Norman L. Vroman
c/o General Delivery
Hopland, California




UNITED STATES OF AMERICA      )       No. CR 91 0213 EFL
     PLAINTIFF,               )       POINTS & AUTHORITIES IN
                              )       SUPPORT OF DISCOVERY
                              )       MOTION
     v                        )
     DEFENDANT.               )


     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

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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:
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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

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                          Page 3 of 13

I.R.S. computer.   However,  such replies  are merely excuses not

constituting valid objections to production.


     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,


     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


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                          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.


     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.

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                          Page 12 of 13

     Respectfully submitted this the ___ day of August, 1991.

/s/ Norman Vroman
In Propria Persona

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U.S.A. v. Vroman