IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CRIMINAL ACTION

)

xxxxxxxxxxxxx ) 1: xx-CR-188-HTW

______________________________)

DEFENDANT'S MOTION TO REQUIRE THE GOVERNMENT

TO PRESERVE EVIDENCE IN THE POSSESSION OF THE

INTERNAL REVENUE SERVICE

Comes now the defendant, xxxxxxxxxxx, by and through his undersigned attorney, to move this court to order the government to preserve evidence that may be relevant and material to his defense, and that may be relevant and material to the defense of vindictive prosecution.

xxxxx is charged with several counts of obstructing justice in violation of 18 U.S.C. §1503 and 26 U.S.C. §7212(a). The conduct precipitating the alleged obstruction stems from several civil cases, In the matter of tax indebtedness of Charles R. xxxxx, d/b/a Embassy Antiques, 1:92-M-433, xxxxx v. Brady, 1:92-CV-1695, and United States v. xxxxx, 1:93-CV-650. In at least two of these matters the United States is represented by the Department of Justice through the United States Attorney for the Northern District of Atlanta. As such, the government has notes, memoranda, communications, and other documents which reflect not only any strategy for disposition of the cases, but also documents and other forms of communications which may reflect upon the government's intention in instituting the criminal indictment herein. Therefore, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), xxxxx seeks an order requiring the government and its respective agencies to preserve all notes, communications, memoranda, writings, telefaxes, and any other information transmitted through any known medium, either oral or written.

Preserving evidence in this matter will circumvent delays in the trial process. Also, counsel seeks to avert the problems in California v. Trombetta, 467 U.S. 479 (1984); see also Arizona v.Youngblood, 488 U.S. 51 (1988).

In Trombetta, the defendants were stopped for suspicion of driving while intoxicated. After submitting to an "Intoxilyzer", the defendants were formally charged with driving while intoxicated. The police failed to preserve the samples pursuant to a policy of the state police. The Court found no constitutional violation for failure to preserve the samples, finding that the destruction was "in good faith and in accord with their normal practice", Trombetta at 488, quoting Killian v. United States, 368 U.S. 231, 242 (1961). Like the defendants in Trombetta, xxxxx

cannot say unequivocally that there is exculpatory evidence in possession of the government or its agencies, but preserving the aforementioned documents will help to avoid the always "treacherous task of diving the import of materials whose contents are unknown and very often, disputed." Trombetta, at 486.

xxxxx also asks this court to order that the same class of documents in possession of the Internal Revenue Service (IRS). At least some of the litigation leading to the alleged obstruction is based is based upon tax indebtedness, and that class of documents may be relevant and material to the defense.

WHEREFORE, the defendant moves that the court grant its motion.

Dated: This ______ day of June, 1993.

Respectfully submitted,

_______________________________

R. GARY SPENCER

Attorney for

CHARLES RONALD xxxxx

State Bar Number: 671905

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