EFTA00031694.pdf
170 KB
Extraction Summary
6
People
7
Organizations
2
Locations
3
Events
2
Relationships
2
Quotes
Document Information
Type:
Email chain
File Size:
170 KB
Summary
This document is an email chain from May 3, 2021, among attorneys at the US Attorney's Office for the Southern District of New York (USANYS). They are discussing a forwarded invitation from Marshall L. Miller (Kaplan Hecker & Fink LLP) for a 'White Collar Crime Committee' meeting. The internal USANYS discussion links the committee's topic—Rule 17 subpoenas—to the Ghislaine Maxwell case, noting a recent 'strong opinion' from Judge Alison J. Nathan (AJN) regarding a motion to quash a Rule 17 subpoena in the Maxwell trial. The attached memo details the committee's agenda, including a talk by former FinCEN Director Ken Blanco and proposed revisions to Federal Rule of Criminal Procedure 17.
People (6)
| Name | Role | Context |
|---|---|---|
| Marshall L. Miller | Sender / Attorney |
Partner at Kaplan Hecker & Fink LLP, sender of the original email regarding the White Collar Crime Committee meeting.
|
| Jenna Dabbs | Recipient |
Recipient of the original email from Marshall Miller.
|
| Ken Blanco | Guest Speaker |
Former FinCEN Director, now Chief Compliance Officer at Citi, scheduled to speak at the committee meeting.
|
| AJN | Judge |
Likely Judge Alison J. Nathan; mentioned in the USANYS email chain regarding a 'strong opinion' in the Maxwell case.
|
| Maxwell | Defendant |
Ghislaine Maxwell; mentioned in the context of a motion to quash a Rule 17 subpoena.
|
| Lara | Colleague |
Mentioned as someone who might have the 'Order re Rule 17 subpoenas' document.
|
Timeline (3 events)
2021-05-04
White Collar Crime Committee meeting
Unknown (likely virtual or NYC)
Locations (2)
| Location | Context |
|---|---|
Relationships (2)
Organizing the meeting and drafting the Rule 17 proposal.
Key Quotes (2)
"We also recently got a strong opinion from AJN in Maxwell on a motion to quash a Rule 17 subpoena."Source
EFTA00031694.pdf
Quote #1
"Striking the 'other than the victim' language is intended to address concerns from both the Government (about victim safety) and from the Federal Defenders' liaison to the Rules Committee."Source
EFTA00031694.pdf
Quote #2
Full Extracted Text
Complete text extracted from the document (6,889 characters)
From: [REDACTED] (USANYS)" <[REDACTED]>
To: [REDACTED] (USANYS)" <[REDACTED]>
Subject: RE: final meeting before summer!
Date: Mon, 03 May 2021 20:40:25 +0000
Attachments: 2021.04.27_Order_re_Rule_17_subpoenas.pdf
To: [REDACTED] (USANYS)" <[REDACTED]>
Subject: RE: final meeting before summer!
Date: Mon, 03 May 2021 20:40:25 +0000
Attachments: 2021.04.27_Order_re_Rule_17_subpoenas.pdf
From: [REDACTED] (USANYS) <[REDACTED]>
Sent: Monday, May 3, 2021 4:29 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Sent: Monday, May 3, 2021 4:29 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Nice. If you have it handy, can you send it (or I can ask Lara)?
From: [REDACTED] (USANYS) <[REDACTED]>
Sent: Monday, May 3, 2021 4:28 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Sent: Monday, May 3, 2021 4:28 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Good. We also recently got a strong opinion from AJN in Maxwell on a motion to quash a Rule 17 subpoena.
From: [REDACTED] (USANYS) <[REDACTED]>
Sent: Monday, May 3, 2021 4:16 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Sent: Monday, May 3, 2021 4:16 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Yes. I weighed in, strongly, about this.
From: [REDACTED] (USANYS) <[REDACTED]>
Sent: Monday, May 3, 2021 4:03 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Sent: Monday, May 3, 2021 4:03 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: RE: final meeting before summer!
