United States v. Doe

252 F. Supp. 3d 170
CourtDistrict Court, E.D. New York
DecidedApril 20, 2017
DocketNo 17-mc-525 (JFB)
StatusPublished

This text of 252 F. Supp. 3d 170 (United States v. Doe) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Doe, 252 F. Supp. 3d 170 (E.D.N.Y. 2017).

Opinion

MEMORANDUM AND ORDER

Joseph F. Bianco, United States District Judge

The United States of America (the “government”) seeks an order compelling John Doe Nos. 1 and 21 (collectively, “respondents”) to comply with two grand jury subpoenas dated December 1, 2016. Respondents oppose the government’s motion on the grounds that production of the documents would violate the Fifth Amendment’s act of production privilege. For the reasons set forth below, the Court holds that this privilege does not extend to documents in respondents’ possession that are required to be kept under N.Y. Tax Law §§ 426 and 428.2, and, therefore, respondents must produce all records required to be kept under those provisions that have been maintained since November 1, 2015.

I. Background

The government issued the two subpoenas in connection with their investigation of numerous cash liquor purchases allegedly made by respondents at the United States Navy Exchange at Mitchel Field in Garden City, New York (the “NEX”). (See Unsworn Decl. under Penalty of Perjury by Govt. Agent (“Govt. Decl.”), ECF No. 7, at ¶ 10.) The NEX is a retail store owned and operated by the U.S. Navy by and through the Navy Exchange Service Command. (Id. ¶ 4.) It provides various goods and services, including alcohol, to active and retired military personnel as well as certain designated civilians. (Id. ¶ 5.) Records obtained by the government indicate that John Doe No. 3 (“Seller”), a sales associate at the NEX, sold 121,479 bottles of alcohol valued at over $5.2 million between November 13, 2015 and October 12, 2016 to unauthorized purchasers, providing discounts on these sales in excess of $1.97 million. (Id. ¶ 7.)

The government initiated an investigation into these sales, and, in the course of this investigation, identified respondents as suspected unauthorized purchasers. (Id. ¶ 9.) The investigation revealed that John Doe No. 1 currently owns a retail liquor store (“Store No. 1”), previously owned a second retail liquor store until May 31, 2015 (“Store No. 2”), and also holds a New York State Liquor License. (M; see also Govt’s Mem. Supp. Order to Show Cause and to Compel Compliance with Grand Jury Subpoenas Duces Tecum, ECF No. 1-1 (“Govt. Br,”), Ex. A.) The investigation [174]*174further showed that John Doe No. 2 is a civilian alcohol purchaser. (Govt. Decl. ¶ 9.)

The government’s evidence indicates that Seller sold liquor to respondents at the NEX at discounted rates in exchange for cash bribes from respondents. (Id. ¶ 12.) Specifically, with respect to John Doe No. 1, government agents witnessed multiple liquor shipments transported from the NEX to Store No. 1, where they were unloaded and stocked for sale. (Id. ¶9 & n.1.) Occasionally, the shipments were taken to other locations, including residences and a parking garage across the street from Store No. 2. (Id.) Meanwhile, the government surveilled and videotaped John Doe No. 2 transporting liquor from the NEX. (Id.) The government has also obtained phone records that reveal numerous calls between both respondents and Seller, and a search of respondents’ phones — seized pursuant to warrant — uncovered photographs of, ledgers including various liquors, prices, and amounts. (Id. ¶¶ 15-17, 21'; see also id., Exs. B-C.) The numbers recorded in these ledgers establish that respondents frequently transported amounts in excess of ninety liters. (See, e.g., id., Ex. B at 1 (record showing John Doe No. 1 purchased 50 “Remy,” 15 “Blue,” and 2 “Glenf.” for $26,370); id., Ex. C. at 2 (record showing John Doe No. 2 purchased 50 “Blue,” 35 “Glenf.,” 32 “Patron,” and 10 “Macalan” for $75,781).2) Forensic analysis of John Doe No. 2’s phone revealed that, after the government made initial contact with him, he manually deleted Seller’s contact information. (Id. ¶ 22.)

On December 11, 2016, the government served federal grand jury subpoenas on respondents, granting them until February 21, 2017 to respond. (Govt. Br., Exs. A & B.) The subpoenas directed respondents to produce

1. Any and all documents, from November 1, 2015, to the present, concerning [Seller] and any of his agents or relatives.
2. Any and all documents concerning any payments, gifts, loans, or things of value, either given to or received from, [Seller, other individuals associated with him, and the two retail stores], or any of their agents or relatives.
3. Any and all documents, from November 1, 2015, to the present, concerning the United States Navy Exchange located at 16 Mitchel Field, Garden City, New York 11530.
4. Any and all documents concerning donations, be-quests, payments, gifts, loans, or things of value given in the name of [Seller], or any of his agents or relatives.
5. Any and all documents concerning donations, be-quests, payments, gifts, loans, or things of value given in the name of [Jane Roe3], or any of her agents or relatives.

(Id. Exs. A & B.)

Respondents refused to comply with the subpoenas, asserting their Fifth Amendment privilege against self-incrimination. [175]*175(Reaps.’ Opp’n. to Order to Show Cause, ECF No. 5 (“Resp. Br.”), Ex. A.) The government filed the instant motion to compel compliance with the grand jury subpoenas on February 24, 2017. (ECF No. 1.) Respondents filed a letter in opposition on March 10, 2017 (ECF No. 5), and the government replied on March 13, 2017 (ECF No. 7). This Court heard oral argument on the motion on March 30, 2017. (ECF No. 6.) The Court has fully considered the parties’ submissions.

II. Discussion

The government now only seeks to compel production of documents required to be kept by state and federal law pursuant to the “required records” exception to the act of production privilege.4 (See Govt. Reply Mem. Supp. of Order to Show Cause and to Compel Compliance with Grand Jury Subpoenas Duces Tecum, ECF No. 7 (“Govt. Reply”), at 1.) As set forth below, the Court concludes that respondents are required to keep various records under New York state law, and, therefore, must produce all such records kept since November 1, 2015 pursuant to the subpoenas and the relevant statutory provisions.

A. Applicable Law

The Fifth Amendment provides that “[n]o person ,.. shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This privilege applies “when the accused is compelled to make a testimonial communication that is incriminating.” Fisher, 425 U.S. at 408, 96 S.Ct. 1569; see also United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (“The word ‘witness’ in the constitutional text limits the relevant category of compelled incriminating communications-to those that are ‘testimonial’ in character.”). In Fisher, the Supreme Court recognized that the “act of producing evidence in response to a subpoena ... has communicative aspects of its own, wholly aside from the contents of the papers produced.” 425 U.S. at 410, 96 S.Ct. 1569; see also United States v. Doe,

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Bluebook (online)
252 F. Supp. 3d 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-doe-nyed-2017.