Road, Wayne, New Jersey, at a purchase price below market value and with extras at no additional charge from a representative of [a development company] with his consent induced by wrongful use of fear of financial injury and under color of official right." See Indictment at para. 2.
Based on the representations of the Assistant United States Attorney, it appears that the "individual" referred to in the indictment is Cottage and that she is a close friend of Messercola. See Imbert Affidavit in Support of Application for Subpoena ("Imbert Affidavit") para. 2; Government's Initial Brief at 2. The Government argues that in order to confirm observations of potential witnesses who have seen Messercola with a woman believed to be Cottage, it is necessary that they be shown a photographic array which includes a photograph of Cottage.
On October 24, 1988, the Government contacted Cottage's attorney and requested that she voluntarily submit to photographing. Counsel for Cottage informed the Government that his client would not submit to photographing unless compelled by subpoena. Imbert Affidavit para. 3. A subpoena was issued by this court on October 25, 1988 pursuant to Fed. R. Crim. P. 17(c), directing that Cottage submit to photographing by the Federal Bureau of Investigation. Cottage refused to obey the subpoena.
The attack by Cottage on the validity of the subpoena is twofold. First, she charges that the subpoena in this case constitutes an unlawful seizure in violation of the fourth amendment. Cottage next argues that Rule 17(c) does not give a basis for the issuance of the subpoena.
In her initial motion papers to quash the subpoena, Cottage ignored the leading case on the validity of subpoenas for physical evidence, United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973).
Dionisio established that a grand jury subpoena to present physical evidence does not constitute a search and seizure within the meaning of the fourth amendment. 410 U.S. at 9.
A properly authorized grand jury subpoena is not "that kind of governmental intrusion on privacy against which the fourth amendment affords protection." Fraser v. United States, 452 F.2d 616, 620 (7th Cir. 1971). The authority of a grand jury to subpoena citizens to present testimony and evidence is founded upon the longstanding principle that "the public has a right to every [person's] evidence." Branzburg v. Hayes, 408 U.S. 665, 682, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972). The obligation to give evidence before a grand jury has been deemed the "personal sacrifice" which is "part of the necessary contribution of the individual to the welfare of the public." Dionisio, 410 U.S. at 10 (quoting Blair v. United States, 250 U.S. 273, 281, 63 L. Ed. 979, 39 S. Ct. 468 (1919)).
Cottage seeks to distinguish Dionisio and its progeny by pointing out that the Government subpoena in this case does not issue from a grand jury. However, she provides no legal basis for this distinction. Similar efforts to limit the holding of Dionisio to the grand jury process have been unsuccessful. United States v. Woods, 544 F.2d 242 (6th Cir. 1976), cert. denied, 429 U.S. 1062, 50 L. Ed. 2d 778, 97 S. Ct. 787 (l977); United States v. Franks, 511 F.2d 25, 32 (6th Cir.), cert. denied, 422 U.S. 1042, 45 L. Ed. 2d 693, 95 S. Ct. 2656, 95 S. Ct. 2654 (1975).
Although the use of trial subpoenas appears less frequently in reported decisions, the invocation of Rule 17(c) to support the subpoena of physical evidence is well accepted. See United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974) (court ordered subpoena of documents from a third party upheld); United States v. Vanegas, 112 F.R.D. 235 (D.N.J. 1986) (government's motion for order to compel production of handwriting exemplar pursuant to pretrial Rule 17(c) subpoena granted); United States v. McKeon, 558 F. Supp. 1243 (E.D.N.Y. 1983) (motion of defendant's wife to quash pretrial Rule 17(c) government subpoena of handwriting exemplar denied); United States v. Witt, 542 F. Supp. 696 (S.D.N.Y.), aff'd 697 F.2d 301 (2d Cir. 1982) (motion to quash pretrial Rule 17(c) subpoena of documents in witness' possession denied). In Vanegas, the court explained: "Courts have consistently compelled production of physical evidence such as handwriting exemplars post-indictment and pretrial upon the government's request without reference to any precise procedural mechanism for their production." 112 F.R.D. at 237.
The principles supporting the use of grand jury subpoenas apply with equal force to trial subpoenas. The subpoenaed individual has a legal responsibility to comply with lawful and reasonable directives to produce evidence. Cottage, however, argues that the subpoena in this case is not lawful.
Characterizing the pretrial subpoena of her photograph as an "investigatory seizure," Cottage invokes Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969) to support the proposition that the detention of a non-defendant in order to obtain physical evidence constitutes a seizure in violation of the fourth amendment. Cottage's application of Davis is misplaced.
In Davis, it was the initial seizure of the individual that was unconstitutional. As the court in Dionisio recognized, Davis is "plainly inapposite to a case where the initial restraint does not itself infringe the Fourth Amendment." 410 U.S. at 11. In the case at bar, the "restraint" imposed upon Cottage -- submitting to being photographed -- is analogous to the restraint imposed to obtain handwriting, voice and fingerprint exemplars which has been upheld by numerous courts. The compelled production of this type of physical, non-testimonial evidence does not constitute an unreasonable intrusion into protected privacy interests. The fourth amendment provides no protection "for what 'a person knowingly exposes to the public.'" Id. at 14 (quoting Katz v. United States, 389 U.S. 347 at 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 at 511.
By compelling Cottage to display her likeness, nothing is revealed "that has not previously been exposed to the public at large." Dionisio, 410 U.S. at 14.
The second argument advanced by Cottage rests upon the procedural prerequisites of Rule 17(c). She asserts that the Government failed to provide adequate support for its subpoena application and improperly seeks to use Cottage's photograph in furtherance of its preparation for trial. Cottage correctly points out that Rule 17(c) is not meant to provide additional means of discovery beyond Fed. R. Crim. P. 16. Vanegas, 112 F.R.D. at 238 ("Rule 17(c) is a device solely for the obtaining of evidence for the use of the moving party at trial, and which may permit him to examine the material obtained before trial only when, in the discretion of the court, it is necessary that he do so in order to make use of the material as evidence").
Although Rule 16 provides the sole means for discovery in a criminal case, it does not set limits on the scope of evidence which a party may gather. As the Court explained in Bowman Dairy Co. v. United States : "No good reason appears to us why evidentiary materials may not be reached by subpoena under Rule 17(c) as long as they are evidentiary. That is not to say that the materials subpoenaed must actually be used in evidence. It is only required that a good faith effort be made to obtain evidence." 341 U.S. 214, 219, 95 L. Ed. 879, 71 S. Ct. 675 (1951).
A pretrial subpoena issued in accordance with Rule 17(c) is used as a convenient and time saving tool for trial preparation. Either the Government or defendant can invoke Rule 17(c). Vanegas, 112 F.R.D. at 237. The purpose of the rule was to prevent delays during trial by providing "a time and place before trial for the inspection of subpoenaed materials." Bowman Dairy Co., 341 U.S. at 220 (emphasis in original); United States v. Ferguson, 37 F.R.D. 6, 7 (D.D.C. 1965). Given the difficulties inherent in preparing for a complex and lengthy criminal trial, "the benefits that arise from requiring [pretrial] production . . . from a nonparty witness far outweigh the speculative inconveniences." Witt, 542 F. Supp. at 698.
In order to justify pretrial production of physical evidence and the issuance of a Rule 17(c) subpoena to third parties, the movant must show:
(1) that the [physical evidence is] evidentiary and relevant;