U.S. v. Leaver, 98 CR. 731(SAS).

• Decision Date: 05 January 2005
• Docket Number: No. 98 CR. 731(SAS).,98 CR. 731(SAS).
• Citation: 358 F.Supp.2d 273
• Parties: UNITED STATES OF America v. Jonathan LEAVER, Defendant.
• Court: U.S. District Court — Southern District of New York

358 F.Supp.2d 273

UNITED STATES OF America v. Jonathan LEAVER, Defendant.

No. 98 CR. 731(SAS).

United States District Court, S.D. New York.

January 5, 2005.

John J. Tigue, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York, New York, for Defendant.

Robin W. Morey, Assistant United States Attorney, United States Attorney's Office, Southern District of New York, New York, New York, for the Government.

MEMORANDUM OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

On July 23, 2004, Jonathan Leaver was arrested while on a layover in Hawaii. Leaver was charged in a four-count indictment, returned on July 15, 1998, for mail fraud, wire fraud, and bank fraud, in violation of 18 U.S.C. §§ 1341, 1342 and 1344, based on events that allegedly occurred in 1993. In an Opinion and Order dated December 13, 2004 (the "December 13 Order"), I granted Leaver's motion to dismiss the indictment on the basis of his Sixth Amendment right to a speedy trial. The effect of that Order has been stayed pending an anticipated motion to reconsider by the Government. By letter dated December 23, 2004, the Government requests authorization to issue a subpoena duces tecum pursuant to Federal Rule of Criminal Procedure 17(c) to the American Express Company for records pertaining to Leaver's credit card. The Government seeks these records in connection with its anticipated motion for reconsideration. For the following reasons, the Government's request is denied.

II. BACKGROUND

In the December 13 Order, I made two important factual findings: first, that, although Leaver had left the United States before the Government began its investigation and had lived abroad since, he had been living openly without attempting to conceal his whereabouts, and, second, that the Government was negligent in its pursuit of Leaver. In making these findings, I relied in part on Leaver's testimony that he had continuously used the same American Express card, issued in the United States in 1978, which is listed under his own name and social security number;¹ that he had filed a change of address with American Express;² and that he placed his name, address and phone number on the checks for payment of his credit card bills.³ In the absence of any attempt by the Government to contest Leaver's statements,⁴ I found his testimony credible. I found that this was evidence (among other evidence) that Leaver was living openly; and, because the Government was aware of Leaver's use of an American Express card, and an investigation of the card might have revealed his address, I found that this was evidence (again, among other evidence) of the Government's negligence in pursuing Leaver.

III. DISCUSSION

The Government now seeks to show, in a motion for reconsideration, that, contrary to Leaver's testimony, Leaver did not inform American Express of his addresses in England and France, or pay his bills with checks that declared his addresses.⁵ To support this anticipated motion, the Government seeks to subpoena Leaver's American Express credit card records. By letters dated December 27, 29 and 30, 2004, Leaver opposes the requested subpoena.⁶

Rule 17(c) provides in pertinent part that

The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.

Rule 17(c) is not intended to provide "a means of discovery for criminal cases ... but to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials."⁷ A Rule 17(c) subpoena may not be used for a "general fishing expedition."⁸

The Supreme Court has set out "the simple test a party must meet to enforce a subpoena: `(1) relevancy; (2) admissibility; (3) specificity.'"⁹ "If the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes something useful will turn up, the requirement of specificity will not have been met."¹⁰

The Government's request must be denied, for two reasons. First, Rule 17(c) is intended for the limited purpose of preparation for trial. A Rule 17(c) subpoena may also properly be used to gather documents for a pre-trial or post-trial hearing.¹¹ However, because the indictment here has been dismissed, no trial or hearing date is expected. The stated purpose of the Government's request is to obtain evidence to support an anticipated motion for reconsideration.¹² That is, the Government does not seek the materials in connection with an anticipated hearing, but hopes that, once it has the materials, a hearing may result. To permit a Rule 17(c) subpoena in these circumstances would be to extend the rule far beyond its limits, transforming it from a carefully circumscribed device to expedite trials and hearings into an effectively unlimited tool for discovery and investigation.¹³

