U.S. v. Keen, 74--1743

• Decision Date: 05 February 1975
• Docket Number: No. 74--1743,74--1743
• Citation: 509 F.2d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hobert Puryear KEEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1273

509 F.2d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Hobert Puryear KEEN, Defendant-Appellant.

No. 74--1743.

United States Court of Appeals, Sixth Circuit.

Feb. 5, 1975.

Richard H. Lewis, Lovett, Lewis, Johnson & Shapiro, Benton, Ky., William E. Scent, Keith, Scent, Osborne & Deatherage, Hopkinsville, Ky., for defendant-appellant.

George J. Long, U.S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appellee.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

PER CURIAM.

This is an appeal from a jury conviction of receiving stolen government property in violation of 18 U.S.C. § 641. Appellant does not contend that the evidence was insufficient to permit the jury to return a verdict of guilty but seeks reversal of his conviction on the grounds that the government improperly employed subpoenas for the purpose of commanding the attendance of prospective witnesses at a unilateral pretrial interview.

In preparation for the trial, the government attorney obtained blank subpoenas from the district court clerk and issued them to prospective trial witnesses commanding attendance at a pretrial interview at his office. When appellant discovered that the government had caused subpoenas to be served for this purpose, he sought an order permitting him to subpoena the same witnesses for a pretrial interview or, alternatively, to require the government to furnish him copies of all written statements given by the witnesses or summaries of the interviews. The district court, in denying the motion, stated, 'This has been a long-standing practice within the Department of Justice which we will allow until directed to do otherwise by a higher court.'

Appellant contends that he was prejudiced by this abuse of the subpoena power in three ways: (1) that his former wife was asked questions based upon the pretrial interview for the purpose of impeaching her testimony; (2) that, like his co-defendant, he might have pleaded guilty to the charge and might have received a sentence less severe than eighteen months had he been permitted to attend the pretrial interview; and (3) that a preview of the witnesses' testimony would have furnished him grounds for moving for a severance of trial on one count of the indictment.

There is no question that the government's action of obtaining blank trial subpoenas from the court clerk and of using them to compel witnesses to attend an interview miles from the place of trial and at a proceeding other than an authorized one was highly improper. Rule 17 of the Federal Rules of Criminal Procedure provides, in relevant part,

'(a) . . . A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. . . . (c) . . . The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.'

This rule permits a subpoena ad testificandum or a subpoena duces tecum to be issued only for the purpose of compelling the attendance of witnesses or the production of evidence at a formal proceeding. Only in the case of a subpoena duces tecum may the court direct that the evidence subpoenaed be produced for inspection before trial or before it is to be offered in evidence. The government's action was clearly unauthorized and improper. United States v. Hedge, 462 F.2d 220 (5th Cir. 1972). See also United States v. Standard Oil, 316 F.2d 884 (7th Cir. 1963); United States v. Stirone, 168 F.Supp. 490 (W.D.Pa.1957).

We do not, however, reverse appellant's conviction. He does not offer any explanation why a severance of a single count of the indictment would have been requested or granted had he been permitted to attend the pretrial interview. Moreover, there is no reason to believe that appellant would have pleaded guilty and would have received a less severe sentence had he been permitted to attend the pretrial interview. We do believe, however, that the government's attempted impeachment of appellant's former wife based upon statements that she allegedly made at the pretrial interview was prejudicial. A short excerpt from the government's examination of this witness is sufficient to show the dangers inherent in the impermissible subpoena practice engaged in by the Department of Justice in this case:

Q. Were you--have we talked before about this case?

A. You and I?

Q. Yes.

A. Yes Sir.

Q. Uh, did you give any different answers at that time than you did just then?

A. No.

Q. Are you sure of that?

A. Positive.

Q. Did you not say to him that you would positively not go the the Fort Campbell area with him again because you believed that these field jackets purchased by your husband were stolen?

A. No, I did not.

Q. You did not...