United States v. Halgat
| Decision Date | 13 January 2014 |
| Docket Number | Case No. 2:13-cr-00239-JAD-PAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEREMY HALGAT, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
(Ex Parte Application - Dkt. #102)
(Emg Mot Quash - Dkt. #106)
(Emg Mot Compel - Dkt. #111)
(LVMPD Joinder - Dkt. #118)
Before the court are the following motions which were filed on the eve of trial and referred to the undersigned:
The Indictment (Dkt. #1) was returned June 19, 2013. Halgat made an initial appearance and arraignment and plea on June 28, 2013, was appointed counsel, pled not guilty, and the matter was setfor trial August 20, 2013. The court entered its standard Order Regarding Pretrial Procedure (Dkt. #25) the same day, giving the parties thirty calendar days in which to file and serve any pretrial motions and notices of defense pursuant to LCR 12-1. Responses to the motion were required to be served within fourteen days, and any reply within seven calendar days.
The Ex Parte Application (Dkt. #102) was filed January 5, 2014. It cites Rule 17(b) of the Federal Rules of Criminal Procedure and seeks an order allowing Halgat to subpoena documents that counsel for the United States and ATF have refused to provide in discovery. The court normally issues sealed orders based on ex parte applications to protect the mental impressions and defense strategy of defense counsel. However, where, as here, defense counsel requested these materials from both the government and the ATF stating why she believed she was entitled to these maters, there is no reason to enter a sealed order. Counsel for Halgat attaches the email exchanges with counsel for the government requesting the information sought in the ex parte application.
The government's Emergency Motion to Quash (Dkt. #106) seeks to quash subpoenas issued pursuant to a Sealed Order (Dkt. #95) of the district judge granting Halgat's Ex Parte Request for Subpoenas Pursuant Rule 17(b) (Dkt. #86). The Motion to Quash was filed January 6, 2014, two days after the government learned that the subpoenas had been issued. These subpoenas were sent to over twenty-four law enforcement officers and agents, a number of whom reside out of the district.
Halgat's Emergency Motion to Compel (Dkt. #111) was filed January 8, 2014. The basis for filing it as an emergency motion is that government counsel announced at calendar call that it had complied with its discovery obligations, but counsel for Halgat "has concerns" that the government has not reviewed evidence in possession of other agencies and departments involved in this case "as required to properly comply with their Brady obligations."
Halgat's motions were not timely filed. The government's motion to quash was filed two days after the government learned that ex parte subpoenas had been authorized and served and was therefore promptly filed in response to Halgat's ex parte applications and the court's order.
The deadline for filing pretrial motions ran October 31, 2013. See Order (Dkt. #50) granting the parties' Stipulation for an Extension of the Pretrial Motion Deadline. The parties' stipulation to extend the pretrial motion deadline did not request an extension of the trial date which was then set forDecember 3, 2013. The parties must have known, when they submitted their stipulation, that the court could not decide any pretrial motions filed by the extended briefing schedule and still keep the trial date allowing adequate time for the court to decide matters referred automatically to the magistrate judge, the time for objections, or for that matter, the time needed by the district judge to decide motions.
The government filed a motion to continue the trial on November 27, 2013, the day of the calendar call for the December 3, 2013 trial. The motion to continue was filed because of co-Defendant McCall's health issues and need for chemotherapy. Counsel for Halgat opposed the motion to continue arguing his speedy trial rights should not be violated because a co-Defendant was undergoing cancer treatment, and that he would be prejudiced by a continuance because his case is defensible and he wished to proceed to trial as quickly as possible. See Response (Dkt. #67). Halgat also filed a Motion to Sever (Dkt. #68) which argued that the trial date should not be continued and that the court should sever McCall from this case and allow Halgat and his co-Defendant to proceed to trial.
At the calendar call conducted November 27, 2013, counsel for Halgat and co-Defendant Morrow announced ready for trial. The district judge calculated the must-be-tried date under the Speedy Trial Act, and continued the trial to the current trial stack. This flurry of motions followed more than sixty days after the deadline for filing pretrial motions, more than thirty days after the matter was continued to the current trial stack, and after counsel announced ready for trial. The court could therefore deny Halgat's motions on this basis alone. The motions do not claim that any changed circumstances justify ignoring court-imposed deadlines for filing pretrial motions. The issues addressed in these motions could have, and should have, been addressed before the expiration of the extended deadline for filing pretrial motions.
Defense counsel is admonished for filing these untimely motions, and warned that repeat conduct of this nature will be sanctioned. Filing pretrial motions on the eve of trial, well after the deadlines established by the court, after not only announcing ready for trial at calendar call, but also insisting that the trial not be continued, is an abusive litigation tactic. It interferes with the court's timely management of the docket. Of necessity, the court must put aside the matters of other litigants who need and deserve rulings on their matters. Late motions unnecessarily burden the court and opposing counsel. There is simply no justification for demanding "emergency"treatment of untimelyfiled motions at the same time insisting the trial should go forward so that the client's speedy trial rights are not violated. However, the court will reluctantly address the motions on their merits.
Halgat's Ex Parte Application seeks an order allowing counsel to serve out-of-state subpoenas for ATF documents. Specifically, it identifies eight ATF orders, memoranda and six ATF policies or standard operating procedures. He filed his ex parte request because the government and ATF refused to provide these materials and he states they are "important for cross examination in this case because the Government has failed to produce recordings from prior dealings and interactions between the undercover and Mr. Halgat." He asserts that they are "important to prove the elements of Mr. Halgat's defense and also necessary to support Halgat's motion for spoliation, and a negative inference jury instruction." Halgat asserts that he has "uncovered information" that ATF policies required all of the interactions between the undercover and Halgat to be recorded. He also claims that there are "missing interactions that should have been recorded." A proposed order and subpoena duces tecum is attached to the ex parte application. If granted, it would command production of the documents to the law offices of counsel for Halgat on January 10, 2014, at noon.
Fed. R. Crim. P. 17 governs the issuance of subpoenas in criminal proceedings. The process for obtaining subpoenas returnable at trial for those who are able to pay for them is governed by Rule 17(a). Rule 17(b) describes the procedure for defendants who are unable to pay the requisite witness fees and permits an ex parte application by a defendant requesting that the court issue a subpoena. The court will authorize issuance of a subpoena to a defendant who is unable to pay "if the defendant shows an inability to pay the witness's fees and the necessity of the witness's presence for an adequate defense." Fed. R. Crim. P. 17(b). "Although prior judicial authorization is required, the ex parte nature of a Rule 17(b) application serves to put a defendant on equal footing with the Government because the Government is not required to give a defendant notice as to those witnesses that it intends to subpoena to testify at trial." United States v. Reyes, 162 F.R.D. 468, 469 (S.D.N.Y. 1995).
Rule 17(c) establishes the process by which federal courts can issue subpoenas duces tecum for the production of evidence before trial. Rule 17(c)(1) governs the production of documents and objects and provides:
Unlike a subpoena issued under Rule 17(a) or 17(b) to compel a witness to appear at trial, the court has discretion to direct that a subpoena duces tecum be made returnable before trial. However, Rule 17 is not a...
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