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UNITED STATES v. MILITO

June 30, 1986

UNITED STATES OF AMERICA
v.
LIBORIO MILITO, Defendant



The opinion of the court was delivered by: PLATT

PLATT, D. J.

 Following his plea of guilty on March 20, 1984, pursuant to a plea agreement, to a two-count information charging him with one count of income tax evasion (26 U.S.C. § 7201) and one count of aiding and assisting in the preparation and filing of his wife's false income tax return (26 U.S.C. § 7206(2)) in satisfaction of all criminal charges arising out of the investigation into the defendant's purchase and sale of automobiles, tampering with odometers, income tax evasion and filing of false returns, it was agreed that defendant would be given an opportunity to attempt to resolve his civil tax liability prior to sentence.

 Two months and twelve days later, i.e., on June 1, 1984, defendant appeared for sentence with his attorney, Michael Rosen, Esq., who responded in the negative to the Court's opening question: "Any reason we shouldn't proceed with sentencing, counsel?" Transcript, p. 3.

 The Court next pointed out to Mr. Rosen that his client had denied to the Probation Officer preparing his presentence report that he attempted to evade taxes. The Court then offered to give the defendant a jury trial not once, but three times. Tr., pp. 4, 5 and 6. These offers were declined. There then ensued a lengthy discussion about the amount the defendant owed to the IRS and his counsel's admission that he owed "some $ 25,000 for those two years" which "with penalties and interest, it would probably go double" (i.e., $ 50,000), Tr., p. 16, but defense counsel made no claim that defendant had paid or tendered any amount in satisfaction of his liabilities.

 Noting specifically that this is a particularly "willful" case with taxes owed ranging between $ 25,000 (admitted) and $ 600,000 (claimed), the Court imposed a three-year prison sentence with a five-year probationary period to follow and $ 15,000 in fines.

 By notice of motion served and filed on July 16, 1984, defendant moved pursuant to 28 U.S.C. § 2255 to vacate this sentence on the ground (inter alia) that the Government failed to turn over to him prior to sentence certain MV-50 forms and MV-50 summaries in alleged violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In an affidavit sworn to July 16, 1985, Mr. Rosen said in pertinent part that "the defense was deprived of the Special Agents' workpapers in question and the critical data contained therein throughout this litigation. . . . There could be no Brady material more crucial in the Government's possession than workpapers of the Special Agents that corroborated the defendant's contention that in fact he was responsible for declaring only $ 1700 additional income for 1978 and approximately $ 23,000 for 1979 that he received as his agent's commission for selling the vehicles at auction." *fn1"

 In answer to these contentions, Special Attorney Douglas Eric Grover in an affidavit sworn to August 6, 1985, averred that such allegations were "deceptive, to say the least," and that "prior to the plea of guilty, the defense was given an opportunity to inspect and copy, if necessary, every document the government had in its possession . . . [and that he] personally informed Messrs. Rosen and Portnoy that these documents would be made available to both them and the Internal Revenue Service, pursuant to the plea agreement, for purposes of resolving the civil obligations. Since the plea, no one has contacted my office for access to any documents."

 In the reply affidavit sworn to September 19, 1985, Mr. Rosen, while admitting that "since the plea no one has contacted his [Grover's] office for access to documents," "had these summaries or the MV-50s been timely disclosed" in compliance with Brady, "a much different picture of the scope of the offense would have been presented at the time of sentencing by the defense . . . ."

 The Government in its papers argued alternatively that even if the "critical workpapers" had been withheld from the defense, the information contained therein "in no way tends to support the defense."

 Given these contentions, the Court on the oral argument on October 11, 1985, offered Mr. Rosen a hearing on condition that if his contentions were without merit he would have to reimburse the Government at the rate of $ 150 an hour for attorneys' fees for the additional time required for such hearing.

 At the conclusion of such argument, the Court referred to a United States Magistrate the question of whether the Government withheld Brady material and agreed that Mr. Rosen had an obligation to show the Magistrate how the so-called Brady material would materially affect the case in any way.

 Following a hearing held on November 22, 1985, U.S. Magistrate John Caden filed a report and recommendation dated April 5, 1986, in which he made the following findings and conclusions:

 
1. Under Brady, the government may not withhold material favorable evidence specifically requested by the defense. (Pp. 6-7.)
 
2. There is no evidence in the record that the defendant requested, or even inquired as to whether the government had ...

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