U.S. v. Fox

• Decision Date: 11 August 2003
• Docket Number: No. 4:03CR3006-2.,4:03CR3006-2.
• Citation: 275 F.Supp.2d 1006
• Parties: UNITED STATES of America, Plaintiff, v. Donald P. FOX, Defendant.
• Court: U.S. District Court — District of Nebraska

275 F.Supp.2d 1006

UNITED STATES of America, Plaintiff, v.Donald P. FOX, Defendant.

No. 4:03CR3006-2.

United States District Court, D. Nebraska.

August 11, 2003.

Lynnett M. Wagner, Assistant United States Attorney, Lincoln, Plaintiff'sCounsel.

John C. Vanderslice, Assistant Federal Public Defender, Lincoln, Defense Counsel.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on the government's statement of appeal (filing 97) from an order that was entered by Magistrate Judge Piester (filing 96) denying the government's "objection to issuance of subpoenas"(filing 92).Reviewing the order pursuant to 28 U.S.C. § 636(b)(1)(A)andNELR 72.3, I find that the government's statement of appeal should be sustained in part.

I.Background

The defendant, Donald P. Fox, is charged with possession of marijuana with intent to distribute.On May 2, 2003, he filed a motion to suppress all physical evidence and statements obtained following a traffic stop of his rented vehicle on Interstate 80, claiming that the state trooper's actions in stopping the vehicle and in requesting the assistance of a canine detection unit were racially motivated.Fox is black.According to Fox's motion, evidence that was presented at a hearing on an earlier motion to suppress showed that 9 out of 12 traffic stops where this trooper requested canine assistance involved racial minorities.¹

Fox's motion requested that "any evidentiary hearing be set at least 30 days following today's date to permit counsel a reasonable opportunity to obtain further information and records regarding [the trooper's] propensity for effecting traffic stops based upon racial profiling."(Filing 51.)A hearing on the motion before Magistrate Judge Piester was originally scheduled for May 20, 2003, but was twice continued at the defendant's request, until August 6, 2003.(See filings 55, 67, 91.)Both of the defendant's motions for a continuance cited a need for additional time to obtain records.Thus, the first motion, filed on May 13, 2003, stated that "[c]ounsel has sought additional information related to [the trooper's] vehicle stops over the past two years. . . .Further investigation will need to be completed related to the information now sought from the Nebraska State Patrol."(Filing 65.)The defendant's second motion for a continuance, filed on June 11, 2003, was even more particularized, stating that "[c]ounsel has served two subpoenas duces tecum upon the Nebraska State Patrol obtaining various information related to [the trooper's] traffic stops.On yesterday's date, counsel filed a third subpoena duces tecum seeking additional information regarding [the trooper's] traffic stops, as well as information from the Nebraska Crime Commission related to racial profiling data complied pursuant to Nebraska statute."(Filing 83.)

On June 20, 2003, a few days after the second continuance was granted, the government filed its "objection to issuance of subpoenas," which provides:

Comes now the United States of America, by and through the undersigned Special Assistant United States Attorney, and objects to the proposed issuance of subpoenas by Defendant Fox, as follows:

1) The Defendant's attempt to preclude the Nebraska State Patrol and the Nebraska Crime Commission from discussing or providing copies of the Defendant's subpoenaed materials by use of sealed subpoenas.

2) The subpoenas are overly broad and burdensome on the Nebraska State Patrol, the Nebraska Crime Commission, and the Office of the United States Attorney.

3) In the alternative, the Court should require the Defendant to provide copies of all materials received from the Nebraska State Patrol or Nebraska Crime Commission in advance of the motion hearing so that the U.S. Attorney's office may adequately prepare and avoid further continuances of the hearing.

The Government requests that the Court deny the Defendant's proposed subpoena ducus [sic] temem [sic] of the Nebraska State Patrol and Nebraska Crime Commission, and set a hearing regarding the scope and nature of the Defendant's proposed sealed subpoenas ducus [sic] tecum to the Nebraska State Patrol and Nebraska Crime Commission.

(Filing 92.)

