US v. Jenkins

• Decision Date: 17 August 1995
• Docket Number: CR. No. 95-00235 DAE.
• Citation: 895 F. Supp. 1389
• Parties: UNITED STATES of America, Plaintiff, v. Sylister JENKINS, Defendant.
• Court: U.S. District Court — District of Hawaii

895 F. Supp. 1389

UNITED STATES of America, Plaintiff, v. Sylister JENKINS, Defendant.

CR. No. 95-00235 DAE.

United States District Court, D. Hawai`i.

August 17, 1995.

COPYRIGHT MATERIAL OMITTED

Steven S. Alm, U.S. Attorney, Loretta A. Matsunaga, Asst. U.S. Attorney, Honolulu, HI, for plaintiff.

Richard Ney, Federal Public Defender, Honolulu, HI, for defendant.

ORDER REVERSING MAGISTRATE JUDGE'S ISSUANCE OF PRETRIAL SUBPOENAS DUCES TECUM

DAVID ALAN EZRA, District Judge.

Pursuant to Local Rules 304-1(b) and 404-1, the court finds this matter suitable for disposition without hearing. Loretta A. Matsunaga, Esq., appeared on the briefs on behalf of the Government; Richard Ney, Esq., appeared on the briefs on behalf of Defendant. After reviewing the motion and the supporting and opposing memoranda, the court REVERSES the decisions of the magistrate judge issuing subpoenas duces tecum returnable before trial.

BACKGROUND

The Government has charged Defendant Sylister R. Jenkins ("Defendant") with eight counts of sexual abuse. Defendant filed an ex parte application pursuant to Federal Rule of Criminal Procedure 17 for issuance of subpoenas duces tecum for the medical records of the alleged rape victim from Queen's Medical Center ("Queen's") and Castle Medical Center ("Castle"). Magistrate Judge Francis I. Yamashita entered an order permitting the issuance of the subpoenas to Queen's with a return date of July 3, 1995. At that time, trial was scheduled to begin on July 11, 1995; it has since been continued. Having learned of the subpoena, the Government filed a Motion to Quash on July 7, 1995. Queen's filed a Motion to Quash on July 11, 1995. The magistrate ruled that the Government did not have standing to move to quash but treated the Government's papers as a memorandum in support of Queen's motion. Castle made no Motion to Quash, turning over the records sought directly to the Defendant.

The magistrate ordered that the medical records from Queen's be submitted for review in camera. The Government moved for reconsideration of the magistrate's denial of its Motion to Quash. The magistrate found the motion mooted by its in camera review of the Queen's records and by Castle's compliance with the subpoena. The Government then filed the instant appeal of the magistrate's order.

Subsequently, the magistrate completed his in camera review of the Queen's documents, finding the majority inadmissible under Federal Rule of Evidence 412. The magistrate found three entries admissible for impeachment purposes and not barred by FRE 412.

STANDARD OF REVIEW

In ruling on an appeal from a non-dispositive matter decided by a magistrate judge, a district court may only set aside a magistrate's order if it finds the order to be "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Local Rule 404-1. The district judge must affirm the magistrate unless "it is left with the definite and firm conviction that a mistake has been committed." Burdick v. Commissioner, 979 F.2d 1369, 1370 (9th Cir.1992). The reviewing court may not simply substitute its judgment for that of the deciding court. Grimes v. City & County of San Francisco, 951 F.2d 236, 241 (9th Cir.1991).

DISCUSSION

I. Mootness

Defendant argues that the results of the magistrate's in camera review moots the issues presented in the appeal. Defendant asserts that because the magistrate has already reviewed the Queen's documents and ordered certain documents released to Defendant, the appeal is moot as to those documents. Defendant further argues that Castle has already turned over its documents to Defendant, mooting that portion of the appeal as well.

This court will find an appeal moot where it lacks the ability to grant any effective relief. See In re Cook, 730 F.2d 1324, 1326 (9th Cir.1984). The Ninth Circuit dismissed as moot an appeal from the denial of a motion to quash a Grand Jury subpoena duces tecum where the Government had already presented the documents to the Grand Jury and obtained an indictment in In re Grand Jury Subpoena Dated June 5, 1985, 825 F.2d 231 (9th Cir.1987). In the same case, however, the court found ripe another party's appeal because the Grand Jury had not yet indicted that party. Id. at 235 (citing In re Grand Jury Investigation, No. 78-184 (Sells), 642 F.2d 1184, 1187-88 (9th Cir.1981), aff'd sub nom., United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983)). Generally, an appeal from the enforcement of a subpoena becomes moot once the party has complied with the subpoena. See Office of Thrift Supervision v. Dobbs, 931 F.2d 956, 957 (D.C.Cir.1991) (collecting cases). In United States E.P.A. v. Alyeska Pipeline Serv. Co., 836 F.2d 443 (9th Cir.1988), however, the Ninth Circuit found ripe defendant's appeal from the enforcement of an E.P.A. subpoena because: (1) the government would be required to return the records; and (2) the E.P.A. had served similar subpoenas on defendant's employees. The court reasoned that the existence of the other subpoenas indicated that the case was "capable of repetition, yet evading review." 836 F.2d at 445 (citation omitted).

