Appeal from a denial of a motion for a new trial based on the prosecution's failure to produce impeachment materials requested pursuant to the Jencks Act, 18 U.S.C. § 3500 (1982), and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Affirmed.
Before: OAKES, MESKILL and MAHONEY, Circuit Judges.
Appellant Michael Petrillo was convicted of two counts of tax evasion in violation of 26 U.S.C. § 7201 after a jury trial before Judge Thomas P. Griesa, Southern District of New York. Petrillo moved for a new trial because certain documents surfaced after trial which Petrillo argued should have been produced to him at trial pursuant to his Jencks Act request, 18 U.S.C. § 3500 (1982), and his general Brady request, see Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).*fn1 Judge Griesa denied the motion, and this appeal followed.
The indictment charged that Petrillo was a partner in several "diet clinics" which were actually fronts for distributing Quaaludes, a powerful sedative, and that he received substantial income from the clinics on which he did not pay income tax. The main issue at trial became whether Petrillo had an ownership interest in the clinics.
The government's primary evidence of ownership was the testimony of Edward Platzman, the day-to-day manager and a partner in the clinics. Platzman was indicted with Petrillo, but was allowed to plead guilty to one count of signing a false tax return in return for a cooperation agreement with the government. The cooperation agreement provided that Platzman would repay his back taxes, but if Platzman was unable to repay his tax liability, that would not be a breach of the cooperation agreement. The cooperation agreement also stated that the Internal Revenue Service was not bound by the agreement in any way.
Platzman stated at trial that he was introduced to Petrillo by a third party, Leonard Messina. At a meeting between the three, Platzman proposed, and the others agreed, that they become equal partners in a Quaalude clinic. It was further agreed that in the operation of the clinic, Petrillo would handle the cash, distribute the profits and disburse money to recover overhead. Eventually, Platzman opened eight clinics in partnership with Petrillo and others.
On week after the opening of the first clinic, according to Platzman, Petrillo lowered Platzman's percentage of the take, telling him that there were other partners. Platzman also testified that when he later inquired whether he was getting less than his agreed twenty percent share, Petrillo got violent and threatened to throw Platzman out the window. Platzman further testified that he permanently dropped the subject.
On cross examination, the defense sought to establish that Platzman had a motive to lie to avoid jail, and was seeking to lessen his civil tax liability by implicating others. The theory presumably was that as Platzman implicated more people as receiving money from the clinics, the unreported receipts traceable to him would be lessened. As part of the impeachment, the defense went into the fact of Platzman's personal bankruptcy proceeding, and its timing, arguing that the bankruptcy was an attempt to avoid paying back taxes. Platzman filed for bankruptcy in February, 1985, and the petition was finalized in June, 1985. Platzman received a letter from the granted jury on April 1, 1985, informing him that he was about to be indicted. Platzman pleaded guilty on June 13, 1985.
The relevant testimony on cross-examination was:
Q. (By the defense) Did you file the personal bankruptcy in 1985 so that you would not have to pay the IRS?
A. No, there was nothing doing with the IRS at that time.
Q. You were not under investigation?
Q. You were not told that you were going to be indicted?
Q. When the bankruptcy was finalized in ...