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UNITED STATES v. MESSERCOLA

December 1, 1988

UNITED STATES OF AMERICA, Plaintiff,
v.
LOUIS MESSERCOLA AND THOMAS ACQUAVIVA, Defendants



The opinion of the court was delivered by: LECHNER, JR.

 Darryln Cottage ("Cottage") moves to quash the trial subpoena issued by this court requiring that she submit to photographing by the Federal Bureau of Investigation. Cottage asserts that the subpoena violates her fourth amendment rights and that the Government failed to obtain the subpoena in accordance with Fed. R. Crim. P. 17(c). For the reasons which follow, Cottage's motion is denied.

 Factual Background

 On October 7, 1988, an indictment was returned charging defendants Louis Messercola and Thomas Acquaviva with violations of the Hobbs Act, 18 U.S.C. ยง 1951. Count One of that indictment charges defendant Messercola with extortion. Specifically, the Government alleges that Messercola conspired "to obtain for another individual a townhouse located at 123 Easedale 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.

 Discussion

 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). *fn1" 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). *fn2"

  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 ...


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