Skelos Opposition To Motion To Quash 4.13.18 PDF

Case 1:15-cr-00317-KMW Document 300 Filed 04/13/18 Page 1 of 28
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
- v. - S1 15 Cr. 317 (KMW)
DEAN SKELOS and ADAM SKELOS,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO

MOTIONS TO QUASH SUBPOENAS SERVED ON
GLENWOOD MANAGEMENT, CHARLES DOREGO,
AND STEVEN SWARZMAN
Alexandra A.E. Shapiro

Eric S. Olney
Fabien Thayamballi
Shapiro Arato LLP
500 Fifth Avenue, 40th Floor
New York, New York 10110
(212) 257-4880
John J. Kenney
G. Robert Gage, Jr. Julian S. Brod
Gage Spencer & Fleming LLP Hoguet Newman Regal & Kenney, LLP
410 Park Avenue, Suite 900 10 East 40th Street
New York, New York 10022 New York, New York 10016
(212) 768-4900 (212) 689-8808
Attorneys for Dean Skelos Attorneys for Adam Skelos

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
A. Charles Dorego Is A Key Trial Witness, And Steven Swarzman Is A

Potential Witness On Similar Subjects ............................................................. 2
B. Dorego Likely Perjured Himself Regarding His Kickback Scheme

And Other Dishonest Transactions With Swarzman ........................................ 3
ARGUMENT .................................................................................................................................. 6
I. THE SUBPOENAS SATISFY RULE 17 .......................................................................6
A. The Government Gives No Valid Reason To Apply Nixon ............................. 6
1. The government has no meaningful response to our analysis .................... 6
2. The government mischaracterizes the law .................................................. 7
3. The government’s attempt to distinguish Tucker is futile ........................ 11
B. The Subpoenas Are Neither Unreasonable Nor Oppressive ........................... 12
1. The subpoenas are not oppressive............................................................. 12
2. The subpoenas are reasonable ................................................................... 13
II. THE SUBPOENAS SATISFY THE NIXON STANDARD .........................................13
A. The Government Misstates the Nixon Standard.............................................. 13
B. The Subpoenas Satisfy the Relevance, Admissibility, and Specificity

Requirements .................................................................................................. 15
1. Requests related to Dorego and Swarzman’s misconduct ........................ 15
2. Requests related to other evidence ............................................................ 18
III. THE COURT SHOULD DENY THE GOVERNMENT’S REQUEST FOR

LEAVE TO SCREEN DEFENSE SUBPOENAS IN ADVANCE...............................19
CONCLUSION ............................................................................................................................. 22
i
TABLE OF AUTHORITIES
Page(s)
Cases
Biddinger v. Comm’r of Police of City of New York,
245 U.S. 128 (1917) .................................................................................................................... 8
Brown v. Keane,
229 F. Supp. 2d 298 (S.D.N.Y. 2002) ......................................................................................... 9
Cayuga Indian Nation of N.Y. v. Pataki

413 F.3d 266 (2d Cir. 2005) ........................................................................................................ 8
Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries,

512 U.S. 267 (1994) .................................................................................................................... 9
Feeney v. Port Auth. Trans-Hudson Corp.,

693 F. Supp. 34 (S.D.N.Y. 1988) ................................................................................................ 9
In re Irving,
600 F.2d 1027 (2d Cir. 1979) ................................................................................................ 7, 14
In re Refco, Inc. Sec. Litig.,

628 F. Supp. 2d 432 (S.D.N.Y. 2008) ....................................................................................... 10
Jenkins v. Collins Bldg. Servs.,

500 F. App’x 54 (2d Cir. 2012) ................................................................................................... 8
Pernicone v. Ryan,
No. 86 Civ. 4498 (SWK), 1989 WL 4500 (S.D.N.Y. Jan. 17, 1989) .......................................... 9
United States v. Barnes,

No. S9 04 CR 186 (SCR), 2008 WL 9359654 (S.D.N.Y. Apr. 2, 2008) .................................. 10
United States v. Barnes,

560 F. App’x 36 (2d Cir. 2014) ................................................................................................... 9
United States v. Bergstein,

No. 16-CR-746 (PKC), 2017 WL 6887596 (S.D.N.Y. Dec. 28, 2017) ..................................... 10
United States v. Binday,

No. 12-cr-152 (CM), 2013 WL 4494659 (S.D.N.Y. Aug. 15, 2013) .......................................... 8
United States v. Blum,

62 F.3d 63 (2d Cir. 1995) .......................................................................................................... 16
ii
United States v. Carollo,

No. 10-cr-654 (HB), 2012 WL 1195194 (S.D.N.Y. Apr. 9, 2012) ........................................... 16
United States v. Caruso,

948 F. Supp. 382 (D.N.J. 1996) ................................................................................................. 17
United States v. Crawley,

837 F.2d 291 (7th Cir. 1988) ....................................................................................................... 9
United States v. Daniels,

902 F.2d 1238 (7th Cir. 1990) ..................................................................................................... 9
United States v. Hang,

75 F.3d 1275 (8th Cir. 1996) ..................................................................................................... 21
United States v. Iozia,

13 F.R.D. 335 (S.D.N.Y. 1952) ................................................................................................... 6
United States v. Jasper,

2003 WL 1107526 (S.D.N.Y. Mar. 13, 2003) ........................................................................... 14
United States v. King,

194 F.R.D. 569 (E.D. Va. 2000) ................................................................................................ 11
United States v. LaRouche Campaign,

841 F.2d 1176 (1st Cir. 1988) ................................................................................................... 11
United States v. Maxwell,

No. 92-cr-1147 (KMW), 2009 WL 73155 (S.D.N.Y. Jan. 12, 2009)........................................ 10
United States v. Nachamie,

91 F. Supp. 2d 552 (S.D.N.Y. 2000) ................................................................................... 11, 21
United States v. Nektalov,

2004 WL 1574721 (S.D.N.Y. July 14, 2004) ............................................................................ 14
United States v. Nixon,

418 U.S. 683 (1974) ........................................................................................................... passim
United States v. O’Hagan,

521 U.S. 642 (1997) .................................................................................................................... 8
United States v. Orena,

883 F. Supp. 849 (E.D.N.Y. 1995) ............................................................................................ 16
iii
United States v. Pena,

No. 15-CR-551 (AJN), 2016 WL 8735699 (S.D.N.Y. Feb. 12, 2016)...................................... 10
United States v. Penco,

