United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Jermaine
Doss' Sealed Ex Parte Application for Rule 17(c) Subpoena
Duces Tecum (“Application”), [Doc. 43]. The
Court, having considered the Application and the relevant
law, and being otherwise fully informed, finds that the
Application is well-taken and will be granted.
January 24, 2017, a Superseding Indictment was returned
charging Defendant with three counts of sex trafficking, in
violation of 18 U.S.C. § 1591(a). On the instant
Application, Defendant requests, pursuant to Rule 17(c) of
the Federal Rules of Criminal Procedure, issuance of a
subpoena duces tecum and early production of five
categories of documents.
Structure of Rule 17
governs the issuance of subpoenas in criminal proceedings.
Rule 17(a) describes the process for obtaining subpoenas
returnable at trial by those who are able to pay for them.
Under Rule 17(a), any party who is able to pay the fees and
mileage of a subpoenaed witness may cause a subpoena to be
issued by the clerk of the court as a matter of course, and
without judicial intervention. Specifically, a party obtains
from the clerk a blank subpoena, signed and sealed, and then
fills in the time and place at which the witness must attend
and testify. Fed. R. Crim. P. 17(a).
17(b) describes the procedure for defendants who are unable
to pay the required fees: “[u]pon a defendant's
ex parte application, the court must order that a
subpoena be issued for a named witness if the defendant shows
an inability to pay the witness's fees and the necessity
of the witness's presence for an adequate defense.”
Fed. R. Crim. P. 17(b). “The Government is not notified
of the proceeding and therefore defendant is not forced to
disclose potential defense witnesses or their expected
testimony.” United States v. Florack, 838
F.Supp. 77, 78 (W.D.N.Y. 1993). “Although prior
judicial authorization is required, the ex parte
nature of the Rule 17(b) application [thus] serves to put a
defendant on equal footing with the Government because the
Government is not required to give a defendant notice as to
those witnesses that it intends to subpoena to testify at
trial.” United States v. Reyes, 162 F.R.D.
468, 469 (S.D.N.Y. 1995).
17(c) governs the issuance of subpoenas duces tecum,
and enables either party to obtain documents or other
physical evidence. Specifically, Rule 17(c)(1) 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
Crim. P. 17(c)(1). While Rule 17(c) provides no specific
direction as to how to obtain a subpoena duces
tecum, courts have interpreted the language of the rule
to “indicate that an application for a subpoena
duces tecum returnable at trial is governed by the
provisions of Rule 17(a) and 17(b) dealing with the issuance
of trial subpoenas.” Reyes, 162 F.R.D. at 469.
a trial subpoena issued under Rule 17(a) or 17(b), however,
Rule 17(c) provides that a subpoena duces tecum may
be made returnable before trial or other evidentiary
hearing. As noted above, the second sentence of the rule
provides 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.” Fed. R. Crim. P.
17(c); see also United States v. Nixon, 418 U.S.
683, 698-99 (1974) (citing Bowman Dairy Co. v. United
States, 341 U.S. 214 (1951) (“Its [Rule 17(c)]
chief innovation was to expedite the trial by providing a
time and place before trial for the inspection of subpoenaed
materials.”). Rule 17, however, provides no
“guidance as to the proper procedure for obtaining a
pretrial subpoena duces tecum.”
Reyes, 162 F.R.D. at 470.
Ex Parte Applications for ...