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United States v. Geise

July 8, 2008

UNITED STATES OF AMERICA,
v.
SCOTT D. GEISE, DEFENDANT.



The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott

Decision & Order

Before the Court is the defendant's omnibus motion seeking severance of the various counts in the indictment, and various pretrial discovery (Docket No. 11 and Docket No. 15).

Background

On December 18, 2007, the Grand Jury issued a Superceding Indictment charging defendant, Scott D, Geise ("Geise"), with the following: willfully and unlawfully aiding and abetting another individual to embezzle, steal and convert $6,970.00 belonging to an employee welfare benefit plan in violation of 18 U.S.C. §§644 and 2 [Count 1]; knowingly and willfully making false statements in connection with the submission of fraudulent dental insurance calims seeking payment for dental services not actually provided in violation of 18 U.S.C. §§1035(a)(2) and (2) [Counts 2-58]; making false statements on his personal federal tax return for each year between 2002 and 2005 in violation of 26 U.S.C. §7206(1) [Counts 59-62]; and making false statements on the federal tax return filed for Newfane Family Dentistry, P.C. for each year between 2003 and 2005 in violation of 26 U.S.C. §7206(1) [Counts 63-65].

Discussion

The defendant seeks to sever Count 1, Counts 2-58 and Counts 59-65 respectively. In effect, the defendant seeks to have three separate trials relating to the charges included in the Superceding Indictment. The defendant also seeks the following discovery: a hearing under Daubert*fn1 regarding the qualifications of any expert witnesses; disclosure of any government informants; discovery under Rule 16; disclosure of Brady*fn2 material; disclosure of material under Rules 404 and 609 of the Federal Rules of Evidence; disclosure of Jencks Act (18 U.S.C. §3500 et seq.) material; preservation of rough notes; active participation of counsel in voir dire; production of government summaries; motion to voir dire government witnesses outside presence of the jury; disclosure of grand jury transcripts; a bill of particulars.*fn3

Disclosure of Informants

Geise seeks the pre-trial disclosure of the identity of any informants in this case. The government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.) cert. denied 489 U.S. 1089 (1988). Rule 16 does not require the government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d. Cir.) cert. denied 498 U.S. 921 (1990). The defendant has not established that the pre-trial disclosure of the identities of any informants is essential to his defense.

Rule 16 Discovery

The defendant seeks disclosure of various categories of discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The defendant did not identify any outstanding discovery issue at oral argument with respect to this motion. It appears that the government has provided, or agreed to provide the information sought in the respective requests to the extent it exists.

Brady & Jencks Material

The defendant has requested that the government disclose all materials potentially favorable to the defendants, including information to be used for the impeachment of the government*s witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching ... [and] [a]ny and all records and information revealing prior misconduct attributed to the [government*s] witness." U.S. v. Kiszewski, 877 F.2d 210 (2d Cir. 1989).

The defendant's motion identifies numerous specific categories of documents encompassing both exculpatory and impeachment Brady materials which he seeks to obtain. The government has represented that it will provide all impeachment material in its possession in accordance with the schedule set by the trial judge and no later ...


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