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allowing motion to quash Rule 17(c) subpoenas that sought "'any and all' documents relating to several categories of subject matter (some of them quite large), rather than specific evidentiary items"
Summary of this case from United States v. VentolaOpinion
No. 04 Cr. 203 (LTS).
January 26, 2005
MEMORANDUM ORDER GRANTING MOTION TO QUASH SUBPOENAS
Defendant seeks, by subpoenas dated August 12, 2004, and issued pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure in connection with Defendant's pending motion for the suppression of evidence and in anticipation of a suppression hearing, the production of numerous documents by the respective custodians of records of the Port Authority of New York/New Jersey ("PANY/NJ") and the federal Department of Homeland Security ("DHS"). Defendant's motion, in relevant part, urges the suppression of: certain credit cards and casino "player" cards, issued under numerous names, that were found in the course of screening his checked baggage at LaGuardia Airport in New York City; a passport that Defendant proffered to law enforcement officers as identification following the discovery of the cards; statements made by Defendant to law enforcement officers; and the contents of a briefcase seized from the Defendant in connection with his arrest. No warrants were issued authorizing the search for, or seizure of, any of the evidence sought to be suppressed. Defendant is charged with one count of making a false statement in a passport application, in violation of 18 U.S.C. section 1542.
The materials sought by means of the subpoenas relate to: airport baggage screening measures, including specifications and operational information regarding certain equipment; the training of airport screeners and procedures for examining baggage; the training and work history of the Transportation Security Agency ("TSA") agent involved in the baggage screening incident that led to the Defendant's arrest; the screening incident itself and the ensuing investigation of materials found in Defendant's luggage and on his person; TSA's involvement in the implementation and creation of security measures at LaGuardia Airport; and complaints or claims regarding loss of items during checked baggage screening at the terminal in question.
The subpoenas are appended to the Government's October 15, 2004, moving papers as Exhibits A and B.
The Government moves to quash the DHS and PANY/NJ subpoenas. The Court has considered thoroughly the parties' submissions in support of and in opposition to the motion. The motion to quash the subpoenas is granted for the reasons that follow.
Defendant argues that the Government lacks standing to move to quash a subpoena directed to PANY/NJ, principally on the ground that the Government had not intially proffered evidence to support its assertion that PANY/NJ joined in the application. The Government provided documentation of PANY/NJ's joinder with its reply papers, thus mooting Defendant's argument in this regard. The Court also finds that the circumstances of this case, in which the instant federal prosecution grew out of a PANY/NJ investigation, in which PANY/NJ has provided its entire investigative file to the Government, and the Government has in turn produced those portions of the file that are discoverable under Federal Rule of Criminal Procedure 16, the Government clearly has an interest in protecting the information from unreasonable or oppressive efforts to obtain it. United States v. Yian, No. 94 Cr. 719 (DLC), 1995 WL 614563, at *1 (S.D.N.Y. Oct. 19, 1995.) The Government's standing to challenge both subpoenas is thus clear, and it is unnecessary for the Court to address the parties' additional arguments on this issue.
In his opposition brief, Defendant concedes that the Government has standing to challenge the subpoena directed to DHS. See Mem. in Opp'n at 5 n. 3.
Exhibit B to Government's December 17, 2004 letter to the Court.
In seeking to quash the subpoenas, the Government argues principally that they are improper because they are beyond the scope of pretrial discovery as authorized in criminal cases by Rule 16 of the Federal Rules of Criminal Procedure, and that compliance with the requested information would be unreasonable and oppressive within the meaning of Rule 17(c)(2) of those Rules. The Government further argues that the requested information is privileged as law enforcement information and that it is also protected from public disclosure by virtue of its designation as "Sensitive Security Information," pursuant to 49 U.S.C. sections 114(s) and 40119, and 49 C.F.R. section 1520.9.
Rule 16 is, as the Government contends, the sole authorized vehicle under the Federal Rules of Criminal Procedure for pre-trial discovery in criminal cases. The Government asserts that the materials sought here are outside the scope of Rule 16, and Defendant does not seem to contest that assertion except insofar as he argues that the Government construes too narrowly Rule 16(a)(2), which provides in pertinent part that Rule 16
The Court recognizes, of course, that Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), require the Government to produce, respectively, exculpatory and impeachment material in time to permit their effective use at trial. See United States v. Yousef, 327 F.3d 56, 112 (2d Cir. 2003). The Government acknowledges this obligation. See October 15, 2004 letter from Government to Court, at 2 n. 2.
does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.
