any summaries the government intends to use at trial in this matter. The government has responded that it has already provided the defendants with numerous charts and spread sheets and that some of those may used at trial in this case. The government states that no other charts or summaries have been prepared at this time. The government also represents that if it determines that such summaries will be used, they will disclose them as directed by the District Court's pretrial order in this matter. This response is sufficient.
Rule 404 and 609 Evidence
The defendants requests disclosure of all evidence of prior bad acts that the government intends to use in its case-in-chief, pursuant to Federal Rule of Evidence 404(b). The defendant also requests disclosure pursuant to Federal Rules of Evidence 609 of all evidence of prior bad acts that the government intends to use for impeachment purposes should they testify at trial.
Rule 404 requires that the defendant be given "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to use at trial." The government represents that it is not aware of any evidence it may seek to introduce pursuant to Rule 404(b). (Docket No. 14 at page 40). To the extent that the government becomes aware of and intends to use any such prior bad act in its case in chief, the government shall produce all Rule 404(b) evidence as directed by the District Court in the trial order.
With respect to the defendant's requests under Rule 609, the only notice requirement imposed by either applies where a party intends to introduce evidence of a conviction that is more than ten years old. Under such circumstances, Rule 609(b) mandates that "the proponent [give] to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." To the extent the government intends to use a conviction more than 10 years old, it must comply with this requirement.
Preservation of Evidence
The defendants have also requested preservation of rough notes and other evidence taken by law enforcement agents involved. The government is directed to preserve all items of evidence.
Disclosure of Identities of Informants
The defendants request that the government disclose the identities of all informants in this case. The government represents that it has neither utilized nor relied upon informants in this case. (Docket No. 14 at page 42).
Conclusion
The defendants omnibus motion is granted in part and denied in part consistent with the above.
So Ordered.
Buffalo, New York
November 6, 2009