US v. Santiago-Lugo

• Citation: 904 F. Supp. 43
• Decision Date: 29 September 1995
• Docket Number: Crim. No. 95-029(JAF).
• Parties: UNITED STATES of America, Plaintiff, v. Israel SANTIAGO-LUGO (1), et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

904 F. Supp. 43

UNITED STATES of America, Plaintiff, v. Israel SANTIAGO-LUGO (1), et al., Defendants.

Crim. No. 95-029(JAF).

United States District Court, D. Puerto Rico.

September 29, 1995.

Bruce A. Pagel, Special Litigation Counsel Francisco Rebollo-Casalduc, Trial Attorney Guillermo Gil, U.S. Attorney, District of Puerto Rico, San Juan, Puerto Rico, Karen Tandy, Deputy Chief for Litigation, Narcotics and Dangerous Drug Section, U.S. Department of Justice, Washington, DC, for Plaintiff.

Erick Morales, Humberto Ramirez, for Israel Santiago-Lugo.

Rafael Anglada, for Nelson Ortiz-Baez.

Benito Rodriguez-Masso, for Wilfredo Martinez-Matta.

Jose Aguayo, for David Martinez-Matta.

Miriam Ramos-Grateroles, for Angel M. Andrades-Marrero.

Lydia Lizarribar, for Jose Rosado-Rosado.

Maria Sandoval, for Raul Ortiz-Miranda.

Teodoro Mendez-Lebron, for Orlando Santiago-Perez.

Salvador Perez, for Celenia Reyes-Padilla.

Gabriel Hernandez-Rivera, for Rosa Morales-Santiago.

Wilfredo Figueroa, for Eulalio Candelaria-Silva.

Enrique Velez, for Moises Candelaria-Silva, San Juan, PR.

MEMORANDUM AND ORDER

FUSTE, District Judge.

On September 25, 1995, the court was made aware of the fact that Rafael Anglada, court-appointed counsel for codefendant Nelson OrtizBáez, had obtained from the Clerk of Court a subpoena under Fed.R.Crim.P. 17(c), directed to the Superintendent of Police of Puerto Rico and Mrs. Gloria M. Guzmán Virella, Director of Personnel, Police of Puerto Rico, requiring the production of personnel files of Puerto Rico Police officers.¹ The subpoena, copy of which is attached to and made a part of this memorandum order as Appendix I, failed to request the appearance of the Superintendent of Police or Mrs. Virella before the court for trial or other formal proceedings. The subpoena form is in blank as to the place, date, and time of appearance. The movant failed to disclose the attorney's name, address, and phone number.

The subpoena commanded the Superintendent of Police and the Director of Personnel to do the following:

YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s):

ANY AND ALL DOCUMENTS IN YOUR POSSESSION OR CONTROL PERTAINING TO POPR OFFICERS, AS PER LIST ATTACHED. (To be submitted to Court-appointed Private Investigator Benny Soto).

The subpoena has an exhibit identifying, by badge number and duty station, one-hundred and ten police officers of which personnel files are requested.

The Police Department's first reaction was to comply with the subpoena. The document appeared valid on its face and conveyed the impression that private investigator Benny Soto had been commissioned by the court to obtain the personnel files of the one-hundred and ten policemen listed. Contrary to what the subpoena states, investigator Benny Soto has no relationship with the court. He is a private investigator retained by Mr. Anglada, and Mr. Soto has no court appointment.

Upon realizing that the subpoena was not related to a legitimate court-originated request and that the same was deceitful, the Police Department conveyed its protest to the court, first through the government on September 25, 1995, and later orally on the record on September 26, 1995. By September 26, the Police Department had turned over twelve files to investigator Benny Soto and Mr. Anglada.

Mr. Anglada has admitted that originally he understood the subpoena to be valid. He now accepts that the document can be described as deceitful. He also claims that he had no bad purpose to disobey or disregard the law. In addition, he informed the court that similar subpoenas have been served upon the District Attorney's Office of the Commonwealth of Puerto Rico in Arecibo, Bayamón, and San Juan, and that the local District Attorney in Arecibo and Mr. Pedro Gerónimo Goyco Amador, Deputy Attorney General in charge of criminal prosecutions, have complied with the subpoena. Mr. Anglada has also informed the court that, upon information and belief, at least another attorney for a defendant in this case, counsel for codefendant José Parra-Mercado, has obtained, or is in the process of obtaining, documents from the Police of Puerto Rico by utilizing the subpoena power of this court in a similar manner.² The court has discovered that investigator Benny Soto readily signed receipts for documents at the Arecibo District Attorney's Office representing to be a Federal Court Officer. He signed the receipts "Benny Soto — Federal Court." See Receipt in Spanish, appended to and made a part of this memorandum order as Appendix II.