Fed.R.Crim.P. 16(a)(2). While Defendant argues that Rule 16(a)(2) protects only attorney work product, as opposed to the broader universe of documentation developed during the course of an investigation, it is unnecessary for the Court to determine this issue on the instant motion because Defendant has failed to demonstrate that production of the requested material is otherwise required by Rule 16, which further provides in pertinent part that
the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, . . . if the item is within the government's possession, custody or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
Fed.R.Crim.P. 16(a)(1)(E). There is no indication that the Government intends to use in its case-in-chief at the suppression hearing the materials described in the subpoenas, nor do the subpoenas seek items obtained from or belonging to the Defendant. Materiality to the preparation of the defense, within the meaning of Rule 16(a)(1)(E)(i), means "more than that the evidence in question bears some abstract logical relationship to the issues in the case. There must be some indication that the pretrial disclosure of the disputed evidence would . . . enabl[e] the defendant significantly to alter the quantum of proof in his favor." United States v. Maniktala, 934 F.2d 25, 29 (2d Cir. 1991) (internal citations omitted). For the reasons discussed below in connection with the Rule 17(c) analysis, Defendant's conclusory assertions regarding his need for the information are insufficient to demonstrate the requisite materiality.
That Rule 16 may not require the production of the material sought here is not conclusive of the validity of the subpoenas, however, for Rule 17(c) not only permits the Defendant to reach Rule 16 materials for use at trial, but also (subject to the provisions of Rule 17(c)(2)) permits the use of a trial subpoena to obtain for use at trial materials that are outside the scope of Rule 16 "as long as they are evidentiary." Bowman Dairy Co. v. United States, 341 U.S. 214, 219 (1951). The court assesses and controls the extent to which the Rule is used in a good-faith effort to obtain evidence "by its power to rule on motions to quash or modify." Id. at 220. "Rule 17(c) was not intended to provide an additional means of discovery." Id. Rather, its purpose is trial-focused and it therefore may be used only to obtain materials admissible as evidence at trial. See id. at 220-21.
Here, Defendant seeks to use Rule 17(c) to obtain a significant quantity of material that is outside the scope of Rule 16 discovery in connection with the upcoming suppression hearing. Rule 17(c) can properly be used to compel the attendance of witnesses and require the production of documents in connection with such a hearing, but a subpoena will be quashed if compliance therewith would be unreasonable or oppressive. See Fed.R.Crim.P. 17(c)(2). The Government contends that the instant subpoenas fall afoul of that constraint, and the Court agrees.
As the Supreme Court explained in United States v. Nixon, Bowman Dairy
recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases . . .; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials . . . [C]ases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952) as to the required showing. Under this test, in order to require production before 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, 698-700 (1974) (footnote and citation to Bowman Dairy omitted). Here, it is undisputed that the materials Defendant seeks are not otherwise procurable reasonably in advance of trial. The other criteria are disputed, and Defendant has failed at this stage to show that he meets them.
The Court need only consider the relevance prong of the first criterion and the necessity-for-trial-preparation prong of the third criterion, for it is clear on the current record that Defendant has failed to make the requisite showing for either. Defendant's arguments for relevance and necessity consist almost exclusively of blanket invocations of the Sixth Amendment right to compulsory attendance of witnesses and conclusory arguments that the subject matter of the documents goes to the heart of his arguments for suppression of the credit cards and casino cards, and the evidence obtained after the cards were discovered. See Def. Mem. in Opp'n at 1 (Government's claims "would render a nullity defendant's Sixth Amendment right to compulsory process as implemented in Fed.R.Crim.P. 17"), 15 ("regulations and directives promulgated by the DHS which set forth the procedures TSA agents must follow in operating baggage screening equipment and carrying out physical searches of checked baggage go to the very heart of the defense theory that the search in this case lacked the proper justification and scope, hence, violating the defendant's Fourth Amendment right against unreasonable searches and seizures"), and 16 ("materials responsive to both subpoenas are actually and currently relevant in determining issues of pressing concern before this Court; namely, whether law enforcement officials violated defendant's Fourth Amendment right to be free from an unreasonable search and seizure").
Defendant's conclusory references to the relevance of TSA airport security regulations and directives ignore the fact that, in his suppression motion, Defendant does not challenge the validity of the initial screening and opening of his baggage in connection with airport security procedures. Defendant's Fourth Amendment argument for suppression of the credit cards and casino cards, and of other evidence alleged to be the fruit of illegal examination of those items, focuses on the screener's actionsafter the checked bag had been flagged by screening machinery, opened and initially examined by the screener. As Defendant explained in his brief in support of the motion to suppress:
This case presents the Court with an issue which, in its particulars, is one of first impression: whether an agent of the [TSA], while lawfully looking for an alarmed item in checked flight luggage, can conduct a warrantless, more intrusive search of an item which is neither in fact, nor in its appearance, a weapon or explosive device which would be a danger to the aircraft or passengers. In our view, the warrantless examination of defendant's credit and hotel cards by the TSA agent was a fundamental violation of the defendant's constitutional right to be free from unreasonable searches.
Def. Mem. in Supp. at 1 (emphasis supplied). The defense has failed to demonstrate the relevance and necessity of information, for example, relating to the operation, specifications and usage of baggage screening machines or of airport security measures in general.
