United States District Court, S.D. New York
July 22, 2004.
MARIO L. TILGHMAN, Defendant.
The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
OPINION AND ORDER
The government moves by letter dated July 16, 2004 to quash the
subpoena issued by this Court at the request of the defendant on
June 4, 2003 returnable June 23, 2004, and served on the
Metropolitan Detention Center ("MDC") by fax on June 7, 2004 and
refaxed on July 13, 2004. The subpoena required the production of
tape recordings of all outgoing telephone calls between February
2004 and May 31, 2004, by David Dembo ("cooperating witness"), a
detainee (inmate #32916-054) in that facility and a proposed
government witness in this proceeding. On July 19, 2004, the
defense modified its request to telephone calls made by David
Dembo between March 15, 2004 and April 15, 2004 to the telephone
numbers (718) 876-9788 and (347) 451-7562. The defense asserts
that its investigation of the crime by Nicholas Panarella, an
experienced investigator retained by the defense, shows that in
his telephone calls from the MDC the cooperating witness "made
statements openly inconsistent with the expected testimony at
trial." (Letter of George R. Goltzer, Esq., dated July 19, 2004.)
Federal Rule of Criminal Procedure 17(c) provides for a
subpoena for the production of documentary evidence and objects.
Fed.R.Crim.P. 17(c). The Court, on a motion made promptly, may
quash or modify the subpoena if compliance would be "unreasonable
or oppressive." Fed.R.Crim.P. 17(c)(2). In United States v.
Nixon, the Supreme Court held that the party seeking the subpoena had to clear three hurdles to defeat a motion to quash,
(1) relevance, (2) admissibility, and (3) specificity.
418 U.S. 683, 699-700 (1974).
The subpoena at issue here, as modified by defense counsel's
letter of July 19, 2004, meets the specificity requirement. See
United States v. Sawinski, No. 00 CR 499, 2000 WL 1702032, at
*2 (S.D.N.Y. Nov. 14, 2000) (Patterson, J.). Indeed, apparently
the MDC can locate the calls made if provided with the number
called. United States v. Hutchinson, No. 97 CR 1146, 1998 WL
10292288, at *2 n. 1 (E.D.N.Y. Dec. 23 1998) (Glasser, J.).
Secondly, prior inconsistent statements of a witness are
clearly relevant and may be used to impeach the witness's
credibility as provided in Rule 613(a) of the Federal Rules of
Evidence. Fed.R.Evid. 613(a). Furthermore such statements may
be admissible in evidence if the procedures required by
Rule 613(b) are followed. Cf. United States v. Weissman, No. 01 CR
529, 2002 WL 31875410 (S.D.N.Y. Dec. 26, 2002) (Jones, J.);
United States v. King, 194 F.R.D. 569 (E.D. Va. 2000).
Accordingly, the Court declines to quash the subpoena but
orders the tape recordings to be produced to the Court in
camera by 9:30am on July 26, 2004, so that the Court can
determine if the crimes charged in the indictment are discussed
in any of the tape recorded conversations and, if so, decide if
the statements therein are consistent with the cooperating
witness's testimony. If the court finds that there are statements
on the tape recording that could be deemed materially
inconsistent with the cooperating witness's testimony, it will
turn the tape recordings containing such statements over to the
IT IS SO ORDERED.
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