New York Federal Criminal Practice Blog
September 26, 2008

EDNY Judge Denies Motion to Quash Grand Jury Suboena Seeking Source of Trial Defendant's Legal Fees

One can assume that the prosecutor in a case alleging the provision of material support to terrorism would be keenly interested in the source of the defendant's legal fees.  Is the government entitled to that potentially incriminating information, and if so, what kind of showing does it need to make in order to get it?  That's the interesting question raised in United States v. Kandasamy, 06 cr 616, 2008 WL 4224276 (E.D.N.Y. September 11, 2008), where a grand jury engaging in an ongoing investigation that had spawned several indictments, issued a subpeona seeking "documents relating to the individuals and entities who are paying defendant's legal fees."  

In addressing the defendant's motion to quash, EDNY Judge Dearie rejected the defense claim that the appropriate standard is the more stringent one for pretrial subpeonas in criminal cases, set forth in United States v. Nixon, 418 U.S. 683 (1974) (which requires a showing of relevancy).  Instead, the court adopted the more expansive deferential standard applicable generally to grand jury subpeonas, which are "presumed to be reasonable" and are only quashed where "there is there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation."  Since the subpeonas in this case were issued by a grand jury engaged in "an apparently legitimate grand jury inquiry," EDNY Judge Dearie held: "This investigation, which has already spawned a series of indictments, focuses on allegations of material support to an international terrorist organization, including the use of money laundering and other complex financial transactions. In light of this comprehensive inquiry, there is certainly, at the very least, a reasonable possibility that the details surrounding the payment of defendant's fees could prove highly relevant. Accordingly, defendant's motion to quash is denied."

Here, there was no suggestion in the decision that the government was using the on-going grand jury investigation as its beard to issue pretrial subpeonas that would not pass muster under Nixon.  But that would be a troubling scenario for which we should be vigilant.  See United States v. Ferguson, 2007 WL 2815068 (D. Conn. September 26, 2007) (the government may not use the grand jury to conduct discovery in a pending criminal case), (quoting United States v. Salameh, 152 F.3d 88, 109 (2d Cir.1998) (“It is improper for the government to use a grand jury subpoena for the sole or dominant purpose of preparing for trial.”)).  

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