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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
UNITED STATES OF AMERICA )
)
v. )
) Crim. No. CR-2-93-46
HAYTER OIL COMPANY, INC. OF GREENEVILLE,)
TENNESSEE d/b/a MARSH PETROLEUM )
COMPANY AND SONNY WAYNE MARSH, )
)
Defendants. )
RESPONSE OF THE UNITED STATES OPPOSING
DEFENDANT'S MOTION FOR TRIAL SUBPOENAS UNDER FEDERAL RULE
17(c)
Defendant Sonny Wayne Marsh moves for an Order authorizing the
issuance of subpoenas duces tecum for the pretrial production of
city and county business tax records, pursuant to Federal Rule of
Criminal Procedure 17(c). The subpoenas are directed to the
County Clerk of Greene County, Tennessee and the City Recorder for
Greeneville, Tennessee. Defendant Marsh's motion attempts to
subvert the rule that subpoenas are not pretrial discovery devices
in criminal cases. Moreover, defendant Marsh's motion should also
be denied because it is untimely, and because the information he
seeks is neither evidentiary nor relevant and, therefore, it is
not necessary for trial preparation.
ARGUMENT
Defendant Marsh's Untimely Motion Should Be Denied Because He Se
eks To Use Subpeonas As An Improper Discovery Device
Defendant's motion should be denied because it is inexcusably
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untimely and, as such, appears to serve primarily as a prelude for
a motion for a continuance that defendants would surely file upon
gaining access to the subpoenaed business tax records. The motion
should also be denied because defendant Marsh cannot satisfy the
Supreme Court's four-prong test that he must pass to demonstrate
the propriety of his proposed subpoenas.
A. Defendant's Motion Should Be Denied Because It Is An
Inexcusably Untimely Delay Tactic
Defendant's motion for an Order authorizing his proposed
subpoenas should be denied because its untimeliness cannot be
excused. Defendant filed his motion on November 2, 1993, a month
after the motion cutoff date and eight days before jury selection
begins in his trial. The business tax records he seeks have
existed for years, and defendant could have sought their
production at least from the time he was indicted in July.
Defendant Marsh has not even attempted to explain the untimeliness
of his motion, the timing of which makes it appear to be nothing
but an attempt to lay the groundwork for a motion a continuance.
Defendant Marsh's reference to "Defendant Appalachian Oil
Company" on page 4 of the Memorandum in Support prompts a
comparision that further illustrates the superficial nature of
defendant Marsh's motion. As defendant Marsh would no doubt argue
before the Court, the United States did not oppose the request for
the production of similar business records from Washington County
and Johnson City in the case of Page 3
Company, et al., Crim. No. 2-91-78 (E.D. Tenn. 1992).
Appalachian Oil, however, filed its request for subpoenas on May
15, 1992 -- a
date well within the period for filing motions and over five
months prior to trial. Defendant Marsh cannot use on the
government's position in Appalachian Oil to support his motion or
explain its untimeliness.
Defendant Marsh's last-minute motion seeks to subpoena
information that he characterizes as "extremely voluminous,"
yet which is neither evidentiary nor relevant to the issue
of whether he participated as charged in a price-fixing
conspiracy. Surely if the records were necessary for the
preparation of a defense, defendant Marsh would have sought
them before now, or he would have explained the reasons for
his delay in his untimely motion. In the conspicuous
absence of those efforts or explanations, it appears that
defendant Marsh has pulled this motion from the Appalachian
Oil record (see reference to "Defendant Appalachian Oil
at Memorandum in Support at 4) to clear a path for an even
more untimely motion for a continuance. These delay tactics
should not be tolerated and, therefore, defendant's motion
should be denied.
B. Defendant's Motion Should Be Denied Because It Does
Not Satisfy The Four-Prong Test Of United States v.
Nixon
Defendant's untimely motion should also be denied
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because it seeks to use subpoenas to gain improper
discovery. As the party seeking pretrial production under
Rule 17(c), defendant Marsh has the burden in his motion of
establishing that (1) the information he seeks is
evidentiary and relevant, (2) that it is not otherwise
procurable in advance of trial, (3) his cannot prepare for
trial without the information, and (4) that his subpoenas
would be issued in good faith and are not intended as a
general fishing expedition. United States v. Nixon, 418
U.S. 683, 698, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974);
United States v. Lieberman, 608 F.2d 899, 904 (2d Cir.
