United States v. Mendinueta-Ibarro

956 F. Supp. 2d 511, 2013 WL 3871392
CourtDistrict Court, S.D. New York
DecidedJuly 18, 2013
DocketNo. 12 Cr. 379(VM)
StatusPublished
Cited by1 cases

This text of 956 F. Supp. 2d 511 (United States v. Mendinueta-Ibarro) is published on Counsel Stack Legal Research, covering District Court, S.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. Mendinueta-Ibarro, 956 F. Supp. 2d 511, 2013 WL 3871392 (S.D.N.Y. 2013).

Opinion

DECISION AND ORDER

VICTOR MARRERO, District Judge.

On May 16, 2012, Brian Gilbert (“Gilbert”), along with several co-defendants, was indicted on charges of distributing and possessing with intent to distribute a controlled substance in violation of 21 U.S.C § 841(a)(1). On May 5, 2013, defense counsel for Gilbert filed a subpoena duces tecum pursuant to Federal Rule of Criminal Procedure 17(c) (“Rule 17(c)”) requiring the New York City Police Department (“NYPD”) to present “any and all writings and records” related to the NYPD’s contact with a particular confidential witness who, according to Gilbert, provided information relevant to this action. See NYPD Letter at Ex. 1, May 29, 2013, Dkt. No. 85.

In response, on May 29, 2013, the NYPD filed a motion to quash the subpoena under Federal Rule of Criminal Procedure 17(c)(2), arguing that compliance with the subpoena would be “unreasonable and oppressive.” Id. at 1.

Gilbert filed a reply responding to the NYPD’s request to quash the subpoena. See Gilbert Letter, June 3, 2013, Dkt. No. 89. Gilbert contends that he seeks the NYPD’s documents because the Government has not been forthcoming with Brady materials that relate to the confidential witness in question. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The Government responded under seal to Gilbert’s reply, arguing that this Court should quash the subpoena for the same reasons mentioned by the NYPD. See [513]*513United States Attorney’s Office (“USAO”) Letter at 1-2, June 12, 2012, Dkt. No. 90. The Government also rejects the defense’s contention that it has not provided Brady material. It contends that, because Gilbert has joined his co-defendant Rafael Martinez’s Brady request, Gilbert’s separate Brady request is moot. Id. at 5.

I. LEGAL STANDARD

Rule 17(c)(2) provides: “On motion made promptly, the court may quash or modify [a] subpoena if compliance would be unreasonable or oppressive.” Fed. R. Crim. Pro. 17(c)(2). In order for a subpoena duces tecum to survive such analysis, it must “clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity.” Nixon, 418 U.S. at 700, 94 S.Ct. 3090. In addition, the evidence sought must be unattainable through means other than the Rule 17(c) subpoena, and the moving party must be unable to adequately prepare for trial without the materials sought. Id. at 699-700, 94 S.Ct. 3090.

II. DISCUSSION

The NYPD argues that the subpoena is overbroad, and violates the Supreme Court’s restrictions on the use of Rule 17(c) subpoenas as general “fishing expedition[s]” for evidence. See United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). It specifically contends that the subpoena, as worded, lacks specificity, and requests materials that are inadmissible, thereby failing two of the threé Nixon prongs. The NYPD further notes that the materials sought by Gilbert are: (a) documents prepared by government agents protected from disclosure by Federal Rule of Criminal Procedure 16(a)(2); (b) witness statements protected from pre-trial Rule 17(c) subpoena by 18 U.S.C. § 3500(a); and (c) in the possession of the United States

Attorney’s Office (“USAO”) and should be sought through normal discovery under Federal Rule of Criminal Procedure 16 instead of by Rule 17(c) subpoena.

In order to avoid speculation that the moving party is using Rule 17(c) to circumvent normal discovery requirements, the party’s Rule 17(c) subpoena “must be able to ‘reasonably specify the information contained or believed to be contained in the documents sought’ rather than ‘merely hop[e] that something useful will turn up.’ ” United States v. Louis, No. 04 Cr. 203, 2005 WL 180885, at *5 (S.D.N.Y. Jan. 27, 2005) (citing United States v. Sawinski, No. 00 Cr. 499, 2000 WL 1702032, at *2 (S.D.N.Y. Nov. 14, 2000)). Subpoenas seeking “any and all” materials, without mention of “specific admissible evidence,” justify the inference that the defense is engaging in the type of “fishing expedition” prohibited by Nixon. See Louis, 2005 WL 180885, at *5. And when ruling as to whether a Rule 17(c) subpoena is sufficiently specific, the onus lies on the court “to cull the good from the bad” by modifying or quashing the subpoena, not on the party being served. Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951).

Gilbert contends that the “stringent requirements of Nixon do not apply” when a defendant needs the requested information for a fair trial, especially if that material is required to be turned over under Brady or Giglio. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d, 104 (1972). He also maintains that the NYPD’s documents should be viewed not as those prepared by a government agent, but as third-party materials. Classifying them thus would prompt analysis of the subpoena under a more relaxed standard of permissibility under Rule 17(c). See Gilbert Letter at 3. Gilbert then lists several reasons why the information subpoe[514]*514naed is necessary to his defense, reasons that consist entirely of different forms of impeachment of the confidential witness. Id. at 4.

In. addition, Gilbert alleges that the Government generally has not met its requirement to turn over Brady material. However, because Gilbert has joined his co-defendant Rafael Martinez’s Brady request, with which the Government has complied and plans to comply with in the future, Gilbert’s Brady request is moot. The Government contends that it is aware of its Brady responsibilities and has already made a good faith effort to provide Brady material. It insists further that it, and not the NYPD or Gilbert, is in the best position to determine what should or should not be turned over as Brady material, and will do so should any become available to it in the future.

Gilbert argues that the evidence requested would be admissible “as an admission; as to the informant cooperator’s reputation concerning personal or family history” and as information about the witness’s relationship with law enforcement. Gilbert Letter at 4. Yet this evidence constitutes witness impeachment material. And, as pointed out by the NYPD, “[generally, the need for evidence to impeach witnesses is' insufficient to require its production in advance of trzial.” Nixon, 418 U.S. at 701, 94 S.Ct. 3090.

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Bluebook (online)
956 F. Supp. 2d 511, 2013 WL 3871392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mendinueta-ibarro-nysd-2013.