Motion to Dismiss Superseding Indictment Denied Because Taint Review Proper (3/29/17)

In United States v. Musto, 2017 U.S. Dist. LEXIS 40862 (MD PA 2017), here, the court denied Musto's motion to dismiss and motion to suppress.  The motion to dismiss was from a superseding indictment with two counts of tax perjury, § 7206(1), and one count of tax obstruction, § 7212(a).  I don't think, from a legal perspective, there is anything new or unusual in the case.  I post the case because, in denying the motion to dismiss, the court covers the process whereby the Government, in executing a search warrant, establishes a "taint team" consisting of personnel not involved in the investigation to review evidence to see whether it is privileged and, if so, make sure that evidence is not reviewed by the investigative team, thus tainting the investigation.

This taint team process is described in footnote 5 on page 6 as follows:

n5 Prior to executing the five search warrants on April 28, 2016, the government organized a filter team, also known as the taint team. (N.T. at 52-55). The filter team examined seized evidence to determine whether any of the seized materials were potentially privileged. (N.T. at 154). If the filter attorney determined the seized materials were privileged, these materials were returned to defense counsel, without the prosecution team ever reviewing them. (N.T. at 154-55).

The case has a further wrinkle in that, prior to delivery to the taint team, two IRS agents involved in the execution of the search warrant had reviewed the notebook in question, marked "attorney-client privilege."  One of the agents apparently was not involved in the investigation but simply assisting in the execution of the search warrant.  The other agent was involved in the investigation but, upon review of the privileged material, was immediately re-assigned to the taint team so that his review would not infect the integrity of the investigation.  The Court found that none of the privileged material was disclosed to the investigative team.