U.S. v. Daniels

• Decision Date: 05 April 2000
• Docket Number: No. 99-40099-01-DES.,99-40099-01-DES.
• Citation: 95 F.Supp.2d 1160
• Parties: UNITED STATES of America, Plaintiff, v. Herbert A. DANIELS, Defendant.
• Court: U.S. District Court — District of Kansas

Page 1160

95 F.Supp.2d 1160

UNITED STATES of America, Plaintiff, v. Herbert A. DANIELS, Defendant.

No. 99-40099-01-DES.

United States District Court, D. Kansas.

April 5, 2000.

Leslie A. Greathouse, Shughart, Thomson & Kilroy, P.C., Kansas City, MO, Gregory B. Hancks, Kansas City, MO, Thomas J. Kenney, Kutak Rock, Omaha, NE, Alan D. Strasser, Kutak Rock, Washington, DC, for Herbert A. Daniels, defendant.

Richard L. Hathaway, Office of U.S. Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

On March 23, 2000, the court held a hearing on ten motions and took all the motions under advisement. There are nine motions currently pending before the court.¹ Defendant filed a Motion for Bill of Particulars (Doc. 42), Motion to Strike (Doc. 44), Motion to Dismiss (Doc. 46), and Motion Requesting Pretrial Production of Documents (Doc. 51). The government filed a Motion to Unseal Pleadings, Orders, and Documents (Doc. 28), Motion to Quash Subpoenas Duces Tecum Served on Witness Holdcraft (Docs. 30 and 36), Motion for Discovery (Doc. 40), and Motion to Quash 17(c) Subpoenas (Doc. 52). The court has considered the briefs and oral arguments of both parties and is now prepared to rule.

On January 19, 2000, the grand jury returned a forty-nine count superseding indictment against defendant. Counts 1 to 30 allege health care fraud in violation of Title 18 U.S.C. § 2 and 1347. Counts 31 to 40 allege mail fraud in violation of Title 18 U.S.C. § 2 and 1341. Counts 41 to 49 allege that defendant engaged in monetary transactions in property derived from specified unlawful activity in violation of Title 18 U.S.C. § 2 and 1957.

I. Plaintiff's Motion to Unseal Pleadings, Orders, and Documents (Doc. 28)

Defendant filed an ex parte motion requesting the court to authorize the issuance of subpoenas duces tecum to Dr. Jacqueline Holdcraft, requiring pretrial production of documents pursuant to Federal Rule of Criminal Procedure 17(c). The court authorized the issuance of the subpoenas and placed the motion and supporting documents under seal. Defendant subsequently served two subpoenas on Dr. Holdcraft.² Dr. Holdcraft gave copies of both subpoenas to the government and refused to provide the requested information. The government requests that the court unseal the materials, require the defense to provide notice to the government in the future, order any documents already subpoenaed to be produced before the court for inspection by both parties, and publish all future materials concerning Rule 17(c) requests.

The issue before this court is whether Rule 17(c) provides for an ex parte application for a subpoena duces tecum to be served on a third party seeking pretrial production of documents. The court did not discover any binding authority on this issue in its research. The court has reviewed the conflicting case law cited by the parties, and finds the detailed opinion of United States v. Tomison, 969 F.Supp. 587 (E.D.Cal.1997), which held that Rule 17(c) provides for ex parte application for subpoena duces tecum prior to trial, to be persuasive.

The text of Rule 17(c) does not explicitly address an ex parte application for subpoenas duces tecum produced prior to trial. A fair reading of the text and the policy behind Rule 17(c) reveals the legislative intent to provide for ex parte proceedings. See Tomison, 969 F.Supp. 587. For example, the last sentence of Rule 17(c) provides that the court may order production of documents and may permit inspection by the adverse party. "Since the court may permit inspection by the parties of documents produced before trial, it follows that the Rule empowers the court to deny an adverse party the opportunity to inspect the documents." Tomison, 969 F.Supp. at 591 (citing United States v. Florack, 838 F.Supp. 77, 80 (W.D.N.Y. 1993)). If the court can deny the opposing party access to the information subpoenaed, it follows that the party may make an ex parte application. In addition, Rule 17(c) is "substantially similar" to Federal Rule of Civil Procedure 45(b). Fed. R.Crim.P. 17(c) advisory committee's note. Rule 45(b) provides, "[p]rior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party." Fed. R.Civ.P. 45(b). The use of the word "shall" in Rule 45(b) is strong evidence that the drafters of Rule 17(c) contemplated the use of ex parte applications for subpoenas duces tecum when they chose the word "may."

