UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
June 6, 1985
THE UNITED STATES OF AMERICA,
JOSEPH E. TODARO, SR.
The opinion of the court was delivered by: ELFVIN
MEMORANDUM and ORDER
In this prosecution charging defendant with willfully attempting to evade federal income tax liabilities in violation of 26 U.S.C. § 7201 and willfully subscribing false tax returns in violation of 26 U.S.C. § 7206(1), the government has moved pursuant to Fed.R.Cr.P. rule 12(d)(1) to require defendant to file written objections to the authenticity of certain designated records and for a pretrial hearing for the purpose of ruling on any objections filed by defendant. Defendant has opposed such motion, asserting that the government is not entitled to the relief sought.
Fed.R.Cr.P. rule 12(d)(1) permits the government to provide a defendant with notice of "its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial" in the form of a motion to suppress evidence under rule 12(b)(3). In the case at bar the government seeks to compel defendant to make his position known prior to trial with respect to the authenticity vel non of some 568 exhibits that the government intends to offer at trial. Although this Court recognizes that the granting of the instant motion would conserve its time, would reduce the length of what is expected to be a prolonged trial by eliminating certain witnesses and/or testimony and possibly would diminish confusion of the jury which can arise when attorneys argue about and witnesses testify as to the authenticity of records, rule 12(d)(1) does not authorize the procedure sought by such motion and the government has not cited any other rule or authority which would permit such procedure. In addition, although this Court certainly would favor a stipulation by the parties as to the authenticity of any exhibits the genuineness of which is not disputed, I shall not order defendant to file specific objections inasmuch as such procedure could serve to provide the government with notice of a problem as to a specific exhibit and an opportunity to rectify such prior to trial. Absent the requested order the government might find at trial that it is unable to introduce into evidence a certain exhibit or exhibits for lack of having established adequately its or their authenticity. Accordingly, I find that the government is not entitled to the advantage of pretrial rulings on the authenticity vel non of its exhibits.
For these reasons it is hereby ORDERED that the government's motion is denied.
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