Zinovy Brodsky - Page 117




                                       - 58 -                                         
          rial entries that are the subject of respondent’s evidentiary               
          objection are the items themselves, i.e., the 25 checks and the             
          1 money order themselves.  See United States v. Carroll, 860 F.2d           
          500, 506 n.13 (1st Cir. 1988).  Certain of respondent’s employees           
          prepared the material entries that are the subject of respon-               
          dent’s evidentiary objection by using copies, which respondent              
          received after having issued summonses to petitioner’s banks, of            
          microfiche of such checks and money order, which microfiche those           
          banks maintained.  For purposes of FRE 1001 through 1008, those             
          copies of such microfiche constitute duplicates, and not origi-             
          nals.  See id. at 507.                                                      
               On the record before us, we find that respondent was never             
          in control, as required by FRE 1004(3), of the “originals” of the           
          documents that identify the payors during the years at issue of             
          the items that relate to the material entries that are the                  
          subject of respondent’s evidentiary objection.16  We further find           
          on the instant record that petitioner has not satisfactorily                


               16On the instant record, we also have a question about                 
          whether petitioner satisfies the requirement under FRE 1004(3)              
          that respondent have been “put on notice” that the contents of              
          respondent’s workpapers were to be a subject of proof at the                
          further trial in this case.  In this connection, respondent                 
          indicated at the further trial that petitioner did not notify               
          respondent until Aug. 15, 2000, less than one week before the               
          further trial in this case began, that petitioner might offer               
          respondent’s workpapers as exhibits in this case and that respon-           
          dent did not have an opportunity to determine which entries in              
          those workpapers are otherwise established by the stipulations              
          and evidence introduced at the trial and to be introduced at the            
          further trial and which entries he would object to at the further           
          trial.                                                                      





Page:  Previous  48  49  50  51  52  53  54  55  56  57  58  59  60  61  62  63  64  65  66  67  Next

Last modified: May 25, 2011