United States District Court, D. Connecticut
RULING ON MOTION TO QUASH
M. Spector United States Magistrate Judge
defendant, John N. Milne, and the respondent, Attorney Andrew
Bowman,  have filed a motion to quash the subpoena
duces tecum that the plaintiff, the Securities and
Exchange Commission (“Commission”), served upon
the respondent on July 11, 2018. (See Doc. No. 45 at
1; Doc. No. 45 at 6, Ex. A.) The defendant and the respondent
argue that the Court should grant their motion because
production of the documents that the Commission seeks would
violate the Fifth Amendment protection against
self-incrimination, the Sixth Amendment right to the
effective assistance of counsel, the attorney-client
privilege, and the work product doctrine. (Doc. No. 45 at 1).
The Commission responds that, because the documents it seeks
relate to the defendant's payment of fees to the
respondent, the documents are not privileged or otherwise
protected and, therefore, the motion should be denied. (Doc.
No. 47 at 2.) For the reasons detailed below, the Motion to
Quash (Doc. No. 45) is DENIED; the respondent shall comply
with the subpoena one week after the defendant's criminal
appeal has been resolved.
October 13, 2009, the defendant pleaded guilty to one count
of conspiracy to falsify the books and records of United
Rentals, Inc. while he served as its Chief Financial Officer,
in violation of 18 U.S.C. § 371. See Milne,
Doc. No. 75. As part of the plea agreement, the defendant
agreed to pay $6, 250, 000 in disgorgement to the Commission.
Id. The Court sentenced the defendant to 27
months' imprisonment, followed by 36 months'
supervised release. See Id. at Doc. No. 89. The
Court imposed numerous special conditions on the
defendant's supervised release, including, inter
alia, that “[t]he defendant shall comply with the
conditions of the plea agreement dated October 9, 2009, as it
relates to the Disgorgement in Lieu of Restitution and Fine.
This requires the defendant to make payments to the
[Commission] in the total amount of $6, 250, 000.00.”
Id. The final judgment included a payment schedule
regarding the disgorgement, which provided, inter
A. Defendant shall pay the first $1 million of the
disgorgement in three installment payments according to the
following schedule: (1) $333, 333 within 90 days of entry of
this Final Judgment; (2) an additional $333, 333 within 180
days of entry of this Final Judgment; and (3) an additional
$333, 334 within 270 days of this Final Judgment (the
B. After Defendant complies with the payment schedule set
forth above, he shall satisfy the remaining disgorgement
balance due of $5.25 million plus applicable post-judgment
interest within three (3) years after the entry of this Final
(Doc. No. 40.)
April 5, 2018, the defendant admitted to violating the
special condition of his supervised release that required him
to pay to the Commission $6, 250, 000. See
Milne, at Doc. No. 217. Accordingly, the Court sentenced
the defendant to an additional 24 months' imprisonment,
with no supervised release to follow. Id. On April
19, 2018, the defendant filed a notice of appeal regarding
the Court's order revoking supervised release and the
defendant's 24-month sentence, and on May 22, 2018, the
defendant retained the respondent as his appellate counsel.
See Id. at Doc. No. 222; see also supra
25, 2018, the Commission served the respondent with a
subpoena, which required the respondent to:
A. Produce all Documents Relating To any payment made by or
on behalf of the [defendant and/or any entities owned or
controlled by the defendant], including but not limited to
payment documentation such as checks (front and back),
receipts, and wire transfer authorizations and confirmations.
B. Produce all Documents Relating To any and all records of
fees, monies, property or other things of value (including
the payment of expenses related to leisure activities such as
vacations, flights, hotel accommodations, and meals)
received, accepted, transferred or held by [the respondent]
to any payments made by or on behalf of the [defendant and/or
any entities owned or controlled by the defendant].
C. Produce all Documents Relating To any bank, financial
institution, or financial account of or for the benefit of
the [defendant and/or any entities owned or controlled by the
defendant], including, but not limited to, application
material, account statements, and ABA routing numbers.
(Doc. No. 45 at 12, Ex. A.)
August 2, 2018, the defendant and the respondent filed this
Motion to Quash (Doc. No. 45) with an accompanying memorandum
(Doc. No. 46). On August 21, 2018, the Commission filed its
response. (Doc. No. 47.) On August 22, 2018, the Court
referred the Motion to Quash to this Magistrate Judge. (Doc.
No. 48.) Following a status conference on September 6, 2018,
the Court ordered that the parties may file supplemental
memoranda addressing whether it should defer decision on the
motion until the defendant's criminal appeal has been
decided. (Doc. No. 51, citing United States v.
Saccoccia, 898 F.Supp. 53, 56 (D.R.I. 1995) (deferring
decision on government's application until after appeal