IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-cv-24023-SCOLA/GOODMAN

KENNETH C. GRIFFIN,

 Plaintiff,

 v. 

INTERNAL REVENUE SERVICE, et al., 

 Defendants. 

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DEFENDANTS’ RESPONSE IN OPPOSITION 

TO PLAINTIFF’S EMERGENCY MOTION TO COMPEL

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This Court ordered that “TIGTA’s investigative file (and those portions of the PIN file 

obtained exclusively from TIGTA) are protected from disclosure under section 6103.” ECF No. 

141, Omnibus Order, at 27. Thus, as recognized by this Court, the Department of Justice, Public 

Integrity Section (PIN) is prohibited from producing documents in its possession that were 

obtained exclusively from TIGTA’s investigation. In compliance with this Court’s Omnibus 

Order, PIN produced proffer memoranda that were jointly obtained by TIGTA and PIN as well 

as PIN’s communications with Charles Littlejohn’s counsel, but not information exclusively 

obtained from TIGTA as part of TIGTA’s Title 26 investigation. The United States also provided 

Plaintiff with sworn declarations from representatives of both PIN and TIGTA demonstrating 

that the remaining documents requested by Plaintiff cannot be produced as they were obtained 

exclusively from TIGTA as part of its investigation. See ECF Nos. 153-3, 153-4. As explained in

the declarations, even though TIGTA coordinated with PIN during TIGTA’s investigation, 

TIGTA—not PIN—directed the investigation. Id. Indeed, TIGTA, not PIN, has the statutory 

authority to investigate allegations of unlawful disclosure or inspection of return information in 

violation of § 6103. See ECF No. 153-4 ¶ 3.

Yet Plaintiff continues to demand production of documents obtained exclusively from

TIGTA’s investigation despite the plain language of § 6103 and this Court’s Omnibus Order.

Contrary to the sworn declarations from TIGTA and PIN, Plaintiff alleges that PIN—not 

TIGTA—conducted the investigation and that TIGTA gathered documents in furtherance of 

PIN’s alleged investigation. ECF No. 153 at 4. It is undisputed that PIN did not investigate Mr. 

Littlejohn; instead, PIN handled the criminal prosecution. TIGTA is the entity authorized by 

Congress to investigate allegations of unlawful disclosure or inspection of return information,

and TIGTA is the one that gathered the documents at issue as part of its investigation. TIGTA 

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determined which documents and information to provide to PIN under 26 U.S.C. § 6103(h)(2), 

for PIN’s prosecution of Mr. Littlejohn. PIN never directed or controlled TIGTA. 

Thus, to grant Plaintiff the relief that he seeks in his motion to compel, this Court would 

need to either find that PIN—not TIGTA—directed TIGTA’s investigation (which goes against 

the sworn declarations from both TIGTA and PIN) or vacate its Omnibus Order and determine 

that documents gathered by TIGTA as part of it Title 26 investigation are not protected under 

§ 6103. Because the only documents Plaintiff seeks through his motion are those that PIN 

obtained exclusively from TIGTA’s investigation, the Court should deny Plaintiff’s motion.

ARGUMENT

I. Plaintiff’s narrative that PIN led TIGTA’s Title 26 investigation is fiction.

Plaintiff’s motion continues to set forth the false narrative that “TIGTA agents were 

acting as part of PIN’s investigation.” ECF No. 153 at 4. Plaintiff reasons that because TIGTA 

coordinated with PIN from the start of TIGTA’s Title 26 investigation, it was PIN’s 

investigation, not TIGTA’s. Id. at 3-5. Plaintiff has twice before made this unsupported

argument. ECF No. 88 at 3 (arguing that “[m]aterials . . . collected as part of an investigation led 

by PIN with the assistance of TIGTA” are not protected by § 6103); ECF No. 111 at 13 (same 

argument). And this Court rejected that argument and correctly held that TIGTA’s investigative 

file is protected by 26 U.S.C. § 6103. ECF No. 141 (Omnibus Order) at 14-16. Plaintiff’s 

“expedited” motion, for the third time, continues to push his fictional narrative that PIN was the 

driving force behind the investigation, contrary to sworn statements by both TIGTA and PIN, 

based on select emails taken out of context. This narrative should again be rejected.

Plaintiff wants certain records that he incorrectly claims “PIN obtained” from USB flash 

drives including (1) Littlejohn’s electronic journal; (2) a data dictionary; (3) communications 

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between Littlejohn and ProPublica; and (4) “information” related to Littlejohn’s unauthorized 

disclosure to ProPublica and the New York Times. ECF No. 153 at 3. First, PIN is not in 

possession, and never was in possession, of these USB drives. ECF No. 153-4 (Decl. of Scott H. 

Moffit, Special Agent in Charge, TIGTA) ¶¶ 6-10; ECF No. 153-3 (Decl. of Jonathan E. 

