People of State of Cal. v. Reyes, CV-F-92-5760 REC.

• Decision Date: 10 November 1992
• Docket Number: No. CV-F-92-5760 REC.,CV-F-92-5760 REC.
• Citation: 816 F. Supp. 619
• Court: U.S. District Court — Eastern District of California
• Parties: PEOPLE OF STATE OF CALIFORNIA, Plaintiff, v. Pablo REYES, Defendant.

816 F. Supp. 619

PEOPLE OF STATE OF CALIFORNIA, Plaintiff, v. Pablo REYES, Defendant.

No. CV-F-92-5760 REC.

United States District Court, E.D. California.

November 10, 1992.

ORDER GRANTING MOTION TO QUASH SUBPOENA

COYLE, Chief Judge.

On November 9, 1992 the court heard the Motion to Quash Subpoena filed by the United States in this removed action. Upon due consideration of the written and oral arguments of the parties and the record herein, the court grants this motion for the reasons set forth herein.

Pablo Reyes is a defendant in criminal proceedings in the Tulare County Municipal Court. Mr. Reyes is charged with disrupting a public meeting, refusing to disperse and resisting, obstructing or delaying a police officer. These charges arose out of a demonstration before the Dinuba School Board on January 6, 1992.

Joel Benevides is a mediator employed by the Community Relations Service (hereinafter CRS of the Department of Justice.)

On October 22, 1992, Tom McGuire, counsel for Mr. Reyes, issued a trial subpoena to Mr. Benevides. Mr. McGuire's declaration in support of the subpoena states in pertinent part:

Based on my preparation and knowledge concerning the facts of this case, I am informed and believe that the presence of Joel Benevides, Community Relations Service, U.S. Department of Justice, 211 Main Street, Suite 1040, San Francisco, Ca 94105 is necessary to help prove the innocence of defendant.

On October 30, 1992, Mr. Benevides was advised by Linda Martin-Crawford, General Counsel, that Mr. Benevides was not authorized pursuant to 28 C.F.R. § 16.22 to testify or produce documents in response to the subpoena. Apparently in response to this, Mr. Reyes then filed a motion to dismiss the charges against him on the ground that his inability to compel the testimony of Mr. Benevides deprives him of his right to a fair trial. That motion was set to be heard by the Municipal Court on November 2, 1992 at 8:30 a.m. According to the Motion to Quash before this court, defense counsel, the district attorney, the U.S. Attorney, and the Municipal Court's scheduling deputy agreed that the United States would file a Motion to Quash the subpoena which would be heard at the same time as Mr. Reyes' Motion to Dismiss. The United States, acting through Assistant United States Attorney Daniel Bensing, moved the Tulare County Municipal Court to quash this subpoena. On November 4, 1992, the Honorable Ronn M. Couillard issued an order denying this motion, ruling in pertinent part as follows:

Finding made that Mr. Joel Benevides is a relevant witness to this case in that he allegedly gave to the school superintendent a document containing issues that were to be placed on the agenda to be heard at a school board meeting.

At the request of Mr. Bensing, Judge Couillard gave this order a civil number to facilitate the removal of the subpoena to the federal court. On November 6, the following document was issued by Judge Couillard:

Proof of service of subpoena on Joel Benevides filed. Bench warrant to issue with bail set at $500, warrant stayed until 11-10-92.

On November 6, the United States removed the subpoena to this court pursuant to 28 U.S.C. § 1442.¹ On November 6, 1992, William Lucas, Acting Director of CRS, wrote to Mr. Benevides, reconfirming Ms. Martin-Crawford's advice and instructing Mr. Benevides "that you were not and are not now authorized to testify or produce documents in People v. Pablo Reyes." Mr. Lucas further states:

There are several reasons for this determination. The ... CRS ... is charged with providing assistance to communities in resolving sensitive ethnic conflicts. CRS provides this service essentially through conciliation and mediation. Our effectiveness is based on the ability to hear both sides of a conflict and peacefully bring the disputants to the negotiating table. In order to carry out its mission, CRS must maintain the public trust that disputants can discuss their problems and interests candidly without fear that information which CRS gains may then be used against them, or that CRS' very presence compromises the conciliation/mediation process.

In your particular instance, there are several issues which will affect CRS future services. First, CRS effectiveness in conciliating/mediating the conflict between the School Board of Dinuba and MAPA, the basis for this subpoena, will be `chilled' from using either you personally, or CRS in the future, knowing that we can be called as witnesses. For example, other school boards and school board superintendents will learn of this incident and would be discouraged from using CRS. Second, parties to future disputes will be able to manipulate the conciliation/mediation process. Third, CRS will take on the appearance of an arm of law enforcement. Your testimony would appear to violate the statutory requirement that CRS employees not engage in prosecution or investigative. functions in litigation arising out of their cases. See 42 U.S.C. § 2000g-(b). Fourth, CRS will lose its actual and appearance of neutrality. Fifth, neither you nor CRS will be able to assure parties that our services are confidential or neutral. This is a significant and persuasive basis for convincing disputants to use our services. Loss of this assurance will have a major impact on CRS ability to do its job. Finally, if you were to testify the credibility of the mediation/conciliation profession generally would suffer.

By letter to Mr. Bensing dated November 9, 1992, Judge Couillard states that he issued and held the bench warrant "in belief that this action may have been necessary to facilitate the action which your letter states will be filed today in federal court."

The function of the CRS is set forth at 42 U.S.C. § 2000g-1:

It shall be the function of the Service to provide assistance to communities and persons therein in resolving disputes, disagreements, or difficulties, relating to discriminatory practices based on race, color, or national origin which impair the rights of persons in such communities under the Constitution or laws of the United States or which affect or may affect interstate commerce. The Service may offer its services in cases of such disputes, disagreements, or difficulties whenever, in its judgment, peaceful relations among the citizens of the community involved are threatened thereby, and it may offer its services either upon its own motion or upon the request of an appropriate State or local official or other interested person.

42 U.S.C. § 2000g-2 further provides in pertinent part:

(a) The Service shall, whenever possible, in performing its functions, seek and utilize the cooperation of appropriate State or local, public, or private agencies.

(b) The activities of all officers and employees of the Service in providing conciliation assistance shall be conducted in confidence and without publicity, and the Service shall hold confidential any information acquired in the regular performance of its duties upon the understanding that it would be so held. No officer or employee of the Service shall engage in the performance of investigative or prosecuting functions of any department or agency in any litigation arising out of a dispute in which he acted on behalf of the Service. Any officer or other employee of the Service, who shall make public in any manner whatever any information in violation of this subsection, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned not more than one year.

Moreover, 28 C.F.R. §§ 16.21 et seq. sets forth procedures to be followed in obtaining information and/or testimony in state court proceedings from employees of the Department of Justice. Section 16.21(a) provides in pertinent part:

(a) This subpart sets forth procedures to be followed with respect to the production or disclosure of any material contained in the files of the Department, any information relating to material contained in the files of the Department, or any information acquired by any person while such person was an

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