United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: THIRD-PARTY RICHARD
REEDER'S MOTION TO QUASH (DOCKET ENTRY # 106);
THIRD-PARTY NORTH TEXAS PACKING, INC.'S MOTION TO QUASH
(DOCKET ENTRY # 109)
MARIANNE B. BOWLER United States Magistrate Judge.
before this court are two, substantially identical motions
filed by the subjects of two, pretrial subpoenas duces tecum,
Richard Reeder (“Reeder”) and North Texas
Packing, Inc. (“North Texas”). (Docket Entry ##
106, 109). Reeder and North Texas move to quash the subpoenas
as “unreasonable or oppressive” under Fed. R.
Crim. P. 17(c) (“Rule 17(c)”). The Deputy Clerk
issued the subpoenas based on an ex parte application filed
by defendant Jack Ventola (“defendant”). (Docket
Entry # 84). The application described the two subpoenas in
general terms and articulated the relevance, admissibility,
and specificity requirements in United States v.
Nixon, 418 U.S. 683, 699 (1974). (Docket Entry # 81).
opposes the motion (Docket Entry # 116) and supports the
opposition with prior ex parte filings (Docket Entry ## 81,
108). After conducting a hearing on June 1, 2017, this court
took the motions (Docket Entry ## 106, 109) under advisement.
acknowledged by defendant, the subpoenas seek “notes,
contracts, invoices, payments, financial records, emails,
letters and text messages” pertaining to Michael Bruno
(“Bruno”), National Fish & Seafood Company
(“NFS”), and Alpine Investments “for the
relevant time period.” (Docket Entry # 116, pp. 3, 8).
Defendant submits that North Texas and Reeder overstate the
lack of specificity because the Second Superceding Indictment
places the subpoenas in the context of an illicit kickback
scheme over a six year time period. North Texas and Reeder
argue that the 2008 to 2014 time period together with the
broad, open-ended categories of material render the subpoenas
unreasonable and oppressive. They further contend that the
subpoenas are premature and defendant fails to satisfy the
relevance, admissibility, and specificity requirements.
maintains that the materials are relevant and admissible in
light of the kickback described in the Second Superceding
Indictment. According to defendant, North Texas, through
Reeder, effectuated the kickback scheme by issuing checks to
Alpine Investments, an entity controlled by defendant.
(Docket Entry # 116, p. 2). The Second Superceding Indictment
states that, between February 2008 and May 2014, defendant
instructed an unidentified co-owner of a Texas shrimp
repackaging company to increase the amount the company
charged a large seafood processor “and to pay half of
that amount as a kickback to” defendant. (Docket Entry
# 91, ¶ 40). Under the scheme set out in the Second
Superceding Indictment, the company issued checks to Alpine
Investments totaling $411, 927 and defendant “caused
the checks to be deposited into” an Alpine Investments
account and the money thereafter transferred into
defendant's personal bank accounts. (Docket Entry # 91,
defendant argues that North Texas and Reeder's counsel
(“NT counsel”) did not comply with LR. 7.1(a)(2).
In particular, NT counsel initially “indicated that his
clients would comply with the Subpoenas” but stated a
few days later that “his clients would comply so long
as the scope was narrowed.”(Docket Entry ## 116-1,
116-2). On the same day, an associate of defendant's law
firm emailed NT counsel asking for additional information
about the limitation regarding the subpoenas' scope. In a
reply email three days later, NT counsel asked to narrow
“the subpoenas temporally and with respect to the types
of documents covered.” (Docket Entry # 116-2). The
following morning, NT counsel emailed the associate and asked
her to contact him to follow up on the last discussion.
(Docket Entry # 116-2). Without waiting for a reply, North
Texas and Reeder filed the motions to quash the same day.
17(c) allows a defendant to file requests for subpoenas duces
tecum directed to a witness that are returnable prior to
trial. See United States v. Kravetz, 706 F.3d 47, 53
n.2 (1st Cir. 2013) (Rule 17(c) “contemplates subpoenas
duces tecum returnable either at or prior to trial”);
Fed. R. Crim. P. 17(c). One of the “fundamental
characteristics of the subpoena duces tecum in criminal
cases” is that “it was not intended to provide a
means of discovery for criminal cases.” United
States v. Nixon, 418 U.S. 693, 698 (1974); accord
United States v. Henry, 482 F.3d 27, 30 (1st
Cir. 2007). A Rule 17(c) subpoena duces tecum applicant must
show, inter alia, that “the application is made in good
faith and is not intended as a general ‘fishing
expedition.'” United States v. Nixon, 418
U.S. at 700.
