The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's motion for subpoenas duces tecum to be served upon third parties, pursuant to Federal Rule of Criminal Procedure 17(c) (Docket No. 82*fn1 ). This is renewal of an ex parte application defendant previously made (id., Def. Atty. Aff., Ex. A) which was denied by the Court (Docket No. 73), familiarity with which is presumed. Defendant again seeks to subpoena documents from Excellus and Univera in support of his pending motion to dismiss on various grounds) (Docket No. 37). The motion was argued on April 27, 2009, the Court reserving decision, and the matter was deemed submitted following that argument (text minute entry of Apr. 27, 2009).
After objecting to the necessity to justify his third-party subpoenas and expose his defenses to the Government (Docket No. 82, Def. Atty. Affirm. ¶ 3), defendant argues that he needs the materials sought from Excellus and Univera to identify the possible claims the Government now alleges in the Indictment were "upcoded" and constituted false claims. Defendant contends that these documents also are necessary for defendant's estoppel contention in his pending motion to dismiss; defendant argues that Univera and Excellus, as Health Care Benefit Programs, were obliged to educated defendant as to acceptable billing practices, that the documents sought will show that Univera and Excellus were aware that defendant was an "outlier" in his billing practices and yet they did nothing to educate him on the appropriate standards. He contends this also goes to defendant's knowledge and fraudulent intent. Third, defendant's vindictiveness claim in his pending motion rests upon the theory that the Government is merely serving as the stalking horse for Excellus in that program's failed battle to get unfettered access to defendant's patient files and Excellus's alleged desire to "get back at" defendant. (Docket No. 82, Def. Memo. at 1-2.)
The Government responds that defendant failed to demonstrate entitlement to issuance of these subpoenas, namely by failing to show the relevance of his requests to any defense he may raise (Docket No. 83, Gov't Response at 1). Defendant's request should be denied because he fails to assert a defense (id. at 4).
Defendant, in reply, argues that his request for these subpoenas arise under his right to compulsory process under the Sixth Amendment (Docket No. 84, Def. Reply at 1). He points to Chief Justice John Marshall's decision in United States v. Burr, 25 F. Cas. 30 (No. 14692D) (C.C.D. Va. 1807), the treason trial of former Vice President Aaron Burr, rather than the unindicted co-conspirator subpoena at issue in United States v. Nixon, 418 U.S. 683 (1974), as being the relevant standard (id.). In Burr, Chief Justice Marshall, as Circuit Justice, held that defendant Burr was entitled to subpoena letters from President Thomas Jefferson as compulsory process to aid in his defense (id. at 1-2). Defendant concludes that "the message in Burr and subsequent cases enforcing the right to present a defense: the exclusion of defense evidence, the denial of defense access to evidence, is not simply a question of rules of evidence, or rules of procedure, but a question of fundamental constitutional rights" (id. at 4; see id. at 4 n.5 (citing examples of Supreme Court cases)). Defendant denies that he has an obligation to assert a specific defense prior to trial in order to obtain this subpoena (id. at 3) or have to rely upon the Government recognizing that a defense exists before defendant could obtain compelled testimony (see id. at 8). At bottom, defendant seeks to obtain materials that might lead to evidence that shows reasonable doubt and standards of admissibility should not bar their compulsory production (id.).
Defendant next argues that he has not been presented what had actually been submitted to the Health Care Benefit Programs, essentially the false claims at issue in this case (id. at 9). During oral argument, defense counsel explained that while this material was sought in discovery from the Government and some computerized records were produced (see id. at 9-10), the actual items defendant submitted to the programs were not produced. Defendant believes that he submitted HCFA forms and supporting medical records of patients to support the claims. Defendant concludes that any false claim charges would arise from the combination of these documents, while the Government believes that a false claim arose from the filing of allegedly false HCFA forms (regardless of the attachments included). The entities which would have these submissions are the Health Care Benefit Programs, hence defendant seeks subpoenas for these programs to produce these materials. Defendant even questioned if the grand jury reviewed this entire record or some subset.
Defendant also seeks documents related to his performance and outreach efforts by the programs (id. at 10). Next, defendant complains that the further production from the Government on defendant's vindictiveness argument, seeking payor correspondence documents, was incomplete, hence defendant needs to seek these items from their source, the programs (id. at 11).
