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United States v. Sanchez

United States District Court, D. New Mexico

April 25, 2019



         THIS MATTER comes before the Court on Defendant's SEALED Ex Parte Motion for Rule 17(c) Subpoena, filed April 17, 2019 (Doc. 39). Having considered the motion and the relevant law, and being otherwise fully informed, the Court finds that the motion is well-taken in part and, therefore, is GRANTED in part.


         Defendant is charged by indictment dated February 27, 2019 with assault with a dangerous weapon, with intent to do bodily harm, in violation of 18 U.S.C. §§ 1153 and 113(a)(3) and discharge of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Defendant seeks the issuance of a subpoena duces tecum pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure for a specific category of documents.

         Defendant contends that the requested documents are necessary, relevant, admissible and specific in both description and time-frame.


         I. Legal Standard

         A. Federal Rule of Criminal Procedure 17

         Federal Rule of Criminal Procedure (“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, under Rule 17(a), any party who is able to pay the fees and mileage of a subpoenaed witness may cause a blank subpoena to be issued by the clerk of the court as a matter of course, and without judicial intervention, and may then fill 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 unable to pay the required fees: “[u]pon a defendant's ex parte application, the court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness's fees and the necessity of the witness's presence for an adequate defense.”). Fed. R. Crim. P. 17(b). “The Government is not notified of the proceeding and therefore defendant is not forced to disclose potential defense witnesses or their expected testimony.” United States v. Florack, 838 F.Supp. 77, 78 (W.D.N.Y. 1993). “Although prior judicial authorization is required, the ex parte nature of the Rule 17(b) application [thus] serves to put a defendant on equal footing with the Government because the Government is not required to give a defendant notice as to those witnesses that it intends to subpoena to testify at trial.” United States v. Reyes, 162 F.R.D. 468, 469 (S.D.N.Y. 1995).

         Rule 17(c) in turn 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). Thus, unlike a trial subpoena issued under Rule 17(a) or 17(b), Rule 17(c) provides that a subpoena duces tecum may be made returnable before trial. Id.; 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) (Rule 17(c)'s “chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials.”). However, Rule 17(c) provides no specific direction as to the proper procedure by which a party obtains a pretrial subpoena duces tecum, and 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.” Reyes, 162 F.R.D. at 469; United States v. Nelson, No. CR 15-2023, *2.

         B. Ex Parte Applications for Pretrial Production

         Absent a clear directive in the text of Rule 17(c) as to the proper procedure for obtaining pretrial production pursuant to a subpoena duces tecum, courts have “split as to whether a party may make an ex parte application for a pretrial subpoena duces tecum.” United States v. Sellers, 275 F.R.D. 620, 624 (D. Nev. 2011). The Tenth Circuit has not yet ruled on the issue, and in the absence of binding authority to the contrary, this Court is persuaded that indigent defendants should be permitted to make an application for the pretrial production of documents ex parte. Compare United States v. Nelson, No. CR 15-2023, *3-4 (same); United States v. Hargrove, No. 11-cr-326, 2013 WL 3465791, *4 (D. Colo. July 9, 2013) (same); United States v. Vigil, No. CR 10-2310, 2013 WL 3270995, *17-18 (D.N.M. June 3, 2013) (same); Sellers, 275 F.R.D. at 625; United States v. Beckford, 964 ...

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