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United States v. Doss

United States District Court, D. New Mexico

November 8, 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' 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.

         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 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 Trafficking Program.

         DISCUSSION

         I. Legal Standard

         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. 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.

         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.” United States v. Reyes, 162 F.R.D. 468, 469 (S.D.N.Y. 1995).

         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.

         The 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 ...


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