There are also strong public policy reasons in favor of an ex parte procedure. The purpose of Rule 17(c) is to "expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials." Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951). In the absence of an ex parte procedure, a party may wait until trial to request needed information for fear that "[i]f a source of evidence were to be identified before the issuance of a subpoena, the source or the integrity of the evidence might be imperiled," United States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y.1995), thwarting the purpose of Rule 17(c). Likewise, a fear of disclosing trial strategy may also defeat the purpose of Rule 17(c):

An interpretation which would require the defendant to divulge his or her theory of the case as a prerequisite for pretrial productions would discourage the defendant from using the Rule in the first place. Indeed, requiring noticed motions would tend to encourage the defendant to wait until trial to seek production of documents and evidence.... Thus, requiring a defendant to apply for the subpoena duces tecum by noticed motion could defeat the Rule's goal of speed and efficiency of trial.

Tomison, 969 F.Supp. at 592-93. A Rule 17(c) subpoena will only be issued if the information sought is relevant, admissible, and specifically identified. United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). "A party may have to detail its trial strategy or witness list in order to convince a court that the subpoena satisfies the Nixon standards." Reyes, 162 F.R.D. at 470. "Forcing any defendant to confront the choice between issuing a pre-trial subpoena duces tecum and disclosing his defense to the government places an unconstitutional limitation on the defendant's right to compulsory process." United States v. Beckford, 964 F.Supp. 1010, 1027 (E.D.Va.1997).

The court does not feel the arguments advanced by the government are sufficient to impede a defendant's right to compulsory process. The government first argues that notice is required to insure that Rule 17(c) is not used as a discovery device. However, the court is responsible for and fully capable of determining whether the subpoena is being used as a discovery device without the assistance of opposing counsel. Tomison, 969 F.Supp. at 594. The government next argues that notice will insure open access to the courts. "The right of access is presumptive and not absolute: it may be outweighed when the court finds that disclosure is necessary to preserve overriding rights of criminal defendants." Id. at 595. Although these arguments have merit, the right of the criminal defendant to compulsory process and protection of trial strategy outweighs these concerns. Therefore, the court interprets Rule 17(c) as providing for an ex parte application for a subpoena duces tecum seeking pretrial production of documents to be issued to a third party. Although ex parte proceedings are not favored, they may be necessary under the circumstances discussed above.

A determination of whether an ex parte application is necessary must be evaluated on a case by case basis. The court has reviewed the pleadings filed under seal in this case and finds they contain information that is considered "trial strategy." Therefore, the court will not unseal these documents or its orders. Because the decision to place Rule 17(c) requests under seal is on a case by case basis, the government's request that the court require the defense to provide notice to the government in the future and that the Court publish all future motions and orders concerning Rule 17(c) requests is denied.

The government has also requested that the court order any documents already subpoenaed to be produced before the court for inspection by both parties. Because the government has copies of the subpoenas issued to Dr. Holdcraft, there is no need for secrecy as to the information sought. Therefore, the court orders defendant to present all documents produced by Dr. Holdcraft in response to the subpoenas for inspection by the government.

II. Plaintiff's Motion to Quash Subpoenas Duces Tecum Served on Witness Holdcraft (Docs. 30 and 36)

The government has moved to quash the subpoenas served on Dr. Holdcraft because she either does not have these records, having provided them to the government, the documents do not exist, or they are already in possession of the defense. Defendant argues that the government does not have standing to object to the subpoenas.

"A party only has standing to move to quash the subpoena issued to another when the subpoena infringes upon the movant's legitimate interests." Tomison, 969 F.Supp. at 596 (citing United States v. Raineri, 670 F.2d 702, 712 (7th Cir.1982) and Ponsford v. United States, 771 F.2d 1305, 1308 (9th Cir.1985)). The government will often lack standing to challenge a subpoena issued to a third party absent a claim of privilege, proprietary interest in the subpoenaed material, or some other interest in the subpoenaed material. Beckford, 964 F.Supp. at 1023.

The government does not argue, nor has it shown, that it has standing to challenge the subpoenas. The government has not shown that the subpoenas are unreasonable or oppressive, as applied to the government. See Fed.R.Crim.P. 17(c) (providing "[t]he court on motion made promptly may quash or modify the subpoena if compliance would be...