Norman L. Vroman
Lawyer
c/o General Delivery
Hopland, California
IN PROPRIA PERSONA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA ) No. CR 91 0213 EFL
)
PLAINTIFF, ) POINTS & AUTHORITIES IN
) SUPPORT OF DISCOVERY
) MOTION
v )
)
NORMAN LEON VROMAN )
)
DEFENDANT. )
______________________________)
DEFENDANT'S BRIEF IN SUPPORT OF DISCOVERY MOTION
SEEKING COMPUTER EVIDENCE
The Defendant, NORMAN LEON VROMAN, has sought the production
of a selection of computer programs, manuals and other
information relevant and material to the operation of I.R.S.
computers from the prosecution by means of a discovery request.
This brief is offered in support of such motion.
USE OF COMPUTER DATA HEREIN
The indictment herein charges the Defendant, with failure to
file tax returns as required by law. Proof of the element of
failure to file such tax returns will be established by a "tax
examining assistant from the Criminal Investigation Branch" of an
I.R.S. Service Center. The defense anticipates that this witness
Points & Authorities in Support of Discovery:
Page 1 of 13
will testify that the search for missing returns consisted
entirely of making a request for computer data from the I.R.S.
master (main frame) computer in Martinsburg, West Virginia, and
that when the pertinent computer data was received from the
master computer, it was displayed upon another computer screen.
Because of the absence of certain transaction codes appearing
within the field of the computer data so displayed upon the
computer screen, the witness will assert that, properly so
decoded, the computer data fails to reveal the filing of returns.
Of course, such a conclusion or interpretation depends entirely
upon the accuracy of the computer data, which in turn depends
upon the accuracy of inputing and retrieval of the data and
information. The processing, assimilation and retrieval of
computer data is dependent upon human performance, training of
personnel, computer programs, computer equipment and a variety of
other factors.
It is typical in tax prosecutions or tax related
prosecutions for the government to attempt as best it can to
conceal the computer based origin of this alleged proof. It is
typical in tax cases for the Service Center witness to simply
state the results of computer operations, but such statements are
legally hearsay. To remedy this deficiency, it is common for the
government to take the results of the computer operations and
then prepare Certificates of Lack of Record, hoping that the same
can achieve admission into evidence under Rule 803(10) and 902 of
the Federal Rules of Evidence. However, such certificates are
objectionable on the grounds that the custodian of the computer
system used is not the party who executes the certificates.
Points & Authorities in Support of Discovery:
Page 2 of 13
Finally, the government sometimes attempts to simply get the
computer printout admitted as a business or public record under
Rules 803(6) or 803(8), but the objection here is that no
foundation is ever laid to receive the results of computer
operations into evidence pursuant to these two exceptions to the
hearsay rule.
Herein, the defense seeks discovery of all information
relevant to the factual point of how the I.R.S. computers
operate, and this request is based upon facts learned during the
course of prior tax trials and information regarding I.R.S.
computers openly discussed in media sources. For example,
several years ago, a scandal within the I.R.S. involved the
shredding of thousands of tax returns by personnel at the
Philadelphia Service Center. Thereafter, a serious problem was
noted regarding drug and alcohol abuse among the personnel at the
Fresno Service Center. At least for several years now, many
Service Centers have experienced serious problems with issuing
tax refunds. Within the last five (5) months, the Wall Street
Journal published an article regarding the antiquated I.R.S.
computer system and a variety of serious computer data problems
arising as a result. Finally, but not exclusively, a serious
computer problem exists in the data error rates of the Service
Centers, which range from 5% to 20%; information regarding this
problem is concealed and known only "in-house".
The defense is legally entitled to obtain through discovery
all the information sought in this request. The prosecution
obviously will strenuously oppose this request asserting that it
has never been done before and tax litigants never question the
Points & Authorities in Support of Discovery:
Page 3 of 13
I.R.S. computer. However, such replies are merely excuses not
constituting valid objections to production.
LEGAL ENTITLEMENT TO COMPUTER DATA
What the "computer says" is blatant hearsay. In Jeffries v.
State, 640 S.W.2d 854 (Tenn.Crim.App., 1979), the prosecution in
a drug case attempted to rebut the defendant's testimony about a
certain fact by having an election commission employee testify
about data displayed on a computer screen. In holding such
testimony inadmissible, it was held:
"Over objection, she was permitted to file a business record
an abstract or summary of information which she said she obtained
from viewing a computer screen in her office .... Her abstract
of that entry was not made in the regular course of business at
or near the time of the act, condition or event as is required by
the act and itself does not qualify as a business record. Her
testimony as to what she read on the computer was hearsay and was
objectionable," 640 S.W.2d, at 857.
