United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is Brent Alexander's motion to quash a trial
subpoena. Docket No. 35.
more than a year and a half, this Court has presided over the
civil and criminal cases related to the Madison Timber Ponzi
scheme. This matter, United States v. McHenry, is
the second criminal case to be filed in the aftermath of that
scheme. The case commenced in January 2019 and was unsealed
in March, before proceeding into discovery. In August, the
Court told the parties that it expected them “to be
ready to take this matter to trial, ” but the parties
sought and received a final continuance to the December 2
trial setting. Docket No. 25. That setting is now upon us.
defendant, through counsel, has made preparations to call
Brent Alexander as a trial witness. On November 20 and 26,
the defendant's investigator attempted to serve Alexander
with a trial subpoena at Alexander's place of employment
and through Alexander's counsel in a pending civil
matter. The investigator's calls and messages
were not returned. The defendant's attorney then received
permission for the U.S. Marshals Service to serve the
subpoena. A Deputy Marshal did so on Wednesday, November
27-the day before Thanksgiving and the last business day
before the commencement of this criminal trial.
that same afternoon, Alexander filed the present motion
through attorney Brad Pigott. Pigott is not Alexander's
representative in the civil matter also pending before this
Court-so had not been contacted by the defendant's
investigator about the subpoena-but apparently was hired
“numerous months” ago to assist Alexander with
the U.S. Attorney's Office's ongoing criminal
investigation into the Madison Timber Ponzi
scheme. The motion says that Alexander will invoke
his Fifth Amendment right at trial, and asks that the
subpoena be quashed to protect his constitutional right.
Docket No. 35 (citing Fed. R. Crim. P. 17(c)(2)).
first issue is whether this Court should hear the present
motion. Because Brad Pigott is one of the few attorneys on
the undersigned's recusal list, had he filed a lawsuit in
connection with the issues presented in this case, this Court
would ordinarily have issued a generic Order of Recusal under
28 U.S.C. § 455. The posture of the present motion,
however, is not ordinary.
issues require “a careful consideration of context,
that is, the entire course of judicial proceedings, rather
than isolated incidents.” Andrade v.
Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003). What
follows will explain why the circumstances of this case
require the matter to proceed to verdict uninterrupted.
it is past time for this criminal case to be tried. The
defendant has a right to be confronted with the
government's evidence in a speedy trial, and the many
victims of the Madison Timber Ponzi scheme are entitled to
finally hear that evidence, if it exists. This trial will not
be derailed by a last-minute recusal and reassignment to a
new District Judge who could not hear the case until 2020.
Alexander's own actions have rendered his motion
untimely. Perhaps he could have predicted months ago that he
would be called to testify in this matter; it is not entirely
clear. At a minimum, however, he could have filed his motion
days if not a full week earlier, had he not evaded service of
the subpoena. That at least would have given all involved the
time to discuss and hear the motion and its attendant
it is well-established that “a litigant should not be
permitted to utilize a disqualification issue as part of his
trial strategy.” Potashnick v. Port City Const.
Co., 609 F.2d 1101, 1115 (5th Cir. 1980). A defendant
generally may be represented by the attorney of his choice,
but that right “may be overridden when compelling
reasons exist, ” including when the attorney was
selected “for purposes of delay or obstruction of the
orderly conduct of the trial.” McCuin v. Texas
Power & Light Co., 714 F.2d 1255, 1263 (5th Cir.
1983) (quotation marks and citations omitted).
this Court is confident that Alexander's selection of
counsel was not a sham- Pigott is a former U.S. Attorney for
this Judicial District, with considerable expertise in
negotiating with that Office-it is not obvious why he filed
the present motion. There are several other criminal defense
attorneys who could represent Alexander's particular,
testimonial interests in this case without creating a
conflict or necessitating a rescheduling of this trial. If
his primary desire was to have counsel who had worked in the
U.S. Attorney's Office, they too are out there.
and finally, the motion fails on the merits. Federal Rule of
Criminal Procedure 17(c)(2) provides that “[o]n motion
made promptly, the court may quash or modify the subpoena if
compliance would be unreasonable or oppressive.” Here,
even if Alexander had accepted the subpoena immediately and
filed his motion, it would not be unreasonable or oppressive
for him to comply with the subpoena. If the defendant calls
Alexander to the witness stand, Alexander may assert his
Fifth Amendment right against self-incrimination. He has not
pointed to any case law indicating that such a procedure
would be unreasonable, oppressive, or violate his
the motion is denied.