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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN THE PEOPLE OF THE VIRGIN ISLANDS CASE NO. ST-09-CR-0000582 Plaintiff ) ) ACTION FOR: 14 V.I.C. 1093 Vs ) ) PREDRAG MILOSAVLJEVIC ) Defendant ) NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER JOSEPH A. DIRUZZO, III, ESQUIRE TO CHRISTINE D. THOMAS, ESQ., ASSISTANT ATTORNEY GENERAL JUDGES & MAGISTRATES SUPERIOR COURT LIBRARIAN pe DENI SION Please fake Hotice that on September 17, 2010 a(n) MEMORANDUM OPINION AND ORDER dated September 15, 2010 was entered by the Clerk in the above-entitled matter Dated: September 17, 2010 Venetia H. Velazauez. Esa CLERK OF THE SUPERIOR COURT \ pe Aw yk DIANE MATTHEW-TURNBULL COURT CLERK II IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ReKKKKKKEKK PEOPLE OF THE VIRGIN ISLANDS, CRIMINAL NO. ST-09-CR-582 Plaintiff, ) V.I. CODE ANN. tit. 14, §§ 1093: 834(2); 791(1); 792(2) VS. PREDRAG MILOSAVLJEVIC, (D.O.B.: 03/27/1984) Defendant. MEMORANDUM OPINION THIS MATTER is before the Court on Plaintiff People of the Virgin Islands’ Motions to Quash. The People of the Virgin Islands (“People”) are represented in this matter by Assistant Attorney General Christine Thomas, Esq. Defendant Predrag Milosavljevic (“Milosavljevic’) is represented in this matter by Joseph DiRuzzo, Esq. The People filed three motions to quash Milosaljevic’s subpoenas duces tecum. On April 8, 2010, Milosavljevic issued a subpoena duces tecum to the Virgin Islands Bureau of Internal Revenue. The People filed a Motion to Quash that subpoena on May 24, 2010. On July 13, 2010, Milosavljevic issued a subpoena duces tecum to Magens Point Inc. and Resort Management, Inc., which the People moved to quae on July 23, 2010. Finally, on July 13, 2010, Milosavljevic issued a subpoena duces tecum to Southland Gaming, Inc., which the People moved to quash on July 27, 2010. In response'to the People’s Motions to Quash. Milosavljevic filed an Omnibus Response on July 30, 2010. I. The People’s Standing to Object to the Subpoenas Duces Tecum As to all the Motions to Quash, Milosavljevic argues that the People lack standing to object to the issuance of the subpoenas on non-parties. Milosavljevic is correct that parties to a matter generally lack standing to challenge subpoenas duces tecum issued to non-parties pursuant People v. Predrag Milosavlijevic Criminal No. ST-09-CR-582 Memorandum Opinion to Rule 17 of the Federal Rules of Criminal Procedure.! United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982) (citing In re Grand Jury, 619 F.2d 1022, 1027 (3d Cir.1980)); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (citing SA J. MOORE, FEDERAL PRACTICE § 45.05(2), (2d Ep. 1974)) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena directed to a non-party witness.”); United States v. Daniels, 95 F. Supp. 2d 1160, 1164 (D.Kan. 2000). However, the standing rule is not absolute. A party may challenge a subpoena issued to a non-party if the subpoena infringes on the party’s legitimate interests. Raineri, 670 F.2d at 712. In the circumstances of a criminal trial, the courts have recognized that the government has a legitimate interest in preventing undue lengthening of a trial, undue harassment of its witnesses and prejudicial over-emphasis on its witnesses’ credibility, Id.; United States v. Segal, 276 F. Supp. 2d 896, 900 (N.D. II]. 2003). In this case, the People challenge a subpoena duces tecum issued to the Virgin Islands Bureau of Internal Revenue (““VIBIR”) for gross receipts forms and income tax returns. Neither party has publicly identified the VIBIR as a potential witness in this case so there is no concern about undue harassment of a trial witness or over-emphasis on its credibility. In addition, the People have not raised any concerns regarding undue lengthening of the trial. However, the Court will presume that the Department of Justice, through its Assistant Attorney General, is acting on behalf of the VIBIR, an executive agency. V.]. CopE ANN. tit. 3, § 114 (1995). Therefore, the People have standing to move to quash the VIBJR subpoena. | With respect to the subpoena Milosavljevic issued to Southland Gaming and to Magens Point, the Court also finds that the Government has standing to object. The People have stated in ' The Federal Rules of Criminal Procedure apply to matiers before this Court whenever they are not inconsistent with the Rules of the Superior Court. Super. Ct. R. 7. People v. Predrag Milosavijevic Criminal No. ST-09-CR-582 Memorandum Opinion their Amended Pre-Trial Memorandum, filed on May 13, 2010, that they intend to call as witnesses two individuals from Magens Point and one individual from Southland Gaming to testify on the People’s behalf. Therefore, the People have an interest in preventing harassment of these witnesses.” Raineri, 670 F.2d at 712. Consequently, the