EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, April 14, 2012

Where's My Subpoena?: SDNY Doesn't Quash Subpoena Seeking Impeachment Material

Federal Rule of Criminal Procedure 17(c)(1) provides that

A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

It is well established that

Rule 17(c) is "not intended to provide a means of discovery for criminal cases," and the scope of the rule is confined to "evidentiary" materials. See United States v. Nixon, 418 U.S. 683, 698-99...(1974).  Under Nixon, a party seeking the production of the documents must demonstrate that the materials are: (1) relevant; (2) admissible; (3) specifically identified; and (4) not otherwise procurable. United States v. Carollo, 2012 WL 1195194 (S.D.N.Y. 2012).

Therefore, in deciding whether to quash a subpoena, a court must deterime whether the materials sought will be admissible as evidence at trial, as was the case in Carollo.

In Carollo, the defendants were "charged with a conspiracy to commit fraud by manipulating municipal bond auctions."

Non-party Naeh is an unindicted coconspirator who is scheduled to testify. Between the period of late 2006, when Naeh was likely alerted to the government's investigation of his former employer, and early 2010, when Naeh pleaded guilty and entered into a cooperation agreement with the government, Naeh transferred money from the United States to banks in Switzerland. It is Naeh's bank statements, tax returns, and other documents that relate to these transfers that are the subject of the first subpoena, returnable at the start of trial when Naeh is scheduled to testify.

In deciding whether to quash this first subpoena, the United States District Court for the Southern District of New York thus had to determine whether this evidence might be admissible to impeach Naeh at trial. That court initially noted that if this evidence were being offered solely to impeach his general credibility as a witness, it would be inadmissible under Federal Rule of Evidence 608(b). That said, the court then found that

This is too narrow a view, however, of what these documents are or what they can provide in terms of Goldberg's defense. Goldberg will rely on the documents to show Naeh's activities and intentions during the period of his cooperation with the government in the investigation of the conspiracy to which Goldberg is alleged to be a part....This goes beyond simply demonstrating prior conduct in order to attack Naeh's character for truthfulness and may suggest bias or a motive on the part of Naeh to cooperate with the government on the conspiracy count in order to protect assets that arose out of that conspiracy, to protect himself from indictment here, or to otherwise guard against additional charges for other crimes.



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