612 F.2d 19 (2d Cir. 1979) .......................................................................................................... 9
United States v. Rajaratnam,

753 F. Supp. 2d 317 (S.D.N.Y. 2011) ................................................................................ passim
United States v. Reyes,

162 F.R.D. 468 (S.D.N.Y. 1995) ............................................................................................... 21
United States v. RW Prof’l Leasing Servs. Corp.,

228 F.R.D. 158 (E.D.N.Y. 2005)............................................................................................... 14
United States v. Shackney,

31 F.R.D. 550 (D. Conn. 1962) ................................................................................................. 11
United States v. Soliman,

No. 06-cr-236A, 2009 WL 1531569 (W.D.N.Y. May 29, 2009) .............................................. 10
United States v. Stein,

488 F. Supp. 2d 350 (S.D.N.Y. 2007) ......................................................................................... 7
United States v. Treacy,

No. 08-cr-0366 (RLC), 2008 WL 5082884 (S.D.N.Y. Dec. 1, 2008) ....................................... 11
United States v. Tucker,

249 F.R.D. 58 (S.D.N.Y. 2008) .......................................................................................... passim
United States v. Ulbricht,

858 F.3d 71 (2d Cir. 2017) .................................................................................................... 9, 16
United States v. Weisberg,

No. 08-CR-347 (NGG) (RML), 2011 WL 1327689 (E.D.N.Y. Apr. 5, 2011) ......................... 16
United States v. White,

No. 2:12-CR-00221, 2013 WL 1404877 (S.D.W. Va. Apr. 5, 2013)........................................ 11
United States v. Yudong Zhu,

No. 13-cr-761, 2014 WL 5366107 (S.D.N.Y. Oct. 14, 2014) ..................................................... 8
Statutes and Rules

Fed. R. Crim. P. 16(b) ................................................................................................................... 21
Fed. R. Crim. P. 17(c) ............................................................................................................... 6, 12
iv
INTRODUCTION
Charles Dorego, general counsel of Glenwood Management and the government’s star
witness for its alleged Glenwood “scheme,” may have a perjury problem. There is strong
evidence that Dorego received hundreds of thousands of dollars in kickbacks for steering
Glenwood’s title insurance work to companies controlled by Steven Swarzman, another potential
government witness. When Dorego was asked at trial whether Swarzman had paid him for these
referrals, Dorego gave vague, evasive, and inconsistent answers. He first denied it, then claimed
that Swarzman had “sometimes” paid Dorego “out of his proceeds for title work” for purported
“legal fees” accrued over the years, although he did not believe that these payments amounted to
“hundreds of thousands of dollars.”
These two stories cannot both be true. And given the nature of these inconsistencies, it is
likely that Dorego gave false testimony at trial. For this reason, the Skeloses served subpoenas
on Dorego, Swarzman, and Glenwood, primarily seeking evidence of the kickback scheme and
Dorego’s attempts to conceal it. The subpoenas also seek evidence of other misconduct related
to the scheme between Dorego and Swarzman, as well as other documents material to the
Skeloses’ defense.
Rather than investigate the basis for these subpoenas and obtain the documents for itself,
which would be the appropriate thing to do, the government again asks this Court to shield one
of its star witnesses from scrutiny. In the government’s view, trials are one-sided affairs where
the government gets to tell its side of the story, the defense is forced to sit in silence, and the jury
is supposed to deliberate without ever hearing why the government’s witnesses are unworthy of
belief. That is why the government moved to quash the subpoenas pertaining to Anthony
Bonomo, who bilked and mismanaged PRI to such an extent that the New York Department of
Financial Services barred him from participating in the company’s affairs. It is why the
government has moved in limine to preclude the defense from cross-examining Bonomo on this
misconduct at trial. It is why the government now moves to prevent the Skeloses from obtaining
the evidence that would confirm Dorego’s perjury. And it is why, in that motion, the government
makes the astonishing request that it be allowed to object to any further defense subpoenas
before they are issued, even though it has no legitimate basis for doing so.
The government’s reflexive motion fails to address the overwhelming authority that the
Skeloses cited in their prior brief, which shows that the government’s effort to quash every
defense subpoena is based on a totally warped view of the relevant law. The government also
mischaracterizes the subpoenas themselves, claiming that even our most narrowly tailored
requests are overbroad. The Skeloses are on trial for their liberty, and the government is not
entitled to play games of this sort. The motions to quash should be denied.
BACKGROUND
A. Charles Dorego Is A Key Trial Witness, And Steven Swarzman Is A Potential

