The opinion of the court was delivered by: PLATT
On February 24, 1983, the Government served a subpoena allegedly pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure on the defendant's wife, Olive McKeon, which states in pertinent part that:
"You are hereby commanded to appear in the United States District Court for the Eastern District of New York at 225 Cadman Plaza East in the city of Brooklyn, N.Y. on the 7th day of March, 1983 at 10:00 o'clock A.M. and provide handwriting exemplars. Pursuant to FRCP 17(c), the exemplars herein subpoenaed are required to be produced by February 25, 1983."
The original subpoena apparently was presented to and signed by United States District Judge Eugene H. Nickerson.
Both Mr. and Mrs. McKeon have moved to quash the subpoena arguing that (i) the requested exemplars would not be admissible at the upcoming trial of the defendant; (ii) production of the requested exemplars will require testimony from Mrs. McKeon in violation of her marital privilege; (iii) Rule 17(c) was never intended to provide a means of discovery for criminal cases and the Government has not made a sufficient showing for pretrial production; and (iv) the subpoena constitutes harassment.
The defendant has been charged in a nine count indictment with unlawfully exporting 151 guns (Count 1), wilfully causing false facts to be concealed from United States Customs Service (Count 2), wilfully violating provisions of the Arms Export Control Act, as amended, by causing false representations to be made in export control documents (Count 3), unlawfully transporting in interstate and foreign commerce 13 guns (Count 4), unlawfully delivering to a common carrier for shipment in interstate and foreign commerce 151 guns (Count 5), unlawfully transporting in interstate and foreign commerce 151 guns (Count 6), unlawfully possessing 13 guns not registered to him in the National Firearms Registration and Transfer Record (Count 7), unlawfully possessing 10 guns, having the serial numbers obliterated (Count 8), and conspiring with "others unknown to the Grand Jury" to export from the United States 151 guns contrary to the provisions of the Arms Export Control Act, as amended (Count 9).
In the first trial of this case (in which the jury was unable to agree upon a verdict) defendant's defense was one of lack of knowledge. The Government claims that Mrs. McKeon's handwriting exemplars are necessary to show defendant's knowledge in that they will show that she was a co-conspirator in connection with the conspiracy charge contained in Count 9 of the indictment.
Turning to Mr. and Mrs. McKeon's third contentions, Rule 17(c) of the Federal Rules of Criminal Procedure provides that:
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
The authorities have held that "a subpoena may issue for the production of documentary evidence and of objects without also calling for testimony." 2 Wright Federal Practice and Procedure: Criminal 2d § 274 at 151 and cases cited therein in footnote 4.
The Government issued the instant subpoena, not for the purpose of pretrial discovery but for the purpose of compelling production of handwriting exemplars before and at the trial. Citing United States v. Nixon, 418 U.S. 683, 699, 94 S. Ct. 3090, 3103, 41 L. Ed. 2d 1039 (1974), Mr. and Mrs. McKeon maintain nonetheless that production for trial prior to the trial may only be had where the Government has shown:
1) that the documents are relevant and evidentiary;
2) that they are not otherwise procurable reasonably in ...