United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE.
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.
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.
POST-VERDICT SUBPOENAS ISSUED BY DEFENDANTS
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." 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). 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.
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).
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
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