U.S. v. Buck, 1986 WL 14970 (S.D.N.Y.)

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

*1 Defendant Marilyn Buck requests a subpoena duces tecum pursuant to Rule 17(c), F.R.Crim.P., directing the Federal Bureau of Investigation ("FBI") to produce the following:

"Any and all documents, memoranda, letters or files in the possession of the Joint Terrist [sic] Task Force, the National Office, or Regional Offices covering California, Oregon, Connecticut, Baltimore, New Jersey and New York, concerning, naming or about MARILYN BUCK, from January, 1965 until thepresent [sic]."

I have not yet endorsed that subpoena. The Government moves to quash it. Because the subpoena has not been signed, it is perhaps more accurate to say that the Government moves that the subpoena be withheld. For the reasons which follow, that motion is granted.

Defendant seeks pretrial production of the designated documents. Even if material may be evidentiary and subject to subpoena at trial, the party seeking production is not automatically entitled to pretrial production and inspection. United States v. Nixon, 418 U.S. 683, 699-700 (1974) summarizes what a party in a criminal case must show to obtain those rights prior to trial:

"(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.' " (footnoted omitted).

See also, United States v. Cuthbertson, 630 F.2d 139, 145 (3rd Cir.1980).

It is now well settled that since the 1966 amendments to Rule 16, F.R.Crim.P., which significantly expanded the scope of pretrial discovery, the discoverability of items under Rule 16 determines whether those items are subject to a Rule 17(c) subpoena. Xydos v. United States, 445 F.2d 660, 664 n. 8 (D.C.Cir.1971), cert. denied, 404 U.S. 826 (1972). United States v. Cuthbertson, supra, specifically cautions:

"Courts must be careful that Rule 17(c) 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." Id. at 146.

The discovery boundaries of Rule 16, which under the cited authorities also limit Rule 17(c) subpoenas, include the inspection and copying by a defendant of documents within the possession, custody or control of the Government "and which are material to the preparation of [her] defense...." Rule 16(a)(1)(C). However, "[t]o obtain discovery under Rule 16(a)(1)(C), a defendant must make a prima facie showing of materiality.... A general description of the material sought or a conclusory argument as to their materiality is insufficient to satisfy the requirements of Rule 16(a)(1)(C)." United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir.1984), and cases cited; United States v. Shoher, 555 F.Supp. 346, 353 (S.D.N.Y.1983).

*2 Judged by these criteria, it is obvious that the defendant's subpoena of all FBI documents "concerning, naming or about" her over the past 22 years cannot be sustained.

The brief for Ms. Buck in support of the subpoena argues that she "first came to the attention of the FBI and other investigative agencies in 1965 when she moved to Berkeley, California to attend college," and became involved in political activism. The brief argues further that "the FBI's COINTELPRO program targeted groups with which Ms. Buck was associated," id. at 2. The brief goes on to describe certain events which subsequently befell Ms. Buck, including adverse comments made about her at the time of sentencing before federal judges following her conviction on crimes unrelated to the present indictment.

One may readily accept the general proposition that the FBI's COINTELPRO programs [n. 1] did not represent that agency's finest hour. See Book III of the Final Report of the Select Committee to Study Governmental Operations With Respect to Intelligence Activities, United States Senate, dated April 23, 1976 (the "Church Committee Report"), which details "the FBI's Covert Action Program to Destroy the Black Panther Party." See also the related staff report entitled "COINTELPRO: The FBI's Covert Action Programs Against American Citizens," referred to in fn. 1 of the cited report. For a more recent description of the multiple illegalities of an FBI COINTELPRO operation, see Judge Griesa's 210-page decision following trial in Socialist Workers Party v. The Attorney General of the United States, S.D.N.Y. Dkt. No. 73 Civ. 3160 (TPG) (decided August 25, 1986). [n. 2]

I will also assume, for the purposes of this motion, that Ms. Buck herself and organizations to which she belonged have at some time in the past been subject to illegal government operations.

