United States v. Crea

853 F. Supp. 72, 1994 U.S. Dist. LEXIS 7361, 1994 WL 243017

• Court: District Court, E.D. New York
• Decided: May 16, 1994
• Docket: No. 93 CR 0506(SJ)
• Status: Published

Opinion

ORDER

JOHNSON, District Judge:

Before this Court is Gaetano Vastola’s (“Vastóla”) motion to quash a grand jury subpoena issued to Rifkin, Levin & Leibowitz (“Rifkin”). This subpoena requires Rifkin to produce, for the years 1987 to the present, all federal and state tax returns, payroll records, 1099’s, W-3s, workpapers, financial statements, check spreads, audit reports and other records of financial examinations, correspondence, memoranda, notes and copies of documents prepared for filing with any government or financial institution related to Vast Rand Inc., Gaetano Vastóla, and Dorothy Vastóla.

Vastóla argues that this subpoena has been served to harass him and is improperly being used to prepare an already pending indictment for trial. The Government has responded that Vastóla lacks standing to challenge the subpoena and that grand jury subpoenas are to be presumed proper. United States v. R. Enterprises, Inc., 498 U.S. 292, 301, 111 S.Ct. 722, 728, 112 L.Ed.2d 795 (1991).

This Court agrees that Vastóla lacks standing to challenge this subpoena which was not served upon him but rather, upon a third-party. The subpoenaed records, while pertaining to Vastóla, are not considered his and therefore he is not being compelled to do anything and lacks standing to challenge the subpoena.¹ Vastóla has cited cases where an attorney’s client has been held to have standing to quash a subpoena upon his attorney, see In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 853 (9th Cir.1991); In re Grand Jury Subpoena Duces Tecum Dated January 2, 1985 (Simels), 767 F.2d 26, 28-29 (2d Cir.1985); In re Grand Jury Proceedings (Katz), 623 F.2d 122, 125 (2d Cir.1980). However, these cases involve the attorney-client privilege, no privilege has been held to exist between a ehent and an accountant. See United States v. Bein, 728 F.2d 107 (2d Cir.1984).

CONCLUSION

It is hereby ordered that Vastola’s motion for to quash a subpoena duces tecum is hereby DENIED.

SO ORDERED.

1 . Vastóla has clearly stated that his motion to quash is not based on any infringement of his Fourth or Fifth Amendment rights in the papers. Letter from Michael Rosen & Joy Vastóla, Counsel for Gaetano Vastóla, to Judge Sterling Johnson, Jr. (May 10, 1994). Only for such constitutional infringements have third parties been granted standing to appeal third-party subpoenas. See Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918); In re Katz, 623 F.2d 122 (2d Cir.1980); In re Grand Jury Subpoena for New York State Income Tax Records, 607 F.2d 566, 570 (2d Cir.1979).