Second, the request must be denied because the subpoena cannot produce relevant or admissible evidence. The purpose of the Government's request is to obtain facts not previously presented to the Court for use in an anticipated motion for reconsideration. As Leaver observes, new facts not previously presented to the Court may not generally be offered for the first time in a motion to reconsider.¹⁴

In the closely analogous context of a suppression order, the Second Circuit has held that a district court has broad discretion to permit the Government to introduce new evidence on a motion for reconsideration, "in the interests of justice."¹⁵ The Second Circuit advised that "vague notions of unfairness, that the government should not have `two bites' off the same apple, ought not control."¹⁶ However, Bayless left open the question of whether the Government was required to justify its failure to present the new evidence prior to the district court's ruling. The court observed that "some courts have applied a rule requiring the Government — when it moves for reconsideration of a suppression order on the ground that it can introduce new evidence [] — to proffer a justification for its failure to present the relevant evidence at the original suppression hearing."¹⁷ However, the court further noted that "other courts, citing a policy in favor of introduction of lawfully obtained evidence, have declined to impose such a justification requirement."¹⁸

In Bayless, the Second Circuit did not need to "decide which of these two approaches is preferable, because [it found] that the government adequately justified its decision" not to introduce at the original suppression hearing the new evidence it offered in its motion for reconsideration.¹⁹ The Government's new evidence was the testimony of a police officer, which merely "echoed" that of another officer who had testified at the suppression hearing.²⁰ The Second Circuit found that the Government "had no reason to believe that [the second officer's] testimony would be anything but cumulative."²¹ The court also noted that, at the original suppression hearing, the district court had made comments — e.g., "Really then I think we're at one with respect to the facts" — that might have misled the Government into thinking that additional testimony was not needed.²²

Here, by contrast, it is not possible to avoid choosing between these two approaches. The Government has not offered any valid justification for its failure to seek this evidence prior to the December 13 Order. During the telephone conference on December 29, 2004, the Government attempted to justify its failure by claiming that it was surprised by the weight my decision placed on Leaver's claims relating to his American Express card.²³ This argument is unpersuasive, to say the least. Leaver's intention to move to dismiss the indictment on the basis of his Sixth Amendment right to a speedy trial has been clear since the start of these proceedings.²⁴ The question of whether he was living openly is central to that claim. Leaver's statements relating to his American Express card were prominent in his affidavits and briefs in support of his motion to dismiss. The Government cannot plausibly claim that it did not believe that the evidence sought would have been relevant to the determination of Leaver's claims. It certainly would not have been merely cumulative of evidence already in the record: in fact, the Government had offered no challenge to Leaver's statements.

The Government also stated that it did not expect that I would make findings of fact on the basis of the record that was before me, without holding an evidentiary hearing.²⁵ This contention is baffling. The Government expressly stated that there was no "necessity for a hearing before the Court could resolve the pending motions."²⁶ Leaver's statements regarding his credit card thus stood uncontested.²⁷ The Government could not reasonably expect that I would not make findings of fact in resolving the motion. Clearly, the Government did not expect that it would lose the motion; but that is not a sufficient justification for its failure properly to contest it.

The Government was given ample opportunity to respond to Leaver's statements — indeed, after the Government's initial response failed to address Leaver's Sixth Amendment claim, and failed to offer affidavits in support of the Government's factual allegations, I instructed the Government to file a supplemental brief. During the December 1, 2004 telephone conference, the Government expressly waived the right to a hearing and represented that the motion was ripe for decision on the record as it stood. The Government could have sought this subpoena, or otherwise investigated or challenged Leaver's statements, at any time after receipt of Leaver's affidavit. Indeed, had the Government sought the subpoena...