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U.S. v. SALVAGNO

May 15, 2003

UNITED STATES OF AMERICA
v.
ALEXANDER SALVAGNO, RAUL SALVAGNO, AND AAR CONTRACTOR, INC., DEFENDANTS.



The opinion of the court was delivered by: Howard G. Munson, Senior U.S. District Judge

MEMORANDUM — DECISION AND ORDER

Currently before the court are motions pursuant to Rule 17(c)(2) of the Federal Rules of Criminal Procedure by the Government, and non-parties, Spectrum Environmental Associates ("SEA") and the City of Albany, New York ("the City"), to quash subpoenas duces tecum served by defendants and made returnable at trial. For the following reasons, the government's and non-parties' motions to quash are GRANTED.

BACKGROUND

I. Underlying Prosecution

The government has charged defendants Alexander Salvagno, Raul Salvagno, and their company, AAR Contractor, Inc., with various crimes stemming from their asbestos abatement business. Count One of the fourteen count Second Superceding Indictment ("the Indictment") charges defendants with thirty-three acts of racketeering in violation of 18 U.S.C. § 1962(d). Specifically, Count One sets forth a pattern of racketeering activity consisting of: (1) obstruction of justice, in violation of 18 U.S.C. § 1512(b)(2)(B) (racketeering act one); (2) obstruction of justice, in violation of 18 U.S.C. § 1512(b)(1) and (b)(3) (racketeering act two); (3) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 2 (racketeering acts three through nine); (4) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 2 (racketeering acts ten through fourteen); and, (5) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 2 (racketeering acts fifteen through thirty-three). Count Two charges defendants with conspiring to violate the Clean Air Act, 42 U.S.C. § 7401 et seq. and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. Counts Three through Eleven charge defendants with violating the Clean Air Act, 42 U.S.C. § 7413(c)(1) and (2). Counts Twelve through Fourteen charge Alexander Salvagno with filing a false Federal personal income tax return (Form 1040) in violation of 26 U.S.C. § 7206(1). See Dkt. No. 112, Second Superceding Indictment.

II. Motions to Quash

The government indicates that on or about March 13, 2003, defendants served Patricia Senecal, a civilian employee of the United States Department of the Army at the Watervliet Arsenal, with a subpoena purportedly requiring her to produce an immense number of documents including "any and all records reflecting the construction, maintenance, renovation, management and or demolition of . . . the Watervliet Arsenal . . . — Quarters #1."*fn1 See Dkt. No. 135, Mot. to Quash Subpoena at 1 and 5. The government also indicates that on or about April 8, 2003, defendants served the Custodian of Records at the Watervliet Arsenal, Thomas Friedman, and Edward Kucskar with subpoenas purportedly requiring them to produce a similarly massive number of documents. See Dkt. No. 136, Supplemental Mem. in Supp. Mot. to Quash at 1. The government further indicates that on or about April 8, 2003, defendants served the Custodian of Records at the Veterans' Administration Hospital, Albany New York, with a subpoena purportedly requiring the production of all records and documents pertaining or relating to personnel records and any construction, maintenance, renovation, demolition or remediation (including asbestos, hazardous materials or lead removal) projects from January 1990 through the present. See Dkt. No. 137, Second Supplemental Mem. in Supp. of Mot. to Quash at 1 and Ex. 1.

SEA indicates that on or about April 3, 2003, defendants served William L. Massmann, President of SEA, with a subpoena purportedly requiring the production of, inter alia, all documents "pertaining to asbestos, hazardous material and or lead abatement services or projects" involving any of some forty separate firms. See Massmann Aff. at ¶¶ 1, 3-4. The City indicates that on or about April 3, 2003, defendants served its Custodian of Records with a subpoena purportedly requiring it to produce all records and documents pertaining or relating to any construction, maintenance, renovation, demolition or remediation for the period January 1, 1990, through the present, involving any of the nine companies, individuals or groups listed. The subpoena also seeks all documents reflecting or pertaining to any actual or alleged non-compliance with any local, state, or federal statute regulating construction, maintenance, renovation, management and/or demolition performed by the City or anyone hired to perform such services by the City from January 1990 through the present. The City also notes that Charles Williams, a senior technician with the City, has been or will be subpoenaed. See the City's Mot. to Quash Subpoena.

DISCUSSION

I. Motion to Quash: the Standard Under Rule 17(c)(2) of the Federal Rules of Criminal Procedure
Rule 17(c) of the Federal Rules of Criminal Procedure governs the issuance of subpoenas that seek the production of documents and other items in criminal cases. Rule 17(c) may only be used to obtain materials that would be admissible as evidence at trial. See Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 95 L.Ed. 879 (1951); United States v. Murray, 297 F.2d 812, 821 (2d Cir. 1962). Rule 17(c) is not to be used as a discovery method in criminal cases, and "`[c]ourts 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.'" United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995) (quoting United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)). Rule 17(c)(2) provides: "On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." In order to clear Rule 17(c)(2)'s "unreasonable or oppressive" hurdle, the Supreme Court requires the subpoenaing party to show: "(1) that the documents are evidentiary and relevant; (2) that [the documents] are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that [it] 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, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (footnote and internal quotations omitted). Therefore, a party seeking production of documents under Rule 17(c) must demonstrate that the materials sought are: (1) relevant; (2) admissible; and, (3) specifically identified. See id. Under these standards, the court, having reviewed the government's and third parties' motions to quash, including copies of the subpoenas, finds that defendants have failed to satisfy the requirements for the production of the requested documents under Rule 17(c).

II. The Government's Motions to Quash

The government filed its motions to quash five subpoenas on April 17, 2003.*fn2 The government argues that the subpoenas are over-broad because the documents they request bear no reasonable relationship to the charges contained within the Indictment.

A. Subpoena Directed to Patricia Senecal/Watervliet Arsenal

The Indictment twice references the Watervliet Arsenal. Each reference addresses asbestos abatement work performed by AAR in the Fall of 1995 with some payments extending into early 1996. The Indictment alleges that AAR performed such work with respect to the Commander's Quarters section of the Watervliet Arsenal. The Watervliet Arsenal was built in 1813, and the Commander's Quarters were built in 1842. See Dkt. No. 135, Mot. to Quash Subpoena at 4. The subpoena, however, requests voluminous original documents, such as documents reflecting violations of any federal, state, or local law and documents reflecting all asbestos related activities, for the entire Watervliet Arsenal without imposing any time limitations. The government assures the court that it made available all documentation related to the charged asbestos abatement project over one year ago. See id. The ...


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