F.B.I. v. Superior Court of Cal.

• Decision Date: 22 August 2007
• Docket Number: No. C-07-01876 PJH (JCS).,C-07-01876 PJH (JCS).
• Citation: 507 F.Supp.2d 1082
• Parties: FEDERAL BUREAU of INVESTIGATION, et al., Petitioners, v. SUPERIOR COURT OF the State of CALIFORNIA, Respondent.
• Court: U.S. District Court — Northern District of California

507 F.Supp.2d 1082

FEDERAL BUREAU of INVESTIGATION, et al., Petitioners, v. SUPERIOR COURT OF the State of CALIFORNIA, Respondent.

No. C-07-01876 PJH (JCS).

United States District Court, N.D. California.

August 22, 2007.

COPYRIGHT MATERIAL OMITTED

Jack Gerald Ryder, Marin County District Attorney's Office, San Rafael, CA, for Respondent.

Melanie Lea Proctor, Letitia Rei Todd Kim, United States Attorney's Office, San Francisco, CA, for Petitioners.

ORDER GRANTING MOTION TO QUASH STATE COURT SUBPOENAS AND VACATE STATE COURT ORDER [Docket No. 9]

JOSEPH C. SPERO, United States Magistrate Judge.

I. INTRODUCTION

Petitioners Federal Bureau of Investigation ("FBI"), FBI Special Agent Joan Linehan, and Assistant United States Attorney ("AUSA") Kim bring a "Motion to Quash State Court Subpeona and Vacate State Court Order; or, Alternatively, for Leave of Court to Bring Such Motion" (the "Motion"), seeking to quash two state court subpoenas compelling Agent Linehan to testify and to vacate a state court order compelling Agent Linehan to testify and both Agent Linehan and AUSA Kim to produce information. Petitioners assert that, in the current procedural posture, the state court was without jurisdiction to enforce process against these employees of the Department of Justice ("DOJ") because of: 1) the lack of authorization from the DOJ to provide the requested information as required by the applicable Department disclosure regulations; and 2) the doctrine of sovereign immunity. The Motion came on for hearing on Friday, August 10, 2007, at 1:30 p.m. Melanie Proctor appeared on behalf of the Petitioners, Jon P. Rankin appeared on behalf of Mario Hammonds, and Jack Ryder appeared on behalf of Real Party in Interest the People of the State of California. For the reasons stated below, the Motion is GRANTED.

II. BACKGROUND

A. Facts

This matter stems from a state criminal action, People of the State of California v. Mario Hammonds, case number SC139666A, currently pending in Marin County Superior Court. Declaration of Letitia R. Kim in Support of Motion to Quash Subpoena and Vacate State Court Order; Or Alternatively, for Leave of Court to Bring Such Motion ("Kim Decl."), Ex. E (Information SC13966A) at 1. Neither the FBI, Agent Linehan, nor AUSA Kim are parties to that state court proceeding in which the People of the State of California (the "People"), through the Marin County District Attorney's Office, are prosecuting defendant Hammonds for felony burglary-grand theft, check fraud, and receiving stolen property. See Kim Decl., Ex. E (Information SC13966A) at 1-2. The charges filed against Hammonds derive from his alleged attempted use of fraudulent checks and false/stolen personal identification at the Nordstrom's department store in Corte Madera in January of 2005. Id at L In his defense, Hammonds asserted that he engaged in this felonious activity as part of his duties as a confidential informant for the FBI. Declaration of Jack G. Ryder in Support of the People's Response to Motion to Quash Subpoena ("Ryder Decl.") at 2. Pursuant to this defense, Hammonds sought discovery of information in the possession of the FBI demonstrating his confidential informant status and the connection between that status and the offenses at issue. Id. at 2.

Specifically, in November of 2006, Hammonds' attorney issued a subpoena ordering FBI agent Linehan to appear in court to offer testimony in that regard. Kim Decl. at 1. In response to this subpoena, AUSA Kim wrote a letter to Hammonds' attorney on November 7, 2006, stating that Agent Linehan would not appear in court given that the DOJ had not authorized her do so, Hammonds had not established the relevance of Agent Linehan's testimony, and the subpoena had been improperly served. Kim Decl., Ex. B (Letter re: Subpoena in People v. Hammonds) at 1. Kim also noted that, pursuant to 28 C.F.R. § 16.22, the DOJ "considers whether disclosure is appropriate under the applicable procedural rules and substantive law concerning privilege," and specified that "disclosure will not be authorized if it would violate a statute, rule or regulation; reveal a confidential source; reveal investigatory records compiled for law enforcement purposes; or disclose investigative techniques and procedures." Id. According to Kim, these concerns were implicated by the subpoena request. Id.