Jacobson, Trial Attorney, PIN) ¶¶ 4-6. These drives have been in the custody, possession, and 

control of TIGTA who obtained the drives as part of its Title 26 investigation. Id. Littlejohn 

provided TIGTA with his consent to search the drives, TIGTA agents collected the drives and 

transported them to the TIGTA office, and TIGTA personnel analyzed and processed the 

information. ECF No. 153-4 (Moffit Decl.) ¶¶ 8-10; ECF No. 153-3 (Jacobson Decl.) ¶¶ 4-6. 

TIGTA has retained control of the USB drives and provided to PIN under § 6103(h)(2) only the 

information that was necessary for Littlejohn’s prosecution. Id. If PIN were ordered to turn over 

all the contents on the USB drives, it could not because TIGTA is the only entity that has 

custody and control over those drives. Both TIGTA and PIN have provided declarations 

explaining who took possession of the evidence, and what records TIGTA turned over to PIN. 

Because those records were obtained by TIGTA pursuant to TIGTA’s Title 26 investigation, 

those records are protected under 26 U.S.C. § 6103 and cannot be produced. ECF No. 141.

Plaintiff cuts from his script the TIGTA and PIN declarations that explain that TIGTA 

independently conducted the investigation. ECF No. 89-1 ¶ 5 (Wood Decl.) (explaining that 

TIGTA conducted the investigation and independently determined the course of investigation, 

while coordinating with PIN both before and after referral); ECF No. 153-4 (Moffit Decl.) ¶ 5 

(same); ECF NO. 153-3 (Jacobson Decl.) ¶ 9 (“While TIGTA coordinated with PIN during the 

investigation and after referral, TIGTA independently determined the course of its 

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investigation.”). The declarations establish that any involvement by PIN was to assist TIGTA

with its investigation. Not the other way around. 

Not only is Plaintiff’s narrative counter to the facts, but it is also contrary to the law. 

Only TIGTA—not PIN—has the legal authority to investigate alleged acts of unlawful disclosure 

of return information. Inspector General Act, 5 U.S.C. §§ 412(k)(1)(A) and 422(a)(1)(L)(ii); 

Treas. Order 115-01; ECF No. 89-1 (Decl. of TIGTA Special Agent in Charge Erik Wood) ¶ 3; 

ECF No. 153-4 (Moffit Decl.) ¶ 3. PIN has neither the authority to investigate alleged acts of 

unlawful disclosure of return information, nor the authority to direct TIGTA on how to conduct 

its investigation. The record evidence shows that TIGTA was not acting at the direction of PIN.

See ECF Nos. 89-1 (Wood Decl.), 153-4 (Moffit Decl.), 153-3 (Jacobson Decl.).

PIN’s assistance in TIGTA’s Title 26 investigation does not strip away § 6103 

protections. Section 6103(h)(2) allows for TIGTA to share information with the Department of 

Justice. But the information disclosed to the Department is still protected by § 6103 and cannot 

be further disclosed without authorization. See 26 U.S.C. §§ 6103(a), (h)(4). Even if the 

Department disclosed information to a court under § 6103(h)(4), TIGTA’s internal files remain 

protected. See Rice v. United States, 166 F.3d 1088, 1091 (10th Cir. 1999). 

TIGTA required PIN’s assistance to obtain search warrants. This is no different than any 

other criminal investigation. See Fed. R. Crim. P. 41; 28 U.S.C. § 516 (“Except as otherwise 

authorized by law, the conduct of litigation in which the United States, an agency, or officer 

thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the 

Department of Justice, under the direction of the Attorney General.”); 28 C.F.R. § 60.1 

(requiring TIGTA to consult with the appropriate U.S. Attorney Office prior to seeking a 

warrant). And PIN’s assistance does not mean that it took control of the investigation. 

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Indeed, TIGTA executed the search warrants, which are under seal in other courts, and 

TIGTA has maintained sole possession of the materials it obtained. Just like the thumb drives, if 

PIN were ordered to turn over information gathered by TIGTA pursuant to a search warrant, PIN

would need to ask TIGTA to retrieve the information as almost all the information is in TIGTA’s 

investigative file, not PIN’s prosecution file. The execution of and information obtained from a 

search warrant in a Title 26 investigation is return information protected from disclosure under 

§ 6103. Jones v. United States, 869 F. Supp. 747, 752-53 (D. Neb. 1994) (holding that although 

applications for and execution of a search warrant in connection with Title 26 investigation is 

return information, disclosure of the existence of and evidence gathered from such warrants is 

not wrongful if an exception to disclosure applies); McQueen v. United States, 5 F. Supp. 2d 473, 

480-81 (S.D. Tex. 1998) (rejecting argument that separate grand jury and Title 26 investigations 

merged). 

