USA v. Eldridge et al

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Case 1:09-cr-00329-RJA Document 487 Filed 08/14/15 Pagelof/7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

V. DECISION AND ORDER
09-CR-329

THAMUD ELDRIDGE, et al.,

Defendants.

Before the Court is the Government’s motion for reconsideration of the
Court’s prior decision granting defendant Eldridge’s motion to subpoena Assistant
United States Attorney (“AUSA”) Joseph Tripi and motion to quash various other
subpoenas. For the following reasons, the Government's motion for
reconsideration is denied and its motion to quash is partially denied, and partially
held in abeyance.

As acknowledged in the Government’s motion, “a defendant who wishes to
call a prosecutor as a witness must demonstrate a compelling and legitimate
reason to do so.” United States v. Regan, 103 F.3d 1072 (2d Cir. 1997); accord
United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975). This Court
has already found that a compelling and legitimate reason exists here. On the
eve of trial, the Government informed defense counsel and the Court that all
physical evidence with regard to the shooting at Buffalo Police Department

Officer Joy Jermain on September 21, 2005 and the home invasion on March 24,

2004 had been destroyed. Evidence from the home invasion was destroyed on
October 1, 2008 and November 23, 2010. Evidence from the shooting was
destroyed on May 16, 2011, after defense counsel filed a discovery motion
requesting all physical evidence related to the investigation and after the firearm
involved in the shooting incident, which was the subject of another hearing, had
been destroyed. The purpose of these hearings is to determine, inter alia,
whether there was any bad faith involved in the destruction of this evidence.
Based upon the information proffered to this Court, as well as testimony provided
by witnesses during the instant hearings, it is apparent that AUSA Tripi has direct,
relevant knowledge about what efforts, if any, were made by the Government to
preserve this evidence, when the Government was first informed about the
destroyed evidence, whether the Government authorized destruction of this
evidence, and the steps taken by the Government both before and after learning
that evidence had been destroyed. The Government essentially argues that this
information is irrelevant and redundant. However, the Court finds that it is central
to the issues at hand. Moreover, since these hearings are taking place before the
Court and not in the presence of the trial jury, there is little to no risk of prejudice
or confusion in eliciting testimony by a member of the prosecution.
The Government’s argument that the Court should reconsider its prior
decision because AUSA Tripi testified in a related case involving defendant
Eldridge, rather than the instant case, is without merit. The Court’s misstatement
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that AUSA Tripi already testified “in this case” was not the primary basis for the
Court’s ruling with respect to the subpoena, but instead was offered in response
to the Government’s argument that the subpoena was a “thinly veiled attempt by
defendant to have the lead prosecutor disqualified from the case.” Regardless of
whether AUSA Tripi testified in this case or in a related case involving the same
defendant, the Court finds that granting defendant’s subpoena, and requiring
AUSA Tripi to testify regarding the narrow topics outlined previously by the Court,
does not “create a very real possibility that AUSA Tripi may be called as a
witness at trial, and thereafter, disqualified.” If the Court determines that
information about the destroyed evidence is admissible at trial, a number of
witnesses other than AUSA Tripi will testify about the chain of custody and the
forensic testing. In challenging the reliability of the evidence, defense counsel
can cross-examine the witnesses as to those subjects and the destruction of the
evidence in general. The Court does not foresee a scenario where AUSA Tripi
will have relevant or necessary trial evidence. That is not the case for these
hearings, where the Court is exploring good or bad faith on the part of the
Government, rather than the general reliability of the evidence or actions taken by
police or agents during the course of the investigation.
Indeed, the Government’s reliance on language from this Court’s January
31, 2012 Decision and Order is misplaced and does not advance the
Government’s arguments. Therein, this Court denied defendant Eldridge’s