The defense position as to relevance and necessity also ignores the fact that it will be the Government's burden at the suppression hearing to prove that the challenged evidence was obtained in a lawful manner, not the Defendant's burden to prove that the conduct was unlawful. United States v. Wyche, 307 F.Supp. 2d 453, 457 (E.D.N.Y. 2004) ("On a motion to suppress evidence in a criminal trial, once [the defendant] establishes a basis for his motion, the burden rests upon the Government to prove, by a preponderance of the evidence, the legality of the actions of its officers.") In its brief in opposition to the suppression motion, the Government has given no indication that it intends to rely on security procedures, documentation, or information as to the screener's experience, background or training to justify the examination of the credit cards and casino cards. Rather, the Government has invoked basic Fourth Amendment principles, including the plain view doctrine, reasonable suspicion, and probable cause. See Gov't. Mem. in Opp'n to Def. Mot. to Suppress. Whether the Government can prevail on these arguments is an open question, but its defense of the screener's actions at this point does not support a finding that the security procedure-related information sought by Defendant is relevant and necessary. Furthermore, because the suppression hearing is conducted before the Court, rather than before a jury, the timing of cross-examination or the presentation of any defense evidence can be adjusted to ensure a fair opportunity to rebut the Government's evidence and arguments. Thus, the defense has failed entirely to demonstrate its need for the requested material in advance of the suppression hearing.
The Court assumes for purposes of this analysis that the Government does not intend to rely on TSA or other procedural or policy documents in its possession (or that of the DHA or PANY/NJ) that have not already been produced to the defense pursuant to Rule 16(a)(1)(E)(ii).
To the extent that the claims against the TSA for lost or misplaced baggage, and the screener's background and history of identifying non-security related items, may be relevant on the current record, such relevance would principally be for impeachment purposes. "Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial." United States v. Nixon, 418 U.S. at 683. Defendant has proffered no information justifying deviation from the general rule.
To the extent the subpoenas seek documents relating to the December 19, 2003, screening incident and investigation, they likely call for material covered by 18 U.S.C. section 3500, which restricts the timing of disclosure of statements by Government witnesses and prospective witnesses. The Court cannot require the production of such "3500" material prior to the conclusion of such a witness's direct testimony. 18 U.S.C.A. § 3500(b) (West 2000). See also Fed.R.Crim.P. 17(h) ("No person may subpoena a statement of a witness or of a prospective witness under this rule. Rule 26.2 governs the production of the statement."); Fed.R.Crim.P. 26.2 (procedures for production, following direct examination, of statement of witness other than defendant). Section 5 of the PANY/NJ subpoena, which seeks any and all documents relating to the screening agent's December 19, 2003, search, similarly implicates section 3500 and Rule 26.2's timing limitations. To the extent these subpoena provisions seek documents that are not statements within the meaning of section 3500 and Rule 26.2, Defendant has failed to show their relevance and necessity for production at this time.
"In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C.A. § 3500(a) (West 2000).
Nor do Defendant's subpoenas meet the specificity criterion of the Rule 17(c)(2) standard, namely, that "the application . . . is not intended as a general `fishing expedition.'" See United States v. Nixon, 418 U.S. at 700. The subpoena seeks "any and all" documents relating to several categories of subject matter (some of them quite large), rather than specific evidentiary items, thus clearly indicating that Defendant seeks to obtain information helpful to the defense by examining large quantities of documents, rather than to use Rule 17 for its intended purpose — to secure the production for a court proceeding of specific admissible evidence. The party seeking a 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. Sawinski, No. 00 CR 499 (RPP), 2000 WL 1702032, at *2 (S.D.N.Y. Nov. 14, 2000) (quoting United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991)). Defendant has not met the specificity requirement.
The breadth and discovery orientation of the subpoenas is demonstrated by the manner in which they define the term "documents":
`Documents' is used herein in the broadest sense of the term and means each and every writing of whatever nature, whether an original, a draft, or a copy, however produced or reproduced, and each and every tangible thing from which information can be processed or transcribed, such as tape or other electronic data communications. The term includes, but is not limited to, letters, e-mails, memoranda, notes, contracts, agreements, invoices, instructions, reports, analyses, telegrams, telexes, diaries, calendars, studies, logs, journals, ledgers, checks, books, notebooks, plans, records, forms, charts, graphs, recordings, photographs (positive prints and negatives), slides, work-sheets, computation sheets, computer printouts and programs, tapes, computer diskettes (hard or floppy), CD ROMS, micro-film, micro-fiche, any marginal comments appearing on any document and copies of documents which are not identical duplications of the originals (e.g., because handwritten or blind copy notes appear thereon or are attached thereto).
Mot. to Quash, Ex. A (DHS subpoena), at 2.
"Relating to" is given a similarly broad definition: "`Relating to' means referring to, concerning, discussing, describing, mentioning, noting, studying, reflecting, evaluating, evidencing, constituting, analyzing, or being relevant to." Id.
The Government's motion to quash the DHS and PANY/NH subpoenas is, accordingly, granted. The Court finds that compliance with the subpoenas would be unreasonable and oppressive. In light of the Defendant's failure to demonstrate his entitlement under Rule 17(c) to the information sought, it is unnecessary for the Court to address the Government's arguments concerning the scope of the law enforcement privilege or the impact of "Sensitive Security Information" designations.
SO ORDERED.