Plaintiff’s position would eviscerate § 6103 protections from almost all criminal Title 26 

investigations and runs counter to this Court’s Omnibus Order. If adopted, a taxpayer’s § 6103 

protections would end at any point a U.S. Attorney’s Office or other DOJ component assists 

TIGTA or an IRS criminal investigator in obtaining a search warrant. Plaintiff’s position also 

removes § 6103’s protections from certain civil investigations. For example, the IRS has the 

authority to issue summonses to collect information for the “purpose of ascertaining the 

correctness of any return, making a return where none has been made, determining the liability 

of any person for any internal revenue tax or the liability at law or in equity of any transferee or

fiduciary of any person in respect of any internal revenue tax, or collecting any such liability.” 26 

U.S.C. § 7202(a)(2). Information obtained by an IRS summons is return information under §

6103. Radcliffe v. Internal Revenue Serv., 536 F. Supp. 2d 423 (S.D.N.Y. 2008), aff’d, 328 Fed. 

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App’x 699 (2d Cir. 2009). When a party refuses to comply with an IRS administrative summons, 

the case is referred to the DOJ to obtain a court order to require a party to comply with the 

summons. Under Plaintiff’s argument, all the information obtained pursuant to a court order

enforcing a summons, even if that information is provided directly to the IRS, would no longer 

be protected by § 6103. Such a ruling would upend § 6103. 

Finally, Plaintiff seeks all records, no matter who collected the records, after the date 

TIGTA made a criminal referral which Plaintiff guesses to be “no later than December 2021, and 

may be in fact as early as November 2021.” ECF No. 153 at 3. Plaintiff is candid that it he is 

taking a guess on the referral date in the hopes he can capture all TIGTA-sourced investigative 

materials. His guess is wrong. TIGTA’s investigation started before any referral and continued 

even after the referral date. ECF Nos. 153-3 (Jacobson Decl.) ¶ 9; 153-4 (Moffit Decl.) ¶ 5. 

Plaintiff claims that TIGTA’s exclusive investigation ended when PIN became involved 

because “TIGTA is required to “[c]omplete all other investigative leads on current and former 

employees, witnesses, and third parties, prior to referral to the USAO for a prosecutorial 

determination.” ECF No. 153 at 7 (citing TIGTA Operations Manual at (400)-290.8). TIGTA’s 

internal operations manual is not binding authority. See United States v. Tabres, Crim. No. 1:15-

cr-277, 2016 WL 11258758, at *8 (N.D. Ga. June 3, 2016) (collecting cases that hold that 

internal government manuals do not confer substantive rights). Regardless, TIGTA’s internal 

operations manual does not require the completion of an investigation before referral. It provides 

that TIGTA will complete investigative leads prior to referral only “as appropriate.” In this case, 

it was not appropriate for TIGTA to complete its investigation before the criminal referral to PIN 

because the three-year statute of limitations was rapidly approaching. In any event, the date of 

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TIGTA’s referral is irrelevant to whether information in PIN’s possession is return information

for the reasons discussed below.

II. Section 6103 prohibits the disclosure of information that passed through TIGTA 

pursuant to its Title 26 investigation.

Plaintiff distorts the case law interpreting the broad protections afforded to return 

information under § 6103 to re-litigate a matter he has already lost. Plaintiff cites three cases in 

support of his position: Ryan v. United States, 74 F.3d 1161 (11th Cir. 1996); Baskin v. United 

States, 135 F.3d 338 (5th Cir. 1998); and United States v. Musin, No. 09-cv-00062 (S.D. Iowa 

Mar. 10, 2011). As explained below, none of them supports Plaintiff’s position. The United 

States’ production of only the proffer memoranda and PIN’s communications with Mr. 

Littlejohn’s counsel adheres to § 6103, case law, and this Court’s Omnibus Order. Documents in 

PIN’s possession that were obtained from and gathered by TIGTA pursuant to its Title 26 

investigation are prohibited from disclosure under § 6103.

In Ryan, the Eleventh Circuit held that “return information” encompasses “information 

that has passed through the [Secretary].” 74 F.3d at 1163. The holding in Ryan, and as 

recognized by this Court’s Omnibus Order, is anchored in the statutory definition of “return 

information” from § 6103(b): information gathered by the Treasury to investigate an offense 

under Title 26. ECF No. 141 (Omnibus Order) at 14. In Ryan, the plaintiff filed a claim against 

the United States under § 7431 alleging that the prosecutor in the plaintiff’s criminal case 

unlawfully disclosed his return information in violation of § 6103 by giving a reporter 

prosecution memoranda. The prosecution memoranda summarized witnesses statements made to 

the prosecution in interviews and before the grand jury. Ryan, 74 F.3d at 1162. The Eleventh 

