IN THE DISTRICT COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. THOMAS AND ST. JOHN 
UNITED STATES OF AMERICA, 
Plaintiff, 
v. 
RUSSELL ROBINSON, 
Defendant. 
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Case No. 3:21-cr-0027-001 
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APPEARANCES: 
 
DELIA L. SMITH, UNITED STATES ATTORNEY 
KYLE PAYNE, ASSISTANT UNITED STATES ATTORNEY 
UNITED STATES ATTORNEY’S OFFICE 
ST. THOMAS, U.S. VIRGIN ISLANDS 
 
FOR THE UNITED STATES OF AMERICA 
 
RUSSELL ROBINSON, PRO SE 
METROPOLITAN DETENTION CENTER - GUAYNABO 
GUAYNABO, PUERTO RICO 
 
MEMORANDUM OPINION 
Robert A. Molloy, Chief Judge 
BEFORE THE COURT is the United States’ (“Government”) Motion to Quash 
Subpoenas. (ECF No. 330.) For the reasons stated below, the Court will grant the motion. 
I. 
BACKGROUND 
On December 17, 2021, a grand jury indicted Defendant Russell Robinson 
(“Robinson”) and his codefendant, Trevor Stephen (“Stephen”), for possession with intent to 
distribute cocaine and conspiracy to do the same. (ECF No. 23.)1 According to the Complaint, 
on the night of November 29, 2021, U.S. Customs and Border Protection agents observed a 
marine vessel operating without lights as the vessel approached Vessup Bay. See ECF No. 1. 
When the vessel arrived, several people were waiting on the beach. See id. The agents 
observed two individuals aboard the “lights out” vessel unloading several bags and handing 
 
1 The Superseding Indictment was filed on October 6, 2022. (ECF No. 92.) 
 
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them to the individuals on the beach, who then placed the bags into a Toyota Tundra pickup 
truck. See id. Once they had loaded the bags, the individuals on the beach left the area in the 
Toyota Tundra. See id. When the truck departed from the beach, the CBP agents initiated 
their pursuit to intercept the vehicle. During the pursuit, one of the individuals in the truck 
purportedly threw the bags out of the vehicle. See id. A short time later, the agents eventually 
stopped the truck, detained the occupants, and located the discarded bags containing a total 
of 210 kilograms of cocaine. See id. The driver of the vehicle was later identified as Defendant 
Russell Robinson, and the passenger was determined to be his codefendant, Trevor Stephen. 
See ECF No. 1. 
On January 31, 2023, Robinson filed a motion to sever his case from Stephen’s. (ECF 
No. 46.) The purported basis for the severance was that Attorney Melanie Turnbull, counsel 
for Robinson’s codefendant, Trevor Stephen, had convinced Stephen “to change the facts as 
they happened (in an attempt to exonerate himself).” Id. According to Robinson, Attorney 
Turnbull negotiated an agreement with the Government that if Stephen were willing to 
implicate Robinson, Stephen would potentially receive “immunity, [a] change of identity, 
relocation for him and his family, [and] no deportation.” Id. After reviewing Robinson’s 
motion to sever, the Court ultimately denied his request, concluding that Robinson had failed 
to demonstrate a sufficient prejudice that was likely to occur as a result of the Government 
trying Robinson and Stephen jointly.2 See ECF No. 132. As a result, the defendants went to 
trial together on June 12, 2023. 
At trial, Robinson3 asserted a duress defense wherein he claimed that both he and 
Stephen were forced by an unidentified third person to pick up the bags containing cocaine 
 
2 At the time the Court ruled on the motion to sever, Robinson did not state what he believed Stephen’s 
affirmative defense would be, only that it would somehow implicate Robinson. Additionally, the Government 
indicated that it had no intention of using any statements made by Stephen against Robinson at their joint trial. 
Therefore, in addition to there being no Bruton issue, there was no colorable claim of the defendants having 
mutually antagonistic defenses that would warrant severance, especially given that, at that point, Trevor 
Stephen had made no indication he would be asserting an affirmative defense at all. Additionally, neither in his 
motion to sever nor during the status conferences on January 11, 2023, and February 17, 2023, did Robinson 
indicate that he intended to rely on Stephen’s post-Miranda silence as exculpatory evidence. Accordingly, the 
Court would not have been able to grant Robinson’s motion to sever on that ground either.  
 
