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United States v. Nix

United States District Court, W.D. New York

May 3, 2017

UNITED STATES OF AMERICA,
v.
MATTHEW NIX and EARL McCOY, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE.

         Defendants Matthew Nix and Earl McCoy ("Defendants") were charged in a Third Superseding Indictment returned on January 5, 2017, with 12 counts alleging violations of the Hobbs Act, 18 U.S.C. § 1951(a), and related firearms and narcotics charges, all in connection with a spree of home invasions during 2014. (Dkt. 165). Trial commenced on February 13, 2017, and concluded on March 17, 2017, with the jury convicting Defendants on all 12 counts. (Dkt. 229; Dkt. 266; Dkt. 267). Sentencing is scheduled for July 12, 2017. (Dkt. 265).

         Presently before the Court are the Government's motions to quash (Dkt. 272; Dkt. 279) various subpoenas served by Defendants purportedly pursuant to Fed. R. Crim. P. 17, following return of the jury verdict. With no prior Court approval, Defendants arranged to serve nine separate subpoenas endorsed with the signature of the Clerk of the Court, making the subpoenas returnable at the undersigned's Chambers on random dates and times unilaterally selected by defense counsel. Because Defendants have failed to comply with both the procedural and substantive requirements of Rule 17(c), the Government's motions to quash are granted.

         THE POST-VERDICT SUBPOENAS ISSUED BY DEFENDANTS

         On March 28, 2017, the Government filed a motion to quash a subpoena served by defendant Earl McCoy ("McCoy") on FBI Special Agent Matthew Allen, the case agent who was present at the Government's table during the trial. (Dkt. 272). The subpoena, signed by the Clerk of Court, purported to command Agent Allen to appear at the undersigned's Chambers on March 29, 2017, at 10:00 AM, and to produce at that time and place the following documents:

All results from background checks, DCJS reports, NCIC reports, FBI reports criminal reports, "rap sheets", or any other data, reports or other records concerning the panel of prospective jurors summoned for jury selection in the trial of "United States vs. Matthew Nix and Earl McCoy", criminal action No. 14-CR-6181 on the 13 day of February, 2017. If no such of the foregoing exists, or have [sic] been destroyed, please provide in the alternative a sworn statement so stating and a list of those items which have been destroyed. Also, please provide a statement providing the NCIC, DCJS and/or FBI user name of Special Agent Matthew Allen, or the individual who obtained the records with respect to "T.P."[1] on or about February 13, 2017.

(Dkt. 282-1). In support of its motion to quash, the Government argues that the subpoena was issued in violation of Fed. R. Crim. P. 17, and it also argues that the subpoena sought documentation outside the scope of Fed. R. Crim. P. 16 and invaded the Government's mental processes and work product. (Dkt. 282 at 2-4).[2] The Court granted the Government's request to stay compliance with the subpoena until the motion to quash was resolved (Dkt. 273), and a status conference was held on March 29, 2017.

         At the status conference, it was revealed that a number of additional subpoenas had been served on behalf of defendant Matthew Nix ("Nix") following the return of the jury verdict. Nix's counsel was directed to provide the Court and the Government with copies of any post-verdict subpoenas, and the Court set a deadline of March 31, 2017, for the Government to file any additional motion to quash directed to the additional subpoenas. (Dkt. 274).

         In accordance with this schedule, the Government filed a motion to quash the additional eight subpoenas served on behalf of Nix (Dkt. 279), as follows:

1. Subpoena directed to Facebook, Inc. (Dkt. 279-1 at 5-7), returnable to the undersigned's Chambers on March 29, 2017, at 9:30 AM, seeking, in sum and substance:
(a) material related to the Instagram Account "its jusdifferent" (My Plan B Makes Plan A Work), during the time period of the trial in this case;
(b) any subpoena or communication from the FBI, U.S. Attorney's Office, or other governmental entity, in relation to the Instagram accounts "1) its Jusdifferent 2) k thebadl 3) meechjz holdan";
(c) data or metadata relating to any profile name change of the Instagram account "its jusdifferent";
(d) any subpoena or communication from the FBI, U.S. Attorney's Office, or other governmental entity, in relation to the Facebook accounts "Meech IZ Holdan" and "Jecovius Barnes." 2. Subpoena directed to the New York State Division of Criminal Justice Services (id. at 9-10), returnable to the undersigned's Chambers on March 23, 2017, at 8:30 AM, seeking, in sum and substance, documents concerning any records search on February 13, 2017, concerning excused prospective juror T.P., and if no such inquiry or records request was made, confirmation of the same.
3. Subpoena directed to the FBI (id. at 12-13), returnable to the undersigned's Chambers on March 23, 2017, at 8:30 AM, seeking, in sum and substance, documents concerning any records search on February 13, 2017, concerning excused prospective juror T.P.; and if no such inquiry or records request was made, confirmation of the same.
4. Subpoena directed to the Seneca County Jail (id. at 15-16), returnable to the undersigned's Chambers on March 23, 2017, at 8:30 AM, seeking, in sum and substance, any records of jail phone calls, including audio recordings, and correspondence involving Clarence Lambert while housed at that facility in 2014 through 2015, and any records of requests by way of subpoena or search warrant for the same.
5. Subpoena directed to T-Mobile USA, Inc. (id. at 18-19), returnable to the undersigned's Chambers on March 29, 2017, at 8:30 AM, seeking, in sum and substance, communications with the FBI, U.S. Attorney's office, or other ...

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