United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
On March 5, 2105, the Government filed a motion to quash two subpoenas served by Defendant Yasser Ashburn on the Metropolitan Detention Center ("MDC") pursuant to Federal Rule of Criminal Procedure 17. (Mot. to Quash ("Mot.") (Dkt. 384).) The Government subsequently indicated that legal counsel to the MDC and counsel for a cooperating witness who testified in this trial, [REDACTED\] (AN INMATE AT mdc), JOIN IN THIS MOTION. (See Trial Tr. ("Tr.") at 2160:3-6.) The first subpoena, dated March 2, 2015, seeks records related to [REDACTED\], REQUESTING "all information and records held by the Bureau of Prisons as to infractions, violations, and discipline, and, in addition thereto, [[REDACTED\]]'S TELEPHONE RECORDS." (mOT. AT 2.) tHE SECOND subpoena, dated March 4, 2015, requests records related to Defendant Ashburn, "including but not limited to who he was housed with in his cell and housing unit.'" (Id.) For the reasons the follow, the Government's motion is GRANTED.
II. LEGAL STANDARD
Under Rule 17, "[a] subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates." Fed. R. Crim. P. 17(c)(1). Rule 17 also provides, however, that upon a motion "made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2) (emphasis added).
The Government argues that the question of whether a non-party subpoena complies with Rule 17 is governed by the Supreme Court's decision in United States v. Nixon, 418 U.S. 683 (1974). In Nixon, the Court observed that lower courts had generally required: "(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that 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 (4) that the application is made in good faith and is not intended as a general fishing expedition.'" Id. at 699-700. On this basis, the Court concluded that a party seeking to enforce a Rule 17 subpoena "must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity." Id. at 700. Accordingly, the Government contends that both subpoenas must be quashed because each fails to meet the Nixon requirements of relevancy, admissibility, and specificity. (See Mot. at 2-3.)
In response, counsel for Defendant Jamal Laurent - on behalf of Defendant Ashburn - points to a decision in the Southern District of New York suggesting that the Nixon standard does not control in this context. (Tr. at 2147:16-20.) See United States v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008). In that decision, U.S. District Judge Shira A. Scheindlin held that the Nixon standard was "inappropriate" where production pursuant to a Rule 17 subpoena was requested by "(A) a criminal defendant; (B) on the eve of trial; (C) from a non-party; (D) where the defendant has an articulable suspicion that the documents may be material to his defense." Id. at 66. As a result, Judge Scheindlin concluded that a defendant "in such a situation 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." Id.
As this court has already pointed out, Tucker is not binding authority. (Tr. at 2146:10.) The court need not determine, however, whether Tucker is persuasive. Even if the Tucker standard were controlling, which it is not, the court would find that Ashburn has not met his burden with respect to either subpoena. A fortiori, Ashburn has also failed to meet his burden under Nixon. Since - as the following discussion illustrates - both subpoenas fail Tucker's requirement that the requests be "reasonable, construed as material to the defense, " 249 F.R.D. at 66, they necessarily fail Nixon's relevancy requirement as well, see 418 U.S. at 700. Moreover, because the second subpoena is "unduly oppressive to the producing party" under Tucker, 249 F.R.D. at 66, it necessarily fails Nixon's specificity requirement. See 418 U.S. at 700 (noting that a Rule 17 subpoena is not intended to be "general fishing expedition'").
1. March 4, 2015, Subpoena
The second subpoena, dated March 4, 2015, requests "all information and records held by the Bureau of Prisons as related to inmate Yasser Ashburn, specifically who he was housed with in his cell, and housing unit." (See Mot. at 2.) Ashburn, however, has failed to show either that the request is material to the defense or that it is not unduly oppressive for the producing party. See Tucker, 249 F.R.D. at 66. First, Ashburn has not made a single representation to the court regarding the materiality of this request. Second, the Government indicates that it conferred with the MDC's legal counsel, who advised that complying with this request would be "extremely burdensome and impractical." (Mot. at 3.) As an example, the Government points out that the subpoena requests the identity of every individual with whom Ashburn has been housed during the course of his incarceration. (Id.) However, the population of the MDC "is constantly in flux, and the individuals who are in a particular housing unit are changing daily." (Id.) According to the Government, Ashburn has been in custody at the MDC since January 31, 2012 - for more than three years. (Id.) As a result, the MDC claims it would be required to compile a roster for each day that Ashburn has been in the MDC - over 1, 000 days - in order to determine all of the individuals with whom Ashburn has been housed with during his incarceration. (Id.) In light of the obvious burden of compiling this information, the court finds that responding to this request would be unduly oppressive for the producing party. See 249 F.R.D. at 66. Consequently, the Government's motion to quash Ashburn's second subpoena is GRANTED.
2. March 2, 2015, Subpoena
With respect to the first subpoena, dated March 2, 2015, which seeks records related to [REDACTED\], THE BURDEN OF PRODUCING THE REQUESTED EVIDENCE IS NOT IMMEDIATELY CLEAR FROM THE Government's motion. Nevertheless, the court finds that Ashburn has failed to demonstrate that the information he seeks is material to his defense, even by his own terms. See Tucker, 249 F.R.D. at 66. As the Government points out, on March 2, 2015, counsel for Ashburn stated, "[The Government] want[s] to know what the relevance is of the material and how I would use it at trial. I don't think that's relevant at this point. I think I have a right to obtain it, view it, and determine whether I can use it for an admissible basis at trial." (Tr. at 1223:12-16.) Moreover, on March 6, 2015, the court asked counsel for Ashburn to explain how the materials requested by this subpoena were material to Ashburn's defense. Counsel responded:
The long story short is it's my position that this witness lied both big, small, and medium about almost every topic.... Having heard his entire testimony but also hearing the testimony about the infractions and crimes he committed while incarcerated, that's what led me to subpoena those records to see if there ...