United States v. Lavigne

1

UNITED STATES OF AMERICA, Plaintiff, v. DONALD STANLEY LAVIGNE, Defendant.

No. 21-20355

United States District Court, E.D. Michigan, Southern Division

November 9, 2022

ORDER ADJUDICATING CERTAIN PRETRIAL MOTIONS AND MOTIONS IN LIMINE

DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE

Defendant Donald Stanley Lavigne is charged in an indictment with filing false tax returns, making false statements to a bankruptcy court, and making a false statement to a government agent. This matter is before the Court on several pretrial motions and motions in limine that were filed by the parties in advance of trial, which presently is scheduled for November 15, 2022. The motions were noticed for a hearing last Wednesday, but the defendant was not available to come to court then. Because the motions are fully briefed and oral argument will not assist in their resolution, the Court will decide the motions on the papers submitted. E.D Mich. LR 7.1(f)(2).

A grand jury sitting in this district returned a ten-count indictment against Lavigne on May 26, 2021 charging him with seven counts of willfully subscribing materially false income tax returns in violation of 26 U.S.C. § 7206(1), two counts of making false statements in bankruptcy in violation of 18 U.S.C. § 152(3), and one count of making a false statement to a government agent in violation of 18 U.S.C § 1001(a)(3).

According to the indictment and the briefs the parties have filed, the government alleges that between 2013 and 2018, Lavigne earned commissions from working as an independent insurance salesman and making sales for a gutter-protection business. According to the miscellaneous income forms (Forms 1099-MISC) insurance companies and the gutter-protection company filed with the Internal Revenue Service (IRS), Lavigne earned $301,523 in nonemployee compensation from those businesses. However, Lavigne allegedly failed to report any of his insurance or gutter-protection sales income on his federal tax returns. He also supposedly submitted other documents to the IRS indicating that the Forms 1099-MISC filed by the insurance and gutter-protection companies were erroneous and stating that he did not earn any income for the years 2013 through 2018.

The government also alleges that Lavigne filed for bankruptcy on January 12, 2018, and that as part of the bankruptcy process, Lavigne filed schedules falsely stating that he did not owe any taxes, and he falsely stated under oath that the bankruptcy schedules he filed were truthful and accurate. He also filed an Official Form 107, Statement of Financial Affairs for Individuals Filing for Bankruptcy, in which, it is alleged, he falsely stated that he earned zero gross income in 2016 and 2017.

Finally, the indictment charges that after being notified that he was the target of a federal grand jury investigation, Lavigne sent a letter to the Department of Justice in which he falsely asserted that his bankruptcy attorney had reviewed his 2017 income tax return and advised him that it was complete and correct.

I.

In its first motion (ECF No. 110), the government asks the Court to take judicial notice of the following facts: (1) the IRS is a federal agency; (2) investigations of violations of the internal revenue laws are within the jurisdiction of the IRS; (3) the Department of Justice (DOJ) is a federal agency; (4) the Tax Division is a component of DOJ; and (5) investigations of violations of internal revenue laws are within the jurisdiction of the Tax Division. The government says that these facts are relevant to establishing whether Lavigne violated 18 U.S.C. § 1001, because the government must prove that Lavigne made a statement that “pertained to an activity within the jurisdiction of a federal agency.”

Lavigne responds that the government must offer proof to substantiate all of its claims and the relevant facts, and he renews his request for a Bill of Particulars, appending a list of questions to his response that he demands the government answer.

Federal Rule of Evidence 201 authorizes a court to take judicial notice of an adjudicative fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). As the Sixth Circuit has explained, “judicial notice is generally not the appropriate means to establish the legal principles governing the case.” Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002). But “judicial notice is available only for ‘adjudicative facts,' or the ‘facts of the particular case,' as opposed to . . . facts ‘which have relevance to legal reasoning.'” Ibid.

