The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on the defendant's second pretrial omnibus motion. [Docket Item 42.] Oral argument was held on Friday April 13, 2012.
Following the suppression hearing on February 22 and 29, 2012, the defendant filed the instant motion in response to Revenue Agent Phillips' testimony. Specifically, the defendant argues that Phillips' failure to inform the defendant or his supervisor about the defendant's power of attorney's lack of CPA license constituted outrageous government misconduct which warrants the dismissal of the indictment. In addition, the defendant also brings a motion in limine to exclude evidence of L. Jay, Inc.'s civil tax audit and evidence of any alleged bribe attempted by the defendant.
The government filed opposition to the instant motion and argues that Revenue Agent Phillips' conduct does not rise to the level of outrageous government misconduct sufficient to dismiss the indictment. At oral argument, the government and defendant expressed an ability to stipulate to the exclusion of certain L. Jay, Inc. evidence and the government represented that it did not intend on introducing any evidence of an alleged bribe by the defendant. Therefore, the court will not address these aspects of the defendant's motion and will instead focus on whether Revenue Agent Phillips' conduct warrants the dismissal of the indictment.
For the reasons discussed herein, the court will deny the defendant's motion to dismiss.
The facts underlying this action are outlined in the court's opinion of April 20, 2012 and are incorporated herein. The instant motion arises out of Agent Phillips' conduct in not disclosing to the defendant Phillips' discovery that his power of attorney, Victor Fabietti, lacked an active CPA license.
Sometime after the civil audit was commenced against the defendant in June 2006, Revenue Agent Phillips ("Phillips") discovered that Victor A. Fabietti, Jr. ("Fabietti"), who was the defendant's representative to the IRS during the audit as his power of attorney, was not a certified public accountant despite his contrary representation to the IRS. Phillips confronted Fabietti with the knowledge of Fabietti's lack of CPA status and Fabietti explained to Phillips that certain continuing professional education credits were not applied properly in order to renew his license. Fabietti further told Phillips that he had been in contact with the New Jersey Professional License Board to resolve the discrepancy.
Phillips did not pursue Fabietti's credentials further and did not note his discussion with Fabietti on his activity log for defendant's audit or his activity log of MCI's audit.*fn1 Phillips did not disclose his discussion with Fabietti or his discovery of Fabietti's lapsed CPA license to the defendant. Phillips also continued to work with Fabietti as the defendant's representative in the civil audit of the defendant and MCI.
The due process clause of the Fifth Amendment is violated when law enforcement officers engage in outrageous misconduct in detecting and obtaining incriminating evidence. Rochin v. California, 342 U.S. 165 (1952). In order to rise to the level of outrageous misconduct, the government must engage in conduct the shocks the conscience, "violating that fundamental fairness shocking to the universal sense of justice." United States v. Russell, 411 U.S. 423, 432 (1973). When government misconduct is found to violate the Fifth Amendment, the indictment must be dismissed because the ...