USA v. Shrader

• Decision Date: 11 August 2010
• Docket Number: Criminal Action No. 1:09-cr-00270.
• Citation: 716 F.Supp.2d 464
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Thomas Creighton SHRADER, Defendant.

716 F.Supp.2d 464

UNITED STATES of America, Plaintiff,

v.Thomas Creighton SHRADER, Defendant.

Criminal Action No. 1:09-cr-00270.

United States District Court, S.D. West Virginia.

Aug. 11, 2010.

Betty A. Pullin, Thomas C. Ryan, U.S. Attorney's Office, Charleston, WV, for Plaintiff.

Christian M. Capece, George H. Lancaster, Jr., Federal Public Defender's Office, Charleston, WV, for Defendant.

Robert M. Bastress, III, Ditrapano Barrett & Dipiero, Charleston, WV, Russell P. Butler, Maryland Crime Victims' Resource Center, Inc., Upper Marlboro, MD, for Interested Party.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, District Judge.

The Court has reviewed Defendant's Objection to Order Quashing Rule 17(c) Subpoena [Docket 244]. The Court has also reviewed Victim's Response to Defendant's Objection [Docket 256]; Defendant's Reply to Victim's Response [Docket 259]; and Victim's Supplemental Response [Docket 263]. After careful consideration, the Court affirms the July 20, 2010, Memorandum Opinion and Order, 2010 WL 2836752 [Docket 234] of United States Magistrate Judge R. Clarke VanDervort, and accordingly denies Defendant's objections and orders the Court's Subpoena dated June 4, 2010, quashed.

I. BACKGROUND AND PROCEDURAL POSTURE

The factual background of this case dates back to the 1970s. Defendant is a former boyfriend of the alleged victim in this case, “DS.” In 1975, after DS ended her relationship with Defendant, Defendant murdered the mother of DS and a man that Defendant apparently believed DS was dating. Defendant was convicted of first degree murder and unlawful wounding in 1976. During his incarceration and afterwards, the Second Superseding Indictment alleges that Defendant continued to contact and harass DS and her family over the ensuing decades. The instant case was initiated when Defendant allegedly sent a thirty-two page letter to DS in the autumn of 2009. ¹ Defendant currently faces two counts of stalking by use of interstate facility, in violation of 18 U.S.C. § 2261A(2). On July 14, 2010, Defendant was separately convicted of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The instant subpoena, motions, and objections arise out Defendant's interpretation of 18 U.S.C. § 2261A(2) (“Section 2261A(2)”). That provision states that:

[w]hoever-

* * *

(2) with the intent-

(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or

(B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to-

(i) that person;

(ii) a member of the immediate family ... of that person; or

(iii) a spouse or intimate partner of that person;

uses ... any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B);

shall be punished as provided in section 2261(b) of this title.

On June 4, 2010, Defendant filed an ex parte Motion for Issuance of Rule 17(c) Subpoena (Docket 117). In this motion, Defendant requested that a subpoena be issued compelling Village Counseling Services (“VCS”) in Houston, Texas, to produce records in its possession relating to the psychological and emotional conditions and treatment of DS and “RS.” RS is the husband of DS and is named as a victim in Count Two of the Second Superseding Indictment. Defendant argued that the records were relevant to Section 2261A(2) inasmuch as that provision requires the United States to prove that Defendant's course of conduct caused DS and RS to experience substantial emotional distress. The subpoena was issued by the Clerk of the Court on June 16, 2010. However, while the Court left the subpoena in full force, the subpoena's requirement that VCS produce the requested documents was vacated pending litigation over the validity of the subpoena.

