United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Aaron
Alonzo's Unopposed Motion for Subpoena Duces
Tecum With Respect to Criminal Records [Doc. 33], filed
on February 5, 2018. The Court, having considered the Motion
and the relevant law, and being otherwise fully informed,
finds that the Motion is well-taken and will be granted.
Alonzo is charged with aggravated sexual abuse, kidnapping,
and assault by strangling or suffocating of Jane Doe, a
person who was his girlfriend at or around the time of the
incident on November 7, 2015. [Doc. 2]. On the instant
Motion, Mr. Alonzo 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 Department of Public Safety Forensic Laboratories
(NMDPS) seeking information related to the DNA testing
performed in this case. Specifically, Mr. Alonzo seeks 19
categories of information related to the DNA testing
performed in this case: case file; data files; testing
documentation relied upon; laboratory description; laboratory
personnel; identification of the genetic loci analyzed;
genotypic databases; chain of custody and disposition of
evidence documentation; software and macros; records of
maintenance, trouble-shooting, or problems encountered during
testing; developmental validation; internal validation;
proficiency tests; accreditation; documentation of corrective
action for discrepancies and errors; technicians'
profiles; error rates; acceptable use; and audits. [Doc. 33
at 1-5]. The government does not oppose this request.
Id. at 9.
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
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 or believed to be contained
in the documents sought but merely hopes that something
useful will turn up, this is a sure sign that the subpoena is
being misused.” 764 F.Supp. 1480, 1493 (S.D. Fla.
Alonzo seeks 19 categories of information related to the DNA
testing performed in this case. The Court finds that each
category of information sought satisfies the Nixon
test, and ...