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United States v. Boutte

United States District Court, D. New Mexico

July 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MILTON BOUTTE, JOE DIAZ, ARTURO VARGAS, and GEORGE LOWE, Defendants.

         ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BOUTTE'S CORRECTED MOTION FOR THE ISSUANCE OF FEDERAL RULE OF CRIMINAL PROCEDURE 17(a) AND 17(c) SUBPOENAS; DENYING AS MOOT DEFENDANT BOUTTE'S MOTION FOR THE ISSUANCE OF FEDERAL RULE OF CRIMINAL PROCEDURE 17(c) SUBPOENA; GRANTING THE GOVERNMENT'S MOTION FOR JAMES HEARING; CLARIFYING THE DECORUM OF THE TRIBUNAL; AND CLARIFYING PRIOR ORDERS

          JOEL M. CARSON III UNITED STATES CIRCUIT JUDGE.

         On May 9, 2019, Defendant Milton Boutte filed a Motion for the Issuance of a Federal Rule of Criminal Procedure 17(c) subpoena (Doc. No. 151). The next day, Defendant Boutte filed a Corrected Motion for the Issuance of Federal Rule of Criminal Procedure 17(a) and 17(c) Subpoenas (Doc. No. 153). On June 6, 2019, the Court held a hearing on the corrected motion.[1] For the reasons set forth below, the Court denies the original motion as moot and grants in part and denies in part the corrected motion. This order further grants the government's motion for a James Hearing (Doc. No. 120), and clarifies the decorum of the tribunal and some of the Court's prior orders.

         I. Background

         A grand jury indicted Defendants George Lowe and Milton Boutte with, among other things, knowingly and intentionally defrauding the government and conspiring to do the same. Defendants were affiliated with the Big Crow Program Office (“BCPO”) at Kirtland Air Force Base in Albuquerque, New Mexico, and allegedly committed their crimes through their ties to that office. Near the end of BCPO's run-“not later than 2004, ” according to the indictment- Defendant Milton Boutte, the then-Director of BCPO, allegedly began to engage in illegal activities with others “to obtain money for [BCPO].” Specifically, the indictment alleges that Boutte “conspired and schemed” with Defendant George Lowe and “other lobbyists, consultants, and contractors” to lobby Congress and other government agencies for money for the benefit of BCPO. The indictment alleges that Boutte and Lowe realized they could misappropriate funds from Small Business Act § 8(a) sole-source contracts to pay for Lowe's lobbying efforts and other unauthorized expenses. But to do so, they needed small businesses. Thus, the two men allegedly further “conspired and schemed” with Defendants Joe Diaz and Arturo Vargas, two small business owners, to “fraudulently obtain and exploit” § 8(a) sole-source contracts for that illegal purpose. Diaz and Vargas allegedly misappropriated at least $506, 000 in funds from two contracts to pay Lowe for his lobbying activities.

         II. Applicable Law

         Federal Rule of Criminal Procedure (“Rule”) 17(a) provides that a party may cause the Clerk of the Court to issue a blank subpoena for a witness to attend and testify at a specific time and place as a matter of course and without judicial intervention. Rule 17(c) allows a party to require, by subpoena, the production of documents or other physical evidence. Unlike a trial subpoena ad testificandum issued under Rule 17(a), Rule 17(c) confers discretionary power upon the court to direct production of the documents in court before trial or before they are offered into evidence. Fed. R. Crim. P. 17(c). And unlike Federal Rule of Civil Procedure 45(b)(1), a subpoena duces tecum issued under Rule 17 does not require notice to anyone other than to victims of crimes under some circumstances. United States v. Vigil, 1:10-cr-2310-JB, 2013 WL 3270995, at *9 (D.N.M. June 3, 2013).

         Although more far-reaching than testimonial subpoenas, Rule 17(c) subpoenas are not “intended to provide an additional means of discovery.” Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). The court must exercise its discretion whether to require production of the requested documents pre-trial “in remembrance of the responsibility to prevent Rule 17(c) from being improperly used as a discovery alternative to Rule 16.” United States v. Beckford, 964 F.Supp 1010, 1022 (E.D. Va. 1997).

         III. Analysis

         A. Rule 17(a)

         Rule 17(a) does not require judicial intervention before the Clerk may issue blank subpoenas for a witness to attend and testify at a hearing. See Fed. R. Crim. P. 17(a) (“The clerk must issue a blank subpoena-signed and sealed-to the party requesting it”). Accordingly, the Court grants Defendant's request for the issuance of Rule 17(a) trial subpoenas and directs the Clerk to issue those subpoenas.

         B. Rule 17(c)

         Defendant Boutte also requests leave to issue three subpoenas duces tecum pursuant to Rule 17(c). These subpoenas request information from the United States Department of Defense, the United States Department of the Interior, and the United States Small Business Administration. Prior to the hearing, the government had designated the Department of Defense and Small Business Administration as members of the prosecution team. At the hearing, the government stated that it is in contact with the Department of the Interior and said that it would treat any document requests as if the Department of Interior is a member of the prosecution team.

         The drafters of Rule 17 did not intend on parties using the Rule as a discovery rule. United States v. Carter, 15 F.R.D. 367, 369 (D.D.C. 1954). The Advisory Committee indicated a Court should permit only a narrow discovery in criminal cases. Id. Rule 17's purpose is not to grant additional discovery, but merely to facilitate and expedite trials. Id.; see also Bowman Dairy Co., 341 U.S. at 220 (stating that 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”). “To construe Rule 17 as a discovery rule would render Rule 16 nugatory and meaningless and would defeat its limitations.” Carter, 15 F.R.D. at 369. Although the possibility exists that a Rule 17 subpoena could be appropriate to the prosecution team in some circumstances, that possibility is not present in this case. The parties admitted as much at the hearing. This is because a Rule 17 subpoena “is virtually meaningless” where the government actually is in possession of the material. C.f. United States v. Langford, CR-08-CO-245-S, 2009 WL 10671369, *25 n.26 (N.D. Ala. July 2, 2009). “If the government has a Brady obligation because certain material is in possession of the prosecution team, it is obligated to provide that material to [Defendant] whether he chooses to subpoena it or not.” Id. The issuance of a Rule 17(c) subpoena to the prosecution team here neither changes the obligation the government has to produce exculpatory and material documents nor imposes a special time frame merely because its terms make such a demand. Id. Accordingly, the Court denies the issuance of the Rule 17(c) subpoenas directed to the prosecution team, including the Department of Interior.

         C. J ...


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