North Texas and Reeder filed motions to quash on the basis
that the subpoenas were unreasonable and oppressive. Under
Rule 17(c), a court may quash a subpoena duces tecum
“if compliance would be unreasonable or
oppressive.” Fed. R. Crim. P. The Supreme Court in
Nixon “elucidated the meaning of this
standard” by “holding that a subpoena duces tecum
is not ‘unreasonable or oppressive' if the
proponent establishes relevancy, admissibility, and
specificity.” Stern v. United States Dist. Ct. for
Dist. of Mass., 214 F.3d 4, 17 (1st Cir. 2000) (citing
United States v. Nixon, 418 U.S. at 700). Thus,
defendant, as the party seeking production, has the burden to
“clear three hurdles: (1) relevancy; (2) admissibility;
(3) specificity.” United States v. Nixon, 418
U.S. at 700.
subpoenas do not seek specific documents or even a specific,
discrete set of documents. Rather, the subpoenas request at
least seven broad categories of documents pertaining to two
individuals and two entities over an extensive time period.
The subpoenas therefore fail the specificity hurdle,
invariably will include matters that are not admissible, and
amount to “a general discovery device.”
United States v. Henry, 482 F.3d at 30;
see, e.g., United States v. Rand,
835 F.3d 451, 463 (4th Cir.), cert. denied, 137
S.Ct. 525 (2016) (affirming court's quashing Rule 17(c)
subpoena to third party “to produce ‘accounting
entries, budgets, budget entries, and financial reports for
seven categories of reserve accounts over an eight-year
period--the timeframe of the alleged conspiracy'”).
The breadth of the subpoenas likewise establishes that
defendant intended the subpoenas to operate as a general
fishing expedition. See United States v. Nixon, 418
U.S. at 700.
nevertheless points out, correctly, that this court approved
the subpoenas based on the ex parte application. In signing
the application, however, the Deputy Clerk left the schedule
blank for defendant to complete. Consequently, this court did
not review the actual, expansive language in the schedules
pertaining to the two individuals and two entities for the
time frame of 2008 to 2014. Moreover, Rule 17(c) expressly
provides a “check on the judicial issuance of a
pre-trial subpoena duces tecum--a motion to quash or modify
by the subpoenaed party.” U.S. v. Beckford,
964 F.Supp. 1010, 1028 (E.D. Va. 1997) (examining similar,
albeit prior, version of Rule 17(c)); see 2 Charles
Alan Wright et al., Federal Practice and Procedure
Criminal § 274 n.9 (4th ed.) (recognizing practice
of issuing subpoena duces tecum in blank and that
“‘[p]rotection against abuse is often assumed
adequately provided by the opportunity for motions to quash
or to limit, which can be made before compliance is
due'”). “Where, ” as here, “the
subpoenaed party brings a motion to quash or modify, the
court must reconsider the Nixon standard in
determining whether ‘compliance with the subpoena would
be unreasonable or oppressive.'” Id.
(quoting Rule 17(c) and citing Bowman Dairy Co. v. United
States, 341 U.S. 214, 220 (1951)) (emphasis added).
Having reexamined the Nixon standard with the
benefit of North Texas' and Reeder's briefs, this
court is convinced, as it was with respect to the Brunos'
subpoenas, that the North Texas and Reeder subpoenas
constitute a fishing expedition and fail to satisfy all of
the Nixon requirements.
also seeks production based on a violation of his
constitutional right to a fair trial and to present a
complete defense and access evidence. (Docket Entry # 116).
Defendant maintains that the material is “integral to
understanding the facts of the criminal charges” and
“not motivated by a mere hope of finding potentially
exculpatory evidence.” (Docket Entry # 116, pp. 2, 9).
It is well settled that defendant has a constitutional right
to “be afforded a meaningful opportunity to present a
complete defense.” California v. Trombetta,
467 U.S. 479, 485 (1984). “To safeguard that right, the
Court has developed ‘what might loosely be called the
area of constitutionally guaranteed access to
evidence.'” Id. (quoting United States
v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
“[T]his group of constitutional privileges delivers
exculpatory evidence into the hands of the accused, thereby
protecting the innocent from erroneous conviction and
ensuring the integrity of our criminal justice
17(c), however, “implements the Sixth Amendment
guarantee that an accused have compulsory process to secure
evidence in his favor.” In re Martin Marietta
Corp., 856 F.2d 619, 621 (4th Cir. 1988) (citing
California v. Trombetta, 467 U.S. at 485);
United States v. Beckford, 964 F.Supp. 1010, 1019
(E.D. Va. 1997)); 25 James Wm. Moore et al., Moore's
Federal Practice § 617.02 (3rd ed.)
(“Rule 17(c) implements” Sixth Amendment
guarantee to compulsory process which “is considered
fundamental to the guarantee of due process and a fair
trial”). “Enforcement of a Rule 17(c) subpoena is
governed by the standards” in Nixon, which
require a showing of “(1) relevancy, (2) admissibility,
and (3) specificity with respect to the documents.”
In re Martin Marietta Corp., 856 F.2d at 621. As
explained by one court, “‘The right to defend
oneself does not extend to using the power of the Court to
compel third parties to provide information that may not even
be admissible at trial or at a hearing or that is merely
“investigatory.”'” United States v.
Rand, 835 F.3d at 463 (quoting United States v.
Al-Amin, No. 1:12-CR-50, 2013 WL 3865079, at *8 (E.D.
Tenn. July 25, 2013)). As presently framed, the subpoenas
seek a vast array of material ...