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UNITED STATES v. KAHN

October 31, 1969

UNITED STATES of America
v.
Harold S. KAHN and Robert Wiene, Defendants


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

ORDER AND OPINION

MOTLEY, District Judge.

 Discovery Motion

 Kahn is charged with 2 counts of bribing and paying a gratuity to an Internal Revenue Service Inspector in order to obtain confidential information from the Inspector's files in violation of 18 U.S.C. §§ 201(b) and (f) (1964). Kahn is also charged with 3 counts of helping defendant Wiene and his wife to defraud the United States in connection with Wiene's 1964, 1965 and 1966 personal income tax returns in violation of 26 U.S.C. § 7214 (1964). The indictment further charged Kahn and Wiene in 2 counts with making false statements to the government in connection with the 1965 and 1966 partnership income returns of Robert Wiene Company in violation of 18 U.S.C. § 1001 (1964) as well as conspiracy to violate the 2 statutes last mentioned. Pursuant to Rule 16, *fn1" the defendants have moved to discover and inspect:

 a) All electronically recorded conversations as to which the defendant Harold S. Kahn was a party, and any still or motion pictures in which he is depicted, relating to the prosecution of counts Seven and Eight of the indictment, and the monies alleged therein to have been paid by the defendant.

 b) The make, model and serial numbers of the electronic recording devices, the still or motion picture equipment utilized to record or depict the defendant, Harold S. Kahn.

 c) The Federal Income Tax Returns for Robert Wiene and Cecile Wiene, for the taxable years 1963-1966, as well as the partnership returns for Robert Wiene Company for the taxable years 1963, 1965 and 1966.

 The government opposes the discovery motion in its entirety.

 a) Electronically Recorded Conversations

 Opposing the request in paragraph (a), supra, the government argues that the recordings "are clearly not 'statements' or 'confessions' within the meaning of Rule 16(a)." While conceding that these recorded statements are "tangible objects" for purposes of Rule 16(b); nevertheless, the government argues that the movant has not met 16(b)'s requirements because "the movant had made no factual showing of materiality to the preparation of his defense."

 The question of whether electronic recordings of the defendant's statements to an agent before an arrest should be granted under Rule 16 has been extensively discussed by Judge Frankel in United States v. Rosenberg, 299 F. Supp. 1241 (S.D.N.Y.1969), a case involving a similar fact pattern to the one before us. This court has nothing to add to the thorough analysis of the case law relating to this question. *fn2" The court agrees with the reasoning and follows the holding. Electronic recordings of conversations between the defendant and government agents do fall within the definition of "statements". Because the government did not show "particular and substantial reasons in [this] case for withholding such materials," (Rosenberg, supra, at 1244), discovery is granted under Rule 16(a). Accord, Davis v. United States, 413 F.2d 1226 (5th Cir. 1969).

 Discovery can also be granted under Rule 16(b). Recordings made by an agent while he was being bribed are quite material to defense preparation and a request for them is reasonable. Rosenberg, supra, at 1245.

 b) Make, Model and Serial Number

 This court grants Section (b) of ...


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