Witness On Similar Subjects
Dorego is senior vice president and general counsel at Glenwood, a real estate developer
owned by the Litwin family. Dorego’s testimony was the centerpiece of the government’s proof
on the alleged Glenwood “scheme,” in which Dean Skelos supposedly pressured Dorego and
others at Glenwood to confer benefits on Adam Skelos. Dorego testified that he referred title
insurance business to Adam, resulting in a $20,000 payment, and eventually helped Adam secure
2
a job at AbTech, purportedly to ensure that Dean Skelos continued to support Glenwood’s
legislative agenda. Dorego also testified that, after he had secured a job for Adam at AbTech,
Adam told him that Dean Skelos would block AbTech’s anticipated contract with Nassau County
if it did not increase Adam’s compensation. The so-called “hostage email” in which Dorego
relayed this alleged threat to AbTech was a major component of the government’s proof on the
alleged AbTech “scheme.”
Steven Swarzman, the grandson of Glenwood founder Leonard Litwin, was identified as
a witness by the government but ultimately not called to testify. Swarzman controlled a pair of
title-insurance companies that obtained a great deal of work from Glenwood. He was involved
in arranging the title insurance referral to Adam, and like Dorego, he was connected to AbTech.
Dorego and the Litwin family, including Swarzman, had made significant investments in
AbTech. Moreover, at one time, Swarzman owned Clean Water Solutions (“CWS”), a regional
distributor for AbTech’s product. (Tr. 673).1
Dorego testified pursuant to a non-prosecution agreement. (Shapiro Decl. Ex. A). Under
the terms of his agreement, Dorego was required to “truthfully testify” at trial, to “bring to [the
government’s] attention all crimes which he ha[d] committed,” and to “commit no crimes
whatsoever.” (Id.).
B. Dorego Likely Perjured Himself Regarding His Kickback Scheme And Other
Dishonest Transactions With Swarzman
At the first trial, Dorego was cross-examined on his financial relationship with
Swarzman. His responses lacked credibility, and they are contradicted by other evidence. In
1
“Tr.” refers to the transcript of the first trial.
3
fact, there are compelling reasons to believe that Dorego committed perjury, and therefore
violated his non-prosecution agreement as well.
Dorego testified that he referred title work for Glenwood to Swarzman’s companies, and
that Swarzman received hundreds of thousands of dollars as a result. (Tr. 700). When Dorego
was asked whether he had received money from Swarzman in exchange for referring title work
to Swarzman, his responses were vague, evasive, and inconsistent. He first said “No,” then
claimed that Swarzman paid him for purported “legal fees,” and that these payments
“sometimes” came from Swarzman’s “proceeds” from title work. (Id.). When Dorego was again
asked whether he received “hundreds of thousands of dollars from Mr. Swarzman for work that
Glenwood assigned to [his] companies,” Dorego began by saying “I don’t think I got hundreds of
thousands of dollars,” then switched tack, returning to his story that “I’ve done a lot of work
helping [Swarzman] in various different things, and . . . we would build up legal fees that he
would owe me and he would pay me.” (Id.).
Dorego was, in all likelihood, lying. There is clear evidence that Dorego received
kickbacks from Swarzman for steering Glenwood title work to Swarzman’s companies—not
payment for any purported “legal” services, which Dorego never actually explained. As we
know from
In other words, Dorego abused his position at Glenwood for personal enrichment and
4
potentially committed commercial bribery offenses, and when confronted at trial, decided to give
false testimony.
Dorego testified that Swarzman “at times” paid him in cash, and then revised his answer
to “[a] [c]ouple of times.” (Tr. 701). When asked whether he reported these cash payments—
again, supposedly for legal fees—on his tax returns, he gave the somewhat noncommittal answer
that, “I believe I did, yeah.” (Id. (emphasis added)). Dorego was likely understating the volume
of his cash transactions.
The corrupt relationship between Dorego and Swarzman raises suspicions about another
one of their transactions as well. As noted above, Swarzman previously owned CWS, an AbTech
distributor. (Tr. 673). Dorego testified that he bought CWS from Swarzman so that Swarzman
could claim tax losses and Dorego could try to turn the company around. (Tr. 674). Dorego
claimed that he paid Swarzman $100,000 for CWS over time. (Tr. 675). But if the past dealings
between Dorego and Swarzman are any guide, the “sale” may well have been a sham transaction
in which Dorego paid no consideration, and Swarzman claimed fake losses in order to reap the
tax benefits. Cf. https://www.carltonfields.com/doctrinal-tools-the-irs-challenge-claimed-tax-
benefits-micro-captive-insurance-companies/ (“Take, for example, a taxpayer who ‘sells’ an asset
with a built-in capital loss to a related party and then leases it back. The IRS’ view of such a
5
transaction might be that although the taxpayer formally transferred title, in substance he
transferred nothing and made it appear otherwise only to take a deduction. In that case, the IRS
would deny the capital loss deduction.”).
* * *
To further investigate the likely misconduct of these government witnesses, the Skeloses
issued subpoenas to Dorego, Glenwood, and Swarzman. (Dkt. 276-1 (“Dorego Subpoena”); Dkt.
276-2 (“Glenwood Subpoena”); Dkt. 276-3 (“Swarzman Subpoena”) (collectively, the
“Glenwood-related subpoenas”)). The government has moved to quash (Dkt. 276 (“Gov’t
Mot.”)), joined by all three subpoena recipients, who do not provide any substantive arguments
of their own. These motions to quash should be denied.
ARGUMENT
I. THE SUBPOENAS SATISFY RULE 17
A. The Government Gives No Valid Reason To Apply Nixon
1. The government has no meaningful response to our analysis
The government argues that this Court should apply the standard articulated in United
States v. Nixon, 418 U.S. 683 (1974), to quash the Glenwood-related subpoenas. (Gov’t Mot. at
3 & n.4). But in opposing the government’s motion to quash the PRI-related subpoenas, the
Skeloses explained in great detail why the Nixon standard does not apply to subpoenas issued by
a criminal defendant to third parties. (Dkt. 273 at 11-15). Among other reasons:
1. Rule 17 permits courts to quash subpoenas only on the ground that they are
“unreasonable or oppressive”—not because they are insufficiently specific or seek
inadmissible documents. Fed. R. Crim. P. 17(c)(2).
2. Nixon borrowed its test from a case in which the defendant had subpoenaed the
government, and therefore was circumventing the limits on party discovery in Rule
16. See 418 U.S. at 699-700; United States v. Iozia, 13 F.R.D. 335, 337-38 (S.D.N.Y.
1952). A narrower interpretation of Rule 17 therefore made sense in that case, but
6
that rationale does not apply to subpoenas to third parties. Cf. United States v. Stein,
488 F. Supp. 2d 350, 366 (S.D.N.Y. 2007).
3. The party that issued the subpoena in Nixon argued that a “lower standard” applies to
subpoenas issued to third parties. 418 U.S. at 699 n.12. The Supreme Court
expressly left that question open, since the party prevailed even under the more
stringent standard. See id.
4. The government was the party that issued the subpoena in Nixon. Unlike the
government, a defendant has rights under the Fifth and Sixth Amendments to a fair
trial, compulsory process, and the confrontation of witnesses. See Nixon, 418 U.S. at
711; In re Irving, 600 F.2d 1027, 1036 (2d Cir. 1979) (where “the rights of defendants
rights are at stake,” “the considerations supporting disclosure . . . are even stronger
than those in Nixon”). A rigid application of Nixon would violate those rights, since it
would deprive the defendant of reasonable opportunities to obtain material for cross-
examination. See United States v. Tucker, 249 F.R.D. 58, 67 (S.D.N.Y. 2008).
5. Applying Nixon to third-party subpoenas would permit “perverse result[s],” since