In defining the circumstances under which computerized
evidence is admissible, the Court said:
"[P]rintout sheets of business records stored on computing
equipment are admissible in evidence if relevant and material and
if it is shown that (1) the particular electronic computing
equipment is recognized as standard equipment; (2) entries are
made in the regular course of business at or reasonably near the
time of happening of the event recorded, and (3) foundation
testimony satisfies the court that the source of information,
method, and time of preparation were such as to indicate its
trustworthiness and justify its admission," 640 S.W.2d, at 858.
Points & Authorities in Support of Discovery:
Page 4 of 13
In Railroad Comm. v. Southern Pacific Company, 468 S.W.2d 125
(Tex.Civ.App., 1971), the railroad used a "cartload" of computer
records and summaries of those records to prove its case. The
appellate court condemned the computer records and summaries
because no foundation had been laid:
"These records are hearsay and any testimony rooted therein
is hearsay spawned in hearsay," 468 S.W.2d, at 128.
A credit card theft prosecution was the subject of State v.
Springer, 283 N.C. 627, 197 S.E.2d 530 (1973). In holding that
the testimony of a witness regarding the contents of computer
records was inadmissible, the court held:
"[T]he computer printout referred to in the testimony of
Fred Holt, the special investigator, was inadmissible since no
foundation was laid for its admission. In fact, the printout
itself was not offered in evidence. Instead, the witness Fred
Holt was permitted to testify as to the contents of the printout,
and this evidence was likewise inadmissible under the best
evidence rule .... Admission of this testimony constitutes
prejudicial error requiring a new trial," 197 S.E.2d, at 536,
537.
Absent a foundation for the receipt of computer generated
data, the results of computer operations are hearsay; see United
States v. Johnson, 413 F.2d 1396 (5th Cir., 1969).
Authority exists for the proposition that, whenever the
government intends to offer computer generated data as evidence
in a criminal prosecution, it must so inform the defense and make
available pre-trial a variety of materials. See United States v.
Kelly, 420 F.2d 26 (2nd Cir., 1970), and United States v. Stifel,
433 F.2d 431 (6th Cir., 1970). This was the conclusion in United
States v. Dioguardi, 428 F.2d 1033 (2nd Cir., 1970), where it was
held:
Points & Authorities in Support of Discovery:
Page 5 of 13
"It is quite incomprehensible that the prosecution should
tender a witness to state the results of a computer's operations
without having the program available for defense scrutiny and use
on cross-examination if desired. We place the Government on the
clearest possible notice of its obligation to do this and also of
the great desirability of making the program and other materials
needed for cross-examination of computer witnesses, such as flow
charts used in the preparation of programs, available to the
defense in a reasonable time before trial," 428 F.2d, at 1038.
However, even if the prosecution complies with this
requirement, certain computer generated data can still be held
inadmissible. This proved to be true in United States v. Ruffin,
575 F.2d 346, 356 (2nd Cir., 1978), which held an "IRS printout"
inadmissible evidence. See also United States v. Furst, 886 F.2d
558 (3rd Cir., 1989).
The necessity for laying a foundation for the receipt of
computer generated evidence was the subject of United States v.
Russo, 480 F.2d 1228 (6th Cir., 1973), a case whereby the
defendants were accused of mail fraud for defrauding an insurance
company, Blue Shield of Michigan. The prosecution used extreme
care in laying the proper foundation to receive into evidence the
computer data necessary to prove the guilt of the accused. In
commenting upon the necessity for laying a foundation, the court
cited United States v. DeGeorgia, 420 F.2d 889 (9th Cir., 1969)
and stated:
Points & Authorities in Support of Discovery:
Page 6 of 13
"As the opinion points out, the foundation for admission of
such evidence consists of showing the input procedures used, the
tests for accuracy and reliability and the fact that an
established business relies on the computer records in the
ordinary course of carrying on its activities. The defendant
then has the opportunity to cross-examine concerning company
practices with respect to the input and as to the accuracy of the
computer as a memory bank and the retriever of information. The
concurring opinion in DeGeorgia emphasized the necessity that the
court 'be satisfied with all reasonable certainty that both the
machine and those who supply its information has performed their
functions with utmost accuracy' .... This opinion goes on to say
that the trustworthiness of the particular records should be
ascertained before they are admitted and that the burden of
presenting an adequate foundation for receiving the evidence
should be on the party seeking to introduce it rather than upon
the party opposing its introduction," 480 F.2d, at 1241.
