United States v. Biaggi

674 F. Supp. 1034, 1987 U.S. Dist. LEXIS 10227, 1987 WL 23033
District Court, S.D. New York·Decided November 5, 1987·No. No. 87 Cr. 265 (CBM)·Published·Cited by 1 cases

Opinion

OPINION

MOTLEY, District Judge.

On July 13, 1987, defendant Richard Biaggi served a subpoena duces tecum pursuant to Fed.R.Crim P. 17(c) upon Independent Counsel James C. McKay, returnable November 9, 1987.1 That subpoena demanded production of:

1. All documents and/or information in your possession or under your control relating to the possibility that things of value were furnished to Edwin Meese, the Attorney General of the United States, directly or indirectly, by representatives of the Wedtech Corporation, including Mr. Meese’s lawyer, investment partner (and trustee) and former assistant, together with all documents and/or information relating to Mr. Meese’s relationship to Wedtech, its employees, directors, consultants, officers, and nominees of any of these.
2. All documents and/or information with respect to whether Mr. Meese was given special intangible benefits or treatment through his association with Mr. Chinn.
3. All documents and/or information relating to all action taken by the Attorney General or any one of his representatives relating to the investigation of the case which led to my client’s [Richard Biaggi’s] indictment, while Mr. Meese was Attorney General, including Mr. Meese’s refusal to disqualify himself from the Wedtech case.
4. All documents and/or information relating [sic] Mr. Meese’s awareness [1036]*1036that his investment trustee, Mr. Chinn, had a financial interest or connection to Wedtech.

The Independent Counsel moves under Fed.R.Crim.P. 17(c) to quash the subpoena. For the reasons set forth below, this court grants the motion.

Allegations Against Richard Biaggi

Part of the background of this case is set out in this court’s opinion in United States v. Biaggi, 672 F.Supp. 112 (S.D.N.Y.1987), familiarity with which is assumed. Defendant Richard Biaggi is the son of Congressman Mario Biaggi, also a defendant in this case, and has been indicted on charges of violating the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1962(c); see Indictment, Count One), of RICO conspiracy (18 U.S.C. § 1963(d); see Indictment, Count Two), bribery and receipt of an unlawful gratuity (18 U.S.C. § 201(c); see Indictment, Counts Four and Five), mail fraud (18 U.S.C. § 1341; see Indictment, Count Six and Thirteen), and perjury (I.R.C. § 7206(1); see Indictment, Counts Sixteen and Seventeen). The substantive acts Richard Biaggi is alleged to have committed are: (1) receiving 2lk%, some 112,000 shares, of Wedtech stock, allegedly extorted by his father in exchange for maintaining the Small Business Administration's support of Wedtech; (2) participating in a fraudulent stock purchase scheme designed to maintain the appearance that defendant John Mariotta owned more than 50% of Wedtech’s stock, qualifying it as a minority business enterprise eligible for contracts awarded under the SBA’s Section 8(a) program; and (3) false statements on his 1983 and 1985 tax returns.

Rule 17(c) allows the district court to quash a subpoena duces tecum if it is “unreasonable or oppressive.” The decision to quash rests within the court’s sound discretion. E.g., In re Irving (United States v. DiLapi), 600 F.2d 1027, 1034 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979). The party seeking production has the burden of proof of showing that production would not be unreasonable or oppressive. Id. The Supreme Court has approved a fourfold test:

[I]n order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.”

United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039 (1974) (footnote omitted) (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952) (Weinfeld, J.).

The Independent Counsel maintains that defendant has not made a showing of relevance. For defendant’s first, second, and fourth requests, it takes no effort to see the cogency of the Independent Counsel’s view. These requests all relate to items of information that would tend to show that Attorney General Meese was involved in the affairs of Wedtech, as the Indictment alleges defendant is. If such items exist, however, they tend at most to implicate the Attorney General, not to exonerate defendant. This court declines, of course, to speculate on the guilt or innocence of the Attorney General as to Wed-tech-related allegations. It is sufficient to note that the Attorney General’s guilt would be entirely compatible with defendant’s guilt. It would even be consistent, for example, with the hypothesis that defendant and the Attorney General were coracketeers.

Defendant’s third request at least implies a colorable connection between himself and the Attorney General. Again, the Attorney General’s relation, if any, to the Wed-tech investigation has no bearing on whether defendant violated the law. But as the Independent Counsel puts it, “At best, the information demanded could be relevant to a claim by Mr. Biaggi that some complex [1037]*1037conspiracy was initiated by which Mr. Meese had charges trumped up against Mr. Biaggi in order to deflect the ongoing investigation into Wedtech away from himself.” Memorandum in Support of Independent Counsel’s Motion to Quash 11. Indeed, defendant’s reply memorandum sketches such a conspiracy theory, according to which the four Wedtech cooperators

are attempting to frame Richard Biaggi and his father, while at the same time protecting the major source of their illegally obtained Government contracts, the former Counsel to the President and current Attorney General, his lawyer, E. Robert Wallach, his former assistant, James E. Jenkins, and his current partner, W. Franklin Chinn.

Memorandum of Law in Opposition to Motion to Quash 1-2. In pretrial motions to dismiss the indictment or disqualify the Department of Justice from participating in this case, defendant offered a similar theory that even advanced an argument for the incompatibility of the Attorney General’s guilt and defendant’s:

[T]he conviction of the Biaggis will mean in the eyes of many that the Attorney General was not bribed.

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United States v. Biaggi, 674 F. Supp. 1034, 1987 U.S. Dist. LEXIS 10227, 1987 WL 23033 (S.D.N.Y. 1987).

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