“the government could prevent defendants from obtaining [relevant] material by
choosing not to obtain it for itself.” Tucker, 249 F.R.D. at 65.
6. It makes no sense for a litigant in a breach of contract case to have greater rights to
compel production of information than a criminal “defendant on trial for his life or
liberty.” United States v. Rajaratnam, 753 F. Supp. 2d 317, 321 n.1 (S.D.N.Y. 2011).
7. The only court to have thoroughly analyzed this question has concluded that Nixon
does not apply. See Tucker, 249 F.R.D. at 60-67.
The government has had several opportunities to address these arguments. But in both its
reply concerning the PRI-related subpoenas (Dkt. 280) and the instant motion to quash the
Glenwood-related subpoenas, the government is unable to provide any meaningful response.
Instead, the government makes two entirely hollow doctrinal arguments that we already refuted
in our prior briefing.
2. The government mischaracterizes the law
The government’s principal argument is that Tucker, the case that endorses our position,
“is not the law of this circuit.” (Gov’t Mot. at 3 n.4; see also Dkt. 280 at 1, 3). But it is also not
“the law of this circuit” to use Nixon to quash defense subpoenas issued to third parties. As we
have already explained, there is no binding precedent on the right standard to apply. (Dkt. 273 at
7
14-15 & n.9). That is precisely why this Court has an obligation to interpret the law as best it
can, rather than deferring to the interpretations of other district courts. (Id.).
The government asserts that our argument is “inconsistent with controlling Supreme
Court precedent” (Dkt. 280 at 1), relying on United States v. Binday, No. 12-cr-152 (CM), 2013
WL 4494659 (S.D.N.Y. Aug. 15, 2013).2 The court in Binday may have felt bound to apply
Nixon to defense subpoenas issued to third parties, but it was wrong.
In Nixon, the Supreme Court expressly said that it was not deciding whether a “lower
standard” applies to subpoenas issued to third parties, because the party in that case could satisfy
a higher standard. 418 U.S. at 699 n.12. Thus, Nixon is not binding on this question. See United
States v. O’Hagan, 521 U.S. 642, 662, 666 (1997) (where a question is “expressly left open” by
the Supreme Court, that decision “cannot be read to foreclose” a particular answer, and a lower
court “err[s] in holding” otherwise); Biddinger v. Comm’r of Police of City of New York, 245
U.S. 128, 134-35 (1917) (where a “question [is] not . . . necessary for the disposition of the cases
in which it is touched upon, . . . it is left undecided”); Jenkins v. Collins Bldg. Servs., 500 F.
App’x 54, 55 (2d Cir. 2012) (reversing district court decision because it relied on a Supreme
Court decision to dismiss claims even though that decision “expressly declined to decide” the
issue before the district court); Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 274 (2d
2
The government misquotes Binday, which says that Nixon “is not by its terms limited to
subpoenas issued by the Government,” id. at *1, not that Nixon “does not by its terms provide an
exception for defense subpoenas to third parties” (Dkt. 280 at 1, 3). This distinction is
significant, because our argument is about defense subpoenas to third parties, not defense
subpoenas in general. Defense subpoenas issued to the government raise the concerns present in
Iozia, which were the basis for the Nixon standard. To be fair, the language quoted by the
government appears in another district court case, United States v. Yudong Zhu, No. 13-cr-761,
2014 WL 5366107, at *2 (S.D.N.Y. Oct. 14, 2014). But as explained above, Yudong Zhu is
wrong on this point for the same reason that Binday is wrong: Nixon does, by its terms, permit
an exception for defense subpoenas to third parties.
8
Cir. 2005) (where “the Supreme Court . . . expressly decline[s] to decide” a question, the
Supreme Court’s opinion cannot be “dispositive” of the answer); United States v. Penco, 612
F.2d 19, 23 n.5 (2d Cir. 1979) (where the Supreme Court “le[aves] [a] question open,” lower
courts can disagree on the answer).
The government also misleadingly cites two Second Circuit cases that did not decide the
question either. (Gov’t Mot. at 3 n.4). Barnes declined to decide whether Nixon applies to third-
party subpoenas. See United States v. Barnes, 560 F. App’x 36, 40 n.1 (2d Cir. 2014). Ulbricht
quashed a defense subpoena on grounds unrelated to the Nixon standard, and the defendant never
argued that a different standard should apply. See United States v. Ulbricht, 858 F.3d 71, 109-10
(2d Cir. 2017).3 We already explained this (Dkt. 273 at 14 n.9), and the government does not
dispute our analysis. Indeed, one of the cases that the government cites confirms that there is no
3
It should go without saying, but a reference to Nixon in a case where it did not matter to the
decision, and in which the defendant did not advocate for a different standard, does not constitute
binding precedent. See Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich
Collieries, 512 U.S. 267, 277 (1994) (declining to treat as binding a “cursory conclusion” in a
prior opinion where the relevant argument was “treated . . . as an afterthought” and was “largely
unbriefed” by the parties); United States v. Daniels, 902 F.2d 1238, 1241 (7th Cir. 1990)
(“[J]udicial discussions of issues that are not contested are not holdings.”); United States v.
Crawley, 837 F.2d 291, 292-93 (7th Cir. 1988) (Posner, J.) (“an inferior court[] is free to reject”
appellate dicta, including where “the issue addressed in the passage was not presented as an
issue, hence was not refined by the fires of adversary presentation,” or where the “passage was
unnecessary to the outcome of the earlier case”); Brown v. Keane, 229 F. Supp. 2d 298, 305-06
(S.D.N.Y. 2002) (where Second Circuit’s statement “arguably was not necessary to the result,”
“[t]he prudent course therefore is to make an independent analysis of the . . . issue against the
possibility that the Circuit would regard the question as remaining open”), vacated on other
grounds, 355 F.3d 82 (2d Cir. 2004); Pernicone v. Ryan, No. 86 Civ. 4498 (SWK), 1989 WL
4500, at *3 n.4 (S.D.N.Y. Jan. 17, 1989) (holding that the district court was “not bound” by a
Second Circuit decision that “did not consider” a particular constitutional issue); Feeney v. Port
Auth. Trans-Hudson Corp., 693 F. Supp. 34, 41 n.14 (S.D.N.Y. 1988) (same), rev’d on other
grounds, 873 F.2d 628 (2d Cir. 1989), aff’d, 495 U.S. 299 (1990). Additional instances in which
courts held they were not bound by appellate dicta under similar circumstances can be found at
United States v. Ng, No. 15-cr-706 (VSB), ECF No. 565, at 6-7 (S.D.N.Y. July 20, 2017).
9
binding precedent on this issue. See United States v. Bergstein, No. 16-CR-746 (PKC), 2017 WL
6887596, at *4 (S.D.N.Y. Dec. 28, 2017) (cited by Dkt. 280 at 3).
Ultimately, the government is forced to rely on non-binding district court decisions that
reject the Tucker standard and apply Nixon to third-party subpoenas. (Gov’t Mot. at 3 n.4; Dkt.
280 at 1, 3). None of these cases is persuasive. For one thing, they contain no independent
analysis. In holding that Nixon applies to third-party subpoenas, Bergstein simply cites Pena,
and Pena simply cites Barnes, which cites another case from outside the district. See Bergstein,
2017 WL 6887596, at *4; United States v. Pena, No. 15-CR-551 (AJN), 2016 WL 8735699, at *1
(S.D.N.Y. Feb. 12, 2016); United States v. Barnes, No. S9 04 CR 186 (SCR), 2008 WL 9359654,
at *3 (S.D.N.Y. Apr. 2, 2008). Moreover, the rationale for applying Nixon in each of these cases
is that other district courts have done the same. But as explained above, this is a mistake:
district courts should not apply Nixon to third-party subpoenas. This Court has an independent
obligation to ensure that it is applying the law correctly, so there is no reason to repeat the
mistake. (Dkt. 273 at 14-15 (citing, e.g., In re Refco, Inc. Sec. Litig., 628 F. Supp. 2d 432, 439
(S.D.N.Y. 2008) (Lynch, J.)).4
This Court would not be alone. While the government suggests that only Tucker declined
to apply Nixon to third-party subpoenas (Gov’t Mot. at 3 n.4; Dkt. 280 at 3), that is simply not
true, as we have already shown. (Dkt. 273 at 13-14). See United States v. Soliman, No. 06-cr-
236A, 2009 WL 1531569, at *4 (W.D.N.Y. May 29, 2009) (applying Tucker); cf. Rajaratnam,
4
