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United States of America v. Kenneth Kasper

June 20, 2011

UNITED STATES OF AMERICA,
v.
KENNETH KASPER, PHYLLIS KASPER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. 636 (b)(1)(A) and, pursuant to 28 U.S.C. 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. 636(b)(1)(A) (Docket No. 2).

The instant matter before the Court is Defendants' omnibus motion (Docket No. 14) which seeks the following relief: filing of a Bill of Particulars; production of discovery; hearing on Federal Rule of Evidence 702 expert testimony; voir dire of Government's experts outside the presence of the jury; Jencks Act; production of Government summaries and Brady materials, Federal Rule of Evidence 404(b) and 609 disclosure; preservation of rough notes; and disclosure of informant information.

The Government has filed responding papers (Docket No. 15), arguing that a previous action acts as law of the case for defendants' present motions (id. at 3-6, 12-17), and oral argument was heard on February 18, 2011 (Docket No. 18), further argument on dispositive portions of defense motion was held on June 7, 2011 (Docket No. 34), and the omnibus motion was deemed submitted as of June 7, 2011. A Report & Recommendation was entered on the dispositive portions of the motion (Docket No. 35; see also Docket No. 28 (noting defendants withdrawal of their motion for production of Grand Jury minutes)). Familiarity with that Report (as well as prior Orders in this action, Docket Nos. 19, 23, 28) is presumed.

The Government cross moved for production from defendants (Docket No. 15, Gov't Response at 18).

BACKGROUND

As stated in the Report & Recommendation (Docket No. 35), this is the Government's renewed attempt to charge these defendants with making false statements on their tax returns regarding certain corporate earnings. In 2009, the Grand Jury indicted these defendants for fraudulent and false statements, United States v. Kasper, No. 09CR91 (hereinafter "Kasper 09CR91"), Docket No. 1. After this Court issued a Report & Recommendation, Kasper 09CR91, Docket No. 19, adopted, id., Docket No. 31, and Order, id., Docket No. 20, on the defense joint omnibus motion (very similar to those present in this case), id., Docket No. 8, Chief Judge Skretny dismissed that case, without prejudice, on Speedy Trial Act grounds, id., Docket Nos. 44 (Order), 45 (minute entry), see 18 U.S.C. § 3162; Bloate v. United States, 559 U.S. ___, 130 S.Ct. 1345 (2010), on defendants' motion for reconsideration and to dismiss, id. Docket No. 39. Since both defendants and the Government repeat many of the arguments from Kasper 09CR91 in the present case, the Court will consider its disposition of those arguments from the earlier case, including the Order (as described below for each distinct form of relief sought) issued in that case.

DISCUSSION

I. Discovery

Since the discovery sought here is the same sought in Kasper 09CR91 and this Court found that the Government had produced discovery (Kasper 09CR91, Docket No. 20, Order at 2), the Government's production in this renewed action is deemed sufficient for defendants' motion for similar relief in this action.

II. Bill of Particulars

Again, since the allegations in this case are identical to those in Kasper 09CR91, defendants' present motion for a Bill of Particulars is denied for the reasons stated in the omnibus Order entered in Kasper 09CR91 (Docket No. 20, Order at 2).

III. Hearing on Government Experts and Voir Dire of Government Experts As previously found in Kasper 09CR91 (Docket No. 20, Order at 3), the defense renewed requests for a Daubert*fn1 hearing and voir dire of the Government's experts outside the presence of the ...


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