The opinion of the court was delivered by: Matsumoto, United States District Judge:
Defendants Courtney Dupree ("Dupree"), Thomas Foley ("Foley") and Rodney Watts ("Watts") (together, "defendants") are charged together in three counts, Watts is charged in four counts, and Dupree is charged in all five counts of a five-count superseding indictment. (See ECF No. 155, Superseding Indictment ("Superseding Indictment").) Count One charges all defendants with Conspiracy to Commit Bank, Mail and Wire Fraud in violation of 18 U.S.C. §§ 1349, 3551 et seq. (Id. at ¶¶ 17-18.) Count Two charges all defendants with Bank Fraud in violation of 18 U.S.C. §§ 1344, 2, 3551 et seq. (Id. at ¶¶ 19-20.) Count Three charges defendants Dupree and Watts with making False Statements in violation of 18 U.S.C. §§ 1014, 2, 3551 et seq. (Id. at ¶¶ 21-22.) Count Four charges all defendants with making False Statements by "knowingly and intentionally [making] a false statement and report, and willfully overvalu[ing] property and security, for the purpose of influencing the action of Amalgamated Bank upon one or more loans. . ." in violation of 18 U.S.C. §§ 1014, 2, 3551 et seq. (Id. at ¶¶ 23-24.) Count Five charges only defendant Dupree with an additional count of Bank Fraud, in violation of 18 U.S.C. §§ 1344, 2, 3551 et seq. (Id. at ¶¶ 25-26.)
The Superseding Indictment charges that defendant Dupree was the president and chief executive officer of GDC Acquisitions, LLC ("GDC"), and at different times relevant to the Superseding Indictment, defendant Foley was GDC's outside counsel and its chief operating officer and defendant Watts was GDC's chief financial officer and chief investment officer. (Id. at ¶¶ 2, 3, 4.) The first four counts of the Superseding Indictment arise out of an alleged scheme to defraud Amalgamated Bank ("Amalgamated"), a financial institution, the deposits of which were insured by the Federal Deposit Insurance Corporation, and C3 Capital, LLC, a private equity investment firm, by obtaining, and attempting to obtain, loans for GDC and its subsidiaries on the basis of false financial statements and other material misrepresentations between January 2007 and July 2010. (Id. at ¶¶ 1, 8.) Count Five was added in a Superseding Indictment filed on March 25, 2011, and charges only defendant Dupree with an additional count of bank fraud for "knowingly and intentionally execut[ing] and attempt[ing] to execute a scheme and artifice to defraud Amalgamated Bank" between August 4, 2010 and March 1, 2011. (Id. at ¶¶ 25-26.)
Pursuant to Fed. R. Crim. P. 17, on or about April 19, 2011, defendant Foley applied ex parte for, and subsequently served, the following subpoenas on non-parties, The Kroger Company ("Kroger"), HSBC Bank USA ("HSBC") and Universal Studios LLP ("Universal Studios") (collectively, the "Foley subpoenas"). On Kroger:
All records maintained with respect to the services rendered by Unalite Southwest, LLC; Unalite Electric & Lighting Corp.; Lighting Distribution & Maintenance, LLC d/b/a USW, relating to lighting installation, maintenance and energy-saving projects for the period May 1, 2010 through September 30, 2010. Said records should include but not be limited to: (1) Contracts, purchase orders and agreements; (2) Invoices, billings and email requests for payment; (3) Back-up documents, including invoices, relating to Kroger checks annexed hereto as Exhibit "A." (ECF No. 175, Subpoena Duces Tecum as to Kroger.)
With respect to HSBC account no. 655763473 in the name of Unalite Electric & Lighting LLC (a) all opening account documents, including but not limited to corporate resolutions, signature cards, and applications, (b) records relating to the non-payment of the check annexed hereto as Exhibit "A," (c) bank statements and cancelled checks, and (d) records relating to any closing of the account. (ECF No. 176, Subpoena Duces Tecum as to HSBC.)
All records maintained with respect to the services rendered by Unalite Electric & Lighting, LLC a/k/a Unalite Electrical & Lighting Corp., 47-07 32nd Place, Long Island City, NY for the NBC Warehouse, North Bergen, NJ and Rockefeller Center, New York City, NY relating to lighting installation, maintenance and energy-saving projects for the period May 1, 2010 through September 30, 2010. Said records should include but not be limited to: (1) Contracts, purchase orders and agreements; (2) Invoices, billings and email requests for payment; (3) Back-up documents, including invoices and any reason for stopping payment for the check annexed hereto as Exhibit "A." (ECF No. 177, Subpoena Duces Tecum as to Universal Studios.)
Following service of the subpoenas, defendants Dupree and Watts moved, pursuant to Fed. R. Crim. P. 17(c)(2), to quash the subpoenas. (ECF No. 196-1, [Dupree's] Memorandum of Law in Support of Motion to Quash Subpoenas ("Dupree Mem."); ECF No. 202, Letter from Marion Bachrach, counsel for Watts, dated May 12, 2011.) In support of their motion to quash, Dupree and Watts assert that Foley did not have a proper purpose for requesting and serving the subpoenas. Specifically, Dupree and Watts argue that: (1) Foley has already admitted to the court that the evidence likely to be introduced by the government regarding Count Five of the Superseding Indictment, the subject matter of the subpoenas, is "not only inadmissible against him but is also irrelevant to the charges against him" (ECF No. 196- 1, Dupree Mem. at 3); (2) Foley has made no showing that he is unable to obtain the documents by the exercise of due diligence (id.); (3) Foley cannot show that he would be unable to prepare for trial without the requested documents so that lack of access to such documents would unreasonably delay his defense (id.); and (4) Foley's requests to Kroger, HSBC and Universal Studios were "not done in an effort to provide an actual defense for himself and thus [were] not requested in good faith . . . .
[R]ather his efforts are a fishing expedition in an attempt to find evidence to direct culpability toward his co-defendants in the mistaken belief that effort will demonstrate lack of culpability on his part" (id. at 3-4 (emphasis in original)).
Foley opposes his co-defendants' motion to quash the subpoenas, asserting that the court "properly ordered compliance with the subpoenas based upon a good faith, comprehensive presentation by Mr. Foley," which included an application filed ex parte on April 20, 2011. (ECF No. 204, Letter from Joseph W. Ryan, counsel for Foley, dated May 12, 2011.) In response to Dupree's and Watts' motion and the court's order to provide "support that the documents requested in the third party subpoenas are relevant to [Foley's] defense of the charges in the counts in which he is charged in the Superseding Indictment" (Order dated May 13, 2011), Foley specifies that the "customer checks, bank records and invoices sought by the subpoenas are relevant for Mr. Foley to establish a pattern of behavior by both Dupree and Watts to engage in criminal schemes to defraud Amalgamated Bank both before and after the July 23, 2010 arrests for bank fraud - without Mr. Foley's knowledge or consent." (ECF No. 211, Supplemental Response to Deny Motion to Quash ("Foley Supp.") at 1.)
For the reasons set forth below, the court grants in part and denies in part the motion to ...