Burks’ “fishing expedition” motions denied
Two of Paul Burks’ recent filings saw him request a tax fraud indictment count be dismissed and evidentiary hearing pertaining to privileged communications.
A decision on both Burks’ motions has been reached.
The DOJ filed a response to Burks’ request for an evidentiary hearing. Referring to the motion as a “fishing expedition”, the DOJ claimed Burks would be allowed
to object, at trial, to the admission of any evidence that Burks believes is privileged or derived from privileged evidence.
Of course, the Government will not attempt to introduce any such evidence. And Burks knows it
Regarding members of the prosecution team viewing potentially privileged information;
Burks appears to have located 148 documents — among tens of thousands of un-reviewed documents — that seem erroneously to have slipped through the Government’s electronic filter.
Understandably, having found an apparent Government error, Burks wishes to use the error in some way, to obtain some sort of relief from the Court.
But there is no evidence that any member of the prosecution team, including Special Agent Laura Hughes, reviewed any of those documents. (There are tens of thousands of emails in this case, the vast majority of which the Government was unable to review because of sheer volume.)
Burks’ isolated 148 emails are not part of the Government’s case, and did not influence the Government’s case.
Burks has not even attempted to show that the isolated emails are actually privileged, as is his burden.
In denying Burks’ motion on June 20th, Judge Cogburn remarked that he had
made no showing that any member of the prosecution team has reviewed any of 148 emails at issue.
Judge Cogburn also denied Burks’ motion to dismiss the tax-related indictment count.
Review of Count Four reveals that the United States has alleged each element of the offense.
Further, whether or not the government’s evidence will prove those elements is a matter for resolution at trial.
Finally, Burks’ theory of constructive receipt is a defense and not a bar to the government bringing such charge.
Here, the court finds no reason to dismiss Count Four.
The motion will be denied and Burks may renew the motion at the conclusion of the government’s evidence.
Two for two! Three for three if you count the earlier denial of Burks’ motion for a jury questionnaire.
As far as I know, Burks’ trial is still scheduled to kick off on July 5th.
Footnote: Our thanks to Don@ASDUpdates for providing a copy of the DOJ’s Opposition Response (June 18th) and Judge Cogburn’s two denial orders (June 20th).