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United States v. Eldeknawey

United States District Court, D. Maine

July 8, 2019

UNITED STATES OF AMERICA,
v.
ASHRAF B. ELDEKNAWEY, Defendant

          ORDER ON PENDING MOTIONS

          D. BROCK HORNBY UNITED STATES DISTRICT JUDGE.

         The defendant has filed four motions:

1. A motion to sever Count 1 from the 11-count Indictment against him (ECF No. 31);
2. A motion regarding a recorded conversation with a witness (ECF No. 32);
3. A motion for disclosure of confidential source (ECF No. 33); and 4. A motion for disclosure of exculpatory and impeachment information (ECF No. 34).

         Motion to Sever

         The Indictment (ECF No. 1) charges the defendant, a part-time tax preparer for some of Maine's immigrant community, with eleven counts of aiding and assisting in the preparation of false federal income tax returns in violation of 26 U.S.C. § 7206(2). Counts 2 through 11 charge the defendant with assisting seven identified (by their initials) individuals in claiming false or fraudulent self- employment income that resulted in tax refunds to which they were not entitled. Count 1 charges him with the same conduct but with respect to an individual who actually was an undercover informant.[1]

         The defendant concedes, as he must, that all the Counts initially were properly joined under Fed. R. Crim. P. 8(a), because that rule permits joinder if the offenses “are of the same or similar character, ” or “are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” The charges here satisfy these criteria: they are of the same or similar character; and they are part on the defendant's offering of these fraudulent services to immigrants in his tax preparation business.[2] But Fed. R. Crim. P.14(A) permits a judge to order severance of properly joined counts to avoid prejudice. That is the basis for the defendant's motion here to sever Count 1.

         For elaboration of the standard for showing the necessary prejudice under Rule 14(a), the defendant's legal memorandum, Def.'s Mot. to Sever at 11, cites the First Circuit decision in United States v. Scivola, 766 F.2d 37, 41-42 (1st Cir. 1985) (internal citations omitted), as quoted in United States v. Matthews, 856 F.Supp.2d 229, 234 (D. Me. 2012). Scivola and Matthews both state:

Generally, there are three types of prejudice that may result from trying a defendant for several different offenses at one trial: (1) the defendant may become embarrassed or confounded in presenting separate defenses; (2) proof that defendant is guilty of one offense may be used to convince him of a second offense, even though such proof would be inadmissible in a separate trial for the second offense; and (3) a defendant may wish to testify in his own behalf on one of the offenses but not another, forcing him to choose the unwanted alternative of testifying as to both or testifying as to neither.

         The defendant argues that each of these three areas of prejudice affect him, Def.'s Mot. to Sever at 11, but his argument collapses them into two groups: “embarrassment and spillover” (factors 1 and 2), id.; and “desire to testify at one but not the other” (factor 3), id. at 13.

         As for embarrassment and spillover, the defendant argues that for Counts 2 through 11 the evidence will be based on the testimony of the taxpayer witnesses, that it will be “subject to the recall of these folks, ” id. at 12, and “that each of these witnesses had a motive to place the blame on the defendant . . . . These folks, in order to receive tax refunds, apparently presented to the defendant claims that their income was such that they would receive a re[fund]. On the other hand, when these same folks without [the defendant's] assistance submitted claims to the State, their income was much lower. Both cannot be correct.” Id. For Count 1, on the other hand, the undercover informant turned over to law enforcement the returns the defendant prepared; he did not receive any benefits from the State of Maine; and his meetings with the defendant were recorded. “The quantum of evidence in this count differs greatly from the say so of the other witnesses in the remaining count[s]. To permit the trial of this count with the others would create a spillover effect on the defendant's right to a fair trial.” Id. at 13.[3]

         Certainly, the testimony of the undercover informant along with the recordings creates a strong case against the defendant on Count 1. But that evidence would be admissible against the defendant on Counts 2 through 11 even if I severed Count 1, because it is admissible under Fed.R.Evid. 404(b)(2) as evidence of intent and absence of mistake or lack of accident.[4] To be sure, it is compelling evidence of the defendant's intent and of a common scheme or plan for all the counts. That makes it prejudicial to the defendant, but not unfairly so. See Fed.R.Evid. 403; United States v. Cadet, 664 F.3d 27, 30, 33 (2d Cir. 2011) (admitting, under Rule 404(b)(2), evidence of the defendant's preparation of a tax return for an undercover agent).

         As for his desire to testify on some but not all counts, the defendant would like the opportunity to exercise his Fifth Amendment right not to testify on Counts 2 through 11 because there he has arguments to challenge the memories and/or motivations of the taxpayers even without his own testimony. He implies, however, that he will be hard put to let the testimony of the undercover informant ...


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