United States v. Cartagena-Albaladejo, Criminal No. 17–512 (FAB)

• Decision Date: 19 March 2018
• Docket Number: Criminal No. 17–512 (FAB)
• Parties: UNITED STATES of America, Plaintiff, v. Kevin CARTAGENA–ALBALADEJO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

299 F.Supp.3d 378

UNITED STATES of America, Plaintiff,

v.Kevin CARTAGENA–ALBALADEJO, Defendant.

Criminal No. 17–512 (FAB)

United States District Court, D. Puerto Rico.

Signed March 19, 2018

Marie Christine Amy, United States Attorney's Office, San Juan, PR, for Plaintiff.

Eric A. Vos, Laronda R. Martin, Federal Public Defender's Office, Hato Rey, PR, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is the United States' motion to quash the subpoena that defendant Kevin Cartagena–Albaladejo ("Cartagena") issued to Héctor López ("López"), Commissioner for the Special Investigation Bureau of the Puerto Rico Department of Justice. (Docket No. 50.) For the reasons set forth below, the Court GRANTS the United States' motion, and QUASHES the subpoena. Id.

I. BACKGROUND

Cartagena stands charged of possessing a machine gun in violation of 18 U.S.C. section 922(o ). (Docket No. 11.) Arnaldo Fernández–Caraballo ("Fernández"), a task force agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, conducted an investigation regarding Cartagena's purported possession of a machine gun on August 20, 2017. (Docket No. 1.) The following narrative is premised on Fernández's affidavit in support of the criminal complaint. (Docket No. 1, Ex. 1.) The Court sets forth this narrative for the sole purpose of placing the pending motion to quash in its proper context, and makes no factual findings at this juncture.

On August 20, 2017, Puerto Rico Police Department ("PRPD") agents from the Vega Baja Stolen Vehicles Unit refueled their patrol car at a Total Gas Station located in Toa Baja, Puerto Rico. Id. at p. 1. The PRPD agents observed a white Kia Soul vehicle at a nearby carwash. Id. Based on their experience, the PRPD agents inferred that the Kia Soul displayed a fake license plate. Id. The PRPD agents approached Cartagena and another individual, both of whom were seated at the carwash waiting area. Id. at p. 2. After identifying themselves as police officers, PRPD agents asked Cartagena whether the Kia Soul belonged to him. Id. Cartagena said no. Id.

As PRPD agents questioned carwash employees about the Kia Soul, Cartagena ran from the location. Id. Cartagena disregarded the PRPD agents's order to stop until he fell along a ditch. Id. Subsequently, Cartagena brandished a firearm and fired at the PRPD agents. Id. The PRPD agents fired back at Cartagena, as Cartagena continued to flee on foot while firing at PRPD agents. Id.

Cartagena ultimately surrendered after sustaining a gunshot wound. Id. PRPD agents arrested Cartagena, and recovered from his person a Glock pistol containing a 30–round high-capacity magazine loaded with five rounds of ammunition. Id. Attached to the firearm was a device enabling it to fire in the fully automatic mode. Id. at p. 3. PRPD agents also seized a 15–round capacity magazine loaded with 15 rounds of ammunition from Cartagena's immediate area, as well as a cell phone, a car key, and $2,090 United States dollars. Id. at pp. 2–3.

After further investigation, PRPD agents learned that the Kia Soul was previously reported stolen. Id. The license plate that prompted the intervention was indeed fake. Id. at p. 3. The car keys seized from Cartagena opened the Kia Soul, where PRPD agents recovered a Massachusetts driver's license bearing the name of an individual named Kevin Cartagena. Id.

Cartagena entered a plea of not guilty before Magistrate Judge F. Keith Ball in the Southern District of Mississippi on October 25, 2017.¹ (Docket No. 21.) The Court scheduled a status conference for March 8, 2018. (Docket No. 39.) Subsequently, Cartagena issued a subpoena to López. (Docket No. 50, Ex. 1.) The subpoena required López to appear before this Court on March 8, 2018, the day of the status conference. Id. Moreover, the subpoena commanded López to:

[p]rovide exact copy of the reports, photos or notes regarding a shooting incident on August 20, 2017, at Sabana Seca Total Gas Station in Toa Baja, PR. This incident was investigated by Special Agent Ema Cruz #0821.

Id. The documents were brought to Court on the day of the Conference and delivered to the Court. In moving to quash, the United States asserts that Cartagena issued the subpoena in contravention of Federal Rule of Criminal Procedure 17 (" Rule 17"). The Court agrees.

II. FEDERAL RULE OF CRIMINAL PROCEDURE 17

Rule 17 governs the issuance of subpoenas in criminal cases. See United States v. Guzman–De los Santos, 944 F.Supp.2d 126 (D.P.R. 2013) (Besosa, J.) (granting motion to quash subpoena pursuant to Rule 17 ). In pertinent part, Rule 17 provides as follows:

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.