The weight of authority in the federal appellate courts is
that a foundation must be laid for the introduction of computer
"business records"; see United States v. Dioguardi, 428 F.2d
1033 (2nd Cir., 1970); United States v. Ruffin, 575 F.2d 346
(2nd Cir., 1978); United States v. Alexander, 789 F. 2d 1046,
1049 (4th Cir.,1986); United States v. Fendley, 522 F.2d 181
(5th Cir., 1975); United States v. Hutson, 821 F.2d 1015 (5th
Cir., 1987); United States v. Sanders, 749 F.2d 195 (5th Cir.,
1984); Rosenberg v. Collins, 624 F.2d 659 (5th Cir., 1980);
Capital Marine Supply, Inc. v. M/V Roland Thomas, II, 719 F.2d
104 (5th Cir., 1983); United States v. Young Bros., Inc., 728
Points & Authorities in Support of Discovery:
Page 7 of 13
F.2d 682 (5th Cir., 1984); United States v. Russo, 480 F.2d 1228
(6th Cir., 1973); United States v. Weatherspoon, 581 F.2d 595
(7th Cir., 1978); United States v. Croft, 750 F.2d 1354 (7th
Cir., 1984); United States v. Scholle, 553 F.2d 1109 (8th Cir.,
1977); United States v. DeGeorgia, 429 F.2d 889 (9th Cir.,
1969); United States v. Catabran, 836 F.2d 543 (9th Cir., 1988);
Regents of University of Colorado v. K.D.I. Precision Products,
Inc., 488 F.2d 261 (10th Cir., 1973); and United States v.
Glasser, 773 F.2d 1553 (11th Cir., 1985). See also annotation at
7 A.L.R. 4th 8, entitled "Admissibility of computerized private
business records."
And the state courts likewise require that an evidentiary
foundation be laid before computer data is received into
evidence; see Schear v. Motel Management Corp. of America, 61
Md.App. 670, 487 A.2d 1240 (1985); Dept. of Mental Health v.
Beil, 44 Ill.App.3d 402, 357 N.E.2d 875, 880 (1976); People v.
Boyd, 66 Ill.App.3d 582, 384 N.Ed.2d 414, 420 (1978); Monarch
Fed. Savings & Loan Assn. v. Genser, 156 N.J.Super. 107, 383 A.2d
475, 489 (1977); People v. Gauer, 7 Ill.App.3d 512, 288 N.Ed.2d
24 (1972); Estate of Buddeke, 49 Ill.App.3d 431, 364 N.E.2d 446
(1977); United States Fidelity & Guaranty Company v. Young Life
Campaign, Inc., 600 P.2d 79 (Colo.App., 1979); Hamilton Music,
Inc. v. York, 565 S.W.2d 838 (Mo.App., 1978); and Chrysler
Credit Corp. v. Bank of Wiggins, 358 So.2d 714 (Miss., 1978).
The above authority thus shows that to receive computer data
into evidence, a very careful and thorough foundation must be
laid. The same authority indicates that when the use of computer
data as evidence is contemplated in any given case, broad
Points & Authorities in Support of Discovery:
Page 8 of 13
discovery is essential so that the party opposing admission
thereof may properly challenge the same; see Chesapeake and Ohio
Ry. Co. v. United States, 704 F.2d 373, 379 (7th Cir., 1983);
Pearl Brewing Co. v. Jos. Schlitz Brewing Co., 415 F.Supp. 1122
(S.D.Tex., 1976); and City of Cleveland v. Cleveland Electric
Illuminating Co., 538 F.Supp. 1257, 1266, 1267 (N.D.Oh., 1980).
In this respect, the opponent is entitled to discovery of the
computer hardware and software so used, programs, information
relative to entry and retrieval of computer data (manuals
included), results of accuracy tests and a variety of other data.
Surely the defense herein is entitled to obtain from the
prosecution and the appropriate federal agency all evidence
necessary to prove the inadmissibility of the computer data the
prosecution will obviously want to introduce herein.
This same precise issue arose in United States v. Liebert,
519 F.2d 542 (3rd Cir., 1975). Here, Liebert's counsel had
learned through some method that in other tax prosecutions the
government was using a document named the "non-filing list" to
establish the fact of the failure to file a return. Liebert then
sought production of this document which the government openly
used in other cases; but here, the prosecution strenuously
fought producing the document which it intended to use at
Liebert's trial. Because of the failure to permit discovery, the
District Court dismissed the prosecution, thus causing the
government to appeal. In addressing this issue, the Third
Circuit held:
Points & Authorities in Support of Discovery:
Page 9 of 13
"A major 'witness' confronting Liebert will be computer
printouts indicating that the IRS has no record of having
received his returns .... The introduction of a computer
printout is admissible in a criminal trial provided that the
party offering the computer information lays a foundation
sufficient to warrant a finding that such information is
trustworthy and the opposing party is given the same opportunity
to inquire into the accuracy of the computer and its input
procedures as he has to inquire into the accuracy of written
business records.
