United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANT'S EX PARTE MOTION FOR SUBPOENA DUCES
RIGGS UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Ex
Parte Motion for Rule 17(c) Subpoena, filed December 16,
2019 (Doc. 26). Having considered the motion
and the relevant law, finds that the motion is well-taken in
part and will be GRANTED in part.
is charged by indictment with one count of possession with
intent to distribute a controlled substance, 500 grams or
more of a mixture containing a detectable amount of
methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A). Defendant seeks the issuance of a subpoena
duces tecum pursuant to Rule 17(c) of the Federal
Rules of Criminal Procedure for four specific categories of
documents or video. Defendant contends that the requested
documents or video are necessary, relevant, admissible and
specific in both description and time-frame.
Federal Rule of Criminal Procedure 17
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).
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).
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)
[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
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
Ex Parte Applications for Pretrial Production
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 ...