Preliminary litigation over the subpoena occurred before Magistrate Judge VanDervort. In her Objection to Issuance of Subpoena, or Alternatively, Motion to Quash Subpoena and Request for Hearing (Docket 162), DS argued that the records sought by Defendant were privileged, Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) and, to the extent that they are not privileged, that Defendant's subpoena is an impermissible fishing expedition. In response [Docket 181], and contested by DS in her subsequent reply [Docket 226], Defendant argued that the Court can compel VCS to produce DS's counseling records with the assurance that Defendant's counsel would use the records for trial preparation, and that a protective order would assure DS that her records would only be used for that purpose. Defendant also argued that Defendant's rights under the Sixth Amendment override DS's psychotherapist-patient privilege, and that DS waived the psychotherapist-patient privilege by assisting the United States in its prosecution of Defendant and by discussing her mental and emotional condition and treatment with investigating agents. Defendant further argued that the United States must prove that Defendant's conduct caused DS to experience substantial emotional distress and that “[t]he mere testimony of DS and RS that they suffered substantial emotional distress, without any evidence of mental health treatment and counseling, is not enough to prove that they suffered substantial emotional distress, as required by the statute.” (Docket 181 at 6-7) (emphasis in original).

In his Memorandum Opinion and Order of July 20, 2010, Magistrate Judge VanDervort ordered that the motions to quash of DS and the United States be granted. In ordering the subpoena quashed, Magistrate Judge VanDervort first found that Section 2261A(2) provides that the United States may obtain a conviction when a defendant's course of conduct causes substantial emotional distress, and when the course of conduct places a person in reasonable fear of death or serious bodily injury to themselves, immediate family member, spouse, or intimate partner. He then concluded that the use of the word “reasonable” in the statute's language regarding [a course of conduct] “... that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to [certain individuals]

is an indication that Congress intended that a jury would decide whether the victim experienced substantial emotional distress or fear of death or bodily injury from the testimony of an alleged victim and/or others about a defendant's course of conduct and the victim's response(s) or reaction(s) to it. Nothing suggests that evidence that an alleged victim went for psychological counseling or the victim's psychological or counseling records must be introduced in proof of substantial emotional distress or fear of death or serious bodily injury. Indeed, evidence that an alleged victim sought psychological counseling may be completely lacking and circumstantial evidence alone may support such a finding.”

(Docket 234 at 9-10). Magistrate Judge VanDervort concluded that Defendant's subpoena is impermissible discovery, and that Defendant is not hampered in trial preparation without the records. As Defendant has been notified that DS sought and received counseling, Magistrate Judge VanDervort found that Defendant has sufficient information for cross-examination, and that he is not requesting the records for impeachment purposes.

Pursuant to Fed.R.Crim.P. 59(a) and 28 U.S.C. § 636(b)(1)(A), Defendant timely filed objections to Magistrate Judge VanDervort's ruling. This issue is now ripe for review.

II. ARGUMENT

Defendant makes multiple arguments in his objection to Magistrate Judge VanDervort's Memorandum Opinion of July 20, 2010. First, Defendant argues that the word “reasonable” as it appears in Section 2261A(2) only applies to the fear of serious bodily injury or death. According to Defendant, it does not modify the phrase substantial emotional distress. He argues that Magistrate Judge VanDervort's finding impermissibly substitutes a reasonable person test and eliminates the United States' burden to prove beyond a reasonable doubt through relevant medical records that DS and RS suffered substantial emotional distress. According to Defendant, Congress only intended the term “reasonable” to apply to “fear of the death of, or serious bodily injury to....” He states that when the statute was amended in 2006, the phrase “caused substantial emotional distress” was not placed after “reasonable,” and argues that this demonstrates that Congress did not intend for “reasonable” to modify “caused substantial emotional distress.”

Defendant further argues that, as the United States has disclosed that DS sought counseling due to Defendant's alleged conduct, he has a right under the Sixth Amendment, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”), and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (adding impeachment evidence to the scope of Brady materials) to examine the records of DS in order to test her credibility and to determine whether the records contain exculpatory evidence. He further states that the records are relevant to his ability to adequately cross-examine and impeach DS at trial, and that...