US v. Hart, Crim. No. 93-CR-91.
Citation | 826 F. Supp. 380 |
Decision Date | 19 July 1993 |
Docket Number | Crim. No. 93-CR-91. |
Parties | UNITED STATES of America, Plaintiff, v. Lenny HART, Defendant. |
Court | United States District Courts. 10th Circuit. United States District Court of Colorado |
John M. Haried, Asst. U.S. Atty., Denver, CO, for plaintiff.
Brian K. Holland, Holland, Seelen & Pagliuca, Denver, CO, for defendant.
This is a criminal case. Defendant Lenny Hart is represented by retained counsel and has not attempted to qualify for any payments under the Criminal Justice Act. He nonetheless requests authorization to issue subpoenas duces tecum for the production of documents on an ex parte basis. According to defendant, rule 17(b) of the Federal Rules of Criminal Procedure, read in conjunction with rule 17(c), permits such a request, even for financially able defendants such as Hart. The matter comes before the court on defendant's "Motion Concerning Ex Parte Defense Subpoenas" filed April 29, 1993.
Rules 17(b) and (c) of the Federal Rules of Criminal Procedure provide in part:
Fed.R.Crim.P. 17(b) and (c) (emphasis added).
According to defendant, the ex parte provision of rule 17(b) regarding indigent defendants was intended to shield the theory of the defense from the prosecutor's scrutiny. See Marshall v. United States, 423 F.2d 1315, 1318 (10th Cir.1970); United States v. Meriwether, 486 F.2d 498, 506 (5th Cir.1973). In adopting the ex parte provision, Congress reasoned that the Government should not be able to obtain a list of adverse witnesses in the case of a defendant unable to pay the witness fees when it is not able to do so in the case of a defendant able to pay those fees. "When an indigent defendant's case is subjected to pre-trial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny, serious equal protection questions are raised...." Meriwether, 486 F.2d at 506. By extension, defendant maintains, rule 17(c) allows an ex parte production of documents so that defendant is not required to make a premature disclosure of his defense in order to obtain documents.
The scheme of rule 17 supports the view that Congress intended to distinguish between pretrial subpoenas duces tecum and trial subpoenas ad testificandum, at least insofar as ex parte procedures are concerned. See United States v. Urlacher, 136 F.R.D. 550, 555 (W.D.N.Y.1991) ( ). According to the plain language of rule 17(b), the ex parte procedure is available only (1) to indigent defendants and (2) for the production of witnesses at trial. The ex parte procedure was developed to aid indigent defendants. There is no suggestion in these cases that the ex parte procedure would be available for financially able defendants such as Hart.
In addition, defendant does not cite any authority which suggests that the ex parte procedure is available for the production of documents. On the contrary, the mechanism for obtaining documents, rule 17(c), negates any assumption that production should be on an ex parte basis. The plain language of rule 17(c) could not be clearer. Where a defendant seeks the production of documents prior to trial, the court may permit these documents "to be inspected by the parties and their attorneys." There can be no right to an ex parte procurement of subpoenaed documents pretrial if the court has discretion to supervise their production by permitting both parties to inspect them prior to trial. Urlacher, 136 F.R.D. at 555.
Moreover, rule 17(c) does not automatically entitle a party to pretrial production of documents. To justify pretrial production of physical evidence, the movant must show:
United States v. Cuthbertson, 651 F.2d 189, 192 (3rd Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 604, 70 L.Ed.2d 594 (1981) ( ). "Rule 17(c) is a device solely for the obtaining of evidence for the use of the moving party, permitting him to examine the material obtained before trial only where, in the discretion of the court, it is necessary that he do so in order to make use of the material as evidence." United States v. Murray, 297 F.2d 812, 821 (2nd Cir.1961), cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962). In defendant's motion, defendant does not...
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