TAXLITIGATOR – Tax Controversy (Civil & Criminal) Report

The Due Process Protections Act (DPPA)[i], was signed into law and became effective October 21, 2020.  The DPPA effectively provides federal judges with greater supervisory authority over the federal government’s disclosure of exculpatory evidence in criminal prosecutions.

A prosecutor’s obligation to disclose exculpatory evidence to the defense after charging a defendant with a federal crime is not new.  In fact, it is both part of the due process obligations guaranteed to defendants under the Fifth and Fourteenth Amendments to the U.S. Constitution as well as clearly set forth in the U.S. Supreme Court’s 1963 decision in Brady v. Maryland[ii] mandating prosecutors disclose to the accused all “favorable” evidence that is “material either to guilt or to punishment” under the defense’s theory of the case.  The prosecutor’s duty to disclosure of exculpatory evidence to the defense is often referred to as the government’s Brady obligations.  A failure to provide the defense with Brady material in the possession of the prosecution team[iii] is deemed a constitutional violation, regardless of whether the individual prosecutor is aware of the evidence or not and despite whether the prosecutor acted in good faith or not.[iv]  Furthermore, the government’s Brady obligations exist even if the defendant does not specifically request the information.[v]

In technical terms, the DPPA amends Rule 5 of the Federal Rule of Criminal Procedure, which addresses Initial Appearances in Court by defendants, by creating new Rule 5(f), titled “Reminder of Prosecutorial Obligations”, which now provides:

• IN GENERAL. — In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83(1963) and its progeny, and the possible consequences of violating such order under applicable law.
• FORMATION OF ORDER. — Each judicial council in which a district court is located shall promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate.

While DPPA does not alter the substantive nature of the federal government’s Brady obligations nor does it mandate a national standard for the required oral and written orders, instead deferring to the judicial counsel of each circuit, of which, it should be noted, there are 12,[vi] it does require a consistent rule in each district and, under that rule, an order which will provide federal judges with enhanced supervisor authority over prosecutors and directly put federal prosecutors on notice of the possible consequences of violating their Brady obligations.  Additionally, although the DPPA does not mandate a specific timing for the disclosure of Brady information, and noting that current DOJ policy directs the government’s Brady disclosures be made in sufficient time to permit the defendant to make effective use of that information at trial,[vii] the DPPA is clearly intended to reinforce the message to federal prosecutors that the production of exculpatory material is a priority.  Now, with the additional requirements of a mandated Rule 5(f) court order, that message comes with judicial oversight and, where necessary, consequences to the government that include, but are not limited to, exclusion of evidence, adverse jury instructions, dismissal of charges, contempt proceedings and sanctions for noncompliance with a Rule 5(f) court order.

SANDRA R. BROWN – Ms. Brown has been a principal at Hochman Salkin Toscher Perez PC since March 2018.  Prior to joining the firm, Ms. Brown spent more than 26 years as a federal trial attorney, including serving as the Acting United States Attorney, the First Assistance United States Attorney and the Chief of the Tax Division of the Office of the U.S. Attorney (C.D. Cal).  Ms. Brown’s broad range of experience in complex civil tax controversies and criminal tax investigations and litigation includes having handled over 2,000 cases on behalf of the United States before the United States District Court, the Ninth Circuit Court of Appeals, the United States Bankruptcy Appellate Panel and the California Superior Court.  In addition to other honors, commendations and awards, Ms. Brown has received the Internal Revenue Service Criminal Investigation Chief’s Award and the IRS’s Mitchell Rogovin National Outstanding Support of the Office of Chief Counsel Award, respectively, the two most prestigious criminal and civil awards available for presentation by the IRS to a Department of Justice employee.

Ms. Brown represents individuals and entities on a national and local level in complex federal criminal investigations and litigation as well as sensitive civil tax controversy examinations and litigation matters.  Ms. Brown obtained her LL.M. in Taxation from the University of Denver, is a fellow of the American College of Tax Counsel, co-chair of the NYU Tax Controversy Section, and a member of the Women’s White Collar Defense Association.  Ms. Brown may be reached at brown@taxlitigator.com or 310.281.3217.     

[i] Pub. L. N. 116-182, 234 Stat. 894 (Oct. 21, 2020).

[ii] United States v. Brady, 373 U.S. 83 (1963).

[iii] Kyles v. Whitley, 514 U.S. 419, 437 (1995).

[iv] Id., at 87.

[v] United States v. Agurs, 427 U.S. 97 (1976).

[vi] See https://www.uscourts.gov/about-federal-courts/governance-judicial-conference.  Under 28 U.S.C. § 332, each circuit has a judicial council composed of chief judge and an equal number of circuit and district judges; Under sec. 28 U.S.C. § 41 there are 13 circuits: the DC Circuit, the

1st – 11th Circuits, and the Federal Circuit.  Since the Federal Circuit does not hear appeals in criminal cases, only 12 of the judicial councils will promulgate model orders.

[vii] Justice Manual § 9-5.001.