The government points out that this Court has previously applied Nixon to a defense subpoena.
See United States v. Maxwell, No. 92-cr-1147 (KMW), 2009 WL 73155, at *2 (S.D.N.Y. Jan. 12,
2009). However, the subpoena recipient was a United States Probation Officer, and thus
arguably an agent of the government, rather than a third party. See id. at *1-2. In addition, it
does not appear that the defendant argued that the Nixon standard should not apply, and this
Court is undoubtedly free to reexamine the issue now that it is squarely presented.
10
753 F. Supp. 2d at 321 n.1 (endorsing Tucker but finding that the subpoena satisfied Nixon).
Regardless, the law is not a popularity contest; it is an exercise in reasoned decision-making, and
the only party that has provided reasoning in support of its position is the defense.
3. The government’s attempt to distinguish Tucker is futile
The government also argues that the ruling in Tucker was limited to defense subpoenas
issued “on the eve of trial.” (Gov’t Mot. at 3 n.4; Dkt. 280 at 4 n.3). Again, we have already
addressed this point. (Dkt. 273 at 13 n.8). The Skeloses do not need to fit themselves into the
facts of Tucker in order for Tucker’s reasoning to be persuasive here.5 The rationales for
applying a lower standard to third-party subpoenas apply regardless of when the subpoena is
issued or when the documents are to be produced. See Point I.A.1 supra.
In addition, it would make no sense to require the Skeloses to re-issue their subpoenas on
the eve of trial, which could create the need for a continuance and would serve no purpose other
than to deprive the Skeloses of time to prepare their defense. See United States v. LaRouche
Campaign, 841 F.2d 1176, 1180 (1st Cir. 1988) (district court may order pretrial production of
subpoenaed materials to avoid unfairness and trial delays); United States v. White, No. 2:12-CR-
00221, 2013 WL 1404877, at *5-6 (S.D.W. Va. Apr. 5, 2013) (ordering pretrial production to
avoid delay), rev’d on other grounds sub nom. Kinder v. White, 609 F. App’x 126 (4th Cir. 2015);
United States v. King, 194 F.R.D. 569, 575 (E.D. Va. 2000) (same); United States v. Shackney, 31
F.R.D. 550, 552 (D. Conn. 1962) (same).
5
As we previously explained, the subpoenas in Tucker were issued on the eve of trial, but the
court recognized that it had previously “suggest[ed] that [a less stringent] test [wa]s appropriate
for all defense subpoenas directed to non-parties.” 249 F.R.D. at 66 n.51 (citing United States v.
Nachamie, 91 F. Supp. 2d 552, 563 (S.D.N.Y. 2000)) (emphasis added). While the government
cites one case that declined to apply Tucker to subpoenas that were requested well in advance of
trial (Dkt. 280 at 4 n.3), that court provided no actual reasoning for its decision. See United
States v. Treacy, No. 08-cr-0366 (RLC), 2008 WL 5082884, at *2 (S.D.N.Y. Dec. 1, 2008).
11
* * *
The government has had ample opportunity to justify applying the Nixon standard to the
Skeloses’ subpoenas. After several rounds of briefing, it has failed. The Court should therefore
apply the standard set forth in Rule 17, which asks whether the subpoenas at issue are
“unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2). Where a defendant has “an articulable
suspicion that the documents may be material to his defense,” and his subpoenas are not
“unreasonably onerous,” the Rule 17 standard is satisfied. Tucker, 249 F.R.D. at 66.
B. The Subpoenas Are Neither Unreasonable Nor Oppressive
The subpoenas comply with Rule 17. Accordingly, there is no basis to quash the
subpoenas, and the government’s motion should be denied.
1. The subpoenas are not oppressive
Neither the government nor the subpoena recipients contend that the subpoenas are
“oppressive” or “unreasonably onerous.” Tucker, 249 F.R.D. at 66. It is telling that the
subpoena recipients, who are in the best position to know the documents they possess, make no
argument whatsoever about the burden or expense of complying the subpoenas. Rather, they
simply join the government’s motion, which conspicuously omits any argument of this sort.
(Dkt. 278 (Glenwood); Dkt. 289 (Dorego); Dkt. 291 (Swarzman)).
The government knew that we would underscore this fact, since we made similar
arguments in defending the PRI-related subpoenas. (Dkt. 273 at 16, 27). Indeed, the
government advocated for the more stringent Nixon standard so that it could make arguments
about admissibility and specificity, rather than undue burden. As the government, acting on
behalf of the subpoena recipients, has chosen not to address the “oppressive[ness]” prong of Rule
17(c)(2), the Court should not entertain any belated complaints about burden or expense for the
first time on reply.
12
The only point made by the government that possibly relates to “oppressiveness” is that
the subpoena to Dorego “seeks highly personal material – Dorego’s tax returns.” (Gov’t Mot. at
4). The burden of producing tax returns, of course, is minimal. And any concern about privacy
can be addressed with a protective order, which (again) the government fails to acknowledge
despite our prior arguments on that subject. (Dkt. 273 at 29, 31 & n.24). See also Rajaratnam,
753 F. Supp. 2d at 325 (permitting subpoena of tax returns and inviting subpoena recipient to
submit a protective order).
2. The subpoenas are reasonable
The subpoenas are also entirely “reasonable,” as they seek documents that are “material
to the defense.” Tucker, 249 F.R.D. at 66. Indeed, as explained immediately below, the
subpoenas satisfy Nixon’s requirements of relevance, admissibility, and specificity. Documents
that contain relevant, admissible information that assists the defense are, a fortiori, material to
the defense. The subpoenas therefore satisfy Rule 17, and the motions to quash should be denied
on that basis.
II. THE SUBPOENAS SATISFY THE NIXON STANDARD
A. The Government Misstates the Nixon Standard
Even if Nixon applies, the Glenwood-related subpoenas clear Nixon’s “three hurdles” of
“(1) relevancy; (2) admissibility; [and] (3) specificity.” 418 U.S. at 700. Like the government
(Gov’t Mot. at 3 n.4), we respectfully request that the Court apply the legal principles articulated
in our prior briefing on the PRI-related subpoenas. (Dkt. 273 at 19-28). It bears emphasis,
however, that the government again mischaracterizes the Nixon standard so that it appears more
stringent than it actually is.
First, the government repeats its claim that it is “‘insufficient’ for a party to show only
that the subpoenaed documents ‘are potentially relevant or may be admissible.’” (Gov’t Mot. at
13
3 (quoting United States v. RW Prof’l Leasing Servs. Corp., 228 F.R.D. 158, 162 (E.D.N.Y. 2005)
(emphasis added by government))). But as we previously showed, and the government did not
dispute, Nixon’s relevance and admissibility requirements are satisfied if the documents could
potentially serve a valid purpose. (Dkt. 273 at 19-20). Indeed, the Supreme Court and Second
Circuit have approved subpoenas even where it was not certain that the documents sought would
be relevant or admissible at trial. (See id. (quoting Nixon, 418 U.S. at 699 n.11, 702, and Irving,
600 F.2d at 1034)). The government has not even attempted to explain why those cases should
not guide this Court’s analysis.
Second, the government repeats its claim that a Rule 17(c) subpoena cannot be used to
seek material for the impeachment of government witnesses. (Gov’t Mot. at 3-4 (citing United
States v. Nektalov, 2004 WL 1574721, at *2 (S.D.N.Y. July 14, 2004) and United States v.
Jasper, 2003 WL 1107526, at *2 (S.D.N.Y. Mar. 13, 2003))). As we previously showed,
however, (1) defendants may subpoena impeachment material even if its only purpose is to
inform the cross-examination of government witnesses about past dishonesty; (2) the cases cited
by the government (including Nektalov and Jasper) suggest only that it may be appropriate to
delay the production of impeachment material until trial, which is inappropriate here given that
we know the identity of testifying witnesses; and (3) the government’s arguments do not apply to
evidence of a motive to fabricate, or to evidence that could be used to contradict the witness’s
testimony at trial, all of which is admissible as extrinsic evidence. (Dkt. 273 at 21-25 & nn.15-
18). The government has not undermined our analysis of any of these points of law.
14
B. The Subpoenas Satisfy the Relevance, Admissibility, and Specificity

