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United States District Court, Southern District of New York

August 10, 2003


The opinion of the court was delivered by: Shirley Kram, Senior District Judge


The New York Police Department (the "NYPD") and the Bronx County District Attorney's Office (the "Office") move to quash subpoenas recently served by defendant Frank Ceballo in the above referenced case.


On June 18, 2003, counsel for Ceballo served a subpoena on the NYPD requesting police reports, memos, precinct blotter entries, 911 recordings and "Sprint Reports" concerning the arrest of the defendant and the voided arrest of a woman named Denise Simmons on January 25, 2003. The NYPD moves to quash this subpoena, alleging that it is an attempt by the Defendant to circumvent Rule 16 of the Federal Rules of Criminal Procedure and that the subpoena does not satisfy the standards of Rule 17, which requires that the materials sought be relevant, admissible and specifically identified.

Rule 17(c) is not to be used as method of discovery in criminal cases. See United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995). "Courts must be careful that rule 17(c) is not [ Page 2]

turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed.R.Crim.P. 16." Id. Instead, Rule 16(a)(1) provides for disclosure of evidence by the Government and identifies the types of discovery the Government must disclose upon the Defendant's request. These include: the Defendant's statements and criminal records, document and tangible objects, reports of examinations and tests, and expert witnesses' opinions. Fed.R.Crim.P. 16(a)(1)(A)-(E).

Rule 16(a)(2) then limits the information that a defendant is entitled to receive. In pertinent part, the Rule states:

Except as provided [in Rule 16(a)(1)(A)-(E)], this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case. Nor does this rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.
"Rule 16(a)(2) bars disclosure of reports generated by local law enforcement agents, even when subpoenaed pursuant to Rule 17(c)." United States v. Jenkins, No. 02 Cr. 1384 (RCC), 2003 WL 1461477, *5 (S.D.N.Y. Mar. 21, 2003); see also United States v. Chen De Yian, No. 94 Cr. 719(DLC), 1995 WL 614563, *1 (S.D.N.Y. Oct. 19, 1995) ("Discovery is barred by Rule 16(a) (2) and that bar cannot be circumvented by a Rule 17(c) subpoena."); Cherry, 876 F. Supp. at 547 (granting motion to quash subpoenas requesting disclosure of reports prepared by the NYPD). Therefore, the [ Page 3]

defendant is not entitled to pre-trial discovery of the NYPD investigatory files and on this ground the subpoena must be quashed.

Moreover, the NYPD subpoena must be quashed for it also fails to satisfy the requirements of Rule 17(c). A defendant seeking the production of documents pursuant to Rule 17(c) has the burden of demonstrating: (1) the documents are evidentiary and relevant; (2) they are not otherwise procurable by the defendant reasonably in advance of trial by the exercise of due diligence; (3) the defendant cannot properly prepare for trial without such production and the failure to obtain it might delay the trial; and (4) the application is not intended as a general "fishing expedition" and was therefore made in good faith. United States v. Jenkins, 2003 WL 1461477 at *5 (citing United States v. Nixon, 418 U.S. 683 (1974)). "The proponent of the subpoena has the burden of proving relevance and admissibility and must also identify the materials with specificity." Id. The documents must meet the tests of relevancy and admissibility when they are sought. See id.

Internal NYPD investigative files are inadmissible hearsay. See, e.g., United States v. Brown, No. 95 Cr. 168 (AGS), 1995 WL 387698, *10 (S.D.N.Y. June 30, 1995) ("Such [NYPD interview] memoranda would, of course be hearsay and inadmissible as evidence at trial"); United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981) (holding materials that were hearsay and therefore not [ Page 4]

admissible at trial were not subject to a Rule 17(c) subpoena). Therefore, Defendant has not sustained his burden of showing the admissibility of the requested documents from the NYPD, and the requirements of Rule 17(c) have not been met.


