Criminal Case Update

A new motion was filed by the United States Attorney’s Office on December 17, 2010.  After reading the latest motion, I consulted with a criminal litigator.

Apparently the attorneys representing Feuerborn and Jennings are not complying with the Federal Rules for Criminal Procedure, and doing everything wrong.  The criminal attorney I consulted with said that this is Law School 101 stuff.  As an outsider, watching the pretrial motions via PACER, one might ask if the attorneys for Feuerborn and Jennings have ever been involved with criminal litigation.  Here are some excerpts from the Motion filed by the United States Attorney’s Office: 

“Defendants Thomas R. Jennings and David J. Feuerborn face trial on January 18, 2011, for tax fraud. Both defendants are charged with conspiracy to defraud the United States (18 U.S.C. § 371); defendant Jennings is charged with five counts of subscription to false tax returns (26 U.S.C. § 7206(1)); and defendant Feuerborn is charged with five counts of income tax evasion (26 U.S.C. § 7201).”

“To date, the government has produced approximately 43,300 pages of discovery to defendants, including witness statements under the Jencks Act, 18 U.S.C. § 3500. (Declaration of Eric D. Vandevelde ¶ 2.) The vast majority of these materials, approximately 93%, were produced on May 12, 2010, approximately three weeks after defendants’ arraignment and one day after this Court signed the protective order for discovery in this case. (Id.) The government will continue to comply with its discovery obligations as this case proceeds.”

“[T]he government repeatedly requested that defendants produce all reciprocal discovery materials mandated under Federal Rules of Criminal Procedure 16(b) and 26.2, and the Jencks Act. (Id. ¶ 3.) The government has emphasized, in particular, the need to receive expert disclosures from defendants. (Id.) To date, neither defendant has produced any discovery or made any expert disclosures to the government.”

“Accordingly, the government respectfully requests that this Court order defendants to comply with their obligations to produce reciprocal discovery materials by no later than January 10, 2011 (eight days before trial and the hearing date on this motion)” (Case 2:10-cr-00346-SJO ; Pages 575 and 576).

Below is another excerpt from the Government’s motion explaining the rules that Jennings and Feuerborn are ignoring:

“A defendant is required to produce reciprocal discovery under Federal Rules of Criminal Procedure 16(b) and 26.2, as well as under the Jencks Act. If a defendant requests discovery and the government complies and demands discovery itself, the defendant must provide the following reciprocal discovery: ‘books, papers, documents, data, photographs, tangible objects, . . . or copies or portions of any of these items if . . . the item is within the defendant’s possession, custody, or control; and the defendant intends to use the item in the defendant’s case-in-chief at trial.’ See Fed. R. Crim. P. 16(b)(1)(A).

A defendant must also produce a written summary of any expert testimony a defendant intends to offer at trial under Federal Rule of Evidence 702, 703, or 705. See Fed. R. Crim. P. 16(b)(1)(C)” (Case 2:10-cr-00346-SJO ; Page 576).

29 Days until their trial date!  It’s getting down to the wire.  Their trial would be a great place for ESS investors to meet and and exchange information.

-ESS Investor