On March 22, 2007, Kim received a second subpoena, issued by the Marin County Deputy District Attorney prosecuting Hammond's case, directing Agent Linehan to appear in Marin County Superior Court. Kim Decl., Ex. C (Subpoena) at 1. AUSA Kim also received a court order from Marin County Superior Court Judge Michael B. Dufficy, dated March 20, 2007, requiring that Agent Linehan, or another FBI representative, appear to provide testimony and that both Kim and Agent Linehan provide FBI documents relevant to Mr. Hammond's defense.¹ Kim Decl., Ex. D (Order for Request for Discovery Order) at 2.

On March 29, 2007, AUSA Kim responded with a letter to Judge Dufficy stating that Agent Linehan would not appear to testify in court nor would she or Kim provide the requested documents. Kim Decl. Ex. F (Letter re: Subpoena in People v. Hammonds) at 1. Kim's letter also stated that the FBI would be willing to sign a stipulation declaring that they have no responsive documents. Id. Kim's letter requested that the court vacate the order and stated that the matter would be removed to federal court if the court did not comply with that request. Id. at 3. Kim received no response to this letter and the order was not vacated. Kim Decl. at 2. Consequently, on April 3, 2007, Kim and Linehan removed Judge Dufficy's order and the two subpoenas issued to Agent Linehan to this District Court pursuant to 28 U.S.C. §§ 1441 and 1442(a) on the grounds that: 1) the FBI, Agent Linehan, and AUSA Kim are agents and/or employees of the federal government; and 2) the order and subpoenas involve a federal question which the federal government has the right to have decided by a federal court. Notice of Removal at 2.

The DOJ has not authorized Agent Linehan or AUSA Kim to appear to testify or produce any documents in the state court action. Kim Decl. at 2. Consequently, Defendant Hammonds filed a motion to dismiss the charges against him on the grounds that the denial of his discovery request constitutes a violation of his due process and fair trial rights as established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and provisions of the Cal. Evid.Code § 1042(d). Ryder Decl. at 3. Hammonds' motion is pending in Marin County Superior Court. Ryder Dec. at 3.

B. Procedural History

Petitioners brought this Motion requesting that the court quash the state court subpoenas and vacate the state court order. Notice of Motion and Motion to Quash State Court Subpoena and Vacate State Court Order; or, Alternatively, for Leave of Court to Bring Such Motion at 1. On May 18, 2007, Judge Hamilton referred this matter to a Magistrate Judge for resolution pursuant to Civil Local Rule 72-1, which authorizes each Northern District magistrate judge "to exercise all powers and perform all duties conferred upon Magistrate Judges by 28 U.S.C. § 636." Order of Reference to Magistrate Judge; Civ. L.R. 72-1. On May 21, 2007, this matter was assigned to the undersigned magistrate judge.

Petitioners argue two grounds for granting the Motion. First, the doctrine of sovereign immunity precludes a state court from enforcing orders and subpoenas against federal employees. Id. Second, the DOJ regulations set forth in 28 U.S.C. §§ 16.21 et seq. validly prohibit DOJ employees from disclosing the information sought by Real Party in Interest absent explicit authorization by the proper Department official.² Id.

The People argue that neither the doctrine of sovereign immunity nor the DOJ regulations can serve as the basis for precluding the enforcement of the subpoenas and court order in light of the Constitutional right to Due Process and a fair trial guaranteed to defendants in criminal proceedings established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). People's Response to Motion to Quash Subpoena at 3-4. The People are also concerned that, without the requested information, the state court will grant Hammonds' motion to dismiss the charges against him pursuant to California Evidence Code § 1042(d), which stipulates that dismissal is appropriate upon non-disclosure of the identity of a confidential informant if "the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial." Cal Evid.Code § 1042(d). According to the People, in refusing to authorize Agent Linehan or AUSA Kim to provide the requested information the FBI is essentially claiming a privilege against the disclosure of its records. People's Response to Motion to Quash Subpoena at 4-5. Therefore, the People argue, the present matter must be determined based on a balancing test weighing the DOJ's interest in preserving the confidentiality of law enforcement information against Hammonds' constitutional right to discovery as a criminal defendant as well as the People's interest in prosecuting alleged felons. Id. at 7. The People submit that the proper method for balancing these competing interests is for this district court to conduct an in camera hearing at which the FBI would be required to demonstrate that its interests in maintaining the confidentiality of the requested information are sufficiently compelling to warrant non-disclosure. Id. at 5.

III. ANALYSIS

The present matter presents an important issue: "how, if at all, may a defendant [and the state who is prosecuting him] in a state criminal prosecution obtain from unconsenting federal officials [testimony and] documentary information in their custody that may be material and favorable to his state court defense?" Smith v. Cromer, 159 F.3d 875, 883 (4th...