In his conclusion and at oral argument, defendant stressed that the timing of these items is crucial (id. at 12-13). If defendant were to seek these items at the eve of trial, the programs may delay their production and not expedite a trial. He therefore seeks pretrial production by these programs by means of the sought subpoenas.
Federal Rule of Criminal Procedure 17(c) provides "a subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them."
Fed. R. Cr. P. 17(c)(1). As previously noted (Docket No. 73, Order at 3-5), this Court has considerable discretion in overseeing the subpoena process, 2 Charles A. Wright, Federal Practice and Procedure § 271, at 218 (Criminal 3d ed. 2000), and the Court must be satisfied that the Rule 17(c) subpoena applied for satisfies the rule, United States v. Nachamie, 91 F. Supp. 2d 552, 561 (S.D.N.Y. 2000). While subpoenas are usually used for compelling production of evidence for a trial, it can be used for compelling production to determine an issue of fact raised in a pretrial motion, see 2 Federal Practice and Procedure, supra, § 271, at 216-17 & n.10. Defendant, as the proponent of the subpoena, bears the burden of showing good cause for production before trial of the subpoenaed items, id. § 274, at 246. The subpoena is the means of effecting compulsory process that is provided for under the Sixth Amendment. That amendment provides, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor . . . ," U.S. Const. amend. VI.
Rule 17(c), however, is not a means of discovery, see Bowman Dairy v. United States, 341 U.S. 214, 220 (1951); Nixon, supra, 418 U.S. at 698-99, despite the liberalized criminal discovery now allowed under Rule 16, cf. Bowman Dairy, supra, 341 U.S. at 219-20. Rule 17(c) is the criminal equivalent for subpoena practice under Federal Rules of Civil Procedure 45, see Nachamie, supra, 91 F. Supp. 2d at 561 (quoting Adv. Comm. Note, 1944 Adoption, Fed. R. Cr. P. 17), but with the difference that there is a constitutional right at issue in the criminal process and, while subpoenas are frequently used in civil discovery, the criminal rules have not recognized use of this process for third-party discovery in criminal cases. The subpoena is for producing materials for inspection prior to trial, "to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials," Nixon, supra, 418 U.S. at 698-99 (emphasis in original)*fn2 ; Nachamie, supra, 91 F. Supp. 2d at 561.
The Supreme Court, in United States v, Nixon, recognized the standard for determining whether a criminal subpoena was unreasonable or oppressive and should be quashed, 418 U.S. at 698-700; see also Bowman Dairy, supra, 341 U.S. at 220; United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952) (Weinfeld, J.). In summary, the party seeking production must show relevancy, admissibility, and specificity, Nixon, supra, 418 U.S. at 700, that the documents are evidentiary and relevant, that the materials are not otherwise procurable in advance of trial by the exercise of due diligence, that the party cannot properly prepare for trial without such production and inspection and the failure to obtain inspection may tend unreasonably to delay the trial, and that the application is made in good faith and not intended as a general "fishing expedition," id. at 699-700; see Iozia, supra, 13 F.R.D. at 338. Although Nixon arose from the Government's subpoena of the President (an unindicted co-conspirator and non-party in that prosecution), the Court did not rule on the standard for issuing subpoenas upon non-parties, see also Nixon, supra, 418 U.S. at 699 n.12; Nachamie, supra, 91 F. Supp. 2d at 562.
Judge Scheindlin of the United States District Court for the Southern District of New York applied a different standard for Rule 17(c) defense subpoenas issued upon non-parties. In Nachamie and Tucker, Judge Scheindlin held that a defendant at the eve of trial seeking production "need only show that the request is (1) reasonable, construed as 'material to the defense,' and (2) not unduly oppressive for the producing party to respond," United States v. Tucker, 249 F.R.D. 58, 66 (S.D.N.Y. 2008); see Nachamie, 91 F. Supp. 2d at 563, with the first element of materiality such that Rule 17(c) subpoenas are not used "as broad discovery devices, but must be reasonably targeted to ensure the production of material evidence," Tucker, supra, 249 F.R.D. at 66. Judge Scheindlin avoided the Nixon standard, in part, due to the inherent asymmetry of investigative resources the defense has as compared with the Government, to uphold defendant's Confrontation Clause rights but without completely overturning that asymmetry to require equality, id. at 63-64. In upholding ...