State v. Vance, 44761–4–II.

CourtCourt of Appeals of Washington
Writing for the CourtMELNICK, J.
Citation339 P.3d 245,184 Wash.App. 902
PartiesSTATE of Washington, Appellant, v. Darin Richard VANCE, Respondent.
Docket NumberNo. 44761–4–II.,44761–4–II.
Decision Date09 December 2014

184 Wash.App. 902
339 P.3d 245

STATE of Washington, Appellant
Darin Richard VANCE, Respondent.

No. 44761–4–II.

Court of Appeals of Washington, Division 2.

Dec. 9, 2014.

339 P.3d 246

Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Offi, Vancouver, WA, for Appellant.

Steven Whitman Thayer, Steven W. Thayer, Vancouver, WA, David Thomas McDonald, David T. McDonald PC, Portland, OR, for Respondent.



184 Wash.App. 905

¶ 1 The State appeals the trial court's order dismissing with prejudice charges against Darin Richard Vance based on the State's failure to produce federal agents for interviews. Based on a federal investigation, the State searched Vance's home and charged him with various child pornography-related offenses. The trial court authorized Vance to subpoena federal investigators for depositions and subsequently ordered the agents to submit to depositions. When the federal agents failed to comply, the trial court redacted the search warrant to remove all information obtained by the agents. The trial court then retested the search warrant for probable cause, suppressed all of the evidence obtained under the warrant, and dismissed the charges with prejudice.

¶ 2 The State argues that the trial court abused its discretion by finding that the State violated discovery rules, because the State had no obligation to produce federal agents not under State control, and by redacting the information from the warrant. We agree. We further hold that because

339 P.3d 247

Vance did not comply with applicable federal statutes and agency regulations required to obtain testimony and information from federal agents, the agents were not permitted to testify or provide information. Therefore,

184 Wash.App. 906

the trial court's remedy of redacting the agents' information from the search warrant affidavit was an abuse of discretion. We reverse and remand to the trial court to reinstate the charges against Vance.


¶ 3 In the course of an undercover online investigation, Federal Bureau of Investigation (FBI) Special Agent Alfred Burney discovered child pornography images being received and uploaded from an internet protocol (IP) address belonging to Vance and Vance's wife. Immigration and Customs Enforcement (ICE) Special Agent Julie Peay assisted in the investigation. FBI Special Agent Laura Laughlin provided the Vancouver Police Department with the information obtained through the investigation.

¶ 4 On the basis of the federal agents' information, state police officers obtained a search warrant for Vance's home. The police executed the warrant in January 2011, and the search of Vance's home revealed evidence of child pornography. In April 2011, Vance was arrested in Clark County. The State charged him with three counts of dealing in depictions of a minor engaged in sexually explicit conduct in the first degree1 and seven counts of possession of depictions of a minor engaged in sexually explicit conduct in the first degree.2

¶ 5 In August 2011, Vance e-mailed the State and requested the opportunity to interview Agents Laughlin, Burney, and Peay. The State responded that it did not intend to call the agents as witnesses at trial and if Vance still wanted to interview them, he would have to arrange the interviews himself. Later in the month, Vance mailed letters to Agents Laughlin, Burney, and Peay requesting interviews. Responding on behalf of Agent Laughlin, the

184 Wash.App. 907

Department of Justice (DOJ) directed Vance to 28 C.F.R. §§ 16.21 and 16.22. These sections required Vance to submit a scope and relevancy letter to obtain testimony or information from a DOJ employee.3 Neither Agent Burney nor Agent Peay responded to the letters.'

¶ 6 On June 4, 2012, Vance moved the court to suppress “any and all evidence seized and/or derived from the execution of a search warrant at his residence” and to dismiss the charges with prejudice. Clerk's Papers (CP) at 4. Two days later, Vance moved the trial court for an order to take the depositions of Agents Peay and Burney. On August 16, the trial court authorized Vance to subpoena Agents Burney and Peay for depositions. Vance served them with notices of deposition, court orders authorizing depositions, and subpoenas duces tecum.