On July 1, 2003, Magistrate Judge Piester entered an order that provided: "To the extent that filing 92 may be construed as a motion, it is denied."(Filing 96.)He stated: "The subpoenas have been issued and served.No motion to quash or limit their scope has been filed by the deponents.No showing has been made that compliance will be burdensome to the deponents or to the government.It is not known how the government even learned about the subpoenas, since they were filed under seal; presumably the deponents or their attorney notified the government's counsel about their existence and service."(Id.)

It appears from the government's supporting brief (filing 93) that the "objection to issuance of subpoenas" was made with respect to an "ex parte motion for issuance of subpoenas duces tecum in forma pauperis" that was dated June 10, 2003, and filed under seal on June 11, 2003(filing 81).An order granting the motion was signed by Magistrate Judge Piester on June 10, 2003, and also filed under seal on June 11, 2003(filing 82).As described in the defendant's second motion for a continuance, this was the "third subpoena duces tecum" issued.The government's brief stated that the Special Assistant United States Attorney was aware of two prior subpoenas that had been served on the Nebraska State Patrol, and had been provided with copies of the subpoenaed records, but that the Assistant Federal Public Defender stated during a telephone conversation on June 11th that he was going to request that the third subpoena direct the Nebraska State Patrol not to discuss the contents of the subpoena or provide copies of the subpoenaed documents to the government.(The filed application did not, in fact, contain such a request, nor were the subpoenas issued subject to any such restriction.)It was also stated during this conversation that sealed filings were being used so that the government would not have an opportunity to comment on the application.

II.Discussion

The government's brief on appeal (filing 98) raises two questions of law, neither of which were discussed in the brief that was submitted to Magistrate Judge Piester.²The government's principal contention on appeal is that United States v. Armstrong,517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687(1996), requires the defendant to make a threshold showing of racial profiling before a subpoena duces tecum may issue.While this argument might have some relationship to the government's filed objection that the subpoenas were "burdensome on the Nebraska State Patrol, the Nebraska Crime Commission, and the Office of the United States Attorney," I do not consider it.³

The government's second argument is that the subpoenas should not have issued upon an ex parte application.⁴I agree.

Although nowhere mentioned by the government in its brief, the matter of issuing subpoenas is controlled by Fed. R.Crim.P. 17, which provides in part:

(a) Content.A subpoena must state the court's name and the title of the proceeding, include the seal of the court, and command the witness to attend and testify at the time and place the subpoena specifies.The clerk must issue a blank subpoena-signed and sealed-to the party requesting it, and that party must fill in the blanks before the subpoena is served.

(b)Defendant Unable to Pay.Upon a defendant's ex parte application, the court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness's fees and the necessity of the witness's presence for an adequate defense.If the court orders a subpoena to be issued, the process costs and witness fees will be paid in the same manner as those paid for witnesses the government subpoenas.

(c) Producing Documents and Objects.

(1) In General.A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence.When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

(2) Quashing or Modifying the Subpoena.On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.

In particular, we are here dealing with Fed.R.Crim.P. 17(c), which concerns the issuance of subpoenas duces tecum.⁵

Some courts have construed Rule 17(c) as not providing for the issuance of a pretrial subpoena duces tecum upon an ex parte application under any circumstance.SeeUnited States v. Peterson,196 F.R.D. 361, 361-62(D.S.D.2000)(Rule 17(c) motion may not be made ex parte if seeking production of documents prior to trial; it may be made ex parte in connection with witnesses being called to testify at trial, this being in the spirit of Rule 17(b));United States v. Finn,919 F.Supp. 1305, 1330(D.Minn.1995)(when Rule 17(c) is utilized for the disclosure of evidentiary materials in advance of trial, the application should be reviewable by the other parties to that proceeding);United States v. Najarian,164 F.R.D. 484, 487-88(D.Minn.1995)(same);United States v. Hart,826 F.Supp. 380, 381(D.Colo.1993)(the mechanism for obtaining documents under Rule 17(c) negates any assumption that production should be on an ex parte basis; there can be no right to an ex parte procurement of subpoenaed documents pretrial if the court has discretion to supervise their production by permitting both parties to inspect them prior to trial);United States v. Urlacher,136 F.R.D. 550, 555-56(W.D.N.Y.1991)(the scheme of Rule 17 supports the view that Congress intended to distinguish between pretrial subpoenas duces tecum and trial subpoenas ad...