United States v. Nix, 6:14-CR-06181 EAW.

• Decision Date: 03 May 2017
• Docket Number: 6:14-CR-06181 EAW.
• Citation: 251 F.Supp.3d 555
• Parties: UNITED STATES of America, v. Matthew NIX and Earl McCoy, Defendants.
• Court: U.S. District Court — Western District of New York

251 F.Supp.3d 555

UNITED STATES of America,

v.Matthew NIX and Earl McCoy, Defendants.

6:14-CR-06181 EAW.

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

Signed May 3, 2017

Robert Marangola, U.S. Attorney's Office, Rochester, NY, for United States of America.

Mark D. Hosken, Federal Public Defender, Rochester, NY, for 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^th 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 "itsjusdifferent" (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_thebad1 3) meech_iz_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 governmental agency, concerning four separate telephone numbers.

6. Subpoena directed to Verizon (id. at 21–22), returnable to the undersigned's Chambers on March 31, 2017, at 8:30 AM, seeking, in sum and substance, communications with the FBI, U.S.Attorney's office, or other governmental agency, concerning six separate telephone numbers.

7. Subpoena directed to AT&T (id. at 24–25), 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 governmental agency, concerning one telephone number.

8. Subpoena directed to Sprint (id. at 27–28), returnable to the undersigned's Chambers on March 31, 2017, at 8:30 AM, seeking, in sum and substance, communications with the FBI, U.S.Attorney's office, or other governmental agency, concerning one telephone number.

(Dkt. 283–1). Before the status conference on March 29, 2017, the Court had received responses to two of the above subpoenas, from the New York State Division of Criminal Justice Services and the Seneca County Sheriff (referenced above at numbers 2 and 4). Those responses are what caused the Court to question defense counsel further at the status conference and learn that additional subpoenas had been served, with no prior Court approval. In view of the pending motions, the Court has not released the responses received to the identified two subpoenas. No further responses have been received by the Court. In addition, in response to the Government's request, the Court stayed compliance with the subpoena, identified above at number 3, that was issued by Nix to the FBI. (Dkt. 280). Defendants then served their papers in opposition to the motions to quash on April 6 and 7, 2017. (Dkt. 285; Dkt. 288).

SUBPOENAS DURING TRIAL

Before addressing the current dispute pending before the Court, it is necessary to provide some context to the use of subpoenas in the trial—particularly the practice engaged in by counsel for Nix. This is not the first time that issues have arisen in this case with respect to subpoenas served by defense counsel. Previously, Facebook, Inc. and Instagram LLC moved to quash two subpoenas served by Nix, and the Court granted that motion on the ground that the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. , does not permit a defendant in a criminal case to subpoena the content of a Facebook or Instagram account. (Dkt. 240).

In addition, Nix filed several motions in advance of and during the trial seeking subpoenas. (See Dkt. 187 (seeking subpoena for jail calls involving Nix at Yates County Jail, subpoena for Facebook posts of Kalyn Camacho, and a subpoena for records involving a traffic stop of Nix on October 7, 2014); Dkt. 191 (seeking subpoena for jail calls involving Nix at Livingston County Jail, and subpoena for Facebook account of Jecovious Barnes from September 1, 2014, until November 1, 2014); Dkt. 208 (seeking subpoena for 911 calls and a U.S. Army investigation, all related to Norman Sandoval); Dkt. 227 (seeking subpoena for documents concerning U.S. Army investigation of Norman Sandoval); Dkt. 256 (seeking to compel compliance with subpoenas addressed to Rochester City Police)). The Court granted Nix's requests for subpoenas in part and denied the requests in part. (Dkt. 201; Dkt. 224; Dkt. 234; Dkt. 259).

By the Court's estimation, Defendants served in excess of a dozen subpoenas in this case, most without judicial approval. Rule 17 ordinarily does not require the Court's approval for the issuance of a subpoena made returnable during trial. United States v. Vo , 78 F.Supp.3d 171, 178 (D.D.C. 2015) (" Rule 17 first creates a general rule: Subpoenas are issued without the court's involvement when they command the recipient's presence and possibly the production of documents at a particular hearing."); United States v. Beckford , 964 F.Supp. 1010, 1015 (E.D. Va. 1997) (explaining that the process of procuring a Rule 17 trial subpoena ...