The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge
The court has before it a motion to quash a subpoena served by one of the ten defendants, Wojciech Baranski, on Andrzej Krajewski, a reporter employed by the Television Information Agency, the news division of Polish television.
The superseding indictment contains ten counts, the first of which charges that the ten defendants, citizens of the United States, Poland, Korea, and the Republic of Germany, in violation of 18 U.S.C. § 371, conspired knowingly (a) to import into and export out of the United States automatic assault rifles, grenade launchers, missiles, and fighter planes, without obtaining written approval of the United States Department of State, in violation of the Arms Export Control Act, 22 U.S.C. § 2778, (the Act), (b) to conduct a financial transaction involving criminal violation of the Act, in violation of 18 U.S.C. § 1956, (c) to export ammunition to the government of Iraq, in violation of 50 U.S.C. §§ 1702 and 1705, and (d) to make false statements in a matter within the jurisdiction of the United States, in violation of 18 U.S.C. § 1001.
The subpoena seeks production of what the attorney for Baranski says are audio tape recordings of interviews by Krajewski of defendant Ronald J. Hendron, who in September 1992 pleaded guilty to conspiracy, importing arms, and illegal financial transactions.
In support of the motion to quash Krajewski says that at the Metropolitan Correctional Center he interviewed Hendron, who knew Krajewski was a reporter for the Polish press and would use the interviews for news reports, and that portions of the tape recordings were incorporated (with voice-over translations) in reports broadcast in Poland and rebroadcast in New York on channel 25 in Brooklyn. A written version of Krajewski's report appeared on February 6, 1993 in Nowy Dziennik, a Polish daily newspaper published in New York.
Attached to Baranski's brief is a translation of that version. In substance, it states the following.
Hendron said that "the possibility of two lifetime sentences forced him to cooperate with the prosecutor's office." Customs agents (presumably undercover) engaged Hendron to cooperate in the trading of weapons to Iraq under the pretext of delivering them to Kurds and Shiites as humanitarian aid. Hendron did not learn until about half a year after talks started in 1991 that the weapons were supposed to go to Iraq and would not be used as humanitarian aid.
Hendron listened to 255 tapes of his conversations with the agents. But one of those tapes, mentioning humanitarian aid, "was gone," having been "erased".
Hendron confirmed that the Poles from the Polish firm A.T.X., which the indictment says trades in munitions, had nothing to do with delivering guns to New York. Hendron said that the Poles have no chance of winning at trial and that he would testify they knew where the weapons would end up.
At the request of the court the attorneys for Krajewski furnished to the court and to the attorneys for the government and the defendants copies, with English translations, of scripts of radio broadcasts made by Krajewski and another news story published March 8, 1993, in Nowy Dziennik. These copies add further details to what Hendron told Krajewski.
Rule 17(c) of the Federal Rules of Criminal Procedure provides for the issuance of a subpoena commanding production of documents or other objects. The rule also provides that the court may "quash or modify" the subpoena if compliance would be "unreasonable or oppressive" and may direct production before the court of the documents or objects prior to trial or prior to the time "when they are to be offered in evidence."
Baranski says that the tapes contain material that can be used to impeach Hendron when he appears as a government ...