Opinion
S4 02 Cr. 1237 (SWK).
February 3, 2005
OPINION ORDER TO BE FILED UNDER SEAL
Defendant Angelo Capalbo, charged with one count of conspiracy to commit extortion, one count of extortion, two counts of using and carrying firearms, one count of attempted extortion and one count of conspiracy to transport stolen property interstate, asks the Court to issue a subpoena, pursuant to Federal Rule of Criminal Procedure 17(c), commanding the Westchester County District Attorney's Office to produce its "complete investigative and prosecution file concerning the arrest, indictment and conviction of John Perazzo including, but not limited to, interviews of the victims of Perazzo's scheme to defraud, surveillance reports, police reports and statements made by Perazzo to members of law enforcement." Counsel for the defendant seeks to justify his request by stating that he "expect[s] that Mr. Perazzo will be a government witness."
For the reasons set forth below, the request is denied.
Discussion
A party seeking issuance of a Rule 17(c) subpoena for production of material prior to trial has the burden of showing good cause. See U.S. v. Beckford, 964 F. Supp. 1010, 1022 (E.D.Va. 1997). This is because Rule 17(c) is not intended to be a discovery device. United States v. Nixon, 418 U.S. 683, 698 (1974); United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980), cert. denied 449 U.S. 1126 ("Courts must be careful that Rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed.R.Crim.P. 16"). Accordingly, a party seeking a Rule 17(c) subpoena for pretrial production must show: (1) that the documents sought 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." Nixon, 418 U.S. at 699 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952)).
As a threshold matter, the defendant's application fails on the first prong of the aforementioned test. The entire request is based on speculation that somewhere within the Westchester County D.A.'s file, there might be "important and necessary impeachment material." However, for purposes of Rule 17(c), impeachment material is not evidentiary until the witness testifies at trial.Cuthbertson, 630 F.2d at 139. Given that Perazzo may never testify, the defendant has not, and cannot, demonstrate that the documents he seeks are evidentiary. His request must be denied on that ground alone. Moreover, the fact that the defendant seeks the "complete investigative and prosecution file . . . of John Perazzo" indicates that he is on a general "fishing expedition," rather than a good faith search for specific evidentiary material. U.S. v. King, 164 F.R.D. 542, 545 (D. Kan. 1996) ("Requesting entire files instead of specific documents indicates a fishing expedition").
According to defense counsel, Perazzo was convicted on a State grand larceny charge involving a scheme in which the defendant in this case, Angelo Capalbo, was a victim. Thus, defense counsel also hopes that the District Attorney's file "will likely include exculpatory information" on Capalbo. That hope, however, is plainly not good cause for a Court to issue a 17(c) subpoena.
Because the documents the defendant seeks are not evidentiary and because the scope of the desired production is extraordinarily broad, the Court will not issue a 17(c) subpoena.
SO ORDERED.