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United States v. Doss

United States District Court, D. New Mexico

October 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JERMAINE DOSS, Defendant.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         THIS 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.

         BACKGROUND

         On 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.

         DISCUSSION

         I. Legal Standard

         A. Structure of Rule 17

         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).

         Rule 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).

         Rule 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 of them.

         Fed. R. 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.

         Unlike 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.

         B. Ex Parte Applications for ...


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