3 At trial, Robinson represented himself pro se with the assistance of standby counsel, Attorney David Cattie.  
 
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from the marine vessel in Vessup Bay on the night of November 29, 2021. See ECF No. 286 at 
31. According to Robinson, this third individual pointed a gun at the two defendants, forcing 
the men to commit the crime. See id. at 35. Stephen provided a distinctly different version of 
events. 
Prior to the trial, Stephen’s counsel had made no representations on the record that 
he intended to assert an affirmative defense in this case. See ECF No. 155.4 During opening 
statements to the jury, however, Stephen’s counsel stated for the first time that “you will 
learn that the gunman was Russell Robinson and the sole person acting under duress was 
Trevor Stephen.” ECF No. 286 at 36. According to Stephen’s telling, Robinson asked him to 
help pick up some boxes, but when Robinson and Stephen arrived at Vessup Beach, Robinson 
pulled a gun on Stephen and forced Stephen to assist in the criminal venture. As such, the 
defendants appeared to be presenting potentially mutually antagonistic defenses.5 
To refute Stephen’s defense during the trial, standby counsel for Robinson informed 
the Court that he intended to rely on both Stephen’s pre-Miranda and post-Miranda silence 
to show that Stephen never indicated to anyone that Robinson had pulled a firearm on him 
despite having an opportunity to do so. Stephen’s counsel objected, in part, on constitutional 
grounds. While the parties conceded that Robinson could rely on Stephen’s pre-Miranda 
silence without issue, the Court noted that Robinson’s use of Stephen’s post-Miranda silence 
could implicate conflicting constitutional rights of the defendants.  
After determining that the mutually antagonistic defenses by the defendants and 
Robinson’s intention to use Stephen’s post-Miranda silence could raise constitutional 
concerns, the Court and the parties discussed the possibilities of a mistrial. Robinson 
thereafter moved for a mistrial and a severance of his case from Stephen. While Stephen 
opposed the request for a mistrial, the Government did not. After carefully considering the 
 
4 In Stephen’s Trial Brief, filed just ten days before trial, he indicated that he did “not anticipate any witnesses 
at th[at] time” nor did he “anticipate a defense case at th[at] time.” ECF No. 154.  
 
5 During the trial, the prosecution represented to the Court that the Government had never been put on notice 
of Stephen’s plan to assert a duress defense in this case. See ECF No. 286 at 24.  
 
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issues, the Court granted Robinson’s motion for a mistrial, severed the case, and then 
proceeded with trial as to Trevor Stephen.6 (ECF No. 226.) 
Shortly after the Court ordered a mistrial, Robinson filed a motion to dismiss the 
charges in the Indictment on double jeopardy grounds. (ECF No 254.) In his motion, 
Robinson notes that the Double Jeopardy Clause bars prosecution of a defendant who 
successfully moves for a mistrial where the Government deliberately sought to provoke the 
defendant’s request for a mistrial. See id. Robinson contends that those circumstances exist 
in this case. According to Robinson, the Government forced him to move for a mistrial 
because the Government “had an affirmative hand in the formulation of Stephen’s opening 
argument” as well as the defense Stephen presented at trial. Id. Therefore, because the 
Government allegedly knowingly helped create the circumstances that led to Robinson’s 
request for a mistrial, Robinson believes the Double Jeopardy Clause bars the Government 
from retrying his case. 
In light of Robinson’s argument, the Court determined that an evidentiary hearing 
was necessary to resolve the material facts in dispute. Accordingly, the Court issued an order 
scheduling a hearing on Robinson’s motion to dismiss for October 26, 2023. (ECF No. 268.) 
On August 23, 2023, the Court held a status conference to address several pending 
issues in this case. One such issue was Defendant Russell Robinson’s request to subpoena ad 
testificandum certain witnesses for the hearing. Among the witnesses Robinson requested to 
subpoena were Special Agent Joseph Pittaluga and Assistant United States Attorney Kyle 
Payne, the attorney of record for the Government in this case. See ECF No. 274. On August 
31, 2023, the Court granted Robinson’s request, and subpoenas were issued to Agent 
Pittaluga and Attorney Payne accordingly. (ECF Nos. 296.) On September 14, 2023, the 
Government filed the instant motion to quash the subpoenas as to Agent Pittaluga and 
Attorney Payne. (ECF No. 355.)  Robinson filed a response on September 21, 2023. (ECF No. 
339.) The matter being fully briefed, is now properly before the Court.  
II. 
LEGAL STANDARD 
 