Court finds that the People have standing to pursue their Motions to Quash the subpoenas. Il. | The Merits of the Motions to Quash A. Virgin Islands Bureau of Internal Revenue Milosavljevic requested that a subpoena duces tecum issue to the VIBIR. Through that subpoena, he seeks to obtain “all gross receipts forms . . . all income tax returns” and various other forms, “for the period January 1, 2007 through December 31, 2009.” In their Motion to Quash, the People argue that the subpoena is improper because it “requests documents that are not subject to disclosure as they are not public records.” Section 881 of Title 3 defines public record: “‘public records’ includes all records and documents of or belonging to this Territory or any branch of government in such Territory or any department, board, council or committee of any branch of government.” V.I. CODE ANN. tit. 3, § 881(a) | (1995). The Virgin Islands’ tax code also specifically states that tax records are public records. V.1. CODE ANN. tit. 33, § 822 (1994)(a)(1).? Despite the fact that tax records are public records, they are available for inspection “only upon Order of the Governor.” Jd Therefore, Milosavljevic must obtain the relevant tax records from Southland Gaming and Magens Point, rather than from the VIBIR. ? The People did not make this argument. In fact, after Milosavljevic raised the standing issue in his Omnibus Response to the Motions to Quash, the People did not file any Reply, foregoing their opportunity to address the . question of standing. 3 It is unclear why the People did not cite the relevant portion of Title 33 to make their argument. LRCi. 11.1 states that, “[b]y signing a motion or supporting memorandum or brief, an attorney certifies to the Court that: (a) the applicable law in this jurisdiction has been cited, including authority for and against the position being advocated by counsel.” Failure to comply with the Rule, like all failures to comply with Local] Rules, constitutes a actionable offense. More importantly, counsel does a disservice to the Court by omitting relevant statutes and caselaw. People v. Predrag Milosavijevic Criminal No. ST-09-CR-582 Memorandum Opinion B. Magens Point Milosavljevic also requested that a subpoena issue 1o Magens Point itself. He seeks from Magens Point a number of tax records, emplacement records for all individuals, a list of all bank accounts, copies of al] bank statements, copies of books and records, and all communications, data, reports, and information received from and provided-1o Southland Gaming. Applying the test described above, the Court must determine whether the Magens Point subpoena seeks specific, relevant and admissible documents or, instead, whether it is simply part of a broader “fishing expedition.” Nixon, 418 U.S. at-700. As described above, the Court finds that the tax records sought are relevant, specific and admissible. However, Milosevljevic also seeks emplacement records for all persons working at Magens Point: While the People generally state that the subpoena is “overbroad,” it does not specifically state why the emplacement records request is overbroad. On the other hand. Milosavlievic. in-his Omnibus Response, does not make any argument as to why the emplacement records are relevant or how his request is sufficiently specific. Without some justification on Milosavljevic’s part. the Court has no way to determine whether the request for these documents is proper. . Consequently, the Court will quash the request found in the second bulletpoint of the attachment to the July 9; 2010 subpoena. Milosavljevic also seeks a list of Magens Point's bank accounts and copies of all bank statements Again, the People do not specifically address how this request is overbroad or irrelevant. Milosavljevic states that the “bank statements were requested to determine the financial stability and cash flow of the Resor.” These documents may well be relevant to determining that question, which is put at issue by Milosavljevic’s defense theory. However, the request is overbroad. Milosavljevic does not state for whick period of time he seeks bank Statements. Therefore, his request does not meet the specificity standard and the Motion to Quash will be granted as to bulletpoint numbers three and four. People v. Predrag Milosavljevic Criminal No. ST-09-CR-582 Memorandum Opinion The Magens Point subpoena also requests “copies of the books and records.” It goes on to state that the request “includes but is not limited to all the accounting data that is used to create balance sheets, income statements, statement of cash flows, budgets, income projections, loss projections, income tax returns, employment tax returns, and credit applications. Accounting data is broadly defined to include any and all data contained in paper files, electronic files, whether under the direct