Circuit upheld the district court’s finding that “the contents of the memoranda were the 

prosecution’s work product distilled from statements of trial witnesses and, consequently, were 

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not ‘return information’ acquired from the IRS.” Id. Although an IRS agent assisted the 

prosecutor in its criminal investigation (which concerned a non-Title 26 matter), the information 

in the prosecution memoranda was “collected by the United States Attorney’s Office” and it was 

“not information belonging to the Secretary of the Treasury.” Id. Ryan supports the United 

States’ position that information gathered by TIGTA as part of its Title 26 investigation is 

protected from disclosure under § 6103. That PIN coordinated with TIGTA as part of TIGTA’s

investigation does not change the fact that the documents at issue were gathered by TIGTA at the 

direction of TIGTA. 

Plaintiff’s reliance on Baskin is similarly misplaced. Baskin, just like Ryan, confirms that 

“‘return information’ must be information which has somehow passed through, is directly from, 

or generated by the IRS.” Baskin, 135 F.3d at 342. The information at issue in Baskin consisted 

of checks obtained by a grand jury investigating non-tax crimes. The plaintiff, an employee of a 

local police department, alleged that an IRS Special Agent (who was assigned to support the 

grand jury investigation under the supervision of the USAO) made an unauthorized disclosure by 

providing a copy of the checks to the Internal Affairs Division of the police department. The 

Fifth Circuit upheld the district court’s finding that the checks did not constitute “return 

information” under § 6103. 135 F.3d at 342-43. The Fifth Circuit confirmed that to constitute 

“return information” the data must be “‘received by, recorded by, prepared by, furnished to, or 

collected by’ the IRS with respect to the legislatively prescribed purposes.” Baskin, 135 F.3d at 

343. (emphasis added). The information was not gathered by the IRS—it was gathered by the 

DOJ pursuant to the grand jury subpoena. Littlejohn’s prosecution, unlike Baskin, involves a 

Title 26 investigation. This Court already recognized that the information gathered by TIGTA as 

part of its investigation of Mr. Littlejohn constitutes return information under § 6103. That

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TIGTA shared with PIN some of the documents that TIGTA gathered as part of its investigation 

does not mean that the documents then lost § 6103 protection. 

Finally, Plaintiff believes it has caught the United States in a contradictory position by 

citing United States v. Musin, a 2011 case involving allegations of wrongful disclosure. Even

though the United States is not bound by prior arguments in briefs from over a decade earlier, the 

United States’ position here is consistent with Musin. First, Plaintiff has mischaracterized the 

brief as stating that even materials “physically collected” by the IRS or TIGTA is not return 

information under § 6103. The brief does not say that, but it does cite Ryan. ECF No. 153-12 at 

17. Second, Plaintiff states, “[t]here, the Government correctly argued that ‘return information’

under Section 6103 ‘does not include information gathered by or provided to the DOJ.’” ECF 

NO. 153 at 2. We do not dispute this and have consistently taken the position that information 

PIN obtained from sources other than the TIGTA investigation is not return information. Indeed, 

the United States produced that information (proffer memoranda and email communications with 

Littlejohn’s counsel) to Plaintiff. As shown in the declarations, the remaining documents were 

obtained exclusively from TIGTA’s investigation and thus are not subject to the Court’s 

Omnibus Order compelling production. 

CONCLUSION

The United States complied with the Court’s Omnibus Order because it turned over 

documents that were jointly gathered by PIN and TIGTA (the proffer memoranda) and is only 

withholding records from PIN’s file that were obtained exclusively from the TIGTA 

investigation. 

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Dated: June 7, 2024 Respectfully Submitted

DAVID A. HUBBERT

Deputy Assistant Attorney General 

/s/ Mary Elizabeth Smith 

MARY ELIZABETH SMITH

Maryland Bar No. 0712110235 

STEPHANIE A. SASARAK

Maryland Bar No. 1012160096 

BEATRIZ T. SAIZ

New Jersey Bar No. 024761995 

Trial Attorneys, Tax Division 

U.S. Department of Justice 

P.O. Box 14198 

Washington, D.C. 20044 

202-307-2089 (v) | 202-514-4963 (f) 

Stephanie.A.Sasarak@usdoj.gov 

Mary.E.Smith@usdoj.gov 

Beatriz.T.Saiz@usdoj.gov 

Counsel for the United States 

Of counsel: 

MARKENZY LAPOINTE

United States Attorney

Southern District of Florida 

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CERTIFICATE OF SERVICE

I hereby certify that on June 7, 2024, I filed a copy of the foregoing document with the 

Clerk of Court using the CM/ECF system, which will send notification to counsel of record. 

Mary Elizabeth Smith

MARY ELIZABETH SMITH

Trial Attorney

 U.S. Dept. of Justice, Tax Division 

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