6 The jury ultimately found Stephen guilty of possession with intent to distribute cocaine. (ECF No. 244.) 
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Federal Rule of Criminal Procedure 17 governs subpoenas issued in criminal 
proceedings. See Fed. R. Crim. 17. Under Rule 17(a), a party is permitted to issue a subpoena 
ad testificandum “command[ing] a witness to attend and testify at the time and place the 
subpoena specifies.” Id. While Rule 17(a), unlike Rule 17(c) (which governs subpoenas duces 
tecum), does not explicitly provide an individual the ability to quash a subpoena ad 
testificandum, motions to quash subpoenas ad testificandum and subpoenas duces tecum are 
subject to “roughly the same standard.” Stern v. U.S. Dist. Court for the Dist. Of Mass., 214 F.3d 
4, 17 (1st Cir. 2000); see United States v. Riego, 627 F. Supp. 3d 1254, 1258 (D.N.M. 2022); 
United States v. Goldstein, No. 21 CR. 550 (DC), 2023 WL 3662971, at *5 (E.D.N.Y. May 25, 
2023). Accordingly, a subpoena ad testificandum will generally survive a motion to quash so 
long as “the defendant seeks testimony that is relevant and material to the issue being 
litigated.” United States v. Bebris, 4 F.4th 551, 559–60 (7th Cir.), cert. denied, 142 S. Ct. 489, 
211 L. Ed. 2d 296 (2021) (citing Stern, 214 F.3d at 17); see United States v. Santistevan, No. 
11-CR-00406-CMA, 2012 WL 2875949, at *1 (D. Colo. July 12, 2012); see also United States v. 
Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (implicitly adopting the material and relevant 
standard at least for a defendant seeking the appearance of a witness at trial) (quoting 
Washington v. Texas, 388 U.S. 14, 87 (1967)). 
III. 
ANALYSIS 
A. Subpoena Issued to Agent Joseph Pittaluga  
The Court will begin by addressing the subpoena issued to Agent Joseph Pittaluga. 
With regard to Agent Pittaluga, the Government argues that the Court should quash the 
subpoena issued to him due to Robinson’s failure to comply with the Department of Justice’s 
(“DOJ”) Touhy regulations.7 See ECF No. 330 at 18. While the Court agrees that quashal of 
Pittaluga’s subpoena is appropriate here, after further review, the Court finds that, as a 
 
7 Touhy regulations is common term referring to internal federal agency regulations generally enacted pursuant 
to the Federal Housekeeping Statute (“Housekeeping Act”) 5 U.S.C. § 301, which govern the production of 
documents and testimony by agency officials and their staff for the purposes of litigation. Each federal agency 
generally has its own unique set of internal regulations setting out the requirements a party must comply with 
if the party seeks to obtain testimony or documents from an agency employee for the purposes of litigation. 
These internal subpoena regulations are often referred to as Touhy regulations because the Supreme Court first 
upheld the authority for similar regulations in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). 
 
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preliminary matter, the subpoena fails to meet the material and relevancy requirements of 
Rule 17 and thus the Court need not reach the Touhy regulation issue.8  
As Robinson stated on the record at the August 23, 2023 status conference, the only 
reason he is seeking to subpoena Agent Pittaluga is to ask Pittaluga about alleged statements 
his codefendant, Trevor Stephen, made moments prior to the December 3, 2021 bail hearing. 
See ECF No. 297 – Aug. 23, 20023 Hrn’g Tr. at 29-30. Specifically, Robinson intends to ask 
Agent Pittaluga whether he remembers hearing Trevor Stephen state to his defense attorney, 
Melanie Turnbull, “the guy had two guns; one to my head, one to Robinson[’]s head.” ECF No. 
297 at 30. Robinson’s proposed line of questioning, however, would neither be relevant nor 
material to the question at issue for the evidentiary hearing—did the Government 
intentionally provoke Robinson’s motion for a mistrial by conspiring with Stephen and the 
Federal Public Defender’s Office to formulate a duress defense. See United States v. Brown, 
994 F.3d 147, 153 (3d Cir. 2021) (noting that the Double Jeopardy clause “bars a retrial for 
prosecutorial misconduct only if ‘the conduct giving rise to the successful motion for a 
mistrial was intended to provoke the defendant into moving for a mistrial.’”) (quoting United 
States v. Curtis, 683 F.2d 769, 776 (3d Cir. 1982)) (internal quotations and citations omitted). 
Even favorable testimony from Agent Pittaluga would not support Robinson’s theory that 
the Government knew of or played an affirmative hand in establishing Stephen’s defense. In 
fact, Pittaluga’s testimony would not even suggest the Government had prior knowledge of 
Stephen’s defense, let alone support the theory that the Government conspired with Stephen 
or defense counsel to alter Stephen’s defense. At best, Agent Pittaluga’s testimony could 
potentially demonstrate that Stephen’s intended defense changed between the bail hearing 
and the start of trial eighteen months later. However, even if true, that fact is irrelevant for 
the sake of the evidentiary hearing since the testimony does not tend to show that the 
Government played a role in Stephen changing his defense.9 
 