¶ 7 The United States Attorney's Office (USAO) responded on Agent Burney's behalf, stating that the FBI is an agency within the United States DOJ and, thus, the production of documents and testimony of Agent Burney could not be compelled by a subpoena issued by the superior court. The USAO again directed Vance to 28 C.F.R. §§ 16.21 and 16.22. The USAO stated that once Vance provided the required information, it would review his request.

¶ 8 The Office of the Chief Counsel of the United States Department of Homeland Security (DHS) responded on Agent Peay's behalf. DHS informed Vance that ICE is a component of the United States Department of Homeland Security, and as a DHS employee, Agent Peay was prohibited from providing documents or testimony related to information she acquired while working for DHS. DHS directed Vance to 6 C.F.R. §§ 5.44 and 5.45, which require individuals to submit a scope and relevancy letter

184 Wash.App. 908

regarding the information

339 P.3d 248

sought.4 DHS also stated that Agent Peay did not have authority to accept service of subpoenas and that Vance should serve the subpoena on DHS to the attention of a senior attorney. DHS stated that it would review Vance's request after Vance had properly served DHS and submitted a scope and relevancy letter. Vance served the subpoena as requested, but did not submit a scope and relevancy letter despite being reminded by DHS.

¶ 9 On October 31, Vance moved the trial court to dismiss the charges against him under CrR 4.7 and CrR 8.3 because the State had failed to abide by the trial court's order to allow Vance to take the depositions of Agents Burney and Peay. In the alternative, Vance moved to excise statements and information obtained from Agents Burney and Peay from the affidavit in support of the application for the search warrant. Vance argued that “Agent Burney and Agent Peay are crucial to the defense mounting a non-facial challenge to the warrant.” CP at 506.

¶ 10 On November 19, the trial court ordered Agents Burney and Peay to submit to depositions. After Vance served the subpoena on Agent Burney, the USAO again responded that sovereign immunity deprived the trial court of jurisdiction over the FBI and that the subpoena could not be legally enforced against the FBI or its employees. The USAO again directed Vance to the applicable C.F.R. provisions that required Vance to submit a scope and relevancy letter.

¶ 11 On November 29, Agent Peay appeared for a deposition, but she did not bring any documents as demanded by the subpoena duces tecum. Vance subsequently advised the

184 Wash.App. 909

court that at the deposition Agent Peay had stated that she had instructions to not answer certain questions. In contrast, the State told the court that Agent Peay did not refuse to answer any questions. Subsequently, the State provided Vance with 28 pages of Agent Peay's reports.

¶ 12 On December 21, the trial court denied Vance's motion to dismiss and ordered Vance to submit the subpoena and a scope and relevancy letter5 to the USAO summarizing the testimony and materials sought from Agent Burney. The trial court stated that it would determine the adequacy of the scope and relevancy letter. The trial court also ruled that Vance could renew his motion to dismiss if Agent Burney failed to make himself available for an interview and to provide the relevant discovery requested within a reasonable time.

¶ 13 On December 27, Vance e-mailed the State's prosecutor to request a follow-up deposition with Agent Peay. On January 4, 2013, Vance sent the USAO a scope and relevancy letter regarding an interview with Agent Burney. The USAO responded a couple of weeks later and advised Vance that he failed to comply with the requirements of 28 C.F.R. § 16.22(c) and (d). The USAO again directed Vance to submit a relevancy letter in accordance with the C.F.R. and stated that his request would be timely addressed.

¶ 14 A few days later, Vance renewed his motion to dismiss or, in the alternative, to excise information obtained from Agents Burney and Peay from the search warrant affidavit. A new prosecutor took over the case, and the trial court orally ordered the State to attempt to arrange interviews or depositions one last time.6

184 Wash.App. 910

¶ 15 On February 25, the State represented that it had communicated with an attorney from the USAO who would work with the State to schedule interviews with Agents


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  • State v. Vance, 44761–4–II.
    • United States
    • Court of Appeals of Washington
    • December 9, 2014
    ...184 Wash.App. 902339 P.3d 245STATE of Washington, Appellant,v.Darin Richard VANCE, Respondent.No. 44761–4–II. Court of Appeals of Washington,Division 2.Dec. 9, Reversed and remanded with instructions. [339 P.3d 246] Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Offi, Vancou......

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