Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Begay

United States District Court, D. New Mexico

January 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LYLE WOODY BEGAY, Defendant.

          Damon P. Martinez United States Attorney Kyle T. Nayback Novaline Wilson Michael D. Murphy Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          John F. Samore Albuquerque, New Mexico Attorney for the Defendant

          UNSEALED [1] MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the United States' Sealed Motion to Remedy Rule 17 Violation, filed January 22, 2016 (Doc. 82)(“Motion”); and (ii) the United States' Sealed Emergency Motion for Protective Order, filed January 22, 2016 (Doc. 83)(“Emergency Motion”). The Court held a hearing on February 4, 2016. The primary issues are: (i) whether rule 17(c)(3) of the Federal Rules of Criminal Procedure permitted Defendant Lyle Woody Begay to seek through an ex parte proceeding a subpoena duces tecum for the alleged victim's, Liberty Davis, school records; (ii) whether the subpoena complied with the requirements of United States v. Nixon, 418 U.S. 683 (1974)(“Nixon”); (iii) whether the Plaintiff United States of America was entitled to notice of the subpoena duces tecum application; (iv) whether the Court should have notified Davis that the Court would authorize the subpoena; and (v) whether the Court should have ordered production at the Court rather than at Begay's counsel's office. The Court concludes that: (i) rule 17(c)(3) permitted Begay to seek a subpoena duces tecum ex parte; (ii) the subpoena complied with Nixon's requirements; (iii) the United States was not entitled to notice of the subpoena; (iv) Davis was entitled to notice of the subpoena under rule 17(c), because exceptional circumstances did not exist; and (v) the Court should have ordered production at the Court rather than Begay's counsel's office. Accordingly, the Court grants in part and denies in part the Motion, and denies the Emergency Motion as moot.

         FACTUAL BACKGROUND

         In February, 2004, Begay allegedly “did knowingly engage in and attempt to engage in a sexual act with [Davis], a child who had not attained the age of 12 years.” Indictment at 1, filed March 11, 2014 (Doc. 2)(“Indictment”). The alleged sexual act included both “penetration” and “intentional touching.” Indictment at 1-2. Begay is an Indian and the alleged event occurred in Indian Country. See Indictment at 1.

         PROCEDURAL BACKGROUND

         On March 11, 2014, a federal grand jury indicted Begay for one count of violating 18 U.S.C. §§ 1153, 2241(c), Aggravated Sexual Abuse, and three counts of violating 18 U.S.C. §§ 1153, 2244(a), and 2246(3), Abusive Sexual Contact. See Indictment at 1-2. During discovery, Begay filed a Sealed Ex Parte Motion Authorizing Rule 17(c) Subpoena, filed November 1, 2015 (Doc. 74)(“Ex Parte Motion”). In the Ex Parte Motion, Begay explains that an important aspect of the case is whether the alleged criminal conduct occurred when Begay was a minor or an adult, which could substantially alter the sentence that Begay might receive if convicted. See Ex Parte Motion at 1. According to Begay, both he and Davis made statements that referenced events around the school year, “which would place the incident in time.” Ex Parte Motion at 1. In other words, Begay believed that the school records might indicate whether the alleged crime occurred when he was a minor or an adult. See Ex Parte Motion at 1. Accordingly, Begay moved the Court to authorize the issuance of a subpoena for Davis' school records. See Ex Parte Motion at 4. The Court granted the Ex Parte Motion. See Ex Parte Order at 1.

         On January 20, 2016, Davis contacted an Assistant United States Attorney and said that she had received a letter from the Gallup-McKinley County Public Schools informing her that the school district had received a subpoena for her school records. Motion at 2. The United States contacted Gallup-McKinley Schools and learned that the school district had complied with Begay's subpoena, and that it had sent the school records directly to Begay's attorney. See Motion at 2. Upon learning this information, the United States filed its Motion objecting to the Ex Parte Motion, requesting that the Court quash the subpoena, order Begay to return the school records, and that the United States receive notice of any future subpoenas. See Motion at 3.

         1. The Motions.

         The United States first contends that “Rule 17(c) is not intended to provide a means of discovery for criminal defendants.” Motion at 4 (citing Nixon, 418 U.S. at 698-99). According to the United States, “‘the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.'” Motion at 4 (quoting Nixon, 418 U.S. at 701). The United States thus objects to the subpoena, because it believes that Begay requested it to obtain impeachment information against Davis. See Motion at 5.

         The United States next contends that proper notice was not given to Davis before the issuance of the subpoena. See Motion at 5. The United States argues that “the subpoena violates the notice requirement of Rule 17(c)(3) and should be quashed and [the victim's] records should be returned.” Motion at 6. Similarly, the United States contends that it should have received notice of the subpoena request. See Motion at 6. It argues that

the plain language of Rule 17(c) requires that where production is to take place in advance of the hearing, production is to be to the Court and both parties are to be permitted to inspect the documents. There is no provision in the Rule for advance production and inspection by one party only.

Motion at 6. According to the United States, “if both sides are entitled to know of the results of a subpoena, the United States must be entitled to notice of efforts to secure such documents.” Motion at 7. The United States adds that, in United States v. Vigil, No. CR 10-2310, 2013 WL 3270995, at *8 (D.N.M. 2013)(Browning, J.)(“Vigil”), the Court “required the third party to make production to the court and notified both parties of the availability of the documents.” Motion at 8 (emphasis in original)(citing Vigil, 2013 WL 3270995, at *8).

