United States v. Barnett , 948 F. Supp. 1 ( 1996 )

MEMORANDUM AND ORDER

OBERDORFER, District Judge.

Sometime before November 5,1996, defendant in the above-entitled case served subpoenas on Federal Buread of Investigation Special Agents Lisa Pavlica and Gary Pontecorvo commanding them to appear at 10:00 a.m. on November 5, 1996, in this Court. The subpoenaed persons did not appear and no motion to quash by them or on their behalf was filed prior to the time their appearance was required.

Instead, by letter of November 8, 1996 (a copy which is attached), Karlton D. Bolt-house, Acting Chief Division Counse]/Supervisory Special Agent on behalf of William C. Megary, Acting Assistant Director in Charge, wrote defense counsel advising him that “the appearance of SAs Pavlica and Pontecorvo can not be authorized at this time.”

Rather than precipitate a confrontation, which an order to compel forthwith compliance could have precipitated, I kept the motion in abeyance and invited the United States Attomey/prosecutor to file an appropriate motion to quash. In doing so, however, I was constrained to advise the prosecutor in open court, and here reiterate, that no one (and particularly law enforcement agencies and officers) can with impunity refuse to obey a subpoena issued on the authority of this United States District Court, unless and until there has been a proper order, to quash the subpoenas. As the trial proceeded it became apparent that the presence of the subpoenaed persons was not, in fact, required. Accordingly, it is this 20th day of November, 1996, hereby

ORDERED: that the motion to quash is DISMISSED AS MOOT; and it is further

REQUESTED: that the United States Attorney bring this Memorandum and Order to the attention of the subpoenaed persons and to the other FBI personnel referred to in and/or responsible for the November 8 letter.

APPENDIX

[[Image here]]

In Reply. Please Refer to File No.

1900 Half Street

Washington D. C. 20535

November 8, 1996

Mr. Howard Srebnick

Attorney at Law

Suite 1300

201 South Biscayne Boulevard

Miami, Florida

33131

Re United States of America v. William Barnett. United States District Court, District of Columbia Criminal Action No.# 96-0077-Hogan

Dear Mr. Srebnick,

This office has received the subpoenas directed to Special Agents (SA) Lisa Pavlica and Gary J. Pontecorvo. The subpoena commands that SAs Pavlica and Pontecorvo appear in person before the referenced court on November 5, 1996 at 9:00AM.

Please be advised that a jurisdictionally valid subpoena must be served in all matters seeking the production of records of the FBI. In this matter, the subpoenas directed to SAs Pavlica and Pontecorvo are insufficient to compel the production of the requested records. Neither of the SAs are the proper party to receive such a request as neither are the individual in control of the files of the Washington field Office of the FBI and as such they have no authority to produce any requested records.

You were previously advised that a written statement identifying the nature of the litigation, the specific information requested and how the information sought is relevant to the litigation must be submitted and that failure to comply might result in any subpoena which was issued being quashed. While a written statement was provided, it has been found to be insufficient under the C.F.R.

The written statement does not provide sufficient information to evaluate why Special Agents of the FBI are to testify in a matter in which the FBI is not a party, has conducted no known investigation and which concerns matters which were the subject of a prosecution in another jurisdiction. Further, this office is unaware of the status of the prosecution in which the Special agents did testify and whether that prosecution could in any way be effected or jeopardized by

United States v. Barnett 11/8/96

testimony offered in another c'ourt. Therefore, the appearance of SAs Pavlica and Pontecorvo can not be authorized at this time.

In addition, the, Privacy Act (PA), 5 U.S.C. section 552a (b) prevents the FBI from disclosing any information concerning third parties without the written consent of the parties or without a court order authorizing the disclosure of the same. While the statement offered in compliance with the C.F.R. is considered by the FBI to be insufficient, it appears that testimony concerning third parties is what is being sought. In the absence of further information, the position of the FBI must be, that it is prohibited by law from releasing information about third parties without being provided with the appropriate consents or court order.

As that portion of the subpoenas, requesting the production of records, is not valid and as neither the requirements of the C.F.R. or the Privacy Act have been met, the FBI can not authorize the appearance of SAs Pavlica or Pontecorvo nor the production of FBI records at this time. In addition, be advised that even were all of the above mentioned requirements to be met, it may be determined that one or more privileges are applicable to the information being sought. Should this be the case, the FBI retains the right to raise any such privileges at a later date.

By letter with attached copies of all appropriate documents (sent via facsimile) to the United States Attorneys Office for the District of Columbia, the FBI has requested that an Assistant United States Attorney (AUSA) from the Civil Division be assigned to this matter so to represent the interests of the FBI and of the Special Agents. Therefore, should there be. further questions, please contact AUSA John Gidez and request that he identify the AUSA who has been assigned to handle this matter on behalf of the FBI.

Sincerely,

[[Image here]]