1979), cert. denied, 444 U.S. 1019 (1980).
Subpoenas should be quashed where they are used
improperly as discovery tools. Nixon, 418 U.S. at 698;
United States v. Brooks, 966 F.2d 1500, 1505 (D.C. Cir.
1992); United States v. Fields, 663 F.2d 880, 881 (9th Cir.
1981). Defendants cannot use subpoenas to gain impeachment
material. United States v. Hughes, 895 F.2d 1135, 1145-46
(6th Cir. 1990). Defendant Marsh's motion should be denied
because it does not clear all four hurdles set forth in
Nixon; rather, it fails three, beginning with the
requirement that the information sought be evidentiary and
material.
1.
Defendant seeks the business tax reports to establish
the number of gallons of gasoline each distributor sold in
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Greeneville and Greene County during the indictment period.
But defendant Marsh's percentage share of the Greeneville
market is irrelevant to his guilt in this case. Thus, the
information defendant Marsh seeks is neither evidentiary nor
relevant.
Defendant Marsh is charged with agreeing with at least
some of his competitors to fix, raise and maintain retail
gasoline prices within the Greeneville area between 1984 and
the end of 1988. As such, defendant Marsh is charged with
participating in a horizontal price-fixing agreement, which
is a per se violation of the Sherman Antitrust Act. Arizona
v. Maricopa County Medical Society, 457 U.S. 332,
348-51, 102 S. Ct. 2466, 73 L. Ed. 2d 48 (1982); United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60
S. Ct. 811, 84 L. Ed. 1129 (1940). A horizontal
price-fixing agreement cannot be excused or justified
because the prices set were allegedly reasonable, or because
the conspirators were motivated by good intentions or
business necessity, or because they did not eliminate all
forms of competition between themselves. National
Collegiate Athletic Ass'n v. Board of Regents, 468 U.S.
85, 102, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984); Maricopa
County Medical Society, 457 U.S. at 348-51.
Simply put, any number of gasoline distributors could
agree to fix prices regardless of the size of their slice of
the pie. The crime is making the agreement, not increasing
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one's market share. Information regarding defendant Marsh's
percentage share of the Greeneville area gasoline market has
no bearing on the question of whether he agreed with other
competitors to fix, raise and maintain retail gasoline
prices as charged. Thus, the business tax records he seeks
are neither evidentiary nor relevant and, therefore,
defendant Marsh's motion should be denied because it fails
to satisfy the first Nixon test.
2.
Defendant Marsh's motion should also be denied because
it fails to establish that defendant Marsh cannot prepare
for trial without the business tax records he seeks. This
information cannot possibly refute the charge that he agreed
to fix, raise and maintain retail gasoline prices with his
co-conspirators. That defendant Marsh waited until the eve
of trial to subpoena this information speaks for its
materiality to any legitimate defense he might attempt to
raise at trial.
Similarly, defendant makes no effort to explain how the
information he seeks could "tend to show the competitive
nature of the Greeneville and Greene County gasoline markets
. . . ." Memorandum in Support at 3. It is undisputed in
this case that several different gasoline distributors sold
varying amounts of gasoline within the Greeneville area
during the indictment period. At best, the business tax
information defendant seeks could only be used to distract
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the jury with piles of irrelevant numbers concerning gallons
sold, taxes paid and market share. Defendant has failed to
establish that he cannot prepare for trial without the
material he seeks to subpoena and, therefore, his motion
should be denied because it fails to clear the third Nixon
hurdle.
3.
Finally, defendant's motion should also be denied
because it seeks to use Rule 17(c) subpoenas as improper
discovery and delay devices. Defendant seeks information
that will have no bearing on the resolution of the question
of whether he is guilty or not guilty of participating in an
illegal horizontal price-fixing agreement. Because this
information is neither evidentiary nor relevant to his case,
he cannot begin to make a claim that he is entitled to
discover what Tennessee law recognizes is sensitive and
confidential business information. Under these fact, it
appears that at best, defendant Marsh's proposed subpoenas
comprise part of a thinly veiled attempt to delay the trial.