or indirect control of the respective business entities or it [sic] owners.” Again, documentation and records regarding Magens Point’s financial situation, including accounting data, may well be relevant to disproving the People’s allegation that seventy-five thousand dollars is missing because Milosaveljevic embezzled it. However, his request is not sufficiently specific. He apparently requests every single document ever produced ‘or retained by Magens Point that touched upon anything remotely financial. The subpoena is also insufficiently specific as to the time-period requested. Therefore, the Court wil] grant the Motion to Quash as to bulletpoint number five. Finally, the Court will also grant the Motion to Quash as to bulletproof number six. Milosavljevic seeks “[a]ll communications, data, reports, and information received from and provided to Southland Gaming.” This request is overbroad. While it may be useful to Milosavljevic to have documentation regarding Southland Gaming’s video lottery terminal (“VLT”) liquidation reports, he does not explain why each and every communication, every piece of data, and any information received from Southland is relevant. Moreover. he does not attempt to define a time-period of the documents sought in the July 13, 2010 subpoena. The Court will grant the Motion to Quash as to these documents. People v. Predrag Milosavijevic Criminal No. ST-09-CR-582 Memorandum Opinion C. Southland Gaming Finally, on July 13, 2010, a subpoena requested by Milosavljevic was issued to Southland | Gaming. It requests that Southland turn over “all communications, data, reports. and information | received from and provided to [Magens Point] for the period January 1, 2007, to May 1, 2010.” This subpoena reflects substantially the same request made in the last bulletpoint of the July 13. | 2010 subpoena issued to Magens Point. However, unlike the Magens Point request, the | Southland Gaming request is limited in time. Nonetheless, it is still overbroad. Milosavljevic | does not explain why he would need “all communications, data, reports, and information received from and provided to” Magens Point. Again, while it may be useful to Milosavljevic to consider the VLT liquidation reports, which he says are produced by Southland Gaming. his request is not so narrow. Therefore, the Court finds that the Southland Gaming subpoena is overbroad and must be quashed. A separate Order of even date wil] follow. DATED: September [2 ; 2010 Wi . NAG I ~ JAMES S. CARROLL I] Judge of the Superior Court of the Virgin Islands aRT TRUE COPY OSALIE GRIFFITH = aes Court Clerk Supervisor / Le! fe Date: y / U/, LO Venetia Hi: Ve} lazquez, Esq. ae of ape Court Court Clerk te + o me oe ” Pa be be ~ on : t t oe fn : Ee ot wae %. we ait e ie Fx ‘ Yee o* “ eo he ee aeons on ae oe + fp: TS a, ! qe. ae a4 Le ans tee oo => ee ej eS [Seca ie eee Stl . aren a i tee lee a Nes mat Ba. ws a, IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN RREKKKKKKK PEOPLE OF THE VIRGIN ISLANDS, ) CRIMINAL NO. ST-09-CR-582 ) Plaintiff, ) V.]. CODE ANN. tit. 14, §§ 1093; ) 834(2): 791(1); 792(2) ) VS. ) ) PREDRAG MILOSAVLJEVIC, ) (D.O.B.: 03/27/1984) ) Defendant. ) ORDER | AND NOW, pursuant to the Memorandum Opinion of even date, it is hereby ORDERED that the People of the Virgin Islands’ May 24, 2010 Motion to Quash the subpoena duces tecum issued to the Virgin Islands Bureau of ]nterna] Revenue is GRANTED; and it is further ORDERED that the People of the Virgin Islands’ July 23, 2010 Motion to Quash the subpoena duces tecum issued to Magens Point, Inc. and Resort Management, Inc. is DENIED in part and GRANTED in part: and it is further ORDERED that the request for documents listed in bulletpoints two, three, four, five and six of the addendum to the July 13, 2010 subpeona duces recum issued to Magens Point, Inc. and Resort Management. Inc. is QUASHED; and it is further ORDERED that the People of the Virgin Islands’ july 27. 2010 Motion to Quash the subpoena duces tecum issued to Southland Gaming. Inc.. is GRANTED; and it is further ORDERED that the July 13, 2010 subpoena duces 1ecum issued to Southland Gaming, Inc.. is QUASHED; and it is further People v. Predrag Milosavijevic Criminal No. ST-09-CR-582 Order ORDERED that a copy of this Order and the Memorandum Opinion of even date shall be served personally upon the Defendant, and copies thereof shall be directed to counsel of record DATED: September | 2010 Pome y Ape Ahas d& ye JAMES S. CARROLL HI Judge of the Superior Court of the Virgin Islands ATTEST: VENETIA VELAZQUEZ, ESQ CERT! Ping ena Court Clerk Supervisor 24. Le |f0_ Date: LL oe Clerk-of the Court tia Hy Velazquez, Esq. By: ie Court Clerk = - ma wd ” ee ne 7 “ne A .e Ay a, Mh, om - we “SS 2 = ” = Foe tine ee se aa cms et A aad axe on wv ZF al a ay ad A oo ss? ce pe nd By Ry “4, ‘4, td = 2 & Pa sp FE ! s rs Mi