8 While the Court initially concluded at the August 23rd status conference that Robinson was permitted to 
subpoena Agent Pittaluga, see ECF No. 296 and 297, upon the Government’s motion to quash the subpoena, the 
Court reviewed Robinson’s basis for the subpoena and ultimately determined that its earlier conclusion was in 
error.  
9 Robinson’s theory as to the basis for his motion to dismiss on grounds of double jeopardy has shifted many 
times. First, as argued in his motion to dismiss, Robinson essentially argues that the Government and Stephen 
devised a plan “to falsely implicate Robinson in being the perpetrator of armed [d]uress towards Stephen.” ECF 
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From the Court’s estimation, Robinson’s intended purpose in eliciting this testimony 
is merely to undermine the creditability of Stephen’s duress defense and buttress Robinson’s 
own theory that a third person coerced both defendants into carrying out the criminal 
enterprise. The veracity of Robinson’s duress defense, however, is not at issue in the 
upcoming evidentiary hearing. Accordingly, the fact that Agent Pittaluga, or any member of 
the Government for that matter, may have heard Stephen make a statement inconsistent 
with the testimony he gave at the June trial is irrelevant for the purposes of this proceeding. 
Thus, seeing as the proposed testimony of Agent Pittaluga would be neither material nor 
relevant for the upcoming hearing, the Court will grant the Government’s motion to quash 
as it relates to Agent Pittaluga’s subpoena.  
B. Subpoena Issued to Assistant United States Attorney Kyle Payne 
As for the subpoena issued to Attorney Payne, the Government offers two separate 
bases for quashal. Similar to Agent Pittaluga, the Government first argues that Robinson may 
not subpoena an Assistant United States Attorney without first complying with the Justice 
Department’s Touhy regulations. See ECF No. 331. Because the Government claims Robinson 
has failed to satisfy the DOJ’s regulatory requirements, the Government contends the Court 
may not enforce the subpoena issued to Attorney Payne. See id. 
In addition to the regulatory bar purportedly created by the DOJ’s Touhy regulations, 
the Government also argues that before a defendant may subpoena a prosecutor to testify in 
a case the prosecutor is participating in, the defendant must show a compelling need for the 
prosecutor to serve as a witness. See id. at 15. According to the Government, the compelling 
 
No. 254 at 2. However, at the August 23, 2023 hearing and at other times during this case, Robinson sought to 
clarify his argument that he is entitled to a dismissal of his case because the Government knew that Stephen 
and his counsel would falsely implicate Robinson and the Government failed to investigate these alleged 
criminal acts. Robinson believes that Pittaluga’s testimony would support his alternative theory that the 
Government provoked a mistrial by failing to adequately investigate the underlying factual basis of his motion 
to sever. This theory is clearly meritless because the Government had no duty to investigate the underlying 
conduct Robinson was alluding to in his motion to sever. See Gratton v. Cochran, No. 3:18-cv-00554, 2019 WL 
13414467, at *3 (M.D. Tenn. Feb. 13, 2019) (noting that the duty to investigate wrongdoing by government 
officials is discretionary, not mandatory) (citing Agunbiade v. United States, 893 F. Supp. 160, 163 (E.D.N.Y. 
1995)). Therefore, even if Robinson could proceed under his alternative theory, Pittaluga’s testimony would 
not be material, seeing as a failure to investigate would not support the claim that the Government intentionally 
provoked Robinson to move for a mistrial. 
 
