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' Motion for Rule 17(c) Subpoena [Doc. 76], filed on
October 27, 2017. At a hearing during which the Court heard
testimony and argument on other pending motions in this case,
the government informed the Court that it does not have
standing to challenge the present Motion for Subpoena and did
not intend to submit a response. Accordingly, the Court,
having considered the Motion and the relevant law, and being
otherwise fully informed, finds that, with some revisions to
the proposed subpoena, described herein, the Motion 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 Motion,
Mr. Doss requests, pursuant to Rule 17(c) of the Federal
Rules of Criminal Procedure, the Court's permission to
issue a subpoena duces tecum to the New Mexico
Attorney General's Office (“NMAG”) seeking
information related to (1) investigation of sex trafficking
related to Mr. Doss or an alleged victim in this case, T.K.,
and (2) the Enhanced Collaborative Model to Combat Human
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.
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 filing an ex parte application
and are unable to pay the required fees.
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
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.” United States v. Reyes,
162 F.R.D. 468, 469 (S.D.N.Y. 1995).
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.
Supreme Court has long established that “Rule 17(c) is
not intended to provide an additional means of
discovery.” Bowman Dairy, 341 U.S. at 220.
Accordingly, a party seeking issuance of a subpoena duces
tecum under Rule 17(c) must establish:
(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.”
United States v. Abdush-Shakur, 465 F.3d 458, 467
(10th Cir. 2006) (quoting Nixon, 418 U.S. at
699-700). In order to meet this burden, the moving party
“must clear three hurdles: (1) relevancy; (2)
admissibility; and (3) specificity.” United States
v. Morris, 287 F.3d 985 (10th Cir. 2002) (quoting
Nixon, 418 U.S. at 700). It is insufficient that the
requested evidence “may have some potential of
relevance and evidentiary use.” United States v.
Sellers, 275 F.R.D. 620, 624 (D. Nev. 2011). “The
specificity requirement also prevents a subpoena duces
tecum issued pursuant to Rule 17(c) from being used as a
‘fishing expedition to see what may turn
up.'” Id. (quoting Bowman Dairy,
341 U.S. at 221). As the court noted in United States v.
Noriega, “[i]f the moving party cannot reasonably
specify the information contained ...