In submitting these subpoenas to the Court a month after
the motion cutoff date and a week before jury selection,
defendant Marsh claims that he cannot possibly defend this
case without this additional mountain of information. But
as he indicates in his motion, the documents he seeks will
be "extremely voluminous" -- no doubt too voluminous for him
to assemble, digest and "review and summarize in detail" in
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time for trial. Memorandum in Support at 4. It is obvious
that if the Court grants this motion, defendant will surely
demand an continuance in order to "review and summarize in
detail" the voluminous material purportedly "necessary for
preparation" of a defense -- though irrelevant to any
essential element of the charged offense. Thus, defendant's
motion should be denied because it also fails to clear the
fourth Nixon hurdle.
CONCLUSION
Defendant Marsh has had notice of this investigation for
a substantial period of time, beginning at least when the
grand jury first subpoenaed his records in August 1989. The
United States notified him of his status as a target of the
grand jury's investigation on June 1, 1993 (attachment 1),
and he was indicted on July 21, 1993. He has known for
years of the existence of the business tax records he seeks
to subpoena, and he has chosen to ignore them until the eve
of trial. Surely if they were "necessary" for the
preparation of a defense in this case, he would not have
waited until now to attempt to begin to acquire them.
For the convenience of the Court, the United States
hereby incorporates into this response the relevant
arguments from its motion to quash subpoenas filed on
October 21, 1993. For the foregoing reasons, the United
States respectfully requests that the Court deny defendant
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Marsh's motion for Rule 17(c) subpoenas.
DATED: November , 1993 Respectfully submitted,
William D. Dillon
William G. Traynor
Attorneys
Antitrust Division
U.S. Department of
Justice
Suite 1176
75 Spring St., S.W.
Atlanta, GA 30303
404/331-7100
CERTIFICATE OF SERVICE
This is to certify that on November 3, 1993 the
Response Of The United States Opposing Defendant Marsh's
Motion For Trial Subpoenas Under Federal Rule 17(c) was
served on the counsel listed below by sending photocopies
of these pleadings via United States mail to the following
addresses:
John T. Milburn Rogers, Esquire
Counsel for Sonny Wayne Marsh
100 South Main Street
Greeneville, TN 37743
(615) 639-5183
Frank Johnstone, Esquire
Counsel for Hayter Oil
Company, Inc.
Wilson, Worley, Gamble,
& Ward P.C.
110 East Center Street
P.O. Box 1007
Kingsport, TN 37662-1007
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(615) 246-8181
Roger W. Dickson, Esquire
Counsel for Hayter Oil
Company, Inc.
Miller & Martin
Volunteer Building, Suite 1000
832 Georgia Avenue
Chattanooga, TN 37402
(615) 756-6600
William G. Traynor
Attorney
Antitrust Division
U.S. Department of Justice
75 Spring Street, S.W., Suite 1176
Atlanta, Georgia 30303
(404) 331-7100
TNGAS 1008
Please refer
to: 60-5541-0030
November 3, 1993
VIA FEDERAL EXPRESS
R. Murry Hawkins, Clerk
Eastern District of Tennessee
Office of the Clerk
Federal Building, Room 212
101 Summers Street, West
Greeneville, TN 27743
Attention: Ms. Connie Lamb
Re: United States v. Hayter Oil Company, Inc. of
Greeneville, Tennessee d/b/a Marsh Petroleum
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Oil Company and Sonny Wayne Marsh, CR-2-93-46
Dear Ms. Lamb:
Please find enclosed an original and two photocopies
of the United States' Response Opposing Defendant Marsh's
Motion For Trial Subpoenas Under Federal Rule 17(c). I
would appreciate it very much if you would transmit one
photocopy to Judge Tilson, and return a file-stamped copy
to me in the enclosed self-addressed envelope.
Thank you very much for your help in this matter.
Sincerely,
William G. Traynor
Attorney
Enclosures
cc: Roger W. Dickson, Esquire
Frank Johnstone, Esquire
John T. Milburn Rogers, Esquire
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