UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, : CRIMINAL NUMBER 80-00080-1 Plaintiff : VIO: 15 USC 1703(a)(2)(a) vs. 15 USC 1703(a)(2)(b) : 15 USC 1703(a)(2)(c) JACK HALPERIN 15 USC 1717 PHILIP COHEN : 18 USC 1341 Defendants 18 USC 2 : GOVERNMENT'S BRIEF IN OPPOSITION TO HIGH VISTA, INC.'S REQUEST FOR RETURN OF GRAND JURY DOCUMENTS ___________________________________ STATEMENT OF FACTS For the purposes of this brief, the Government accepts the first and second statement of facts as indicated in High Vista Inc.'s motion. In April of 1978, the Grand Jury sitting in the city of Scranton, in the Middle District of Pennsylvania, subpoenaed all the documents and records of High Vista, Inc., pursuant to an investigation of alleged violations of 18 United States Code, Section 1341 and 15 United States Code, Section 1703 et seq. High Vista, Inc., owner of these records, through its counsel now require that these documents, records and other papers produced in compliance with the Subpoena Duces Tecum issued by the Grand Jury be returned to them as the investigation has terminated in an Indict- ment against two of the officers of the corporation. In support of their request, the defense cites the case of In Re: Petroleum Industry Investiga- tion, 152 F. Supp. 646 (E.D. Va. 1957). This case is __________1 inconsistent with the position taken by High Vista, Inc. in its motion and brief. Rather, it is a case dealing with a motion made by an oil company to pre- vent Government counsel from copying the records or from utilizing the records in other proceedings. In the case of Application of Bendix Aviation Corporation, 58 F. Supp. 953, 954 (S.D. N.Y. 1945), also cited by High Vista, Inc.likewise does not stand for the proposi- tion propounded in High Vista's motion and brief. This case is clearly distinguishable from the case at bar, in that the Grand Jury in the matter was dismissed without having returned an Indictment. Subsequently, the Govern- ment was ordered to return all papers and documents sup- plied pursuant to the Subpoena Duces Tecum. However, this Order was stayed since it was alleged to be in the public interest that the Government retain and have the docu- ments and papers available for use in a pending civil action. In the case at bar, an Indictment has been returned against two officers of High Vista, Inc., par- ticularly the defendant, Jack Halperin, is the sole stockholder and shareholder of the corporation. It is anticipated that many documents obtained by High Vista, Inc. will be used as evidence in the trial. Although the Grand Jury proceeding has indicted two of the officers, the Grand Jury nonetheless may continue to investigate High Vista, Inc. and/or its affiliate corporations. The Government does not contend that the papers are not the - 2 - exclusive property of High Vista, Inc. who produced them and that they must be returned as soon as proper use and examination has been completed. The Government, however, maintains that the purpose for which they were subpoenaed has not yet been completed. Moreover, in the case cited by defendants, In Re Petroleum Industry previously cited, the Court argues that if the Government can make copies of the records and documents then they should just be able to keep the documents in tact and as is. The Government also maintains that at all times pertinent to the Grand Jury investigation the Government has permitted High Vista, Inc. to photocopy all records previously produced by them. Moreover, in the pending discovery proceeding now being accomplished in the matter of United States v. Jack Halperin, Criminal Number 80-00080-1, the defendant's counsel, who is also counsel for the Corporation, High Vista, Inc., has been permitted to copy all documents and records of High Vista, Inc. The Court should also recognize that nowhere does High Vista, Inc. maintain that harm or undue prejudice has resulted as a result of the retention of the afore- said documents and records. WHEREFORE, the Government respectfully requests your Honorable Court to dismiss the motion of High Vista, Inc. for return of Grand Jury documents. CARLON M. O'MALLEY, JR. United States Attorney By /s/ ALBERT R. MURRAY, Assistant United States Attorney
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