Requirements
The materials requested from Glenwood, Dorego, and Swarzman are relevant,
admissible, and sufficiently specific.6 Indeed, it is difficult to overstate the importance of these
materials to the defense. Dorego will be the key government witness for the alleged Glenwood
“scheme,” just as Anthony Bonomo was for PRI. He will also give crucial testimony related to
AbTech, including about the so-called “hostage email” he sent after a telephone conversation
with Adam Skelos. Just as it contemplated doing before the first trial, the government may also
call Swarzman to testify about both “schemes” and the title insurance referral he helped arrange
for Adam. The motivations of these witnesses in their interactions with the Skeloses and the
credibility of their testimony will therefore be relevant, even central, issues at the retrial.
1. Requests related to Dorego and Swarzman’s misconduct
The majority of the subpoena requests target evidence that Dorego and Swarzman
engaged in a kickback scheme with Glenwood money and participated in other dishonest
transactions. (Dorego Subpoena, Requests 1-5; Glenwood Subpoena, Request 1; Swarzman
Subpoena, Request 3). As explained above, Swarzman paid Dorego hundreds of thousands of
dollars in kickbacks for steering Glenwood title work to Swarzman’s companies. At least some
of this money was paid in cash, and there is good reason to doubt that Dorego reported it as
income on his tax returns. There is also reason to doubt that Dorego’s purchase of CWS from
Swarzman was legitimate, and not merely a sham designed to reap the tax benefits.
a. Relevance and admissibility. Evidence of these crooked deals is relevant and
admissible for several reasons. As with Bonomo, misconduct by Dorego and Swarzman gives
6
As Swarzman only moves to quash Request 3 in his subpoena, we do not address the other
requests. (Gov’t Mot. at 2 n.3).
15
them incentives to shade their testimony in the government’s favor. For Dorego in particular, his
likely perjury at trial concerning the kickbacks from Swarzman tested the bounds of the
government’s generosity and gives him a significant motive to say whatever it is he thinks the
government wants to hear. See, e.g., United States v. Carollo, No. 10-cr-654 (HB), 2012 WL
1195194, at *1-3 (S.D.N.Y. Apr. 9, 2012) (permitting subpoena for evidence of suspicious money
transfers that suggested a motive “to cooperate with the government”); United States v. Orena,
883 F. Supp. 849, 869 (E.D.N.Y. 1995) (permitting subpoena for evidence that “illuminate[s] the
factors which led [an individual] to become a prosecution witness and the benefits he obtained
by doing so”). (See also Dkt. 273 at 21-22).
In addition, although Dorego’s misconduct was on a smaller scale than Bonomo’s, it also
gave him an incentive to curry favor with powerful people like Dean Skelos. If he had personal
reasons for cultivating Skelos’s goodwill, the claim that he was seeking official action on behalf
of Glenwood becomes less plausible. See, e.g., United States v. Blum, 62 F.3d 63, 67-68 (2d Cir.
1995) (evidence of witness’s potential misconduct was admissible because it provided an
exculpatory explanation for other evidence). (See also Dkt. 273 at 20-21).
Finally, the kickbacks and other deceptive conduct that Dorego and Swarzman engaged
in bear heavily on their honesty in general. The jury is entitled to hear about their attempts to
mislead Glenwood, the tax authorities, and other parties in order to make a discerning assessment
of their credibility. See, e.g., Ulbricht, 858 F.3d at 108 (“character for truthfulness” of
“government witness” is necessarily “at issue during the trial, and information that impeache[s]
his credibility [is] highly relevant”). (See also Dkt. 273 at 24-25).
b. Specificity. These subpoena requests are also sufficiently specific. Despite the
government’s suggestion to the contrary, Nixon does not require specificity for its own sake.
16
See, e.g., United States v. Weisberg, No. 08-CR-347 (NGG) (RML), 2011 WL 1327689, at *7
(E.D.N.Y. Apr. 5, 2011) (“[A] defendant need not have prior knowledge of specific documents to
meet the specificity requirement of Rule 17(c).”). The specificity requirement simply ensures
that the subpoena is focused on the “group of records likely to contain helpful documents,” id.,
and does not impose an undue burden (see Dkt. 273 at 27 (collecting cases)). In other words, a
subpoena that “is as specific as could be reasonably expected under the circumstances” is good
enough. United States v. Caruso, 948 F. Supp. 382, 399 (D.N.J. 1996).
Here, the subpoena recipients do not allege any undue burden, and the subpoena requests
are focused on the documents most likely to contain helpful information. While the government
characterizes the subpoenas as overbroad (Gov’t Mot. at 4-5), it is difficult to see how the
Skeloses could have narrowed their subpoenas much further.
If Dorego’s dealings are above board, the universe of documents concerning payments
that Dorego personally received from Swarzman and other Glenwood vendors “in connection
with any title business of Glenwood” or “paid . . . out of Glenwood projects” should be small or
nonexistent. (Dorego Subpoena, Request 1; see also id. Request 5; Glenwood Subpoena,
Request 1). Dorego is the general counsel of a major real estate developer. If there are reams of
documents showing that he received kickbacks from vendors, that is remarkable and all the more
reason to turn them over to the defense.
Dorego cannot credibly complain that the request for documents related to his purchase
of CWS from Swarzman is overbroad or burdensome. (Dorego Subpoena, Request 4). It was a
single transaction, in which Swarzman purportedly sold Dorego a company for $100,000. (Tr.
675). Swarzman apparently claims that he has no relevant documents (Gov’t Mot. at 2 n.3), so it
is difficult to believe that Dorego would have an unmanageable number. In particular, the
17
question of whether Dorego actually paid that “consideration” to Swarzman should be easy for
him to answer. (Dorego Subpoena, Request 4).
Finally, it is inconceivable that requests for particular “portion[s]” of Dorego’s tax returns
are insufficiently specific. (Dorego Subpoena, Request 3). See Rajaratnam, 753 F. Supp. 2d at
325 (subpoena for tax returns satisfied Nixon). The government does not claim otherwise.
2. Requests related to other evidence
Nor is there any valid objection to the remaining requests, which target discrete, relevant
categories of information.
a. Dorego and Glenwood’s communications with and about the Skeloses are crucial
to the defense. (Dorego Subpoena, Request 6; Glenwood Subpoena, Request 3). These
communications are documentary evidence of the relationship between the Skeloses and
Glenwood. The messages transmitted in the course of that relationship, and the parties’ reactions
to those messages, relate directly to the core issues at trial. If “the requested documents were
already produced,” as the government claims (Gov’t Mot. at 4), they need not be produced a
second time. But the government cannot possibly argue that the Skeloses may not seek the
relevant communications that it chose not to “obtain . . . for itself,” and which therefore remain
only in the possession of third parties. Tucker, 249 F.R.D. at 65.
b. Documents regarding the ownership interest in AbTech held by Dorego,
