United States District Court, S.D. Georgia, Savannah Division
Christopher L. Ray United States Magistrate Judge
the Court is defendant's Motion to Appoint Expert, doc.
38, Motion to Produce, doc. 40, and Motion to Dismiss, doc.
41. Defendant has requested the withdrawal of the Motion to
Appoint Expert, doc. 43 and his Motion to Dismiss, doc.
Accordingly, those motions are DISMISSED as WITHDRAWN.
Defendant's Motion for Production, doc. 40, is DISMISSED
MOTION TO PRODUCE
has requested that the Court require the production of
certain records in the possession of the Superior Court or
the Chatham County District Attorney's Office. Doc. 40.
The Government has indicated to the Court that
defendant's counsel is satisfied with the information he
received after a conference call which occurred on January 6,
2020. Doc. 51 at 3. Accordingly, the motion is
DISMISSED AS MOOT.
extent defendant seeks to procure additional information not
within the possession or control of the Government, the
request is not properly filed. The Sixth Amendment guarantees
a criminal defendant access to “compulsory process for
obtaining witnesses in his favor.” U.S. Const. amend.
VI. Fed. R. Crim. P. 17 is one of the implementations of that
guarantee. See, e.g., United States v. Beckford, 964
F.Supp. 1010, 1019 (E.D. Va. 1997) (cites omitted). The Rule
provides criminal defendants a means to secure subpoenas for
testimony (i.e., subpoenas ad
testificandum), and subpoenas for the production of
documents or other objects (i.e., subpoenas
duces tecum). See Fed. R. Crim. P. 17(a)
(subpoenas for testimony), (c) (subpoenas for “books,
papers, documents or objects”). It also implements
Supreme Court jurisprudence, rooted in the Fifth Amendment,
providing a means for indigent defendants to avail themselves
of Rule 17's subpoena power. See Beckford, 964
F.Supp. at 1019-20.
a trial subpoena ad testificandum issued under Rule 17(a) or
(b), a subpoena duces tecum may . . . be made returnable
before trial.” Beckford, 964 F.Supp.
at 1020. Despite the superficial breadth of the Rule, it
“clearly was not intended to displace the role of Rule
16 in circumscribing discovery to be allowed in criminal
cases.” Id. at 1022. Courts, therefore, have
discretion to require pretrial production. See Id.
(citing United States v. Nixon, 418 U.S. 683
(1974)). It is appropriate if the requesting party shows
“that the requested information is relevant, admissible
and specific.” Id. at 1016 (citing
Nixon, 418 U.S. at 699-700; see also United
States v. Winner, 2018 WL 1998311 at * 1-2 (S.D. Ga.
April 27, 2018).
first requirement for issuance of a Rule 17 subpoena is
relevance. Defendant's motion asserts relevance in the
most cursory and conclusory fashion. He says only that
“whatever is in the record would be material, and at
least helpful to defendant in his preparations here, because
his arrest there arises out of the same conduct bringing him
to this Court.” Doc. 40 at 1. As the Tenth Circuit has
explained, “[c]onclusory statements do not establish
relevance, ” for purposes of Rule 17(c). United
States v. Abdush-Shakur, 465 F.3d 458, 468 (10th Cir.
2006). The allegations in this case relate to a single charge
for possession of a firearm by a prohibited person.
See doc. 1 (Indictment). It is not at all clear how
the identified information is relevant. While the Court can
imagine several potential scenarios for how that
information may be useful at trial, Rule 17 requires more.
final note, among the requirements necessary to ensure that
Rule 17's tools do not supplant the Rule 16 discovery
procedures is that the subpoena direct return of any
responsive documents to the Court, not to the requesting
party. See United States v. Santiago-Lugo, 904
F.Supp. 43, 46 (D.P.R. 1995) (“Only with court
intervention can the subpoena be utilized for production
before the court at any time prior to the trial or prior to
the time when the documents are to be offered in evidence.
Only the court may, upon the production of the documents,
permit the documents or objects to be inspected by the
parties or their attorneys. Nowhere in Fed. R. Crim. P. 17 do
we find language allowing the utilization of the court's
subpoena power privately, with a secret return directly to an
attorney.”); United States v. Al-Amin, 2013 WL
3865079 at * 4 (E.D. Tenn. July 25, 2013) (“[T]he
records must be returned to the Court, not the parties. Since
the documents, records, and other objects are not discovery,
but rather are intended to be admitted into evidence, it is
the Court to which the document[s], records, and other
objects must be returned.”). Any future requests for
such information should proceed via a Rule 17 request for a
foregoing reasons, defendant's Motion to Appoint Expert,
doc. 38, and Motion to Dismiss, doc. 41, are DISMISSED as
WITHDRAWN. Defendant's Motion for Production, doc. 40, is
DISMISSED AS MOOT.
 The withdrawals were incorrectly
docketed as an “Affidavit, ” and an
“Address Affidavit.” The Clerk of Court is
DIRECTED to amend the title of these filings to reflect the
documents' correct ...