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need doctrine requires the defendant to exhaust all other available sources of evidence 
before calling on the participating prosecutor to testify. See id. at 16. In other words, the 
Government asserts that a participating prosecutor must be more than a material witness; 
the prosecutor must be a necessary witness in order to testify in his or her own case.  
In light of this compelling need standard, the Government argues that Robinson has 
failed to carry his burden to subpoena Attorney Payne. The Government notes that, in 
essence, Robinson alleges that Attorney Payne, other members of the prosecution team, and 
attorneys from the Federal Public Defenders’ Office worked together with Trevor Stephen to 
devise a plan in which Stephen would implicate Robinson at trial. Given the various 
individuals involved in this conspiracy, the Government argues that Robinson can obtain the 
relevant testimony from a source other than Attorney Payne. See id. at 17. The Government 
contends that since the attorneys from the Federal Public Defenders Office have also been 
subpoenaed in this case, Robinson can ask them whether they ever conspired with the 
Government or otherwise informed the prosecution of Stephen’s affirmative defense prior 
to the June trial. With the testimony regarding the alleged conversations and wrongful 
conduct available from other witnesses, the Government asserts there is no compelling need 
to elicit testimony from Attorney Payne. Therefore, any testimony from the Assistant United 
States Attorney in this case should be barred.  
 
The Government is correct that the Court may only permit Attorney Payne to testify 
if “extraordinary circumstances” exist and there is a “compelling and legitimate” need for his 
testimony. United States v. Birdman, 602 F.2d 547, 552-53 (3d Cir. 1979) (collecting cases); 
United States v. Regan, 103 F.3d 1072, 1083 (2nd Cir. 1997); see United States v. Roberson, 
897 F.2d 1092, 1098 (11th Cir. 1990); see also Gajewski v. United States, 321 F.2d 261, 268 
(8th Cir. 1963) (“[A] court may, without abusing its discretion, refuse to allow the defense to 
call as a witness the United States Attorney trying the case.”) (citing Fisher v. United States, 
231 F.2d 99, 104 (9th Cir. 1956)); United States v. Newman, 476 F.2d 733, (3d Cir. 1973) 
(finding defendant’s request to call prosecutor was properly denied as irrelevant where 
there was “no evidence the prosecutor suppressed evidence” and “the prosecutor explicitly 
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denied to the court on the record, both as a member of the bar and as an officer of the court, 
making any bargains or agreements” with the witness.) 
 
Since there is “no ‘compelling need’ to call the prosecuting attorney unless [he is] a 
‘necessary witness,’” Attorney Payne may only be required to testify if there is no other 
witness available to provide the testimony sought. United States v. Prantil, 764 F.2d 548, 551 
(9th Cir. 1985) (“We recognize that a defendant has an obligation to exhaust other available 
sources of evidence before a court should sustain a defendant's efforts to call a participating 
prosecutor as a witness.”); Roberson, 897 F.2d at 1098 (finding no compelling need for 
AUSA’s testimony where other witnesses were available to testify); United States v. Torres, 
503 F.2d 1120, 1126 (2nd Cir. 1974) (concluding AUSA should not have been permitted to 
testify where there was no showing that no other individuals were available to testify.).  
In the present case, if the Government indeed worked with Trevor Stephen and the 
Federal Public Defender’s Office to formulate an affirmative defense implicating Robinson, 
then there are necessarily sources other than Attorney Payne who can testify on the matter. 
The alleged wrongful conduct here involves a purported agreement and conversations 
between the Government, Stephen, and Stephen’s defense team. Since Stephen’s attorneys 
would have been party to any discussions with the Government regarding the agreement 
and the plan to formulate a defense, Stephen’s attorneys are just as capable of providing 
testimony on the matter. Therefore, given that all three of Stephen’s attorneys will be 
available to testify at the evidentiary hearing, Robinson has no basis to argue that there is a 
compelling and legitimate need for Attorney Payne’s testimony.10 As such, the Court will 
quash the subpoena issued to Attorney Payne and will not permit him to testify at the 
evidentiary hearing.11  
IV. 
CONCLUSION 
 
10 Although Stephen’s attorneys’ motion to quash Robinson’s subpoenas remains outstanding, Stephen’s 
attorneys have not challenged the subpoenas issued to them by the Government. Therefore, by all indications, 
Stephen’s attorneys will be available to testify at the evidentiary hearing on October 26, 2023.  
 
11 Because the Court concludes there is an adequate basis to quash Attorney Payne’s subpoena given the 
alternative available sources for the testimony sought, the Court will not address the Touhy regulation issue at 
this time.  
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For the reasons stated, the Government’s motion to quash both Agent Pittaluga’s and 
Attorney Payne’s subpoenas is granted. An accompanying order of even date will follow.  
  
Dated: October 25, 2023 
 
/s/ Robert A. Molloy  
 
 
 
  
 
 
 
 
ROBERT A. MOLLOY 
 
 
 
 
 
 
 
Chief Judge 
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