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motion to disqualify both the United States Attorney’s Office for the Western
District of New York as well as AUSA Tripi because “the probability that AUSA
Tripi would taint any eventual trial by becoming a witness, while not zero, is too
low right now for the aggressive remedy of disqualification.” The same scenario
is presented here. The Court finds little to no probability that AUSA Tripi will be a
necessary trial witness, and the Government fails to offer a persuasive argument
to the contrary. Moreover, even if AUSA Tripi did have relevant or necessary trial
testimony, that issue would remain unchanged regardless of whether he testifies
in these proceedings.
With respect to the Government’s request that defendant Eldridge be
required to comply strictly with the Department of Justice’s Touhy Regulations,
the Court notes that defense counsel’s previous motion requesting the subpoena
provided a summary of the testimony sought. In a colloquy with counsel at the
conclusion of the last hearing session, this Court explained the limited nature of
the testimony it would permit defense counsel to elicit from AUSA Tripi. Finally,
this Decision and Order clearly outlines the narrow topics that the Court considers
relevant and appropriate.
Finally, the Government asks that this Court deny defendant Eldridge’s
request to issue subpoenas for Erie County District Attorney (“ECDA”) Frank A.
Sedita and ECCPS Laboratory Director Dr. John Simich. Rule 17 of the Federal
Rules of Criminal Procedure provides that “the court may quash or modify the
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subpoena if compliance would be unreasonable or oppressive.” See Fed. R.
Crim. P. 17(c)(2). In some instances, a party to a case has standing to quash a
subpoena issued against a third party or witness if it can show a legitimate
interest. United States v. Humphrey, 2011 U.S. Dist. LEXIS 67857 (WDNY
2011). Courts in this Circuit have recognized that a party has a legitimate interest
in quashing a subpoena issued against a witness if it is “based upon the [the
party’s] interest in preventing undue lengthening of the trial, undue harassment of
its witnesses, and prejudicial over-emphasis on [the witness’s] credibility.” United
States v. Orena, 883 F. Supp. 849, 869 (EDNY 1995). A party also has standing
to quash a third-party subpoena based upon “a claim of privilege or proprietary
interest in the subpoenaed material.” United States v. Reyes, 162 F.R.D. 468
(SDNY 1995). Here, the Government has not sufficiently explained its standing
to object to the subpoenas of Dr. Simich and ECDA Sedita.
Regardless of the parties’ standing, the Court has an independent duty to
review the propriety of the subpoena. Humphrey, 2011 U.S. Dist. LEXIS at *5;
see also United States v. Weissman, 2002 U.S. Dist. LEXIS 24642 (SDNY 2002)
(“the court has a duty to ensure that subpoenas are issued only for proper
purposes and that they are in compliance with Rule 17"). With respect to the
subpoena of Dr. Simich, counsel for defendant Eldridge previously indicated that
he intends to question Dr. Simich regarding DNA testing performed at the ECCPS
laboratory before evidence was destroyed, as well as how other available
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evidence may compare with the destroyed evidence. The Court finds that this
information is relevant for purposes of this hearing, and the Government’s
request to quash the subpoena of Dr. Simich is denied. See United States v.1
Barnes, 411 Fed. Appx. 365 (2d. Cir. 2011) (holding that in showing the missing
or destroyed evidence would play a significant role in his defense, a defendant
must demonstrate, inter alia, “the evidence was of a such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means”).
As to the testimony of ECDA Sedita, the Court is unaware, at this time, of
the exact subject and nature of the testimony sought as well as the basis of the
Government’s standing to move to quash the subpoena. Therefore, a decision as
to the propriety of this subpoena will be held in abeyance until defense counsel
makes a detailed proffer as to the subject matter of the testimony, and the
Government advances an argument as to its standing.
SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: August 14, 2015
The Court notes that the issue of Dr. Simich’s testimony was also addressed at1
the conclusion of the Government’s case on July 29, 2015, at which time the Court
noted that it would allow defense counsel to call Dr. Simich, but may, in its discretion,
limit the testimony.
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