Yes, thanks. Glad to see some of our discussion in the bullets below.
From: [REDACTED] <[REDACTED]>
Sent: Monday, May 3, 2021 3:59 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: FW: final meeting before summer!
Sent: Monday, May 3, 2021 3:59 PM
To: [REDACTED] (USANYS) <[REDACTED]>
Subject: FW: final meeting before summer!
FYI, as discussed some time ago.
From: Marshall L. Miller <[REDACTED]>
Sent: Monday, May 3, 2021 3:45 PM
To: Jenna Dabbs <[REDACTED]>
Subject: final meeting before summer!
Sent: Monday, May 3, 2021 3:45 PM
To: Jenna Dabbs <[REDACTED]>
Subject: final meeting before summer!
All,
I am looking forward to tomorrow's White Collar Crime Committee meeting. Hard to believe it will be our last meeting before the summer.
Upcoming Events
We'll begin the meeting by discussing two exciting events scheduled for the fall: (1) the International Symposium, which will take place on November 29-30, 2021, and (2) the panel event featuring authors of prominent books on white collar crime, which is calendared for September 13, 2021. Although these events aren't for a few months, given the summer break, we'll spend a few minutes discussing tomorrow.
We'll begin the meeting by discussing two exciting events scheduled for the fall: (1) the International Symposium, which will take place on November 29-30, 2021, and (2) the panel event featuring authors of prominent books on white collar crime, which is calendared for September 13, 2021. Although these events aren't for a few months, given the summer break, we'll spend a few minutes discussing tomorrow.
Speaker
During the second half of the meeting, we will be joined by Ken Blanco. Ken served for many years as a Deputy Assistant Attorney General in the Criminal Division, after service as an AUSA in the Southern District of Florida. After a stint as Acting Assistant Attorney General for the Criminal Division, Ken joined the Treasury Department's Financial Crimes Enforcement Network (FinCEN) as its Director. Ken recently left the government to join Citi as Chief Compliance Officer of its newly created financial crimes unit.
During the second half of the meeting, we will be joined by Ken Blanco. Ken served for many years as a Deputy Assistant Attorney General in the Criminal Division, after service as an AUSA in the Southern District of Florida. After a stint as Acting Assistant Attorney General for the Criminal Division, Ken joined the Treasury Department's Financial Crimes Enforcement Network (FinCEN) as its Director. Ken recently left the government to join Citi as Chief Compliance Officer of its newly created financial crimes unit.
Rule 17 Project
The bulk of the meeting will involve a continuation of our discussion of the Rule 17 advocacy project. Since our last meeting, the working group and I have engaged in productive dialogue with the federal defenders and the federal prosecutors on our committee. Based on those conversations, we propose striking the "other than the victim" language we had proposed adding to Rule 17(c), which, in our initial proposal read "After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about an individual (non-corporate) victim may be served on a third party, other than the victim, only by court order." Striking the "other than the victim" language is intended to address concerns from both the Government (about victim safety) and from the Federal Defenders' liaison to the Rules Committee. In addition, we have also tweaked the cover letter to the Rules Committee to address these concerns, to emphasize that our proposal is intended to reduce ambiguity in the Rule as currently drafted, and to emphasize the fact that, without meaningful subpoena power, many criminal defendants are effectively limited to building their defense around information gathered and provided by the Government and are severely constrained in building their own affirmative defenses to meet the Government's allegations.