Glenwood, or Glenwood’s owners are critical as well. (Dorego Subpoena, Request 7; Glenwood
Subpoena, Request 4). Their stake in AbTech provides a legitimate, non-criminal explanation for
why they would want AbTech to hire Adam Skelos. As Dorego testified at trial, Adam had the
potential to open doors for AbTech simply by virtue of his name and high-level contacts. Buying
Dean Skelos’s vote on legislation was simply not part of the calculation in arranging for Adam to
18
work at AbTech. Moreover, this category of documents is exceptionally specific, and the
government does not contend otherwise.
c. The request for evidence of straw donations to political candidates funded by
Glenwood is proper as well. (Glenwood Subpoena, Request 2). The government argues that it is
insufficiently specific by selectively emphasizing certain words: “any contribution (political or
otherwise) funded by Glenwood but made in the name of another person.” (Gov’t Mot. at 5). Of
course, the number of political contributions “funded by Glenwood but made in the name of
another person” should be zero if Glenwood complies with campaign finance regulations.
Otherwise, that conduct is properly the subject of cross-examination, and the Skeloses may
subpoena evidence of that conduct for impeachment.7
III. THE COURT SHOULD DENY THE GOVERNMENT’S REQUEST FOR LEAVE
TO SCREEN DEFENSE SUBPOENAS IN ADVANCE
Finally, the government expresses “concern[] that the defendants appear intent on abusing
Rule 17(c) subpoenas,” and it requests that the Court require any future subpoenas to “be ‘on
notice’ so that the Government may have an opportunity to object.” (Gov’t Mot. at 5; see also id.
at 3-4). The government further requests that the Skeloses be required to produce any documents
obtained by subpoena to the government. (Id. at 5-6). These requests are meritless, and they
should be swiftly denied.
First, the government’s requests are based on the false accusation that defendants are
“abusing” the subpoena process. At the outset, the subpoenas are proper and should be enforced,
7
With respect to Glenwood’s surreptitious funding of the Pledge 2 Protect organization, which
caught the attention of JCOPE, the government argues that the incident cannot possibly be
relevant because the relevant parties believed they were complying with the law. (Gov’t Mot. at
5 n.6). However, even if Glenwood believed that its conduct was technically legal, the fact that
it identified a possible regulatory loophole in order to exert political pressure without being
detected is certainly probative of credibility.
19
as we have explained above and in our briefing on the PRI-related subpoenas. The government
faults us for obtaining the Glenwood-related subpoenas without “conferring with the Court”
about the process for issuing subpoenas (Gov’t Mot. at 5), but that is simply not true, and the
government knows it. On February 21, 2018, counsel for Adam Skelos contacted chambers and
advised the Court’s law clerk that defendants wished to submit additional Rule 17(c) subpoenas
for the Court’s review. The law clerk initially advised defense counsel to submit the subpoenas
to the Court for review, which we did. However, upon receiving the subpoenas via email, the
clerk responded by directing counsel to submit the subpoenas “instead to the Clerk’s Office.”
(Kenney Decl. ¶¶ 3-4, Ex. A). After defense counsel followed the Court’s instructions and
served the subpoenas, counsel for Glenwood objected that the Glenwood Subpoena had not been
approved by the Court. On March 16, 2018, before serving any further subpoenas, defense
counsel contacted chambers, informed the law clerk of Glenwood’s objection, and again
confirmed that the Court was directing that subpoenas should should be issued by the Clerk’s
Office. (Id. ¶¶ 5-6). The government knows this, as it was copied on the letter memorializing
this conversation. (Id. Ex. B). Its suggestion that the defense has acted in anything other than
good faith is therefore entirely spurious.
Second, the government’s request for an “opportunity to object” is baseless because the
government lacks standing to object to third-party subpoenas. As we explained in great detail in
our prior briefing, the government’s purported “interest” in policing defense subpoenas is
entirely illusory. (Dkt. 273 at 8-11). The government trots out its already-debunked allegations
that the Skeloses seek to “harass” witnesses and “work an end-run” around the disclosure rules
without making even the slightest effort to address our extensive analysis on the subject. (Gov’t
Mot. at 3). Only the subpoena recipients have standing to object, and when they do object, they
20
approach the government and ask it to brief motions to quash on their behalf. There is no reason
to alter this procedure simply because the government wants to avoid the possibility that a
subpoena recipient might deem the subpoena acceptable and turn documents over to the defense.
Moreover, “[t]here are strong policy reasons in favor of an ex parte procedure.” United
States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y. 1995). “If a source of evidence were to be
identified before the issuance of a subpoena, the source or the integrity of the evidence might be
imperiled.” Id. And if “a full adversary hearing was required to obtain a subpoena,” a party
would be “forced to reveal” its “trial strategy or witness list” in order to justify issuance of the
subpoena. Id.; accord United States v. Hang, 75 F.3d 1275, 1281-82 (8th Cir. 1996) (defendants
“may make an ex parte application for the issuance of a subpoena duces tecum” to “prevent[] the
Government from securing undue discovery”); United States v. Nachamie, 91 F. Supp. 2d 552,
564 (S.D.N.Y. 2000) (justification for defense subpoena “was properly communicated ex
parte because it related to trial strategy”).
Third, the Court should also deny the government’s request for an order directing the
defense to disclose any documents we obtain by subpoena. Whether to require disclosure is a
matter within the Court’s discretion, see Reyes, 162 F.R.D. at 471, and the Court should not
exercise that discretion here. Rule 16 already requires the defense to disclose certain categories
of documents to the government. See Fed. R. Crim. P. 16(b). To the extent the government
seeks disclosure of documents that fall outside those categories, it is the government that is
attempting an “end run” around Rule 16’s limits on party discovery. In addition, the only reason
proffered by the government for seeking disclosure is that it “will permit the Government, if
necessary, to file motions in limine.” (Gov’t Mot. at 6). This is a specious justification, since the
government has already moved in limine to preclude us from using various subpoenaed
21
documents before we (or the government) have even had a chance to see them. (Dkt. 282 at 12-
25). Moreover, learning more about the government’s case (through a bill of particulars,
interviews of government witnesses, an updated exhibit list, or otherwise) would certainly permit
us to file more precise motions in limine as well, but we doubt the government would accept that
as a reason for greater disclosure on their part.
CONCLUSION
For the foregoing reasons, the Court should deny the motions to quash, including the
government’s request to modify the procedure for seeking subpoenas.
22
Dated: April 13, 2018

