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United States of America v. Jacquel Crews

January 12, 2012

UNITED STATES OF AMERICA
v.
JACQUEL CREWS



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Second Superseding Indictment No. 10-663 charges Defendant Jacquel Crews with one count of conspiracy to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base ("crack"), in violation of 21 U.S.C. § 846 (Count Five), and thirteen counts of laundering of monetary instruments in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i) (Counts Eight - Twenty). He is scheduled to be tried on these charges beginning on February 27, 2012. Presently before the Court is Crews's Motion "For Issuance of Subpoenas Duces Tecum Pursuant to Fed. R. Crim. P. 17(c)." We held a hearing on the Motion on January 4, 2012. For the reasons stated below, we deny the Motion.

I. BACKGROUND

The Second Superseding Indictment alleges that Crews participated in a multi-million dollar cocaine and crack cocaine distribution association based in the Frankford section of Philadelphia (the "Frankford DTA"), which engaged in the trafficking of hundreds of kilograms of cocaine and crack cocaine in Philadelphia from 1995 through 2007. As part of this conspiracy, Crews allegedly provided money for the purchase of multi-kilogram quantities of cocaine; purchased multi-kilogram quantities of cocaine; received deliveries of cocaine; manufactured crack cocaine for sale; packaged cocaine and crack cocaine; and supplied cocaine and crack cocaine to other individuals for sale. The Frankford DTA is alleged to have generated millions of dollars in gross receipts and profits from its drug trafficking activities, and the Second Superseding Indictment also charges Crews with laundering those proceeds through the purchase and mortgaging of real estate in Philadelphia.

Crews's Motion concerns two individuals who have been identified as witnesses who will testify against Crews at his trial. The first is Craig Lofton, who is alleged in the Second Superceding Indictment to be another member of the Frankford DTA who participated in the purchase and packaging for resale of kilogram quantities of cocaine. The second individual is James Miller, who is alleged in the Second Superceding Indictment to have purchased cocaine from Crews between 2003 and 2006 and to have sold cocaine to Crews in 2006.

Lofton and Miller were both arrested in October 2006, and have both entered guilty pleas to drug trafficking crimes. Since his 2006 arrest, Lofton has been held in the Federal Detention Center-Philadelphia ("FDC"), the Salem County Correctional Facility, the Berks County Prison, and the Lehigh County Prison. James Miller has been held since his arrest in the FDC, the Salem County Correctional Facility; the Northern Neck Regional Jail, and the Northeast Ohio Correctional Center.

Crews contends that Lofton and Miller have colluded in coercing and coordinating testimony of several other individuals who Crews expects to testify against him at trial. Crews has, accordingly, moved for an order allowing the issuance of subpoenas duces tecum addressed to all of the institutions in which Lofton and Miller have been incarcerated since their arrests. Each subpoena seeks the pre-trial production of Lofton's and Miller's recorded phone calls and visitor logs. Together, the subpoenas seek the production of the recordings of every phone call made by Lofton and Miller for over five years, in addition to a listing of every single individual who has visited Lofton and Miller for the same time period.

II. LEGAL STANDARD

A subpoena duces tecum issued pursuant to Federal Rule of Criminal Procedure 17(c) "may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence." Fed. R. Crim. P. 17(c)(1). If the court orders that the requested documents be produced prior to trial, the court may also permit the parties to inspect the documents prior to trial. Id. The Supreme Court has recognized that Rule 17(c) is "not intended to provide a means of discovery for criminal cases;" rather, "its chief innovation [is] to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials." United States v. Nixon, 418 U.S. 683, 698-99 (1974) (footnote omitted) (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)). Consequently, Rule 17(c) provides only for the subpoena of documents or other materials that are "'admissible as evidence.'" United States v. Cuthbertson, 630 F.2d 139, 144 (3d Cir. 1980) (quoting Bowman, 341 U.S. at 221). We must therefore "'be careful that [a] Rule 17( c) [subpoena] is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.'" United States v. Eisenhart, 43 F. App'x 500, 505 (3d Cir. 2002) (alterations in original) (quoting Cuthbertson, 630 F. 2d at 146).

The United States Court of Appeals for the Third Circuit has also cautioned that "[t]he fact that requested material may be evidentiary and subject to subpoena at trial under Bowman does not mean that the party seeking production is automatically entitled to pretrial production and inspection." Cuthbertson, 630 F.2d at 145. In order to obtain documents pursuant to a Rule 17(c) subpoena prior to trial, a defendant must establish the following four elements:

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."

Nixon, 418 U.S. at 699-700 (footnote omitted) (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952)). Moreover, while documents to be used for the impeachment of a government witness may be subject to subpoena pursuant to Rule 17(c), they are not ordinarily subject to pre-trial production:

[R]ule 17(c) permits a party to subpoena materials that may be used for impeaching a witness called by the opposing party, including prior statements of the witness. . . . . However, because such statements ripen into evidentiary material for purposes of impeachment only if and when the witness testifies at trial, impeachment statements, although subject to subpoena under rule ...


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