Fed. R. Crim. P. 17(c)(2). Quashal is appropriate when "compliance would be unreasonable or oppressive." Fed. R. Crim. P. 17(c)(3). Trial courts have wide discretion in adjudicating motions to quash. Bowman Dairy Co. v. United States, 341 U.S. at 220, 71 S.Ct. 675 ("The court may control the use of Rule 17(c) [...] by its power to rule on motions to quash or modify"); United States v. Nivia, 887 F.2d 1110, 1117–8 (1st Cir. 1989) ("Given the case-specific nature of criminal trials, the district court must be afforded great latitude in weighing factors such as timeliness, materiality, relevancy, competency, practicality, and utility, as a means of determining whether a subpoena request is well founded").

Rule 17(c) is an instrument intended exclusively for trial or a formal hearing. See United States v. Louis, No. 04–203, 2005 WL 180885, at *3, 2005 U.S. Dist. LEXIS 1087, at *8 (S.D.N.Y. Jan. 27, 2005) (purpose of 17(c) subpoena is "trial-focused" and may be used "only to obtain materials admissible as evidence at trial"); United States v. Montañez–Ortiz, 290 F.R.D. 33 (D.P.R. 2013) (holding that subpoena directing Police of Puerto Rico to produce documents in court violated Rule 17 because "there was no trial or adversarial hearing scheduled in this case for that date and time").² Put simply, the purpose of a subpoena is to compel testimony or other admissible evidence at an adversarial hearing. See United States v. Santiago–Lugo, 904 F.Supp. 43 (D.P.R. 1995) (Fusté, J.) ("The rule is crystal clear about the fact that the production of documents allowed by paragraph (c) of the rule is intimately related to the attendance of the witness at a particular time and place to a formal proceedings before the court [i.e. ] a trial, a hearing, a preliminary hearing, a grand jury proceeding").

Courts invariably define Rule 17 in the negative: subpoenas are not discovery devices or investigatory tools. See, e.g., United States v. Caro, 597 F.3d 608, 620 (4th Cir. 2010) ("We have emphasized that Rule 17(c) is not a discovery device") (internal citation omitted). In United States v. Nixon, the Supreme Court stated explicitly that one of the "fundamental characteristics of the subpoena duces tecum in criminal cases" is that "it was not intended to provide a means of discovery." 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ; see also Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 95 L.Ed. 879 (1951) (invalidating a Rule 17(c) subpoena because it was "not intended to produce evidentiary material but [was] merely a fishing expedition to see what may turn up"); 2 Wright, Federal Practice and Procedure: Criminal § 274 at 153 and n. 16 (1982) ("It has always been clear that Rule 17(c) was not intended as a discovery device").

The proponent of a subpoena must demonstrate "(1) relevancy; (2) admissibility; [and] (3) specificity" of the requested materials. Nixon, 418 U.S. 683, 699–700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ; see also Stern v. United States, 214 F.3d 4, 17 (1st Cir. 2000) (holding that materials requested with a subpoena duces tecum must be relevant, admissible and specific). As to relevancy, there must be a "sufficient likelihood" that the subpoenaed records are "relevant to the offenses charged in the indictment." Nixon, 418 U.S. at 699–700, 94 S.Ct. 3090 (internal citation omitted). There must also be a "sufficient preliminary showing" that the subpoenaed material "contains evidence admissible with respect to the offenses charged in the indictment." Id. at 701, 94 S.Ct. 3090. Moreover, the party seeking the subpoenaed documents shoulders the burden of "show[ing] the evidentiary nature of the requested material with appropriate specificity." United States v. Shinderman, 232 F.R.D. 147, 149 (D. Me. 2005).

Counsel may obtain subpoenas from this Court's website. See https://www.prd.uscourts.gov/court_forms (last visited March 15, 2018). Cartagena issued the A–O Subpoena to Testify at a Hearing or Trial in a Criminal Case form. (Docket No. 50, Ex. 1.) In addition to compelling López to testify, Cartagena's subpoena instructed López to provide materials relating to the August 20, 2017 Total Gas Station shooting in Toa Baja, Puerto Rico. Id. The applicable form, however, is the AO–89B Subpoena to Produce Documents, Information, or Objects in a Criminal Case. See http://www.uscourts.gov/forms/criminal-forms/subpoena-produce-documents-information-or-objects-criminal-case (last visited March 5, 2018). The AO–89B Subpoena refers explicitly to Rule 17(c), providing that:

Before requesting and serving a subpoena pursuant to Fed. R. Crim. P. 17(c), the party seeking the subpoena is advised to consult the rules of practice of the court in which the criminal proceeding is pending to determine whether any local rules or orders establish requirements in connection with the issuance of such a subpoena. If no local rules or orders govern practice under Rule 17(c), counsel should ask the assigned judge whether the court

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