The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL PRODUCTION OF DOCUMENTS, FILED APRIL 25, 2012
Defendant Dennis Lawrence Duban ("Duban") filed his Motion to Compel Production of Documents ("Motion") on April 25, 2012. [Dkt. no. 250.] Defendants Randall Ken Kurata ("Kurata") and Julie Ann Kam ("Kam") each filed a joinder on April 26, 2012, [dkt. nos. 266, 268,] and Defendant Charles Alan Pflueger ("Defendant Charles Pflueger") filed a joinder on April 30, 2012 [dkt. no. 280]. Plaintiff the United States of America ("the Government") filed its opposition on May 2, 2012. [Dkt. no. 297.] This matter came on for hearing on May 7, 2012. The Court heard oral argument and thereafter took the matter under advisement.
Based upon the Motion, supporting and opposing memoranda, and arguments by counsel, the Court hereby GRANTS IN PART and DENIES IN PART the Motion for the reasons set forth below.
Duban seeks to compel production of materials that were requested on April 13, 2012 in a letter from counsel for Defendant James Henry Pflueger ("Defendant James Pflueger"):
1. All files, documents, and materials, electronic or otherwise, in the possession of the Government related to the Internal Revenue Service examination of Pflueger, Inc. (and/or any of its related entities) for tax years 2002 through 2007;
2. All files, documents, and materials, electronic or otherwise, in the possession of the Government related to the Internal Revenue Service examination of James Henry Pflueger (and/or any of his related entities) and/or Charles Alan Pflueger (and/or any of his related entities) for tax years 2002 through 2007;
3. Copies of all Forms 2797 (Fraud Referral) or Forms 11661 (Fraud Development Status) or similar forms relating to the examination, audit, or investigation of any of the individuals or entities mentioned above.
[Motion at 2.] Duban argues that the documents being sought were obtained by the Government during its audit of Pflueger, Inc. and resulted in the criminal investigation and charges against the defendants. Therefore, he contends, Fed. R. Crim. P. 16(a) mandates that the government must provide these documents because they are material to preparing Duban's defense. [Mem. in Supp. of Motion at 5-6.]
In its opposition, the Government recites the list of documents that it has already turned over in discovery and states that it has met its obligations as to discovery. [Mem. in Opp. at 3-4.] As to the Internal Revenue Service ("IRS") Examination Files of Pflueger, Inc. for 2002-2007, the Government states that any additional information as to these files that it has not produced and that is in the Government's possession "is either non-discoverable as internal IRS work product or will be disclosed as Jencks material of testifying witnesses Revenue Agent Chigawa and Specialist Nakandakari." [Id. at 4.]
As to the IRS Examination Files of James Pflueger and Charles Alan Pflueger for 2002-2007, the Government states that it produced audit documents for the personal returns of James Pflueger and Charles Alan Pflueger for tax years 2003 and 2004. [Id.] Although it is aware that the IRS conducted an audit of James Pflueger for either 2001 or 2002, the Government states that "this audit was unrelated to the allegations in the Indictment and was conducted by the IRS's office in Los Angeles, California as opposed to Honolulu, Hawaii." [Id. at 4-5.] Thus, the Government argues that documents pertaining to the 2001 or 2002 audit of James Pflueger is neither material nor discoverable under Rule 16. Additionally, it argues that these documents are not in the prosecution team's possession. [Id. at 5.]
As to the copies of fraud referrals and fraud development status or similar forms related to the IRS examination of Pflueger, Inc., James Pflueger or Charles Alan Pflueger, the Government states that it "is in possession of the Form 2797 Fraud Referral as it relates to the IRS audit of Pflueger, Inc. that lead to this criminal investigation and subsequent prosecution." [Id. at 6.] The Government states that it will only produce those portions containing statements made by Revenue Agent Chigawa which it considers to be Jencks material. It argues that "[o]ther portions of the Fraud Referral not prepared by Revenue Agent Chigawa are neither Jencks nor discoverable under Rule 16 or Brady." [Id. at 6-7.]
The Government represents that it is not in possession of the Form 11661 Fraud Development Status. Nevertheless, it states that the form, to its understanding, is "an internal IRS form prepared by manager(s) or supervisor(s) of Revenue Agent Chigawa." [Id. at 7.] Since these individuals will not be witnesses at trial, the Government submits that the statements are not Jencks material and do not have to be produced. To the extent that Duban contends that he needs these forms to determine whether there are any inconsistencies with the Government's theory of prosecution, the Government argues that this is mere speculation and neither establishes materiality nor constitutes Brady evidence necessary to compel disclosure. [Id. at 7-8.]
Rule 16(a)(1)(E) provides, in pertinent part, as follows:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, building or places, or copies or portions of any of these items, if the item ...