Court Denied Request to Enter Order Prohibiting IRS From Conducting an Retalitory Acts Against Defendant's Witnesses
U.S. v. Myers, 2012 U.S. Dist. LEXIS 47018 (M.D. La. 2012)
Myers was indicted by a grand jury on twenty-three counts on January 12, 2012. These charges included filing false, fictitious, and/or fraudulent federal income tax returns against the United States for payment in violation of 18 U.S. §§2 and 287 (Counts 1-11), wire fraud in violation of 18 U.S. §1343 (Counts 12-17), aggravated identity theft in violation of 18 U.S. §§2, 1028(a)(1), and 1028A(c)(5) (Counts 17-21), and filing false income tax returns for the 2007 and 2008 calendar years in violation of 26 U.S. §7206(1) (Counts 22-23). The defendant was specifically alleged to have electronically filed false federal income tax returns without the lawful authority of the individuals listed on the returns.
Ms. Myers moved that she be allowed to inspect and review original documents under the government's possession, custody or control. The defendant argued that Federal Rule of Criminal Procedure 16(a)(1)(E)1 required the court to compel the government to provide the defendant with the opportunity to analyze the originals of any and all materials that may reasonably engender questions or concerns regarding authenticity, accuracy, legibility, etc.
The government argued that the defendant received a CD containing 958 labeled documents on February 3, 2012, and the United States informed defense counsel by letter dated March 5, 2012, that she would be permitted to inspect and review the original documents within possession of the government by the making an appointment with the IRS special agent assigned to the case.
The court held that Myer’s motion was both moot and premature. It was moot to the extent the government had provided a reasonable avenue through which the defendant may, by appointment, view the originals of all the documents. It was premature to the extent defendant had not alleged the government had prevented access to the documents.
Defendant also moved the Court to: (1) limit the prosecution's arguments during opening statement; (2) have the prosecutor periodically note to the jury that his opening statement is what he personally believes the evidence will show; and (3) caution the jury prior to the prosecutor's opening statement that "an opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument."
The Court held that the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, and the Fifth Circuit's Pattern Jury Instructions were sufficient safeguards to prevent the prejudice the defense was concerned about. Defendants’ rights were sufficiently protected through live objections without resort to the limitations sought. The Court therefore denied this motion.
Finally, the defense moved the Court to issue "No Retribution Letters" to the witnesses (and unindicted co-conspirators) informing them that they have an absolute right to meet with the defendant, they are free to convey documents and information to the defendant, that they need not notify the government if they meet with the defendant, and that they are free of concern of government retaliation or retribution if they meet with the defendant. Defendant argued that a "No Retribution Letter" was necessary to allow defense counsel to be on a more level playing field and to have sufficient access to government witnesses that may be fearful of speaking with him based on Perceived, misleading or wrongful, of government retaliation.
The government responded that the defense's concerns were only hypothetical and speculative, there had been no specific allegations that indicated a witness was fearful of speaking to defense counsel. The Court could not find legal authority that would compel it to issue letters to witnesses. Moreover, without specifics on which witnesses were conceivably susceptible to government pressure, the Court found the motion premature at best. Accordingly, the court denied this motion.
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