U.S. v. Tomison

• Decision Date: 30 June 1997
• Docket Number: CR. No. S-96-427 LKK.
• Parties: UNITED STATES of America, Plaintiff, v. Douglas TOMISON and James Zimmer, Defendants.
• Court: U.S. District Court — Eastern District of California

969 F.Supp. 587

UNITED STATES of America, Plaintiff, v. Douglas TOMISON and James Zimmer, Defendants.

CR. No. S-96-427 LKK.

United States District Court, E.D. California.

June 30, 1997.

Donald Searles, Assistant United States Attorney, Sacramento, CA, for Plaintiff.

Ted W. Cassman, Cooper, Arguedas & Cassman, Emeryville, CA, for Defendant Tomison.

William Goodman, Topel & Goodman, San Francisco, CA, for Defendant Zimmer.

ORDER

KARLTON, Chief Judge Emeritus.

The defendants in the above-captioned case sought subpoenas duces tecum directed to various third parties requiring the pretrial production of documents pertaining to their defense. Claiming that Fed.R.Crim.P. 17(c) authorized the procedure, their motion was made ex-parte and sought the sealing of the motion and the supporting documents asserting that serving those documents upon the government would reveal their likely strategy at trial. The Court granted the motions to seal and authorized issuance of the subpoenas. Now Pending before the court are motions seeking to quash brought by the government and two of the recipients of the subpoenas. I address the motions in turn.

I. THE GOVERNMENT'S MOTION

The government's motion raises two related but distinct questions. First, does Fed. R.Crim.P. 17(c) permit or require the court to entertain an ex-parte application for pre-trial production of subpoenas duces tecum under the facts and circumstances of this case? Second, does the government have standing, under either the Constitution or Rule 17(c), to move to quash or modify these subpoenas. I turn to the ex parte issue first.¹

A. EX PARTE APPLICATIONS UNDER RULE 17(c)

Rule 17(c) provides a process by which federal courts can issue subpoenas duces tecum for the production of evidence before trial. See Fed.R.Crim.P. 17(c).² The issue presented is whether the Rule authorizes and/or requires a district court to entertain an ex parte application for a subpoena duces tecum to be served on a third party when the moving party seeks that the subpoena be made returnable before trial.

While various district court opinions address the problem, neither the parties, nor the court in its own research, have located any binding authority, or any circuit court decisions for that matter, on point. See United States v. Beckford, 964 F.Supp. 1010, 1025 & n. 16 (E.D.Va.1997) (compiling cases addressing the question).³ Without binding authority, the task becomes one of construction for which the court employs the ordinary cannons of interpretation. See Tello v. McMahon, 677 F.Supp. 1436, 1441 (E.D.Cal. 1988) (citing Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982) & Brown v. Baden, 815 F.2d 575, 576 (9th Cir.) (per curiam), cert. denied, 484 U.S. 963, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987)).

Under the plain meaning rule, the interpretive analysis begins with the text itself. See Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1992) (citations omitted). If intent cannot be ascertained from the language of the Rule alone, then the court may invoke other aids of textual interpretation, including extrinsic aids. See Catholic Social Services, Inc. v. Meese, 664 F.Supp. 1378, 1383 (E.D.Cal. 1987). The court may only resort to extrinsic aids if textual means do not resolve the issue. Id. at 1382; and see Germain, 503 U.S. at 254, 112 S.Ct. at 1149-50. The ultimate task is to interpret the intent of Congress and to give effect to that intent. See Tello, 677 F.Supp. at 1440 (citing Foxgord v. Hischemoeller, 820 F.2d 1030, 1032 (9th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 502 (1987)).

Judge Payne of the Eastern District of Virginia has recently concluded that the text of Rule 17(c) does not itself resolve the question of whether a party can make an ex parte request. Beckford, supra, at 1025-27. Following Judge Payne's analysis, I likewise conclude that the text of the Rule does not resolve the issue.⁴

Put bluntly, the fact of the matter is that the Rule simply does not address the issue of ex parte application. See Busic v. United States, 446 U.S. 398, 407, 100 S.Ct. 1747, 1753, 64 L.Ed.2d 381 (1980) (An ambiguity exists where "[p]lainly the text of the statute fails to address the issue pertinent to decision of these cases."). This silence lends itself to multiple conclusions.