But I am not concerned in the case at bar with a demand for discovery in a civil action commenced by Ms. Buck against the responsible agents of government. This is a criminal case, in which a grand jury of this district has returned an indictment against Ms. Buck charging her with specific crimes committed over a specific time period. And it is well recognized that discovery in criminal cases is far more narrow than that which obtains in civil cases.

The only arguments in the brief in support of the subpoena dealing with relevance or materiality appear at pp. 6-7. It is there said:

"The FBI files are relevant on the question of bias and prejudice of government agents and informants. They are admissible to show how Rison's story has been tailored to fit the government's theory and to show the government's motivation to fabricate evidence against Ms. Buck."

* * *

Ms. Buck's state of mind in 1977 is relevant to explain why she did not return to prison and why she was living clandestinely. The government's efforts to criminalize Ms. Buck's political belief in support for the Black liberation movement as a principle of the anti-imperialist movement are relevant to show her state of mind during the time of the charged conspiracy."

*3 The "Rison" mentioned in what I have quoted is a reference to one Tyrone Rison, a witness cooperating with the Government, whom Ms. Buck identifies in her brief at 3 as "the only government witness who is able to put Ms. Buck in the conspiracy" charged in the indictment.

I will deal first with the claimed relevance of the subpoenaed documents to Ms. Buck's state of mind. I will assume without deciding that at trial the Government will be entitled to offer proof of Ms. Buck's failure to return to a federal prison after having been granted a furlough in 1977, and her clandestine life thereafter until she was apprehended earlier this year. If that sort of evidence comes in, it would be material for Ms. Buck to testify as to her state of mind at the time, in explanation of her actions. In that connection, she may also describe whatever manifestations of Government surveillance, licit or illicit, that had come to her attention and influenced her thinking at the pertinent times.

On this aspect of the case no legitimate evidentiary purpose would be served by requiring the Government to disgorge all documents referring to Ms. Buck since 1965. To the extent that such documents describe activities of which Ms. Buck was not aware, they are not material to her state of mind. And even with respect to Buck's perceived fears or concerns, the accuracy of her beliefs is not relevant to the issue. United States v. Bissonett, 586 F.2d 73, 78 (8th Cir.1978). Thus there is no basis in law for requiring production of documents in order to demonstrate whether or not whatever beliefs defendant may have held were factually accurate.

The other assertions of relevance or materiality in the brief contain two entirely general and conclusory assertions; and one somewhat more specific reference. It is said that the FBI files are relevant "on the question of bias and prejudice of government agents and informants"; and to show "the government's motivation to fabricate evidence against Ms. Buck." Whatever "bias and prejudice" may have been harbored against Ms. Buck since 1965 by "government agents and informants," a grand jury of this district, on the basis of evidence presented to it, has returned a facially valid indictment against Ms. Buck for specified crimes. The admissibility of the Government's evidence will be tested during the pretrial and trial stages; and, in respect of any "government agents and informants" who appear as witnesses at trial, the disclosure requirements of the Jencks Act and the Brady rule will apply. Those disclosure requirements also apply, of course, to the Government's proposed witness Rison, the only particular indication of materiality referred to in defendant's motion papers. Furthermore, as to Rison the Government does not resist a subpoena calling for the production of his military records, including but not limited to medical and psychiatric records, court materials, and Article 15 proceedings, and I have signed a subpoena accordingly.

*4 I decline to sign the subpoena in question. I understand that the issues of the Rison subpoenas have now been resolved by counsel.

The foregoing is SO ORDERED.

n. 1. "COINTELPRO" is an abbreviation for "counterintelligence program."

n. 2. Judge Griesa's opinion also demonstrates that on April 5, 1976 and again on March 7, 1983, the Department of Justice issued guidelines intended to put an end to the FBI's investigatory improprieties. Slip op. at 115-119.