United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION TO COMPEL
COMPLIANCE WITH RULE 17 SUBPOENA AND FOR SANCTIONS PURSUANT
TO THIS COURT'S CONTEMPT AUTHORITY
MATTER comes before the Court following a hearing upon
Defendant's Ex Parte Motion to Compel Compliance
with Rule 17 Subpoena and for Sanctions Pursuant to this
Court's Contempt Authority Under 28 U.S.C. §636(e),
filed June 20, 2018 (Doc. 43). Defendant moves
the Court to compel compliance by Greyhound Lines, Inc. with
a Rule 17(c) subpoena permitted by this Court or otherwise
hold Greyhound in contempt pursuant to Rules 17(g) and 42 of
the Federal Rules of Criminal Procedure. Having reviewed
the parties' briefs and applicable law, the Court finds
that Defendant's motion is not well-taken and, therefore,
February 15, 2018 DEA agents arrested Crystal Lachonne Hall
(“Defendant”) while she was onboard a Greyhound
Lines, Inc. (“Greyhound”) bus in Albuquerque, New
Mexico. Following her arrest, defense counsel mailed a
preservation request asking Greyhound to preserve material
that would be the subject of a subpoena that she would seek
through this Court: surveillance video, a passenger manifest,
and any communication between the arresting officer, DEA
Agent Perry, and Greyhound by which Agent Perry gained access
to the passenger manifest. Ex. A. On February 28, 2018,
counsel for Greyhound asked whether defense counsel could
narrow the preservation request as it related to the
surveillance video. Defense counsel responded that he was
just interested in “footage that captures Agent Perry
or his partner surrounding the incident.”
March 7, 2018, the Court granted Defendant's request for
a Rule 17(c) subpoena to serve on Greyhound to obtain the
three categories of material listed in the preservation
request, finding that the three categories requested were
properly included in the subpoena. The Court ordered that the
material responsive to the subpoena was to be delivered to
Court chambers. Doc. 15. Personal service was effected on a
Greyhound employee, and a copy of the subpoena was emailed to
Greyhound counsel, Mr. Phil Cheves, on the same day of
to defense counsel, in mid-April, 2018, Court chambers
received four thumb drives containing a surveillance video
and what appeared to be a passenger manifest for the bus on
which Ms. Hall was arrested. Exs. C & D. Defendant contends
that what was submitted in response to the subpoena was
inadequate. Initially, Defendant claimed that three
categories of material were insufficiently produced: (1)
surveillance footage; (2) passenger manifest lists; and (3)
communications between Agent Perry and Greyhound or Greyhound
employees by which he gained access to passenger manifests.
Greyhound turned over all the video footage which stated that
it possessed. Greyhound has a total of 52 cameras but footage
was available and preserved from only 20 of those cameras.
Many hours of video recording were produced, but according to
defense counsel, none of the footage included anything
related to the investigation or arrest of Ms. Hall;
specifically, there was no footage that related to the
investigation or arrest of Defendant. Greyhound attributes
the problems with the video recording to ongoing systemic and
operational issues with the surveillance cameras and
DVR's that are responsible for recording different areas
of the terminal. Greyhound also provided a passenger manifest
to defense counsel, but Ms. Hall's name was not on that
list. Greyhound later provided second and third supplemental
pre-departure lists to Defendant.
hearing, defense counsel waived any further concern about the
first two categories of material, and narrowed the issues in
the motion down to these two:
1. communications between Greyhound and Agent Perry; and
2. whether sanctions should be imposed on Greyhound for
failure to comply with the subpoena.
witness, David O. Streiff, testified at the hearing. Mr.
Streiff is the security operations manager for Greyhound,
North America. He testified recently on behalf of Greyhound
in a similar case in which defense counsel, Mr. Alejandro
Fernandez (also representing Mr. Ramos-Burciaga in that case)
claimed that Greyhound had failed to preserve video
surveillance footage in response to a preservation request.
See U.S. v. Ramos-Burciaga, 17-CR-002236 WJ.
Following a hearing in that case, the Court determined that
Greyhound was not an agent of the Government and concluded
that Greyhound's failure to preserve the video tape could
not be attributed to the Government. See
Ramos-Burciaga, Doc. 66.
instant motion, Defendant revisits what he considers to be a
deficiency in Greyhound's response to a Rule 17 subpoena.
He contends that Greyhound allows certain company policies to
be violated in order to favor law enforcement operations,
such as policies regarding disclosure of passenger manifests
and the copying of video surveillance footage. Defendants
contends that even though the Court has determined that
Greyhound is not an agent of the Government, the company on
its own continues to frustrate the judicial process by
willfully allowing these internal policy violations.
statute governing the punishment of contempt is 18 U.S.C.
§401(3) which provides that a district court has the
“power to punish by fine or imprisonment, or both, at
its discretion, such contempt of its authority, . . . as
“[d]isobedience or resistance to its lawful writ,
process, order, rule, decree, or command.” There are
three elements to contempt under §401(3): (1) a
reasonably specific order, (2) violation of the order, and
(3) the willful intent to violate the order.”
United States v. Voss, 82 F.3d 1521, 1525 (10th Cir.
17(g) of the Federal Rules of Criminal Procedure provides
allows a court to “hold in contempt a witness who,
without adequate excuse, disobeys a subpoena issued by a
federal court in that district.” Fed.R.Crim.P. 42(a)(1)
affords notice and opportunity to explain why the party has
not complied, since willfulness is an element of criminal
contempt. See United States v. Greyhound Corp., 508
F.2d 529, 531 (7th Cir. 1974) (“Willfulness is, of
course, an element of criminal contempt and must be proved
beyond a reasonable doubt”).
Communications Between ...