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United States v. Deluca

United States District Court, Second Circuit

October 7, 2013

UNITED STATES OF AMERICA,
v.
PHILIP R. DELUCA, ALFRED R. LAGRECA, FRANK A. FRACASSI, MICHAEL A. ELIA, LAURENCE A. ELIA, RICHARD A. ELIA, Defendants.

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, ROBERT C. KENNEDY, SHAWN T. NOUD, ERIN P. PULICE, of Counsel, U.S. Department of Justice, Washington, DC, Attorney for the United States.

LIPSITZ GREEN SCIME CAMBRIA LLP, HERBERT L. GREENMAN, of Counsel Buffalo, New York. Attorneys for Defendant Deluca.

HARRINGTON AND MAHONEY, JAMES P. HARRINGTON, of Counsel Buffalo, New York. Attorneys for Defendant LaGreca.

JOSEPH M. LATONA, ESQ., Buffalo, New York. Attorney for Defendant Fracassi.

HOGAN LOVELLS U.S. LLP, ROBERT S. BENNETT, MICHAEL P. KELLY, of Counsel Washington, DC. Attorneys for Defendant Michael A. Elia.

JOEL L. DANIELS, ESQ, Buffalo, New York, Attorney for Defendant Michael A. Elia.

CONNORS & VILARDO, LLP, VINCENT E. DOYLE, III, of Counsel Buffalo, New York, Attorneys for Defendant Laurence A. Elia.

JOHN F. SPERANZA. ESQ., Rochester, New York, Attorney for Defendant Richard A. Elia.

DECISION and ORDER

LESLIE G. FOSCHIO, Magistrate Judge.

JURISDICTION

By order of Hon. Richard J. Arcara, filed March 23, 2012 (Doc. No. 3), this case was referred to the undersigned for all pretrial matters. It is presently before the court on Defendants Michael A. Elia, Laurence A. Elia, Richard A. Elia, and Frank A. Fracassi's motion filed April 25, 2013 (Doc. No. 49) to enforce this court's January 15, 2013 order (Doc. No. 39) directing the Government to file and serve a Bill of Particulars.

BACKGROUND

In the 12 Count Superseding Indictment, filed March 31, 2012 (Doc. No. 2), Defendants are charged with conspiracy to underreport taxable income based on a scheme to provide goods and services to Defendants, in lieu of reported cash bonuses received from Defendants' employer, Sevenson Environmental Services, Inc. ("Sevenson"), during an approximately 10-year period between the later 1990's and 2007, in violation of 18 U.S.C. § 371, (Count 1). Defendants Deluca, LaGreca, Laurence Elia, Michael Elia, and Fracassi are further charged with filing false tax returns by underreporting their respective incomes in violation of 26 U.S.C. § 7206(1) for taxable years 2004 (Deluca Count 2; LaGreca Count 3), 2005 (Deluca Count 7; LaGreca Count 8; Laurence Elia Count 5; Michael Elia Count 6), and 2006 (Deluca Count 10, LaGreca Count 11, Michael Elia Count 9 and Fracassi Count 12). Defendant Fracassi is also charged in Count 4 with the aiding, procuring, preparation and filing of a materially false return based on his underreported income for 2004 in violation of 26 U.S.C. § 7206(2).

By papers filed April 11, 2012, Defendant Michael Elia moved for a Bill of Particulars pursuant to Fed.R.Crim.P. 7(f) with regard to the amount of underreported income received by Elia for 2005 (Count 6) and 2006 (Count 9), the Government's method of proof, i.e., specific items, cash expenditures or net worth, the date, source, and character of the alleged unreported income received by Elia in 2005 and 2006, and details regarding unindicted co-conspirators and the manner and means of the conspiracy described in Count 1, Doc. No. 17 ("Defendant Michael Elia's Motion for a Bill of Particulars") attaching a Memorandum in Support of the Motion for a Bill of Particulars ("Defendant Michael Elia's Memorandum") (Doc. No. 17-1), and the Declaration of Michael P. Kelly (Doc. No. 17-2) ("Kelly Declaration") attaching Exhibit 1 ("Kelly Declaration Exh. 1"). The Government opposed Defendant Michael Elia's Motion for a Bill of Particulars on April 25, 2012 by filing United States' Response In Opposition To Defendant Michael A. Elia's Motion For A Bill of Particulars (Doc. No. 21) ("Government's Response"). On April 25, 2012, all Defendants filed a Motion For An Order Directing The Production Of Brady Material As Promptly As Possible (Doc. No. 20) ...


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