United States District Court, W.D. Louisiana, Shreveport Division
L. HORNSBY U.S. MAGISTRATE JUDGE.
and Donna Poimboeuf (collectively “Defendants”)
were indicted by a federal grand jury and charged with filing
a false tax return. Doc. 1. The grand jury later returned a
superseding indictment charging Defendants with one count of
conspiracy to defraud the United States and four counts of
making false statements on income tax returns. Doc. 29.
Before the court are several discovery motions filed by the
parties. The motions are granted in part and denied in part
as explained below.
for Production of Documents (Doc. 45)
Defendants ask that the Government be
compelled to produce all documents relating to (1)
AdvanceMed's audit of D&G, (2) the investigation
conducted by Christopher Knighton, and (3) the grand jury
investigation. Defendants argue that the AdvanceMed audit
will indicate that Defendants could not reliably determine
D&G's income and receipt information using 1099 forms
submitted to D&G by third parties. They claim that the
prior investigation may have gathered information about the
correctness of the third-party gross receipt information. If
the information gathered during the audit differs from the
information provided to Defendants by third-party payers,
this information would be material to whether Defendants
knowingly submitted false tax returns.
response (Doc. 55), the Government states that, to determine
the accuracy of the amount of gross receipts and income
Defendants received from third-party payers, the Government
looked at the bank statements of D&G holdings. All of the
bank statements have been turned over to Defendants in
discovery, and Defendants have access to the information in
their records. Furthermore, the Government states that it is
not relying on any of the allegations of misconduct
documented in the prior investigation.
court agrees with the Government. Defendants are not charged
with improper billing practices. The gravamen of the pending
charges are that Defendants knowingly and willfully
understated the gross receipts of their business, D&G.
The court will not require the Government to produce its
investigative file on charges that were not indicted. The
court fully expects that the Government will comply with
discovery obligations and produce any Brady
materials in its possession that pertain to this case.
also argue that information concerning the timeline and
reasons for the post-payment audit and resulting grand jury
investigation is material to the impeachment of government
investigators. Defendants contend that the prosecutor was
“determined to find any charges that could justify the
time and resources they had spent investigating now nonviable
Medicare charges.” Doc. 45, p. 5. They assert that this
conclusion is supported by the fact that the IRS Special
agent leading the investigation was married to an
investigator in the U.S. Attorney's Office.
argument borders on the absurd. The grand jury investigation
into tax charges began over a year before the
Medicare Appeals Council's decision, so the Appeals
Council's decision could not be the cause of the
investigation into new charges. Furthermore, it is well
settled that the reasons a defendant is charged with a crime
are irrelevant so long as the prosecutor has probable cause
to believe that the accused has committed an offense.
United States v. Armstrong, 517 U.S. 456, 464
(1996). The information sought is not a proper subject of
discovery on the showing made. Accordingly, this request is
for Impeaching Information (Doc. 46)
seek entry of an order for the Government to make an inquiry
with respect to any Government witness and disclose several
categories of documents, such as rap sheets, prior bad acts,
consideration or promises given to witnesses, personnel
files, and other information. Doc. 46.
division, the Government routinely exceeds its discovery
obligations, not just under Rule 16, but also under
Brady, Giglio, and the Jencks Act. Indeed,
as reflected in the Government's response, it has already
invited defense counsel to its office to view Jencks
material. But much of the information itemized in
Defendants' motion goes beyond any obligation of the
Government. For example, the Government has no obligation to
obtain personnel files of non-government employees or to use
NCIC to vet every potential witness. However, the court
expects that the Government will produce any relevant
criminal history information that it has in its possession.
for Disclosure and Inspection of ...