United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge.
before the court is Defendant Craig P. Orrock's Motion
for Pretrial Discovery (ECF No. 20), filed May 19, 2017, the
government's response (ECF No. 25), filed June 1, 2017,
and Orrock's reply (ECF No. 41), filed June 16, 2017.
Under Rule 16 of the Federal Rules of Criminal Procedure,
Orrock requests five items of discovery, discussed herein.
16(a)(1)(E) of the Federal Rules of Criminal Procedure
entitles a defendant to inspect and copy tangible things in
the government's possession, custody, or control, such as
books, papers, documents, etc., provided: (1) the item is
material to preparing the defense; (2) the government intends
to use the item in its case-in-chief at trial; or (3) the
item was obtained from or belongs to the defendant.
“[T]o obtain discovery under Rule 16, a defendant must
make a prima facie showing of materiality.” United
States v. Lucas, 841 F.3d 796, 804 (9th Cir. 2016)
(citations omitted). This “threshold showing of
materiality… requires a presentation of ‘facts
which would tend to show that the Government is in possession
of information helpful to the defense.'” United
States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995)
(quoting United States v. Mandel, 914 F.2d 1215,
1219 (9th Cir.1990)).
Federal Income Taxes for government witness Roger Thompson
for tax years 2001 to 2008.
argues that the information is material because it will
disprove the government's nominee theory by demonstrating
that Thompson took deductions for real estate tax payments
and expenses as the owner of the disputed property. The
government responds that it is not in possession of the
taxpayer information and therefore is not obligated to
provide it to Orrock.
returns and information are broadly and strictly protected as
confidential by federal law, which prohibits and criminalizes
the unauthorized release of such information. Title 26,
Section 6103 of the United States Code enacts this strict
confidentiality, and prescribes in detail the limited
circumstances under which taxpayer information may be
released. Unauthorized disclosure under the statute carries
serious criminal and civil penalties. See 26 U.S.C.
§ 7213. Although there are limited circumstances that
would allow release, the government correctly argues that
neither sections 6103(h) or 6103(i) empower a court to order
production of taxpayer information if that material is not
already in the possession of the United States attorney. The
government also recognizes that if the taxpayer information
contained exculpatory Brady material, the result
might be different. Orrock provides no legal analysis of
sections 6103(h) or (i), and makes no claim that
Thompson's tax returns contain Brady material.
Here, because the requested tax returns are not in the
possession of the United States Attorneys pursuant to the
section 6103 provisions allowing release, the court declines
to order their production.
investigative files, memoranda, field notes, and notes and
emails to and from John Kirk and IRS agent Patrick von Ahn,
Debbie Barrett, Roland Thorley and any other individuals
affiliated with the IRS arising from the investigation of
Defendant by John Kirk of the Treasury Department that began
in 2010 and extended through 2011, including case files
identified in his report as Case No. 03-1002-0014-1 and Case
No. 63-1002-0018-c and any other cases that may have been
brought by Kirk against Defendant during the same period (the
argues that the Kirk Materials are material to support his
contention that the IRS initiated and continued multiple
criminal investigations against him under the guise of civil
audits and other civil proceedings, and used civil summonses
to collect information against him that supports the criminal
proceedings. The government describes these documents as
relating to an investigation of him undertaken by the
Treasury Inspector General for Tax Administrations (TIGTA),
and indicates that, to the extent any TIGTA-related records
are in the prosecution team's possession, they have
already been provided. Orrock replies that he should not be
required to rely on the government's statements, but the
court disagrees as the government's attorneys are
officers of the court. As there are no further documents to
be produced, Orrock's request is denied.
Orrock indicates that he has previously requested “all
files, emails, correspondence, and memoranda collected,
generated or maintained by the IRS relating to Orrock claim
No. 2940893 for a reward arising from the investigation of
Val Southwick and the Vescor Entities” (the
indicates that some limited documents have been produced by
the government, but requests the government be directed to
produce all the documents in its control since they bear
directly on the issue of the evasion of payment allegations
made against Orrock in Count I of the indictment. The
government responds that the records relating to Orrock's
claim, which was denied in 2006, were subsequently purged,
and that Orrock has received discovery information
documenting the non-retention of those records. Because the
information in the possession of the government has been
provided, Orrock's request is denied as moot.
Orrock indicates that he has requested, but not received,
“all files, emails, correspondence and memoranda
collected or generated or maintained by Nevada District
Counsel Roland Thorley” relating to Defendant's
2003 bankruptcy filing (the “Thorley Documents”).
indicates that he needs the documents generated by Roland
Thorley to properly meet and dispute the allegations in the
indictment, to support his claims that his tax liabilities
were fully reported, and to establish that IRS neither sought
nor even considered any nominee action against Defendant,
although it now asserts Defendant's fraudulent
appointment of a nominee as part of Count 2 of the
indictment. The government responds that the bankruptcy
petition was filed on March 18, 2003, a discharge was granted
on June 7, 2006, and that it does not appear from the
discovery that Thorley had any role or involvement in
Orrock's 2003 bankruptcy proceeding. According to the
government, Thorley appears to have been involved with the
civil audit of Orrock which began in 2010-2011, and may have
rendered opinions unrelated to the 2003 bankruptcy petition.
IRS's record of Thorley's involvement regarding the
abuse of the bankruptcy stay has been provided in discovery.
Based upon the government's representation that Thorley
had no involvement in Orrock's bankruptcy proceeding, the
request is denied because the information is not material to
Orrock indicates that he has requested but not received the
complete files, emails, correspondence, and memoranda
collected, generated or maintained by the Phoenix Fraud Group
of IRS or by Debbie Barrett, the Fraud Coordinator. Some
emails were included in the government's initial
discovery but no files or other information was provided,
including internal memoranda.
argues that Barrett's files, emails, correspondence, and
memoranda relating to those simultaneous investigations will
likely reveal the IRS mind-set why it decided to prosecute
Defendant criminally while civil audit procedures were
ongoing and why the IRS violated its own rules and
regulations in so doing. The government responds that it has
already provided the requested information. Orrock replies
that it is customary for IRS personnel to keep a history
report of her discussions. ...