US v. Pottorf

• Decision Date: 26 June 1991
• Docket Number: No. 91-20017-01.,91-20017-01.
• Citation: 769 F. Supp. 1176
• Parties: UNITED STATES of America, Plaintiff, v. Harold L. POTTORF, Defendant.
• Court: U.S. District Court — District of Kansas

769 F. Supp. 1176

UNITED STATES of America, Plaintiff, v. Harold L. POTTORF, Defendant.

No. 91-20017-01.

United States District Court, D. Kansas.

June 26, 1991.

COPYRIGHT MATERIAL OMITTED

Leon J. Patton, Asst. U.S. Atty., Kansas City, Kan., for U.S.

William M. Modrcin, Thomas E. Carew, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on numerous pretrial motions filed by defendant Harold L. Pottorf ("defendant Pottorf"). Defendant Pottorf is a tax protestor who has been charged with four counts of willfully failing to file federal income tax returns for calendar years 1984, 1985, 1986 and 1987 in violation of 26 U.S.C. § 7203. Oral argument was heard on June 10, 1991. This matter is set for trial at 10 a.m. on September 30, 1991, before Chief Judge Earl E. O'Connor, in Kansas City, Kansas.

I. DISCOVERY MOTIONS

As a preliminary matter, the court finds that Defendant's motion for Disclosure of Informant (Doc. 38) and Defendant's Motion for Disclosure under Rule 12(d)(2) (Doc. 27) are moot. The United States of America ("the government") has represented to the court that no informant was used by the government and that it has no Rule 16 material which would be subject to a nonfrivolous motion to suppress. Further, defendant Pottorf represented that he was satisfied with the government's response. Accordingly, the court finds that these motions are moot and should be denied. Additionally, the court finds that defendant's motion for an extension of time during which to file additional pretrial motions (Doc. 31) should be denied. Defendant has offered no persuasive reason for deviating from the schedule set at the omnibus hearing held on April 18, 1991. Further, to the extent that a timely examination of the discoverable materials may give rise to a need to file additional pretrial motions, defendant may seek leave of the court. Accordingly, defendant's motion for an extension of time during which to file additional pretrial motions will be denied.

A. Defendant's Motions for Exculpatory Evidence

In defendant's motion, he requests disclosure of numerous items contending that they contain exculpatory evidence. In seeking such a vast array of discovery, including some 69 categories which covers 19 pages,¹ Pottorf relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny.

Under Brady, the government must disclose all "material" evidence which is relevant to a defendant's guilt or punishment. United States v. Agurs, 427 U.S. 97, 106, 109, 96 S.Ct. 2392, 2398, 2400, 49 L.Ed.2d 342 (1976). Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The burden of establishing materiality of the requested and undisclosed information rests upon the defendant, as the law does not require the government to prove that the information is not material. See, e.g., United States v. Barnett, 587 F.2d 252, 258 (5th Cir.), cert. denied, 441 U.S. 923, 99 S.Ct. 2031, 60 L.Ed.2d 396 (1979).

Notwithstanding the duty to disclose exculpatory evidence, the government is not required to open its entire file to defense counsel, but is required to reveal only evidence which is favorable to the accused that, if left undisclosed, would deprive the defendant of a fair trial. Agurs, 427 U.S. at 108-90, 96 S.Ct. at 2399-400. Indeed, the constitution does not demand that the government disclose or allow complete discovery of everything which might influence a jury. Id. In this regard, the Tenth Circuit recently stated:

The Government has no obligation to disclose possible theories of the defense to a defendant. If a statement does not contain any expressly exculpatory material, the Government need not produce that statement to the defense. To hold otherwise would impose an insuperable burden on the Government to determine what facially nonexculpatory evidence might possibly be favorable to the accused by inferential reasoning. We are confident that the Supreme court did not intend the Brady holding to sweep so broadly.

United States v. Comosona, 848 F.2d 1110, 1115 (10th Cir.1988). Further, the determination of materiality of the information is normally made by the government, unless defendant becomes aware that other exculpatory evidence has been withheld, and brings this to the court's attention. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40 (1987).

Upon a thorough review of the defendant's requests, the government's response and the foregoing authorities, the court finds that defendant's motion should be denied except to the extent that the government has indicated that it will produce all discovery which it is obligated to produce under Brady and Giglio. The government has responded to each specific request of the defendant and has reiterated that it is aware of its duties under Brady, Giglio, the Jencks Act and Rule 16 and will accordingly produce any exculpatory evidence which is in its possession. Specifically, with respect to requests 9, 11, 12, 14, 15, 16, 18, 20, 21, 25, 26, 27, 28, 29, 30, 34, 35, 40, 41 and 44, the government states that it will provide any exculpatory evidence of which the government is aware. Further, as to those requests which the government specifically objects to providing any disclosure, the court finds that defendant has failed to make the requisite showing that any additional exculpatory evidence exists, is material, or has a substantial basis for materiality as required by Brady. Indeed, defendant's numerous requests appear to be an attempt to open the government's files to the defense, and an attempt to have the government conduct defendant's own research. Further, the court is satisfied that the government recognizes its ongoing duty to disclose any exculpatory evidence. Accordingly, the court finds no reason to conduct an in camera inspection, and will deny defendant's motion for disclosure of exculpatory evidence, except as expressly agreed to by the government.

B. Defendant's Motion to Disclose Grand Jury Minutes and Testimony

Defendant seeks disclosure of (1) documents and/or things pertaining to matters occurring before the Grand Jury in the above-entitled matter; (2) any and all evidence and/or things of any evidentiary nature exhibited to the Grand Jury; (3) a transcript of all testimony regarding Mr. Pottorf; and (4) Grand Jury Minutes reflective of any disclosure which might include Mr. Pottorf and the persons present during deliberations as are required by Rule 6(c) Fed.R.Crim.P.

In determining whether to disclose grand jury testimony and other matters occurring before the grand jury, the court must consider the interests of maintaining the secrecy of grand jury proceedings. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). The reasons for protecting the secrecy of grand jury proceedings have been enumerated as follows:

(1) To present the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with resect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. Proctor & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958) (citation omitted). Further, maintaining the secrecy of grand jury proceedings is important not only with respect to the "immediate effects upon a particular grand jury," but also with respect to the effect disclosure may have upon future grand juries. Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674.

Despite the strong policy of maintaining the secrecy of grand jury proceedings, in certain situations disclosure of grand jury minutes and transcripts is appropriate where justice demands. Douglas Oil Co., 441 U.S. at 219, 99 S.Ct. at 1673. These situations have been codified at Fed. R.Crim.P. 6(e)(3)(C) which provides for disclosure:

(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or

(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury....

Accordingly, upon a showing of "particularized need" the court may grant disclosure of matters involving grand jury proceedings. Proctor & Gamble Co., 356 U.S. at 681-82, 78 S.Ct. at 985-86.

Upon consideration, the court finds that defendant has failed to make the requisite showing of a "particularized need." First, the court finds that defendant has made no showing that matters occurred before the grand jury which could serve as a basis to dismiss. Secondly, the court finds that defendant has not demonstrated that his defense will be greatly prejudiced without the disclosure of this information. Specifically, the court is unpersuaded by defendant's assertion that he needs the grand jury transcript to impeach witnesses who testified against him before the grand jury. Defendant will be obtaining transcripts of all prosecution witnesses two weeks prior to trial. Thus, the court finds that the defendant will have ample time during which to review...