         The United States concludes by requesting that the Court unseal the subpoena-related documents, quash the subpoena, order the school records returned, and notify the United States of any future subpoenas that Begay requests. See Motion at 9. The United States concurrently filed a short Emergency Motion requesting “an emergency protective order pending resolution of the issues raised in its motion.” Emergency Motion at 1. According to the United States, “great harm could result to the privacy of the victim in this case” without such an order. Emergency Motion at 1.

         2. The Response.

         Begay responds to the Motion. See Mr. Begay's Sealed Response to Government's Sealed Motion to Remedy Rule 17 Violation, filed February 2, 2016 (Doc. 87)(“Response”). Begay first notes that he had initially requested the school records from the United States, thereby placing the United States on notice, and that only after the United States refused to provide the school records did Begay seek an ex parte rule 17 subpoena. Response at 1-2. Begay's counsel further notes that only he and his private investigator, and not Begay himself, reviewed the school records. Begay adds that “[n]one of these records turns out to be relevant or material to any disputed issue and will not be submitted as an exhibit . . . . [and] upon receiving the Government's motion, the Defense sent a copy of the records immediately to the Government.” Response at 2. Begay concludes that the Court should deny the Motion. See Response at 9.

         3. The Reply.

         The United States replies to the Response. See United States' Sealed Reply to Mr. Begay's Sealed Response to Government's Motion to Remedy Rule 17 Violation, filed February 3, 2016 (Doc. 88)(“Reply”). The United States argues that Begay conflates the post-subpoena victim notification that occurred pursuant to the Family Education Rights and Privacy Act, 20 U.S.C. 1232(g), (“FERPA”), with the rule 17(c)(3) victim notification “that should have occurred before the subpoena was issued.” Reply at 1. The United States adds that the school records “should have been disclosed directly to the Court for both parties to review under Rule 17(c)(1), rather than being sent directly to the Defendant.” Reply at 2.

         The United States next contends that Begay sought the school records for an impermissible purpose, because Begay's “concession that he sought the evidence in order to impeach the victim is impermissible under United States v. Nixon, 418 U.S. 683, 701 (1974).” Reply at 2. The United States continues that it only “opposes the ex parte nature of Defendant's request” and “is merely asking that the procedures for Rule 17(c) subpoenas be followed.” Reply at 2. The United States concludes by requesting that the school records be returned and that “the United States receives notice of any other Rule 17(c) subpoena motions.” Reply at 3.

         4. The Hearing.

         The Court held a hearing on February 4, 2016. See Draft Transcript of Motion Proceeding (taken February 4, 2016)(“Tr.”).[2] The Court began by saying: “I would agree with the Government that probably I should have ordered that the documents be produced to the Court here, and then made a determination as to who saw those documents.” Tr. at 3:17-21 (Court). The Court then asked Begay: “Do you have any problem with [the United States] seeing the motion.” Tr. at 4:7-8 (Court). Begay responded that he did, saying that the United States was “patrolling for the defense arguments.” Tr. at 4:19-20 (Samore).

         The Court proposed the solution that Begay surrender his copies of the school records to the United States and represent to the Court that he did so. See Tr. at 7:1-7 (Court). Begay responded that he preferred to surrender the records the Court and have the Court keep them under seal, saying “there is no reason the defense should surrender them when the Government does not.” Tr. at 7:9-10 (Samore). Begay's counsel added that Begay himself had not seen the school records. See Tr. at 8:13-14 (Samore).

         The Court stated: “I should have order[ed] the . . . documents be, as I did in the Vigil[3]case, brought to the Court rather than to Mr. Samore . . . I do admit that I should have [been] consistent with my opinion in Vigil.” Tr. at 8:23-9:4 (Court). The United States responded that Begay should return the records, and that the Court should order Begay not to use the records as evidence, especially because Begay concedes that he will not use them. See Tr. at 11:1-4 (Wilson). The United States asked that “if there are any other ex parte motions relating to victim's information in this case that we'll follow the procedures under Vigil.” Tr. at 15:10-14 (Wilson).

         The Court concluded that the Motion and the Emergency Motion are “a grant in part and deny in part. I'll probably file an opinion and I'll file it ex parte, give Mr. Samore a little opportunity to suggest redactions, and then I'll disclose the rest.” Tr. at 22:14-17 (Court).

         RELEVANT LAW REGARDING RULE 17(c)

         Rule 17(c) of the Federal Rules of Criminal Procedure states:

(c) Producing Documents and Objects.
(1) In General. 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.
(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
(3) Subpoena for Personal or Confidential Information About a Victim. After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.

Fed. R. Crim. P. 17(c). As the Supreme Court of the United States noted in Bowman Dairy Co. v. United States, 341 U.S. 214 (1951), a subpoena is not intended to provide a means of discovery. See 341 U.S. at 220. See also United States v. Badonie, No. CR 03-2062, 2005 WL 2312472, at *1 (D.N.M. Aug. 10, 2005)(Browning, J.)(“A subpoena is not a discovery substitute.”). The Supreme Court has stated:

[T]o require production prior to trial, the moving party must show: (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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.