"A party seeking to impeach the reliability of computer
evidence should have sufficient opportunity to ascertain by
pre-trial discovery whether both the machine and those who supply
it with data input and information have performed their tasks
accurately .... The nonfiling lists plainly are outputs of the
computer system identifying individuals not filing returns. If
an individual who in fact has filed is listed as a nonfiler due
to computer error, such error casts doubt on the accuracy and
reliability of the records identifying Liebert as a nonfiler.
The lists, therefore, may be useful to Liebert in his efforts to
impeach the reliability of the computer procedures indicating
that he has not filed his returns," 519 F.2d, at 547, 548.
Thus, it is quite clear from well established case authority
that the mere contemplated use of computer evidence during a
criminal trial opens the door to the defense to discover
everything relevant to the operations of those computers. It
cannot be denied that computer evidence will be used by the
prosecution in this case, hence this request must be granted.
Points & Authorities in Support of Discovery:
Page 10 of 13
MATERIALITY OF REQUEST
In order for the defense to obtain the requested computer
evidence sought herein via this motion, it might also be
essential to demonstrate the materiality of that evidence. This
proposition is established by such cases as United States v.
Ross, 511 F. 2d 757, 762 (5th Cir., 1975), United States v.
Brown, 562 F. 2d 1144, 1152 (9th Cir., 1977), United States v.
Johnson, 577 F. 2d 1304, 1309 (5th Cir., 1978), and United States
v. Buckley, 586 F. 2d 498, 506 (5th Cir., 1978), all of which
hold that "material" evidence is that which alters the quantum of
proof on a factual and disputed issue in favor of the defendant.
Herein, Vroman contends that IRS computers have error rates of 5%
to 20%, as noted above. Published statements from the IRS
indicate that a total of 1.7 billion returns and information
items are filed at the 10 Service Centers annually, thus each
Service Center handles on the average 170 million items and
returns every year. If a particular Service Center has an error
rate of only 5%, then it has errors in the approximate amount of
8.5 million. If its error rate however is 20%, then it has errors
in the amount of 34 million. Just the simple demonstration of
error rates alone offers the opportunity to Vroman to show that
computer data generated by IRS computers is highly inaccurate and
the jury in this case could therefore reject the credibility of
any evidence offered by the prosecution which is computer
generated. Since Vroman lacks such evidence and seeks the same
through discovery, the production of this evidence would thus
shift the quantum of proof in favor of Vroman when that evidence
is produced by the prosecution.
Points & Authorities in Support of Discovery:
Page 11 of 13
Further, Vroman seeks a variety of evidence that relates to
the process by which information is computerized by the IRS. To
demonstrate inaccuracy, the evidence requested is needed to prove
how the errors do occur.Vroman needs information about what types
of computers are used by the IRS so that an expert can testify
regarding the accuracy of those particular types of computers.
Additionally, the information regarding the computer software is
needed to demonstrate whether there be any errors in the same,
all of which bears directly upon the same point. Evidence
regarding changes or repairs to both hardware and software is
equally important for showing where error generation potentials
exist. Finally, information such as that contained in manuals
regarding how to change or alter computer data relates to error
rates and possibly more. Everyone who knows anything about
computers fully realizes that a copy of a file may be changed
without the change being reflected in the original file. One may
copy a computer file and make alterations, deletions or changes
without having any effect upon the original file. It must be
remembered that a Service Center obtains computer data that is
simply a copy of the data at Martinsburg. The copy of that data
may be altered at the Service Center, yet no reflection of those
changes will be recorded at Martinsburg.
In summary, this computer evidence is very material to the
defense of Vroman; that materiality being clearly shown, the
same must be produced.
CONCLUSION
The relevant authority clearly establishes that the defense
is entitled to production of the items so sought, thus the
defense requests that this court order the prosecution, in the
event of opposition to this motion, to produce the items and
other information sought in the discovery motion.
Points & Authorities in Support of Discovery:
Page 12 of 13
Respectfully submitted this the ___ day of August, 1991.
/s/ Norman Vroman
_____________________________
NORMAN L. VROMAN
In Propria Persona
Points & Authorities in Support of Discovery:
Page 13 of 13
# # #
Return to Table of Contents for
U.S.A. v. Vroman