On the one hand, the portion of Rule 17(c) governing the production of evidence prior to trial does not explicitly provide for an ex-parte hearing. That omission is made more conspicuous by the specific inclusion of an ex parte hearing process in Rule 17(b). See United States v. Najarian, 164 F.R.D. 484, 488, n. 2 (D.Minn.1995); United States v. Urlacher, 136 F.R.D. 550, 555 (W.D.N.Y. 1991).⁵ Some district courts have held that this textual omission evidences a congressional intent to distinguish between pre-trial subpoenas duces tecum and trial subpoenas ad testificandum with regard to ex parte proceedings, and thereby forecloses the possibility of an ex parte application for the production of documents prior to trial. See Urlacher, 136 F.R.D. at 555; United States v. Hart, 826 F.Supp. 380, 381 (D.Colo.1993); United States v. Stewart, 1997 WL 103700 (E.D.Pa.1997).⁶

On the other hand, the text itself does not explicitly speak to the possibility of an ex parte application for subpoenas duces tecum produced prior to trial. See Beckford, supra, at 1026-27. As I now explain, this omission underscores other ambiguities in the text which, taken together, evidence a need to move beyond the language itself to determine whether Rule 17(c) authorizes ex parte applications.

One ambiguity arises from the last sentence of Rule 17(c). See note 2, supra. Some district courts have held that this sentence prohibits an ex parte application because it contemplates the review by other parties of documents subpoenaed pre-trial. Najarian, 164 F.R.D. at 487 ("Undoubtedly, the Government is entitled to participate in that exchange"); Urlacher, 136 F.R.D. at 555-56 ("[the] provision for pretrial production under supervision of the court and upon terms which permit inspection by the parties and their attorneys, clearly suggests, if not compels, a conclusion that litigation concerning issuance of and compliance with subpoenas duces tecum be conducted upon notice, and not in secret.") (internal quotations omitted); Hart, 826 F.Supp. at 381 ("The plain language of rule 17(c) could not be clearer. ... There can be no right to an ex parte procurement of subpoenaed documents pre-trial if the court has discretion to supervise their production by permitting both parties to inspect them prior to trial.").⁷ While these arguments may carry some initial appeal, upon a closer examination of the text, it appears to this court that they ignore the plain words of the provision.

Rather than "expressly contemplat[ing] the review of documents by the other parties to the dispute," Najarian, 164 F.R.D. at 487, Rule 17(c) by its terms is permissive, providing that the court "may" order production of documents and "may" permit inspection by the adverse party. See United States v. Reyes, 162 F.R.D. 468, 471 (S.D.N.Y.1995). Since the Rule itself contemplates that 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. See United States v. Florack, 838 F.Supp. 77, 80 (W.D.N.Y.1993). Since prohibiting a party access to the documents may have the same practical effect as denying it the opportunity to know that such documents were subpoenaed, the Rule's structure appears to anticipate the possibility of an ex parte request.⁸ Given that the court may decline to order pre-trial production of the documents altogether, it is possible that the portion of the Rule allowing for participation by the government would never be triggered.⁹ It thus appears that the Rule may contemplate situations where the defendant has a right to an ex parte hearing as well as situations where the defendant does not. At the very least, the issue is not directly resolved by the text.

Another ambiguity arises because the text does not state whether anyone other than the party to whom the subpoena is directed has standing to bring a motion to quash. While it has been argued that the provision of a motion to quash or modify "clearly suggests" that a motion cannot be made ex parte, see Urlacher, 136 F.R.D. at 555-56, I cannot agree. By providing the basis for a motion to quash to be that "compliance" would be "unreasonable or oppressive," the language suggests that the party to whom the subpoena is directed is the only party with "standing" to oppose it.¹⁰ This is because no matter what interest a party to whom the subpoena is not directed may have, it does not arise out of the difficulty of compliance.¹¹

It is true that the question of standing is distinct from the question of whether a party can apply for a subpoena ex parte. See United States v. Jenkins, 895 F.Supp. 1389, 1393 (D.Haw.1995). Conceivably, the Rule could confer upon the government a right to notice of a Rule 17(c) request while at the same time it prudentially denies the government the right to oppose the request, even if the government lacks Article III standing to oppose the request.¹² Nonetheless, the issues are related, since the utility of notice would be greatly undermined if the party entitled to notice could not participate in the process for which it received notice. Cf. Reyes, 162 F.R.D. at 471 (noting that the effect of a noticed hearing procedure would permit parties without standing to challenge a subpoena). Thus, the fact that the Rule may only allow the party subpoenaed to oppose the request indicates that the Rule presupposes that the motion for the subpoena is ex parte...