The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
In a November 4, 2007 letter to the court, Defendant Vincent Basciano ("Basciano" or "Defendant") requested the court to "so order" a subpoena to Putnam County Correctional Facility ("PCCF") for documents related to cooperating witness Dominick Cicale's ("Cicale") incarceration there. (Docket Entry # 346, 05-CR-060.) On November 13, 2007, the Government notified the court by letter of its opposition to the request. (Docket Entry # 355, 05-CR-060.) Basciano submitted a Memorandum in Support of his request on November 19, 2007 (Docket Entry # 359, 05-CR-060), the Government filed its response on December 16, 2007 (Docket Entry # 377, 05-CR-060), and Basciano submitted a final reply on December 18, 2007 (Docket Entry # 378, 05-CR-060).
In his final reply brief, based upon certain representations by the Government, Basciano amended his application to a request for an Order directing discovery of certain documents and information pursuant to Fed. R. Crim. P. 16(a)(1)(E) ("Rule 16(a)(1)(E)"). (Id. at 1.) As to additional materials that were part of the original subpoena request, "to the extent that [they] are not in the possession, control or custody of the government," Basciano withdrew his Fed. R. Crim. P. 17(c) ("Rule 17(c)") subpoena request, but reserved the right to renew the application. (Id.) Thus, this Memorandum and Order ("M&O") treats Defendant's motion as a request for an Order pursuant to Rule 16(a)(1)(E) rather than as a request for a Rule 17(c) subpoena. In addition, this M&O addresses Defendant's letter to the court dated February 6, 2008. (Docket Entry # 1042, 03-CR-929 ("Feb. 6 Ltr.").)
For the reasons set forth below, Defendant's request for an Order pursuant to Rule 16(a)(1)(E) is DENIED without prejudice. Additionally, Defendant's February 6, 2008 request for a status conference is DENIED.
I. Motion for a Rule 17(c) Subpoena
Basciano initially requested a subpoena under case number 05-CR-060 directing PCCF to produce "[a]ny and all documents, including but not limited to, files, recorded phone calls, visiting logs and reports concerning inmate Dominick Peter Cicale during his detention at Putnam County, including but not limited to, allegations that he was the subject of a murder plot attempt at the institution." (Defense Counsel's November 4, 2007 letter to the court, Attached Proposed Subpoena.) Basciano argued that a "so ordered subpoena is necessary" to effectively investigate "Cicale's penchant for repeatedly being the putative victim of successive murder plots in prison." (Id.)
The Government responded that the "overbroad, sweeping request for all documents and recordings relating to Cicale's imprisonment" sought materials that "fall outside the ambit of Rule 17(c)" and that the subpoena did not satisfy the requirements set forth in United States v. Nixon, 418 U.S. 683, 699-700 (1974). (Government's November 13, 2007 letter to the court at 1-6.) The Government contended that the information Basciano sought, namely reports containing witness statements, is governed by 18 U.S.C. §3500 (the "Jencks Act"), which does not require production of such material until the witness has testified. (Id. at 2, 4-6.)
In an effort to address some of the Government's concerns, Basciano submitted a revised proposed subpoena under case numbers 05-CR-060 and 03-CR-929 requesting "[a]ny and all documents, including disciplinary and other inmate records, memoranda of investigation, internal correspondence with prosecuting or investigative agencies, visiting records and tape recordings of telephone or other conversations pertaining to Dominick Peter Cicale, inmate number 29039-004, while at the institution." (Memorandum in Support of Defendant's Application for Rule 17(c) Subpoena, Attached Proposed Subpoena.) Basciano stated that the Government introduced, in its direct examination of Cicale at the 03-CR-929 retrial, Cicale's testimony that another inmate had tried to kill him at PCCF. Defense counsel objected to this line of questioning and explained at a sidebar conference that he had not intended to impeach Cicale based on a prison disciplinary infraction Cicale had received for beating up another inmate. (Id. at 1-2.) The Government then dropped the line of questioning and asked Cicale "to your knowledge did the defendant have anything to do with" the attempt on Cicale's life, to which Cicale responded, "no, . . . Vinny Basciano had nothing to do with it." (Id. at 2 (quoting Trial Transcript at 1277).)
In Basciano's view, two "unfair consequences" resulted from the exchange: (1) the jury was not told that in purportedly defending his life, Cicale "pummeled" the other inmate and was subjected to prison discipline for assault, and (2) the Government used the in-prison murder attempt on Cicale to state in its summation that cooperating witnesses like Cicale are "essentially unimpeachable" because they put their lives at risk for cooperating. (Id. at 2-3.) As a result, Basciano argued, the requested documents are relevant to "testing the government's circumscribed Giglio disclosure at the '03 retrial." (Id. at 3.)
In its reply, the Government stated that it produced as part of Cicale's 18 U.S.C. § 3500 material ("3500 material") for Basciano's earlier trial an "exhibit" regarding the PCCF prison infraction, which included: (1) the PCCF Disciplinary Board Findings and Final Decision documenting the disciplinary charges to which Cicale pleaded and his corresponding punishment, (2) an attached synopsis of the fight between Cicale and another inmate written by a prison guard, and (3) a PCCF Statement of Confinement documenting the disciplinary infraction with which Cicale was being charged. (Memorandum of Law In Opposition to Defendant Vincent Basciano's Application for a Rule 17(c) Subpoena at 2.)
The Government also offered excerpts from the transcript of the above-referenced sidebar conference showing that defense counsel had received discovery material detailing the assault and resulting discipline and had received information that the government knew of a witness who supported Cicale's contention that he was attacked without provocation. (Id. at 3.) In addition, the transcript showed that AUSA John Buretta had asked defense counsel "several times" if he planned to inquire on the subject but had been told that counsel had not decided. (Id. at 3-4.) The Government also asserted that during its rebuttal, it brought up the danger faced by cooperating witnesses in response to Defendant's assertion that the cooperating witnesses were fabricating their testimony to get a "free pass." (Id. at 5-6.) Finally, the Government stated that PCCF officials have represented that they have provided the Government with "all documents which exist with respect to Cicale's disciplinary infraction." (Id. at 9.)
As noted above, upon the Government's representation that it already has in its possession all documents relating to Cicale's PCCF infraction, Basciano has withdrawn his Rule 17(c) subpoena request. He now requests an Order that the Government provide "all documents in its possession relating to Cicale's misconduct at Putnam Correctional Facility" including any documents previously provided in the '03 case, identified as GX 3500-DXC-57, any documents relating to the incident not previously disclosed to the defense, and any documents substantiating the prosecutor's claim that a witness "backed up" Cicale's statement that he was attacked. (Defendant's Reply Memorandum in Support of Application for Rule 17(c) Subpoena at 1, 4-5.)
Basciano argues that the material requested falls within Rule 16 rather than the Jencks Act, and thus the court has the "inherent authority" to order disclosure at any point prior to trial. (Id. at 3.) In Basciano's view, because this is a capital case, "[i]t is difficult to imagine a case where it would [be] more appropriate for the Court to exercise its discretion in favor of disclosure at the earliest possible time for the defendant to make effective use of the information in preparation of his defense." (Id.) Furthermore, Basciano argues that the information has been specifically identified by the Government, part of it was provided to the defense during the trial in case number 03-CR-939 as part of Cicale's 3500 material, the information is necessary for trial preparation, there would be no fishing expedition into the Government's files, there would be no threat to Cicale by the disclosure, and the Government has not identified any ...