While the court is not aware of any similar subpoenas outstanding, this matter is certainly capable of repetition.¹ If this court found the matter moot, it would also evade review. The subpoena issued to Castle evaded all review due to Castle's compliance. The subpoena issued to Queen's evaded review of the magistrate's original issuance and his determination regarding standing due to the disclosure of the documents and the magistrate's in camera review.²

In addition, this court may provide some effective, albeit limited, relief. While Defendant has possession of the documents, the magistrate did not place any limitations on the use or disclosure of the documents. Each day of continued access to the documents compounds the harm created by their allegedly wrongful disclosure. Cf. Sells, 642 F.2d at 1188 (in Grand Jury context where secrecy is required by Fed.R.Crim.P. 6, each day of access lifted the veil of secrecy higher through exposure to additional personnel and continued access by those already familiar with the documents). While the right to keep medical records private is not absolute, In re Grand Jury Proceedings, 867 F.2d 562 (9th Cir.), cert. denied, 493 U.S. 906, 110 S.Ct. 265, 107 L.Ed.2d 214 (1989), it is an important consideration to be weighed in reviewing such subpoenas. This court may grant certain relief by ordering the documents returned to Queen's and Castle. See Alyeska Pipeline Serv., 836 F.2d at 445 (court may order documents returned). For these reasons, the court finds that this appeal presents a live and justiciable controversy.

II. Standing

The Government's argument regarding standing confuses standing to move to quash with the question of ex parte application for a pretrial subpoena duces tecum. The question whether a defendant seeking a pretrial subpoena duces tecum must notify the Government does not decide the question whether, once issued, the Government may move to quash the subpoena issued to a third-party.

Nevertheless, the court finds that the Government does have standing to move to quash the subpoena to Queen's. A party to a criminal case "has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests." United States v. Raineri, 670 F.2d 702, 712 (7th Cir.) (citing In re Grand Jury, 619 F.2d 1022, 1027 (3d Cir. 1980)), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982). The Government has standing to move to quash a defendant's subpoena based "upon its interest in preventing undue lengthening of the trial, undue harassment of its witness, and prejudicial over-emphasis on the witness's credibility." Raineri, 670 F.2d at 712. The court finds that the Government did have standing to move to quash the subpoena to Queen's due to the Government's interest in protecting the victim against harassment. However, because the magistrate apparently considered the Government's arguments in ruling on Queen's motion and reviewed the documents in camera, the court finds the magistrate's error harmless here.

III. Standard for Issuing Pretrial Subpoena Duces Tecum

In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the Supreme Court held that pretrial production pursuant to Federal Rule of Criminal Procedure 17(c) is only appropriate where it is shown that: (1) the documents are evidentiary and relevant; (2) they are not otherwise procurable, with due diligence, in advance of trial; (3) the party cannot properly prepare for trial without such production and inspection in advance of trial; and (4) the application was made in good faith and is not a fishing expedition. 418 U.S. at 699, 94 S.Ct. at 3103. It is left to the trial court's discretion to determine whether the party seeking the subpoena has cleared these hurdles. United States v. Eden, 659 F.2d 1376, 1381 (9th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1450, 71 L.Ed.2d 663 (1982).

Courts have repeatedly held that Rule 17(c) subpoenas should not be used to obtain, before trial, materials to be used for impeachment purposes. United States v. Fields, 663 F.2d 880, 881 (9th Cir.1981) (where the only purpose advanced by defendants for the use of materials sought by Rule 17(c) subpoena was for impeachment purposes, there was insufficient reason to warrant pretrial production of such documents). See also United States v. Nixon, 418 U.S. at 701, 94 S.Ct. at 3104 ("generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.") (citing United States v. Carter, 15 F.R.D. 367, 369-72 (D.D.C.1954) (Rule 17(c) may not be used to obtain statements of witnesses unless the witness testifies at trial)); United States v. Hughes, 895 F.2d 1135, 1145-46 (6th Cir.1990) (district court...