The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the defendants' joint omnibus motion seeking dismissal of the indictment and various other forms of pretrial relief (Docket No. 8).*fn1
On March 11, 2009, the Grand Jury for the Western District of New York issued an indictment against defendants Kenneth and Phyllis Kasper charging that they filed a fraudulent tax return reporting a loss of $7,366 for the calendar year 1999, when they had received income of approximately $104,300.38 [Count I]; that they filed a false return for the calendar year 2000 claiming a loss of $2,687 when they had income of approximately 104,301.71 [Count II]; and that they filed a false return for the calendar year of 2001 stating that they had a loss of $628 when they had income in the amount of $68,874.65 -- all in violation of 26 U.S.C. §7206(1).
The defendant has set forth a variety of items sought by way of pretrial discovery in this matter. It appears that the government has provided much of the discovery sought by the defendant. During oral argument, the parties did not identify any outstanding discovery issues. It appears that the response by the government is sufficient.
The defendants seek a bill of particulars in this case. Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a bill of particulars. Bills of particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990). The government is not obligated to "preview its case or expose its legal theory." U.S. v. LaMorte, 744 F.Supp 573 (S.D.N.Y. 1990); U.S. v. Leonelli, 428 F.Supp 880 (S.D.N.Y. 1977); nor must it disclose the precise "manner in which the crime charged is alleged to have been committed" U.S. v. Andrews, 381 F.2d 377 (2d Cir. 1967).
Upon review of the indictment, and upon the discovery and information already provided or promised in this case, the defendants have not demonstrated that further particularization is required to protect them from double jeopardy or to enable them to adequately prepare a defense and avoid surprise at trial.
Motion for a Daubert Hearing and Motion to Conduct Voir Dire Outside the Presence of the Jury The Kaspers seek a hearing pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In response, the government has identified two individuals employed by the IRS who will testify at trial. The government maintains that these individuals are not experts as contemplated under Rule 702. In any event, the determination as to the scope and admissibility of the testimony of these witnesses, and any hearing relating thereto, is more appropriately to be presented to the District Court Judge presiding over the trial in this case.
Similarly, the defendants request to voir dire government experts outside the presence of the jury is a matter to be determined by the District Court Judge presiding over the trial in this case.
Brady and Jencks Material
The defendants also seek the disclosure of all potentially exculpatory materials, 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 defendants further seek disclosure of the statements of witnesses under the ...