Opinion
16-CR-387 (JMF)
02-16-2022
UNITED STATES OF AMERICA v. LUIS BLONDET and JULIO MARQUEZ-ALEJANDRO, Defendants.
MEMORANDUM OPINION AND ORDER
JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE
On January 30, 2022, Defendants Luis Blondet and Julio Marquez-Alejandro filed a letter motion under seal seeking approval, pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, to serve a subpoena on the Bureau of Prisons (the “BOP") requesting various “prison records” for purported Government witnesses “who have been or are presently in federal custody.” That motion is denied, substantially for the reasons set forth in the Government's opposition of February 11, 2022 (“Gov't Opp'n”). Put simply, the subpoena fails to satisfy the specificity, relevancy, and admissibility requirements established by United States v. Nixon, 418 U.S. 683, 699-700 (1974). See Gov't Opp'n 3 (citing cases quashing nearly identical subpoenas).
The original letter motion appears to have been filed on behalf of Marquez-Alejandro alone, but counsel for Blondet also signed the reply. Accordingly, the Court treats the motion as a joint motion from both Defendants.
In their reply of February 14, 2022 (“Defs.' Reply”), Defendants cite United States v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008). Tucker has indeed “been criticized.” Defs.' Reply 10. In fact, “the Second Circuit and district courts in this Circuit have almost unanimously” deviated from Tucker and “‘applied the Nixon standard to Rule 17(c) subpoenas requested by a defendant.'” United States v. Cole, No. 19-CR-869 (ER), 2021 WL 912425, at *3 (S.D.N.Y. Mar. 10, 2021) (quoting United States v. Bergstein, 788 Fed.Appx. 742, 746 (2d Cir. 2019) (summary order)). Accordingly, the Court declines to follow Tucker and applies Nixon itself.
Notably, in their reply, Defendants barely focus on Rule 17. Instead, their primary focus is on the Government's obligation to disclose information pursuant to Giglio v. United States, 405 U.S. 150 (1972). But the question of whether the Government has complied with its obligations under Giglio (and, more broadly, Brady) is distinct from the question of whether Defendants are entitled to a subpoena under the Nixon standard. As for Giglio, Defendants are on firm ground in arguing that the Government's obligations extend to all hearsay declarants, including non-testifying co-conspirators whose statements the Government seeks to introduce at trial. See, e.g., United States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003); United States v. Percoco, No. 16-CR-776 (VEC), 2018 WL 9539131, at *1 n.1 (S.D.N.Y. June 14, 2018). Defendants may be on less firm ground, however, in suggesting that the Government has an obligation to acquire and disclose BOP records and information that is not in possession of the prosecution team. See, e.g., Gist v. United States, No. 16-CR-656-6 (GHW), 2021 WL 3774289, at *17 (S.D.N.Y. Aug. 24, 2021) (“The Government's Brady obligations in this case did not extend to materials that it did not know about but were in the possession of the BOP.”); United States v. Noel, No. 19-CR-830-2 (AT), 2020 WL 12834537, at *3-4 (S.D.N.Y. June 9, 2020) (“The court cannot find that the government is in constructive possession of the materials where, as here, defendant has not presented any evidence suggesting that BOP was involved in the investigation or prosecution of this case.” (quoting United States v. Rivera, No. 13-CR-149 (KAM), 2015 WL 1540517, at *3 (E.D.N.Y. Apr. 7, 2015))). In any event, for now, the Court accepts the Government's prior representations that it is aware of, and will comply with, its disclosure obligations - mindful that the Court will be deeply unhappy (to put it mildly) if the timing of any Government disclosure results in delays to or during the trial.
Finally, the Court agrees with the Government that there is no basis to keep the parties' submissions under seal in their entirety - and that they should be publicly filed with the names and other personal identifiers of the purported witnesses redacted. See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). No later than February 18, 2022, the parties shall confer with respect to what redactions, if any, would be appropriate and file their submissions on ECF. The Court will maintain the unredacted versions under seal.
SO ORDERED.