New York, New York
Respectfully submitted,
/s/ Alexandra A.E. Shapiro

Alexandra A.E. Shapiro
Eric S. Olney
Fabien Thayamballi
Shapiro Arato LLP
500 Fifth Avenue, 40th Floor
(212) 257-4880
G. Robert Gage, Jr.

Gage Spencer & Fleming LLP
410 Park Avenue, Suite 900
(212) 768-4900
Attorneys for Dean Skelos
John J. Kenney
Julian S. Brod
Hoguet Newman Regal & Kenney, LLP
10 East 40th Street
(212) 689-8808
Attorneys for Adam Skelos

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Case 1:15-cr-00317-KMW Document 300 Filed 04/13/18 Page 1 of 28

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

- v. - S1 15 Cr. 317 (KMW)

DEAN SKELOS and ADAM SKELOS,

MEMORANDUM OF LAW IN OPPOSITION TO

Alexandra A.E. Shapiro

Attorneys for Dean Skelos Attorneys for Adam Skelos

TABLE OF AUTHORITIES ......................................................................................................... iii

A. Charles Dorego Is A Key Trial Witness, And Steven Swarzman Is A

B. Dorego Likely Perjured Himself Regarding His Kickback Scheme

I. THE SUBPOENAS SATISFY RULE 17 .......................................................................6

A. The Government Gives No Valid Reason To Apply Nixon ............................. 6

1. The government has no meaningful response to our analysis .................... 6

2. The government mischaracterizes the law .................................................. 7

3. The government’s attempt to distinguish Tucker is futile ........................ 11

B. The Subpoenas Are Neither Unreasonable Nor Oppressive ........................... 12

1. The subpoenas are not oppressive............................................................. 12

2. The subpoenas are reasonable ................................................................... 13

II. THE SUBPOENAS SATISFY THE NIXON STANDARD .........................................13

A. The Government Misstates the Nixon Standard.............................................. 13

B. The Subpoenas Satisfy the Relevance, Admissibility, and Specificity

1. Requests related to Dorego and Swarzman’s misconduct ........................ 15

2. Requests related to other evidence ............................................................ 18

III. THE COURT SHOULD DENY THE GOVERNMENT’S REQUEST FOR

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