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United States v. Khan

January 20, 2009

UNITED STATES OF AMERICA,
v.
SHAHEED KHAN, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

MEMORANDUM AND ORDER

DORA L. IRIZARRY, United States District Judge

Defendant is charged in an eighteen-count indictment with distribution, importation, and possession of cocaine and engaging as a principal administrator, organizer, and leader of a continuing criminal enterprise in the Eastern District of New York and elsewhere. Defendant allegedly headed a powerful, violent, cocaine trafficking organization out of Georgetown, Guyana. Defendant faces a maximum sentence of life imprisonment if convicted.*fn1

On March 31, 2008, and April 28, 2008, the court authorized the issuance of ex parte subpoenas upon defendant's request, pursuant to Rule 17 of the Federal Rules of Criminal Procedure. Before the court is the government's motion to quash certain subpoenas at the behest of various government agencies, employees, and two non-party, non-governmental entities. Defendant opposes the instant motion in its entirety. The subpoenas at issue seek documents, reports, including medical records, communications, recordings, and other tangible and intangible material from several government agencies and employees, as well as non-party, non--governmental entities.

Additionally, the subpoenas seek testimony from several government agents and employees. For the reasons set forth below, the government's motion to quash is granted in part and denied in part.

DISCUSSION

I. Legal Standards

Defendants may seek the pre-trial production and inspection of certain materials by subpoena as set forth in Rule 17 of the Federal Rules of Criminal Procedure; however, such subpoenas are not "intended to provide a means of discovery for criminal cases." See United States v. Nixon, 418 U.S. 683, 698 (1974). Rule 17 does not broaden the limited discovery available in criminal cases; rather, the purpose of Rule 17 is to avoid unnecessary delay at trial by providing a mechanism for pre-trial production and inspection of certain material. See Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). Defendants may not seek material under Rule 17 that they are prohibited from obtaining under Rule 16. See, e.g., United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995) (noting that Rule 17 subpoenas cannot be used to "undercut[] the strict limitation of discovery" found in Rule 16). Additionally, courts should quash or modify subpoenas when compliance would be "unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2).

This otherwise vague standard has been interpreted as requiring the proponent of a subpoena to demonstrate that: (i) the material sought is "evidentiary and relevant," (ii) the material sought is "not otherwise procurable reasonably in advance of trial by exercise of due diligence," (iii) "the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial," and (iv) "the application is made in good faith and is not intended as a general 'fishing expedition.'" Nixon, 418 U.S. at 699-700; accord Bowman Dairy, 341 U.S. at 219-22. Essentially, the Nixon standard requires a showing of relevance, admissibility, and specificity. See Nixon, 418 U.S. at 701.

This strict standard is applicable both to subpoenas of government agencies and employees as well as those of non-party, non-governmental entities and individuals. See United States v. Ferguson, 06-CV-137 (CFD), 2007 WL 2815068, at *3 (D. Conn. Sept. 26, 2007) (discussing the requirements of subpoenas). In dicta, the Supreme Court indicated that a lower standard might be appropriate for cases involving subpoenas issued to non-parties, but did not decide whether such a lower standard exists. See Nixon, 418 U.S. at 701 n.12. One court in this circuit noted that criminal discovery rules are inapplicable to non-parties and, as such, "[a] real question remains as to whether it makes sense to require a defendant's use of Rule 17(c) to obtain material from a non-party to meet [the Nixon] standard." United States v. Nachamie, 91 F. Supp. 2d 552, 562 (S.D.N.Y. 2000). Instead, that court indicated that the resolution of challenges to subpoenas issued by defendants to non-parties should be limited to whether the subpoena at issue is "reasonable" and not "unduly repressive." See id. at 563 (quashing the subpoenas at issue as they failed to meet either the Nixon or the advocated, more relaxed standard). In a more recent opinion, the same judge expressly held that the lower evidentiary standard governs. See United States v. Tucker, 249 F.R.D. 58, 66 (S.D.N.Y. 2008) (holding that subpoenas issued by defendants to non-parties should be enforced if "reasonable, construed as 'material to the defense'" and "not unduly oppressive for the producing party").

Defendant urges the court to apply this more relaxed standard. Notwithstanding the Supreme Court's dicta and the two opinions from a court of concurrent jurisdiction, this court declines to break from long-standing precedent in this circuit, which holds that all subpoenas must comply with the Nixon standard. See Ferguson, 2007 WL 2815068, at *3 (noting that "[a]ll district courts within this Circuit, including the Nachamie court, have applied Nixon to assess the validity of 17(c) subpoenas issued to third parties"). Further, "[a]pplication of the Nachamie test . . . would eviscerate Rule 17's limitations on criminal discovery, a result for which there is no support in Nixon." See id. Accordingly, this court will analyze each of the subpoenas for compliance under the Nixon standard.

II. Application

A. Subpoena 1*fn2

By Subpoena 1, defendant seeks trial testimony from Stephen Lesniak, a former United States diplomat in Guyana, who was abducted and then released in April 2003. (Gov't Mem. Ex. 1.) Defendant asserts that he coordinated Lesniak's safe return with various government agencies and their personnel. Defendant contends that Lesniak's testimony is relevant as it will demonstrate "Khan's efforts at combating crime in Guyana impacting [sic] on the United States." (Id.) The government contends that any subpoena seeking evidence for this purpose fails the first prong of the Nixon test-relevance. According to the government, this evidence is not relevant as it does not make it less probable that defendant, while assisting the government, simultaneously engaged in drug trafficking. (Gov't Mem. at 7-8.) Defendant asserts that this testimony: (i) "does not preclude simultaneous drug trafficking," but "has a tendency to make it less probable," (Def. ...


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