The Bronx County District Attorney's Office (the "Office") also moves quash a subpoena served by Ceballo on the grounds that the records sought are sealed pursuant to New York State Criminal Procedure Law § 160.50(1). The Office further asserts that the file could contain "privileged, non-disclosable information, such as witness statements, to which Mr. Ceballo would not be entitled" in the absence of a "compelling and particularized need." Letter from Assistant District Attorney Lara R. Binimow to Alan Nelson, Esq, dated July 9, 2003, at 1 (citing Huston v. Turkel, 653 N.Y.S.2d 584, 585 (N.Y. App. Div. 1997)).

The documents sought by Ceballo were sealed pursuant to New York Criminal Procedure Law § 160. 50 and remain sealed. That statute provides, in pertinent part:

1. Upon the termination of a criminal action or proceeding against a person in favor of such person . . ., the record of such action or proceeding shall be sealed. . . . Upon receipt of notification of such termination and sealing:
(C) . . . all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor's [ Page 5]
office shall be sealed and not made available to any person or public or private agency.
N.Y. Crim. P. Law § 160.50(1) (McKinney 2003). "The primary purpose of the sealing of the records pursuant to § 160.50 is to ensure confidentiality and to protect the individual from the potential public stigma associated with a criminal prosecution." Lehman v. Kornblau, 206 F.R.D. 345, 347 (E.D.N.Y. 2001).

However, § 160.50(1)(d) provides an exception for a request for such records when made by the accused. The accused is entitled to the "official records and papers" referenced in § 160.50(1)(c); such records and papers have been determined to encompass trial exhibits from the prior proceeding and tape recordings. See, e.g., Levitov v. Cowley, 705 N.Y.S.2d 375, 376 (N.Y. App. Div. 2000)(defense exhibits introduced during cross-examination of prosecution witnesses not subject to seal upon acquittal of defendants); Matter of Dondi, 63 N.Y.2d 331, 337 (N.Y. 1984)(tape recordings not subject to seal when request by the accused). Yet, the accused's right of access to the records is not unconditional. See Harper v. Angiolillo, 89 N.Y.2d 761, 765-66 (N.Y. 1997). "For example, records compiled for law enforcement purposes may not be subject to disclosure where disclosure would interfere with law enforcement investigation or judicial proceedings, deprive a person of a right to a fair trial, identify a confidential source, reveal nonroutine investigative techniques or procedures, endanger the life or safety of any person, or interfere with statutory [ Page 6]

exemptions and privileges." Harper, 89 N.Y.2d at 767 (citations omitted).

With regard to Ceballo's file maintained by the Bronx District Attorney's Office, the Court finds unpersuasive the Office's stated reasons for nondisclosure. Pursuant to § 160.50(1)(d), Ceballo is entitled to disclosure of certain contents of the file. However, as discussed above, Rule 16 and Rule 17 of the Federal Rules of Civil Procedure limit the disclosure required. Although requested by the Defendant, police reports in the file need not be disclosed. See United States v. Jenkins, 2003 WL 1461477 at *5. Further, any NYPD investigative material in the file is inadmissible hearsay and should not be disclosed. United States v. Brown, 1995 WL 387698 at *10. Unlike the cases cited by Defendant in opposition to the motion to quash, the ongoing federal charges in this matter stem from the same circumstances as the prior state investigation, and public policy concerns and the Federal Rules of Criminal Procedure limit the amount of disclosure required at this time. Witness statements contained within the file are to be disclosed in accordance with 18 U.S.C. § 3500. Should the file contain any other documents that the Office asserts are subject to privilege, the Office shall submit those documents to the Court for in camera review. Accordingly, the Bronx County District Attorney's Office's motion to quash the subpoena is granted. [ Page 7]


For the reasons set forth above, the NYPD's motion to quash the subpoena is granted. Additionally, the Bronx County District Attorney's Office's motion to quash the subpoena is granted.

SO ORDERED. [ Page 1]


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