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United States v. Winner

United States District Court, S.D. Georgia, Augusta Division

April 27, 2018




         The Court is determining prior to issuance whether forty-one subpoenas submitted by Defendant pursuant to Federal Rule of Criminal Procedure 17(c) satisfy United States v. Nixon. 418 U.S. 683 (1974), and its progeny. (See doc. nos. 159, 244, 256.) Defendant concedes the Court has discretion to conduct this inquiry now rather than after issuance and service. (Doc. no. 247, pp. 9-11.) On April 23, 2018, the parties presented arguments concerning the Nixon specificity standard, followed by Defendant explaining ex parte the subpoenas' relation to trial strategy. Upon consideration of all arguments and evidence, the Court REJECTS forty subpoenas in their entirety as overly broad and APPROVES AS MODIFIED the subpoena at docket entry 256.

         I. BACKGROUND

         Defendant filed her Motion for Issuance of Rule 17 Subpoenas on November 21, 2017. (Doc. no. 159.) Following rulings that defined the scope of discovery and narrowed Defendant's Rule 16 requests, Defendant submitted reformulated Rule 17 subpoenas on March 29, 2018. (Doc. no. 244.) To preserve her right of appeal, Defendant submitted a proffer of additional requests she would have included in the reformulated subpoenas but for the Court's discovery rulings. (Doc. no. 245.)

         II. ANALYSIS

         A. Rule 17(c) Narrowly Permits the Subpoena of Documents that Are Specifically Identifiable, Relevant, and Admissible at Trial.

         Rule 17(c)(1) provides as follows: "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." Rule 17 expedites "the trial by providing a time and place before trial for the inspection of subpoenaed materials" Nixon, 418 U.S. at 698-99. In order to obtain production prior to trial under Rule 17(c), the moving 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."

Id. at 699-700 (footnote omitted). The requesting party must therefore "clear three hurdles:

         (1) relevancy; (2) admissibility; (3) specificity." Id. at 700.

         "Specificity is the hurdle on which many subpoena requests stumble." United States v. Ruedlinger. 172 F.R.D. 453, 456 (D. Kan. 1997). "Courts have noted that the specificity and relevance elements are somewhat heightened in that they 'require more than the title of a document and conjecture as to its contents.'" United States v. Brown, No. 11-60285, 2013 WL 1624205, at *4 (S.D. Fla. Apr. 15, 2013) (Rosenbaum, J.) (citing United States v. Arditti. 955 F.2d 331, 345 (5th Cir. 1992)). "As the Eleventh Circuit has explained, 'the rule only reaches specifically identified documents that will be admissible as evidence at trial, provided that the application for the subpoena is made in good faith.'" Id. (citation omitted).

         Rule 17 is "not intended to provide an additional means of discovery for any party in criminal cases." United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984) (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)); see also Arditti. 955 F.2d at 345 (same). Nor can Rule 17 be used "as a means for developing investigative leads which would lead to evidence producible at trial . . . ." United States v. Noriega, 764 F.Supp. 1480, 1492 (S.D. Fla. 1991). "[A] Rule 17(c) subpoena duces tecum cannot substitute for the limited discovery otherwise permitted in criminal cases and the hope of obtaining favorable evidence does not justify the issuance of such a subpoena." United States v. Caro, 597 F.3d 608, 620 (4th Cir. 2010) (citation omitted).

         Under the Due Process Clause of the Fourteenth Amendment, fundamental fairness requires that a criminal defendant "be afforded a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984). "To safeguard that right, the Court has developed 'what might loosely be called the area of constitutionally guaranteed access to evidence .... [T]his group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of the criminal justice system." Id. (citations omitted). Rule 17(c) "implements the Sixth Amendment guarantee that an accused have compulsory process to secure evidence in [her] favor." United States v. Ventola, Crim. No. 15-10356, 2017 WL 2468777, at *3 (D. Mass. June 6, 2017) (citations omitted). Nevertheless, "[t]he right to defend oneself does not extend to using the power of the Court to compel third parties to provide information that may not even be admissible at trial or at a hearing or that is merely 'investigatory.'" Id. (collecting cases); see also United States v. Rand. 835 F.3d 451, 463 (4th Cir. 2016) (same).

         B. Defendant's Subpoenas Fail to Satisfy the ...

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