On September 25, 1995, Mr. Anglada turned over to the court all the files obtained through the criminal subpoena. Other attorneys who received or obtained copies of such records have also returned the material to the court.

In addition, counsel Erick Morales, representing the principal defendant, Israel Santiago-Lugo, has also utilized the subpoena power of this court in a private, ex-parte fashion, under Fed.R.Civ.P. 45, in a related civil forfeiture case, No. 93-1955(JP). His Informative Motion of September 27, 1995, confirms the ex-parte use of subpoenaed documents "for both the civil, and criminal case if the need so arised sic." See Docket Document No. 681, at ¶ 5. The court has confirmed that counsel routinely caused the issuance of civil and criminal subpoenas to be returned directly to their private offices, without reference to any formal court proceeding or deposition, in contravention to the letter and spirit of Fed.R.Crim.P. 17 and Fed.R.Civ.P. 45.

While the court is ready to allow and enforce the defendants' right to use the subpoena power of this court for legitimate defense purposes, it is this court's duty to make certain that the subpoena power is invoked legitimately and legally.

I.

Fed.R.Crim.P. 17 is based on the basic premise that subpoenas are to be issued by the Clerk of Court for the attendance of witnesses. Subpoenas shall state the name of the court and shall command each person to whom it is directed to attend and give testimony at a particular time and a particular place only. Rule 17(c) provides that any subpoena issued for the attendance of witnesses may also command the person to whom it is directed to make a production of documents. 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 proceeding before the court. A formal proceeding includes a criminal deposition, a trial, a hearing, a preliminary hearing, a grand jury proceeding, and the like. Only with court intervention can the subpoena be utilized for production before the court at any time prior to the trial or prior to the time when the documents are to be offered in evidence. Only the court may, upon the production of the documents, permit the documents or objects to be inspected by the parties or their attorneys. Nowhere in Fed. R.Crim.P. 17 do we find language allowing the utilization of the court's subpoena power privately, with a secret return directly to an attorney. The rule definitely does not allow for the proponent of the subpoena to convey the message that a private investigator has been vested with court-related powers to receive documents on behalf of the court.

Federal case law specifically contemplates that the practice of using trial subpoenas for ex-parte propositions, such as it appears to be the case here, is improper. See United States v. La Fuente, 991 F.2d 1406, 1411 (8th Cir.1993). The La Fuente case confirms that subpoenas are to be issued only for the purpose of compelling the attendance of witnesses or the production of evidence at formal proceedings, such as Grand Jury proceedings, preliminary hearings, and trials, and that the government (or, in this case, the defense) may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys (or, as in this case, compel the private production of documents to a defense attorney). See also United States v. Keen, 509 F.2d 1273, 1274 (6th Cir.1975), and United States v. Hedge, 462 F.2d 220, 222 (5th Cir.1972).

The use of Rule 17(c) for the inspection of documents at the pretrial phase or before they are offered in evidence is only valid if strict adherence to Rule 17(c) is made. See United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039 (1974). There, the Supreme Court recognized the fundamental characteristics of a subpoena duces tecum under Rule 17(c) in the criminal context. The rule is not intended to provide a means for discovery in criminal cases and its chief innovation after the 1966 amendments to the rule was to expedite the trial process by providing a mechanism for a court-supervised inspection of subpoenaed materials before trial or before submission in evidence, as long as the parties show the following: (a) that the documents are evidentiary and relevant; (b) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (c) that the party cannot properly prepare for trial without such production and inspection and the failure to obtain such inspection may tend unreasonably to delay the trial, and (d) that the application is made in good faith and is not intended as a general fishing expedition.

On the basis of our understanding of the applicable law, the use of the subpoena power of this court in the context under discussion here is, in the language of the cases, unauthorized and improper. See Keen, 509 F.2d at 1275. The subpoena under scrutiny and any other subpoena similarly obtained under Fed.R.Crim.P. 17, are presumed to be invalid and must be quashed.

II.

Regarding the Fed.R.Civ.P. 45 subpoenas issued by attorney Erick Morales, the court finds that the subpoena power of the court was improperly and illegally used to circumvent bona fide civil and criminal...