It is appropriate to grant the government's motion and take judicial notice of the adjudicative facts listed in it. The fact that the IRS and DOJ are federal agencies, and that the Tax Division is a DOJ component, are facts generally known within the jurisdiction of the Court. So too is the fact that the IRS and DOJ investigate and prosecute tax crimes. These facts also can be determined accurately and readily by reference to countless unimpeachable sources, including the federal statutes that created the agencies. See, e.g., Donaldson v. United States, 400 U.S. 517, 534-35 (1971) (collecting cases and statutes charging the Internal Revenue Service with enforcing internal revenue laws and investigating criminal conduct); 28 C.F.R. § 0.70 (codifying the Tax Division's authority). The Court properly may take judicial notice of statues and regulations “to establish the factual context of the case, as opposed to stating the governing law.” Toth, 306 F.3d at 349; see also Int'l Bhd. of Teamsters v. Zantop Air Transp. Corp., 394 F.2d 36, 40 (6th Cir. 1968) (“[A] Court may take judicial notice of the rules, regulations and orders of administrative agencies issued pursuant to their delegated authority.”); United States v. Harris, 331 F.2d 600, 601 (6th Cir. 1964) (“The District Court will also take judicial notice of the statutes of the United States.”).

Lavigne is not entitled to a Bill of Particulars for all the reasons set out in the opinion denying his earlier motion requesting the same relief. See ECF No. 80.

The Court will grant the government's motion to take judicial notice of the five adjudicative facts stated in the government's motion.

II.

For its second motion (ECF No. 111), the government asks the Court to determine before trial the authenticity of Government Exhibits 93, 94, and 95. Exhibits 93 and 95 are letters the defendant purportedly set to the Tax Division of the Department of Justice, in which he falsely claimed that an attorney had reviewed his tax returns and found them to be true and correct. Exhibit 94 is a letter the Tax Division purportedly sent Lavigne in response.

Exhibit 93 consists of an envelope; a typewritten letter from “Donald S La Vigne,” dated April 1, 2020; and a copy of a letter from Tax Division attorney Melissa Siskind dated March 23, 2020. See Ex. 93, ECF No. 111-1, PageID.809-13. The envelope is addressed to Siskind via the Tax Division's Washington, D.C. post office box and bears a stamp indicating that it was received by the DOJ mailroom on April 7, 2020. Id. at PageID.809. Both the envelope and letter bear an address in Clinton Township, Michigan, which allegedly is the address of Lavigne's mother. Id. at PageID.809, 812. The letter is in response to the March 23 letter from Siskind advising Lavigne that a grand jury is investigating his filing of false or no tax returns and inviting Lavigne to contact the DOJ or request to testify. Id. at PageID.810-13. In the letter, the writer states that “there must have been a terrible misunderstanding, or confusion,” because he already was called to attend an in-person tax audit in Detroit with IRS auditor Christine Schaeffer, who had all of his tax returns for the years 2014 through 2016 and did not issue him any assessments. Ibid. The writer further represents that he worked with his bankruptcy attorney, Nick Balberman, to complete his 2017 and 2018 tax returns; that Balberman advised him that his 2017 return was correct and complete; and that bankruptcy trustee Mark Shapiro reviewed and reached the same conclusion regarding his 2015 and 2016 returns. Id. at PageID.810-11. The writer suggests that the government verify his tax returns by contacting Schaeffer, Balberman, and Shapiro. Ibid.

Emails indicate that because DOJ received the Lavigne letter at the beginning of the COVID-19 pandemic, when attorneys were encouraged to work from home, Assistant Chief Jorge Almonte scanned a copy of the letter and emailed it to Siskind, stating, “This mail came for you.” DOJ Emails, ECF No. 111-4 and 111-5, PageID.823-31. Almonte's message indicates that a document entitled “XRX9C934E56C31A” is attached to his email. Id. at PageID.826.

Exhibit 94 consists of a June 15, 2020 letter addressed to “Donald LaVigne” at the Clinton Township address. Ex. 94, ECF No. 111-2, PageID.815-16. The letter is on DOJ Tax Division letterhead. Id. at PageID.815. In it Siskind states that the government is in receipt of Lavigne's April 1, 2020 letter offering information that he would like it to consider in its investigation. Ibid. Noting that Lavigne's communications with Balberman may be protected by attorney-client privilege, Siskind asks if Lavigne would waive that privilege so that the government could speak to Balberman about Lavigne's bankruptcy proceedings and tax returns. Id. at PageID.815. Siskind sent a copy of the letter to case agent Michael Steller to mail to Lavigne. DOJ Emails, ECF No. 111-6, PageID.833-34. Her email indicates that a document...