The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge
On September 28, 2000, I issued a Memorandum to Counsel in which I limited our now ongoing hearing to the question of whether Defendant's trial attorney, Pat V. Stiso ("Stiso") "had become involved in Francisco Maisonet's criminal activities [the "Maisonet conspiracy"] prior to our trial in this case." While the Defendant has made additional claims supporting his request for an order setting aside the jury's verdict and granting him a new trial, I decline to expand the scope of the hearing to include those claims. Accordingly and for the reasons that follow, Defendant's subpoenas, submitted on approximately April 22, 2003, as well as his discovery request pursuant to the Criminal Justice Act of 1964 ("CJA"), submitted on approximately April 30, 2003 are denied as beyond the scope of this hearing.
Defendant's subpoenas seek records pertaining to the employment of, complaints against, and investigations of six police officers who testified at his criminal trial in 1994. Defendant does not allege that any of the material he seeks through these subpoenas bears on, or has any relevance to, the criminal activities of Stiso. In fact, there is no indication whatsoever that the material sought is relevant to our inquiry into Stiso's criminal activities prior to the trial in this case. Accordingly, the subpoenas will not issue because they fail to meet the relevancy requirement set forth by the Supreme Court in United States v. Nixon (1974) 418 U.S. 683, 700.
B. Authorization Pursuant to the CJA
Defendant seeks authorization for gunpowder residue tests in an ex parte application pursuant to the CJA. See 18 U.S.C. § 3006A(e)(1)("Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.") While "the legislative history of § 3006A supports a liberal attitude toward these indigent requests, a judge is still obligated to exercise his discretion in determining whether such services are necessary." United States v. Oliver (2d Cir. 1980) 626 F.2d 254, 261. "`Necessary' should at least mean `reasonably necessary,' and `an adequate defense' must include preparation for cross-examination of a government expert as well as presentation of an expert defense witness." United States v. Durant (2d Cir. 1976) 545 F.2d 823, 827.
Defendant submits that these tests "bear not only on Stiso's credibility at this hearing but also on Mr. Gonzalez' claim that Stiso was ineffective at trial for failing to conduct this test prior to it." (Letter from Eisemann to the Court of 4/30/03 at 1). As I made clear in my September 28, 2000 Memorandum to Counsel, as well as in the first section of this Order, Gonzalez's claim that Stiso was ineffective at trial on any ground apart from the conflict of interest arising from his alleged participation in the Maisonet conspiracy is not presently before the Court. Accordingly, to the extent that the Defendant seeks authorization for gunpowder residue tests to support a claim of ineffective assistance of counsel on any other theory, that request is denied on the grounds that granting this request would unnecessarily expand the scope of this hearing beyond the question of Stiso's criminal involvement in the Maisonet conspiracy at the time of Gonzalez's trial.
I now turn to Defendant's first justification for the requested test — impeaching Stiso's credibility at this hearing. It is clear that Stiso's credibility is relevant to this hearing. What is less clear is (1) whether the results of the test could actually serve to impeach Stiso's credibility and (2) whether the test is "reasonably necessary" to an "adequate defense." Where the testimony in question has already been contradicted and the impeachment evidence submitted, the need to authorize funds for investigation into matters that may further contradict the testimony is dimished. Stiso alleged that he did not seek a gunpowder residue test because Gonzalez had told him that he had indeed fired a weapon the night he w as arrested. (Tr. at 278-279). The defense contests the truth of this testimony. The requested test will not resolve this dispute over what Gonzalez told Stiso; it will only show whether or not Gonzalez actually fired the weapon. On the other hand, the defense has already introduced testimony and evidence that actually bears on the truth of Stiso's claim: Gonzalez's own testimony that he did not shoot the weapon (Tr. at ___); a letter from Gonzalez to Stiso pre-trial in which he seeks a gunpowder residue test and characterize's Officer Crowe's testimony as "perjury" (Def.'s Ex. J); and several letters written by Stiso to various government and law enforcement officials prior to Gonzalez's trial in which he asserts that Gonzalez did not in fact shoot the weapon and that Officer Crowe's testimony to that effect was "patently false." (Id. at 288-290; Def.'s Exs. K, L, M). I cannot find that authorization of funds for a test that may yield information which might render testimony questionable is "reasonably necessary" to an "adequate defense" where that testimony has already been directly contradicted by sworn testimony, prior inconsistent statements of the witness himself, made contemporaneously with the events in question, and prior consistent statements of the contradicting witness, also made contemporaneously with the events in question.
Finally, it is well-settled that the need for investigative services is diminished where the ultimate facts which may be revealed are not "pivotal" to the case. Durant, 545 F.2d at 828; United States v. Sanchez (2d Cir. 1990) 912 F.2d 18, 22. Our purpose at this hearing is limited to Stiso's involvement in the Maisonet conspiracy at the time of Gonzalez's trial; there is no fact that the requested test might reveal that will be pivotal to our determination of this single issue.
Accordingly, the Defendant's request for gunpowder residue tests is denied on the grounds that such tests are not pivotal to the ultimate issue we are deciding and would simply be redundant to testimony and evidence already submitted to the Court. The test is therefore not necessary within the definition set forth in Durant.
It remains unclear whether Defendant's motion to vacate his sentence is made pursuant to Rule 33 of the Federal Rules of Criminal Procedure or pursuant to 18 U.S.C. § 2255 or pursuant to both. The time has now come for this issue to be clarified. The Defendant is hereby ORDERED to submit an Amended Application to Vacate H is Conviction on or before June 16, 2003*fn1. This Application must state, unambiguously, whether the Defendant moves pursuant to Rule 33 of the Federal Rules of Criminal Procedure, pursuant to 18 U.S.C. § 2255, or pursuant to both. The government shall file its responsive papers on or before July 16, 2003. Any reply by the Defendant shall be filed no later than August 1, 2003. Since this case will be transferred pursuant to the Rules for the Division of Business Among District Judges in the Southern District of New York, Rule 16 following my findings of fact and conclusions of law on the issue of Stiso's involvement in the Maisonet conspiracy at the time of his representation of Gonzalez, these pleadings shall be filed with the Honorable John F. Keenan in the Southern District of New York.
Finally, given the unexpected delays in concluding the evidentiary hearing, I now amend my scheduling order of April 8, 2003. (Docket No. 105). Both parties shall submit their proposed findings of fact and conclusions of law no later ...