United States v. Jaskiewicz

• Decision Date: 28 August 1967
• Docket Number: Crim. A. No. 22706.
• Citation: 272 F. Supp. 214
• Parties: UNITED STATES of America v. Frank A. JASKIEWICZ.
• Court: U.S. District Court — Eastern District of Pennsylvania

272 F. Supp. 214

UNITED STATES of America v. Frank A. JASKIEWICZ.

Crim. A. No. 22706.

United States District Court E. D. Pennsylvania.

August 28, 1967.

Drew J. T. O'Keefe, U. S. Atty., Merna B. Marshall, Joseph H. Reiter, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Leonard Sarner, Sarner, Cooper & Stein, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

JOHN MORGAN DAVIS, District Judge.

The defendant has been charged with income tax evasion. On March 20, 1967, he filed a motion for discovery and inspection. Before this Court are three items of discovery, in which no amicable settlement by the parties could be effected.

In the first item (numbered 1b), the defendant desires to inspect all documents submitted to the Government by the defendant, his attorney, or his accountant. Although the Government contends that it has since returned all documents after copying those in which it held an interest, the defendant desires to ascertain precisely which records have been reproduced and copies retained. Under F.R. Crim.P. 16(a) (1), upon motion of the defendant, the Court may order the attorney for the Government to permit the defendant to inspect and copy written or recorded statements made by the defendant, which are within the possession, custody and control of the Government. The application of this rule extends to records of the type herein sought. United States v. Heath, 260 F.2d 623 (9th Cir. 1958).

But the Government contends that disclosure of the defendant's records which it has reproduced would reveal its case. It is true that the defendant would obtain some information which would not otherwise be revealed concerning the nature of the Government's case. However, when the net worth technique is being employed by the Government in a prosecution for income tax evasion, a liberal policy concerning discovery of financial records is demanded, since the entire proceedings is based on circumstantial evidence. In Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1955), it was pointed out that one of the dangers inherent in the net worth system is the problem of corroboration, since the prosecution may pick and choose from the taxpayer's records, relying on the favorable portions, and throwing aside those which do not enhance its position. Since the defendant only seeks a listing of the documents which were submitted to the Government, revelation would practically preclude the problem raised in Holland, since he would then have the opportunity to challenge the analysis and conclusions which the Government may derive therefrom. For this item the defendant's motion for discovery is therefore granted.

Furthermore (In item 1c), the defendant seeks a copy of the testimony of his accountant previously presented before the Grand Jury, contending that inspection of the minutes of this testimony is material to the preparation of the defense in advance of trial, and not merely to contradict the accountant if he is called as a Government witness. The Government opposes, relying upon the authority of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), and the so-called Jencks Act, 18 U.S.C. section 3500, that neither the prosecution nor the Court has the power to produce the grand jury minutes. With regard to the latter contention, it has been determined that the Jencks Act does not relate to minutes of a grand jury, since their disclosure is expressly governed by the Federal Criminal Rules. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). But under Rule 6(e), disclosure of grand jury proceedings to other than a government attorney is authorized only when so directed by the Court preliminary to, or in connection with a judicial proceeding. Burke v. United States, 247 F.Supp. 418 (D.C.Mass.1965), aff'd, 358 F.2d 307 (1 Cir.). Since the proceedings before the grand jury have been traditionally guarded in secrecy, the requirement that the defendant must be able to demonstrate instances of "particularized need where the secrecy of the proceedings is lifted discreetly and limitedly" has developed. United States v. Procter and Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). There must therefore be a showing that the "particularized need" for disclosure outweighs the established policy of secrecy. Pittsburgh Plate Glass, supra, 360 U.S. at p. 400, 79 S.Ct. 1237.

The defendant contends that his particularized need is to "forestall surprise", and not merely to contradict the witness when he is called to testify by the Government; that to preclude this result, revelation of the witness's...