United States v. Davitashvili

UNITED STATES OF AMERICA v. DAVIT DAVITASHVILI

CRIMINAL ACTION No. 21-255

United States District Court, E.D. Pennsylvania

April 28, 2022

MEMORANDUM

KEARNEY, J.

Our grand jury charged Davit Davitashvili with transmitting text messages from abroad on May 10, 2020 containing a threat to injure his then-estranged wife Olga Volosevich and others in Philadelphia. Ms. Volosevich did not report the threats until a year later. The United States intends to offer evidence attributing her delay in reporting her husband's texts to her learning he intended to return to the Philadelphia area in Spring 2021. Mr. Davitashvili sees it differently; he may try to argue his texts did not violate the law and Ms Volosevich only reported him in May 2021 after he began questioning her about their 2019 and 2020 joint tax returns and what she did with COVID stimulus payments. He also hopes to show possible misrepresentations in her immigration filings. Mr. Davitashvili now moves for leave to issue pretrial subpoenas to the Internal Revenue Service and Immigration Services seeking these records. The United States opposes the pretrial production, and Ms. Volosevich objects to the production of her personal information. We held two oral arguments and offered the parties the opportunity to present testimony. We deny Mr. Davitashvili leave to subpoena Ms. Volosevich's immigration records or to subpoena his tax records for pretrial production to the extent he cannot get them as his own records without a subpoena. We deny Ms Volosevich's motion to quash the production of tax records at trial.

I. Background

Davit Davitashvili married Olga Volosevich in 2016. The two resided in Philadelphia until 2019. Ms. Volosevich claims Mr. Davitashvili verbally and physically abused her during their marriage. In fall 2019, Ms. Volosevich moved out of their apartment and demanded a divorce. Mr. Davitashvili returned to his native country-the Republic of Georgia-shortly after. The two communicated via instant messaging applications, including Viber, during his time in Georgia.^[1]Those messages range from the nonsensical thoughts, at least from our perspective understanding we have limited context at this stage, to ambiguous statements from Mr. Davitashvili which the United States characterizes as abusive and threatening and less ambiguous statements from Ms. Volosevich about her perception of abuse.

This case addresses one chain of messages the two exchanged on May 10, 2020. Mr. Davitashvili allegedly messaged Ms. Volosevich on Viber telling her he would rape her mother, ^[2]put her in a wheelchair, and kill others.^[3] Ms. Volosevich blocked Mr. Davitashvili on Viber at the end of May 2020. Ms. Volosevich did not report this May 10, 2020 conduct for another year.

But the two communicated over other messaging applications such as Facebook Messenger in June 2020 before Mr. Davitashvili blocked Ms. Volosevich for bringing up divorce. The two did not talk again until February 2021 when Mr. Davitashvili contacted Ms. Volosevich using a different Facebook account. In April 2021, Mr. Davitashvili asked Ms. Volosevich if she filed her tax returns as “married filing jointly” in 2019 and 2020 and collected COVID-19 stimulus payments when they separated and he lived in Georgia. Ms. Volosevich did not provide a “straight answer.” In May 2021, Ms. Volosevich filed a complaint with the FBI about Mr. Davitashvili's messages from May 10, 2020.

Mr. Davitashvili returned to the United States from Georgia in June 2021. The FBI arrested Mr. Davitashvili upon his arrival for threatening to injure Ms. Volosevich, her mother, and various other unidentified individuals in the May 10, 2020 messages. Our grand jury indicted Mr. Davitashvili for one count of transmitting a communication containing a threat to injure or kidnap in interstate or foreign commerce in violation of 18 U.S.C. § 875(c).^[4] We proceed to trial on June 15, 2022.^[5]

II. Analysis

Mr. Davitashvili now moves under Federal Rule of Evidence 17(c) for leave to subpoena: (1) the Internal Revenue Service for Ms. Volosevich's 2019 and 2020 tax returns, records of the COVID-19 Economic Impact Stimulus payments made to Ms. Volosevich, and bank account information where the COVID-19 payment deposited if no hard check issued; and (2) the United States Citizenship and Immigration Service for Ms. Volosevich's immigration “A-File.”^[6] The United States and Ms. Volosevich oppose both motions.^[7]