The bulk of the meeting will involve a continuation of our discussion of the Rule 17 advocacy project. Since our last meeting, the working group and I have engaged in productive dialogue with the federal defenders and the federal prosecutors on our committee. Based on those conversations, we propose striking the "other than the victim" language we had proposed adding to Rule 17(c), which, in our initial proposal read "After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about an individual (non-corporate) victim may be served on a third party, other than the victim, only by court order." Striking the "other than the victim" language is intended to address concerns from both the Government (about victim safety) and from the Federal Defenders' liaison to the Rules Committee. In addition, we have also tweaked the cover letter to the Rules Committee to address these concerns, to emphasize that our proposal is intended to reduce ambiguity in the Rule as currently drafted, and to emphasize the fact that, without meaningful subpoena power, many criminal defendants are effectively limited to building their defense around information gathered and provided by the Government and are severely constrained in building their own affirmative defenses to meet the Government's allegations.
Both groups provided feedback (all in their individual capacities and not on behalf of their organizations), which we summarize below and hope to discuss tomorrow:
• The proposed revisions actually increase the authority of prosecutors by allowing them to more easily use trial subpoenas to obtain documents from third parties in advance of trial.
• Permitting subpoenas without judicial "gate-keeping" could spark backlash to the proposal.
• The Committee should consider revisions to Rule 17(b), which requires court approval of subpoenas for "named witnesses" where the defendant can't pay witness fees — a requirement that is logistically challenging and only applicable to indigent defendants.
• The letter overstates equity arguments in describing the Government's access to more powerful investigative tools because: (i) the Government must satisfy a very high burden and (ii) the Government is constrained by Federal Rule of Criminal Procedure 6, the Privacy Act, and Department of Justice Policy with respect to the information it may subpoena and how that information may be used.
• The letter overstates the flaws of the Nixon standard, since the Government's robust discovery obligations adequately enable a defendant to understand the strengths and weaknesses of a case against him.
• Significantly expanding a defendant's Rule 17 subpoena capabilities may negatively influence the willingness of victims and witnesses to cooperate, and motions to quash provide an insufficient remedy to address this issue.
• The letter offers an inadequate rationale for limiting court approval to subpoenas regarding victims.
• The proposed revisions actually increase the authority of prosecutors by allowing them to more easily use trial subpoenas to obtain documents from third parties in advance of trial.
• Permitting subpoenas without judicial "gate-keeping" could spark backlash to the proposal.
• The Committee should consider revisions to Rule 17(b), which requires court approval of subpoenas for "named witnesses" where the defendant can't pay witness fees — a requirement that is logistically challenging and only applicable to indigent defendants.
• The letter overstates equity arguments in describing the Government's access to more powerful investigative tools because: (i) the Government must satisfy a very high burden and (ii) the Government is constrained by Federal Rule of Criminal Procedure 6, the Privacy Act, and Department of Justice Policy with respect to the information it may subpoena and how that information may be used.
• The letter overstates the flaws of the Nixon standard, since the Government's robust discovery obligations adequately enable a defendant to understand the strengths and weaknesses of a case against him.
• Significantly expanding a defendant's Rule 17 subpoena capabilities may negatively influence the willingness of victims and witnesses to cooperate, and motions to quash provide an insufficient remedy to address this issue.
• The letter offers an inadequate rationale for limiting court approval to subpoenas regarding victims.
We hope to reach consensus on if/how to address the feedback above as well as on any remaining open issues. Ideally, the working group—with the Committee's approval—will then finalize and submit the proposal over the coming weeks. I have once again attached the latest version of the revised rule proposal (in clean and redlined versions), as well as the draft letter to the Advisory Committee on Criminal Rules that the working group has put together.
As always, please do not hesitate to reach out with any questions or comments regarding anything related to the Committee.
Best regards,
Marshall
Marshall L. Miller | Kaplan Hecker & Fink LLP
350 Fifth Avenue | Suite 7110
New York, New York 10118
(W) [REDACTED] | (M) [REDACTED]
350 Fifth Avenue | Suite 7110
New York, New York 10118
(W) [REDACTED] | (M) [REDACTED]
This email and its attachments may contain information that is confidential and/or protected from disclosure by the attorney-client, work product or other applicable legal privilege. If you are not the intended recipient of the email, please be aware that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please notify the sender immediately and destroy all copies of the message from your computer system. Thank you.
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