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United States v. Seabrook

United States District Court, S.D. New York

October 23, 2017

UNITED STATES OF AMERICA
v.
NORMAN SEABROOK AND MURRAY HUBERFELD, Defendants.

          OPINION AND ORDER

          ANDREW L. CARTER, JR., UNITED STATES DISTRICT JUDGE:

         Defendant Huberfeld has served subpoenas on Jona Rechnitz ("Rechnitz"), Cooley LLP ("Cooley"), Naftol & Weberman CPAs, P.C. ("Naftol & Weberman"), Simcha Schonfeld, and Koss & Schonfeld LLP ("Koss & Schonfeld") (collectively, "Non-Parties"). The recipients have moved to quash the subpoenas. The motion is granted in part and denied in part.

         BACKGROUND

         Huberfeld has served five subpoenas. Each subpoena consists of a number of requests. The subpoena to Rechnitz (Rechnitz Requests 1-8) seeks four categories of documents: prior statements of Rechnitz about the allegations in the indictment in this case, tax returns filed by Rechnitz and JSR Capital, documents regarding payments to Jason Nissen, and health insurance benefits. The subpoena to Alan Levine and Cooley (Cooley Requests 1-4), Rechnitz's attorneys, seeks statements made by Rechnitz to the prosecutors, statements made by Rechnitz's lawyers who were acting on Rechnitz's behalf to the prosecutors about the allegations in this case, and statements made by Rechnitz to any other third party in a non-privileged setting about the allegations in this case. The subpoena to Naftol & Weberman (Naftol & Weberman Requests 1-3) seeks Rechnitz or JSR Capital's tax returns, communications related to the tax returns, and documents concerning inquiries or investigations by a government tax agency into the tax returns. Finally, the subpoena to Koss & Schonfel (Koss & Schonfel Requests 1-2), who represented Rechnitz in his transactional and real estate matters since 2012, seeks documents, contracts, loan agreement or promissory notes related to agreements between any Jason Nissen entity or any Hamlet Peralta entity with Jona Rechnitz. The subpoenas were issued on September 29, 2017, prior to the receipt of the 3500 or Jencks Act material from the Government. The return date for all of the subpoenas is October 23, 2017, the first day of trial.

         On October 10 and 11, 2017, the Non-Parties moved to quash the subpoenas. Huberfeld responded on October 17, .2017. In their response, Huberfeld did not seek compliance with all the requests in the subpoena opting for an order seeking compliance with certain requests.

         STANDARD OF REVIEW

         Fed. R. Crim. P. 17(c) allows parties to subpoena any books, papers, documents, data, or other objects the subpoena designates. The subpoena must meet three criteria: "(1) relevancy; (2) admissibility; [and] (3) specificity." United States v. Ulbricht, 858 F.3d 71, 109 (2d Cir. 2017) (citing United States v. Nixon, 418 U.S. 683, 700 (1974)). Moreover, the evidence sought must be unattainable through means other than the Rule 17(c) subpoena, and the moving party must be unable to adequately prepare for trial without the materials sought." United States v. Mendinueta-Ibarro, 956 F.Supp.2d 511, 513 (S.D.N.Y. 2013).

         When a party moves to quash the subpoenas as unduly "unreasonable or oppressive, " Fed. R. Crim. P. 17(c)(2), the party responding to a motion to quash (the proponent of the subpoena) "must make a preponderance showing that the materials requested are relevant, specifically identified, admissible, and not otherwise procurable by the exercise of due diligence." See United States v. Pena, 15-cr-551, 2016 WL 8735699, at *2 (S.D.N.Y. Feb. 2, 2016) (quoting United States v. Barnes, 560 Fed.App'x 36, 39-40 (2d Cir. 2014)).

         Impeachment evidence is insufficient to require its production in advance of trial. Mendinueta-Ibarro, 956 F.Supp.2d at 514. This is because impeachment material is not relevant for production until a witness has testified. United States v. Coriaty, No. 99CR1251, 2000 WL 1099920, at *7 (S.D.N.Y. Aug. 7, 2000) (citing United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980)). Accordingly, impeachment evidence can be obtained by means of a Rule 17(c) subpoena at trial. United States v. Murray, 297 F.2d 812, 821 (2d Cir. 1962).

         DISCUSSION

         A. Rechnitz Subpoena

         Huberfeld seeks material to attack Rechnitz's credibility-impeachment material-and is thus obtainable at trial. However, certain requests as written are overbroad, specifically Rechnitz Requests 1, 2, 3, and 5, and Cooley Request 1. The proponent of a subpoena must reasonably specify the information contained or believed to be contained in the document sought. United States v. Treacy, No. 08 Cr. 0366, 2008 WL 5082884, at *3 (S.D.N.Y. Dec 1, 2008). Huberfeld contends that the subpoenas are not overbroad, that the documents sought are those "specific documents which contain a statement or communication by Rechnitz about the allegations in the case." Def Letter Opp'n Mot. Quash (ECF No. 125) at 8. In other words, Huberfeld seeks prior statements to impeach Rechnitz with. See United States v. Ferguson, No. 3:06-CR137, 2007 WL 4577303, at *2 (D. Conn. Dec. 26, 2007) (discussing prior inconsistent statements). However, this is not what the subpoena says, which seems to seek all documents, communications, and recordings "concerning or comprising" any statement by Rechnitz. "Concerning or comprising" as defined in the subpoenas is too broad. The net cast is too wide. Accordingly, the Court modifies those requests to match Defendant's clarification: those specific documents which contain a statement or communication by Rechnitz about the allegations in the Indictment.

         The return date on subpoenas is for the beginning of trial as opposed to when Rechnitz testifies. Huberfeld correctly notes a divide among the courts about whether impeachment material needs to be produced after the witness testifies or at the beginning of trial and asks the Court to allow the current return date. There are courts that have permitted the production of impeachment materials prior to the witness testifying at trial. See United States v. LaRouche Campaign, 841 F.2d 1176, 1180 (1st Cir. 1988) (concluding that it was proper to disclose impeachment evidence before trial pursuant to a Rule 17(c) subpoena because the "putative key witness, whose general testimony is already known, is scheduled to testify").

         However, in this Circuit, "the document[s] sought must at that time meet the tests of relevancy and admissibility." See United States v. Marchisio,344 F.2d 653, 669 (2d Cir. 1965) (emphasis added). Accordingly, in United States v. Giampa, the Court rejected the defendant's request for production on the first day of trial, and instead, modified the subpoena to make them returnable at the time when the witness would testify. No. S 92 Cr. 437, 1992 WL 296440, at *3 (S.D. N.Y. 1992); see also Ferguson, 2007 WL 4577303, at *3 (modifying subpoenas for production when witness testifies at trial). The only decision in this Circuit which permitted production of impeachment material at the beginning of trial, specifically a day before the start of trial, known to this Court is United States v. Tucker,249 F.R.D. 58 (S.D.N.Y. 2008). However, in that case, the court did not apply the Nixon standard; moreover, the materials to be produced, a significant amount of recordings, would lead to an "unreasonable delay" in trial if produced at the completion of the witness's testimony. Id. at 67 n.56. Thus, despite the fact that it is a virtual certainty that Rechnitz will testify in this matter, the weight of the authority in this Circuit favors production when the witness ...


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