United States v. Gillotti

149 F.R.D. 24, 1992 U.S. Dist. LEXIS 21796, 1992 WL 486883
CourtDistrict Court, W.D. New York
DecidedDecember 30, 1992
DocketNo. 92-CR-81A
StatusPublished

This text of 149 F.R.D. 24 (United States v. Gillotti) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gillotti, 149 F.R.D. 24, 1992 U.S. Dist. LEXIS 21796, 1992 WL 486883 (W.D.N.Y. 1992).

Opinion

MEMORANDUM and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned on May 8, 1992 by the Hon. Richard J. Arcara for all pretrial matters. The matter is presently before the court on Defendant’s motion for discovery.

BACKGROUND

Defendant, Gillotti, was charged in a three count information, dated April 4, 1992, with violations of 26 U.S.C. § 7203. Specifically, Gillotti is charged with willfully failing to file income tax returns for the years 1985, 1986, and 1987.

On July 10, 1992, Gillotti filed an Omnibus Motion seeking various items of discovery, along with dismissal of the indictment and/or suppression of evidence. The dispositive motions are discussed in a separate Report and Recommendation. The Government filed its response on July 23, 1992. Oral argument on the matter was held before this court on October 22, 1992.

In its response to Gillotti’s motion, the Government stated that it had provided all Fed.R.Crim.P. 16 material to the defense. The Government also acknowledged its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and stated that it would disclose all exculpatory information, if any was discovered, and that there were no informants or individuals in this case who had ever received any promises of leniency or specific arrangements in exchange for information regarding the case. Finally, the Government offered to provide Jencks material to the defense one week prior to trial. The Government objected to all other discovery requests.

The court, at oral argument, ordered disclosure of all Brady and Giglio material no later than thirty days prior to trial.

DISCUSSION

The remaining items in dispute which Gil-lotti seeks are early pretrial production of statements of witnesses pursuant to 18 U.S.C. § 3500, disclosure of material pursuant to disclosure of the identity of informants, and disclosure of the use of civil summonses. Gillotti also seeks a pretrial ruling excluding government employees from the jury panel, along with recipients of public assistance, and for production of Internal Revenue Service (“IRS”) information regarding the jury panel or nondisclosure of the names of the panel to the IRS.

1. Early disclosure of Jencks Act materials

The Jencks Act provides that a defendant in a federal criminal trial, after a government witness has testified on direct examination, is entitled to receive, for purposes of cross-examination, any statements of the witness in the government’s possession which relates to the subject matter as to which the witness has testified. 18 U.S.C. § 3500(b). See also, United States v. Myerson, 851 F.2d 65, 67 n.2 (2d Cir.1988). A district court has no inherent power to modify or amend the provisions of the Jencks Act. See, In re United States, 834 F.2d 283, 287 (2d Cir. 1987).

In this ease, the Government has offered to disclose all Jencks Act materials no later than one week before trial. The court cannot order the Government to disclose such material at any earlier date.

[26]*262. Names of identiñcation witnesses

An informant’s identity need not be disclosed unless it is essential to the defense. See, Roviaro v. United, States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103 L.Ed.2d 858 (1988); United States v. Russotti, 746 F.2d 945, 949-50 (2d Cir.1984). A defendant may be able to establish the right to disclosure where the informant is a key witness or participant in the crime charged or someone whose testimony would be significant in determining guilt or innocence. See, Saa, supra, at 1073. In addition, Fed.R.Crim.P. 16 does not require the Government to furnish the names of witnesses prior to trial. See, United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). While a court may order disclosure of identities of witnesses, it should not do so in the absence of “a specific showing that disclosure is both material to the preparation of the defense and reasonable in light of the surrounding circumstances.” Bejasa, supra, at 140.

In this case, Gillotti has made no showing that the identity of any witnesses or informants would be essential to his preparation for trial. In the absence of a showing of a particularized need, the court cannot order such pretrial disclosure.

3. Discovery and Use of Civil Summonses

Gillotti has requested that the Government disclose whether administrative summonses were used in this case, the date on which such summonses were issued, if any, the date on which the IRS recommended a criminal prosecution to the Department of Justice, and copies of the summonses. Gillotti further requests that, following such disclosure, a hearing be held to determine whether the summonses were properly used in this matter.

The Government responded that administrative summonses were used prior to the time this matter was referred to the Department of Justice for a criminal prosecution, and that, where required by law, Gillotti received notice of the issuance of these summonses. In addition, the Government stated, by affidavit, that this matter was referred for criminal prosecution on November 27, 1989, and the last administrative summons was issued prior to July 1, 1989. At oral argument, the Government agreed to disclose to Gillotti copies of these administrative summonses. It appears, therefore, that the summonses that were issued were within the pre-criminal phase of the IRS investigation as permitted by statute. See, 26 U.S.C. § 7602(c); DeGroote v. United States, 1986 WL 8877 (W.D.N.Y.1986) (Telesca, J.)

Where a taxpayer has made a substantial preliminary showing that an IRS summons has been issued for an improper purpose, he is entitled to an opportunity to substantiate his allegations by way of an evidentiary hearing. See, United States v. Millman,

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Related

Dennis v. United States
339 U.S. 162 (Supreme Court, 1950)
Roviaro v. United States
353 U.S. 53 (Supreme Court, 1957)
Brady v. Maryland
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Giglio v. United States
405 U.S. 150 (Supreme Court, 1972)
Tiffany Fine Arts, Inc. v. United States
469 U.S. 310 (Supreme Court, 1985)
United States v. Criminal Court of City of New York
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United States v. William S. Lawson, Jr.
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746 F.2d 945 (Second Circuit, 1984)
United States v. Mario Bejasa, Jr.
904 F.2d 137 (Second Circuit, 1990)
United States v. Salvatore Spine, Jr.
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961 F.2d 1030 (Second Circuit, 1992)
In re United States
834 F.2d 283 (Second Circuit, 1987)
Chestnut v. Criminal Court of New York
404 U.S. 856 (Supreme Court, 1971)
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Bluebook (online)
149 F.R.D. 24, 1992 U.S. Dist. LEXIS 21796, 1992 WL 486883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gillotti-nywd-1992.