ROBERT P. PATTERSON, JR., U.S.D.J.
This is an unusual case. Defendant John Sawinski, a forensic chemist employed by the Drug Enforcement Administration ("DEA"), is charged with receiving, concealing and retaining, with intent to convert to his own use, from in or about July 1991 through January 12, 2000, a thing of value to the DEA (i.e. approximately twenty-seven grams of marijuana) knowing it to have been stolen.
The marijuana in question was contained in a sealed DEA evidence envelope, bearing the signature of Defendant and date of July 2, 1991. The marijuana was apparently removed from 4,129 grams of marijuana in order to be sent to the National Institute for Drug Abuse ("NIDA") for special testing, as reflected by a DEA-7 form completed by Defendant and dated July 10, 1991. NIDA never received the sample. The evidence envelope containing the twenty-seven grams of marijuana was discovered in the back seat area of a blue 1983 Ford LTD., registered in the name of Defendant's deceased father-in-law. Defendant purchased the 1983 Ford LTD. several years ago at an auction of used DEA vehicles.
The marijuana was discovered on January 22, 2000, by an employee of a towing service employed by the New York City Police Department ("NYPD"). The NYPD called the towing service in response to an unidentified call to the police complaining that the car, which was parked on a corner near Defendant's home, was "abandoned." Defendant maintains he is being framed due to his less than favorable testimony about another chemist in the Northeast Regional Laboratory of the DEA in connection with a loss of six kilos of cocaine reported on December 31, 1996. (Letter of Kevin J. Keating, Esq., dated Nov. 1, 2000.)
Defendant's subpoena requests from the DEA all records pertaining to the DEA's Office of Professional Responsibility ("OPR") case #PR-B3-97-0040, subject name Adrian S. Krawczeniuk. By letter, Defendant specifically requests: 1) a compilation of the procedures in effect at the Northeast Regional Laboratory; 2) photographs of the relevant areas within the Laboratory; 3) sworn statements of the other chemists at the laboratory; and 4) other documentary evidence relevant to the ability of chemists to engage in unauthorized removal of controlled substances from the Northeast Regional Laboratory. (Letter of Kevin I. Keating, Esq., dated Nov. 1, 2000.) On October 31, 2000, the government moved to quash the subpoena. (Letter of Lawrence Gerschwer, Esq., dated Oct. 31, 2000.)
Federal Rule of Criminal Procedure 17(c) provides for a subpoena for the production of documentary evidence and of objects. "The court on motion made promptly may quash or modify," the subpoena if compliance would be unreasonable or oppressive." FED. R. CRIM. P. 17(c). The court may direct that the books, papers, documents or object designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered into evidence, and may permit the documents or objects sought in the subpoena to be inspected by the parties and their attorneys. See id.
Under Rule 17(c), the Court is to determine the reasonableness of a subpoena. See United States v. Nixon, 418 U.S. 683, 699-700 (1974). InUnited States v. Nixon, the Supreme Court held that the party seeking a Rule 17(c) subpoena had to clear three hurdles to defeat a motion to quash: 1) relevance; 2) admissibility; and 3) specificity. See id. at 699. If the material sought, however, is only admissible for impeachment purposes, then it will not be sufficient to meet the requirements of Rule 17(c). See Id. at 701 see also United States v. Cherry, 876 F. Supp. 547, 553 (S.D.N.Y. 1995). Similarly, "[i]f the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up," the requirement of specificity will not have been met. United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991).
In United States v. Nixon, the Supreme Court upheld the use of a Rule 17(c) subpoena of a third-party co-conspirator's tape recordings and documents by the prosecution. Here, the defense seeks evidentiary material for an affirmative defense. It is equally important that defendants have access to evidence for an affirmative defense as it is that prosecutors have access to evidence to prosecute a defendant.
The subpoena at issue here, as modified by defense counsel's letter of November 1, 2000, appears to meet the specificity requirement, since the records are limited to the investigation entitled OPR case PR-B3-97-0040 and since Defendant has specified what he believes to be contained in the documents he seeks. Furthermore, the "compilation of procedures" to be followed by chemists in the Northeast Regional Laboratory at the time of the drug loss in the Krawczeniuk case is relevant and admissible since those procedures were in effect during the time period within which this misdemeanor is alleged to have occurred, between 1991 — January 12, 2000. Similarly, the photographs would be relevant and admissible as they would be of the premises on which the marijuana was stored. Thus both demands are relevant and admissible as evidence to prove the opportunity of a chemist with motive to gain access to the marijuana exhibit and place it in Defendant's automobile.
As for the testimony of chemists in the DEA administrative proceeding and other materials, since the defendant is not a supervisor at the Northeast Regional Laboratory and did not conduct the OPR investigation, his specific knowledge of the contents of the file requested is necessarily limited. Accordingly, it seems unreasonable for the Court to require greater specificity than that contained in the subpoena in this regard. At oral argument, defense counsel acknowledged that the testimony of the DEA chemists and other materials sought would not be evidence admissible at trial, and thus are not properly discoverable pursuant to a Rule 17(c) subpoena.
The government also contends by letter dated November 6, 2000, that Defendant's subpoena should be quashed on the basis of the "law enforcement privilege," which serves to "prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation." In re Dep't of Investigation, 856 F.2d 481, 484 (2nd Cir. 1988). "However, the law enforcement investigatory privilege is qualified. The public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information." In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988) (remanding issue to the district court to weigh the factors in a private litigant's discovery request against the SEC which invoked the law enforcement privilege). The interests protected by the "law enforcement privilege" will not be compromised by the government's production of the "compilation of procedures" to be followed by chemists in the Northeast Regional Laboratory at the time of the drug loss or by production of the photographs of the Northeast Regional Laboratory.
The D.C. Circuit noted that the district court in making its determination should balance factors such as: "1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; 2) the impact upon persons who have given information of having their identities disclosed; 3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; 4) whether the information sought is factual data or evaluative summary; 5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or likely to follow from the incident in question; 6) whether the police investigation has been completed; 7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; 8) whether the plaintiff's suit is non-frivolous and brought in good faith; 9) whether the information sought is available through other discovery or from other sources; [and] 10) the importance of the information sought to the plaintiff's case." In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988).
At oral argument, the government acknowledged that it will rely at trial on laboratory documents evidencing Defendant's possession of the DEA evidence envelope containing the marijuana. Defense counsel argued that the government should produce as Brady material any OPR documents demonstrating that the inventory records at the Northeast Regional Laboratory did not accurately account for the movement of controlled substances within the laboratory. After hearing extensive argument, the Court orders that the government produce to the defense prior to trial any documents in the possession of the Office of Professional Responsibility of the DEA finding that the inventory control records kept within the Northeast Regional Laboratory during the period of 1991 to January 12, 2000, did not accurately reflect the transfer of controlled substances from one employee to another employee within that laboratory.
IT IS SO ORDERED.