Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

U.S. v. TILGHMAN

United States District Court, S.D. New York


July 22, 2004.

U.S.
v.
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 defense.

 

IT IS SO ORDERED.
20040722

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.