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United States v. Polishan

July 14, 2003

UNITED STATES OF AMERICA
v.
PAUL F. POLISHAN, APPELLANT



Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 96-cr-00274) District Judge: Honorable Thomas I. Vanaskie

Before: Rendell, Ambro and MAGILL,*fn1 Circuit Judges

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued March 10, 2003

OPINION OF THE COURT

Paul F. Polishan appeals his conviction on charges of conspiracy, securities fraud and other related offenses. He argues that the District Court erred in rulings relating to pre-trial discovery procedures and to the admission of evidence at trial. We hold that Polishan waived his right to appeal the rulings on pre-trial discovery procedures by failing to comply with the procedural requirements of a local rule and we find no error in the admission of evidence to which Polishan objects. Thus we affirm.

I. Factual Background

In 1987, Polishan became the Senior Vice President of Finance, Chief Financial Officer and Chief Accounting Officer of Leslie Fay Companies (LFC). Polishan ran Leslie Fay's Hanover, Pennsylvania facility, supervising its financial operations and the employees involved in those operations. In January 1993, accounting irregularities at LFC came to light, for which LFC's Corporate Controller and Polishan's direct subordinate, Donald F. Kenia, initially claimed full responsibility. The LFC Board of Directors' Audit Committee began an investigation. Two weeks later, during interviews conducted by attorneys and accountants retained by the Audit Committee, Kenia stated that Polishan had directed the illegal conduct. Kenia similarly implicated Polishan in subsequent interviews with federal law enforcement authorities.

In September 1993, the Audit Committee issued a 369-page report concluding that, because of unsupported entries in its ledgers, LFC had overstated by more than $75 million its pre-tax net income for the years 1990-1992. As part of the investigation resulting in the issuance of that report, LFC President Babcock asked Roger Vallecorse, former Vice-President of Human Resources, to interview Polishan, Kenia, and the divisional controllers who worked under Polishan and Kenia. The Audit Committee Report did not conclude formally that Polishan participated in the fraud, but did detail the evidence that supported such a conclusion (including Kenia's statements). In October 1994, Kenia pleaded guilty to charges relating to the making of false statements in financial statements submitted to the Securities and Exchange Commission ("SEC").

II. Procedural History

In October 1996, a grand jury returned an indictment charging Polishan with, inter alia, conspiracy to falsify the books and records of LFC, the making of false statements in documents submitted to the SEC, securities fraud, bank fraud and wire fraud. Polishan was arraigned shortly thereafter.

A. Discovery

On November 26, 1996, the District Court appointed a Magistrate Judge to supervise discovery. The Government adopted an "open file" policy, whereby it made available to defense counsel all material in the Government's possession, with the exception of privileged items and attorney work-product. Defense counsel had access to the room in the federal building where the file was located and permission to bring in a photocopier. Discovery was completed on December 15, 1998.

On January 5, 1999, Polishan filed pre-trial motions arguing, inter alia, that the "open file" policy of the Government had proved impractical. He requested relief in the form of continuing access to the discovery file and, to facilitate access, requested that the Court establish a supervised document depository where documents would be stored until trial. The Magistrate Judge rejected this request, concluding that Polishan was given adequate opportunities to conduct discovery.

Polishan also requested identification by the prosecution of material under Brady v. Maryland, 373 U.S. 83 (1963). The Magistrate Judge concluded that "the Government has complied with its Brady obligations by providing a ...


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