Federal Rule of Criminal Procedure 17(c) provides: “A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.”^[8] “Rule 17 first creates a general rule: Subpoenas are issued without the court's involvement when they command the recipient's presence and possibly the production of documents at a particular hearing . . . [and] Rule 17(c) creates a limited exception to this rule, declaring that ‘the court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence.'”^[9] And Rule 17(c)(3) creates an exception requiring a court order when the subpoena seeks a victim's confidential information.^[10] Both exceptions are implicated here.

Our Supreme Court instructs “‘any document or other materials, admissible as evidence' is subject to subpoena under [Rule 17(c)].”^[11] “The test for enforcement is whether the subpoena constitutes a good faith effort to obtain identified evidence rather than a general ‘fishing expedition' that attempts to use the rule as a discovery device.”^[12] The party seeking production bears the burden of proof.^[13] The proponent must clear three hurdles: relevancy, admissibility, and specificity, to meet his burden.^[14] But Rule 17(c) is not “intended to provide a means of discovery for criminal cases”; rather, “its chief innovation [is] to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials.”^[15] “Indeed, ‘courts must be careful that [a] Rule 17(c) [subpoena] is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.' Thus, although a defendant's subpoena may be motivated only by the venerable principle of ‘nothing ventured, nothing gained,' more is needed to sustain a subpoena than the defendant's own subjective belief (i.e., hope) that he or she may find something useful by casting a subpoena upon the waters.”^[16]

And just because the “requested material may be evidentiary and subject to subpoena at trial under Bowman does not mean that the party seeking production is automatically entitled to pretrial production and inspection.”^[17] Rather, the party must satisfy the Nixon factors: “[t]o obtain pretrial production and inspection of unprivileged materials from a third party witness, a party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.'”^[18]

Mr. Davitashvili seeks an Order permitting him to issue two subpoenas returnable before trial. We begin with Mr. Davitashvili's request for Ms. Volosevich's immigration file and then turn to his request for the documents from the IRS. We find Mr. Davitashvili is not entitled to subpoena Ms. Volosevich's immigration “A-file” because his request for the subpoena is based on a “mere hope” he may find something relevant and exculpatory. Mr. Davitashvili is entitled to subpoena the IRS for: (1) his 2019 and 2020 tax returns returnable at trial to the extent he does not obtain them through a request for his own records as we now know Ms. Volosevich jointly filed on his behalf allegedly without his consent or signature, (2) any COVID-19 stimulus checks made out in his name which Ms. Volosevich may have signed and deposited or cashed allegedly without his knowledge or consent, and (3) if a hard check did not issue for the stimulus payments in Mr. Davitashvili's name, the bank account information on file where the money directly deposited, including confirmation of any deposit(s).

A. Mr. Davitashvili fails to meet his burden to show his subpoena for Ms. Volosevich's immigration file is based on something more than a mere hope he will find relevant, exculpatory information.

Mr. Davitashvili moves us to permit him to issue a subpoena to the United States Citizenship and Immigration Service returnable before trial for Ms. Volosevich's immigration “A-file.” We find Mr. Davitashvili is not entitled to subpoena Ms. Volosevich's immigration “A-file” because his request for the subpoena is based on a “mere hope” he may find something relevant and exculpatory and is thus a “fishing expedition” for discovery rather than a request for identifiable, relevant evidence.

Mr Davitashvili tells us Ms. Volosevich is not a United States citizen, but she has applied to become one. He does not tell us when she did so. The United States informs us Ms. Volosevich became a citizen in 2022. Mr. Davitashvili argues he is entitled to issue this subpoena and obtain this information before trial because “[i]f Ms. Volosevich violated tax and fraud statutes in the filing of joint tax...