Opinion
CRIMINAL ACTION NO: 04-017 SECTION: "C"(1)
April 22, 2004
Submitted on briefs.
HEARING ON MOTION
MOTION: SMITH'S MOTION TO FILE DEFENSE SUBPOENA REQUESTS UNDER SEAL Rec. doc. 59.
GRANTED
On March 23, 2004, the undersigned ordered that the defendant, Joseph Smith ("Smith"), file a motion requesting that subpoenas duces tecum returnable prior to the trial be issued ex parte and under seal and explaining in general terms why it is necessary to proceed ex parte. Rec. doc. 56. On March 31, 2004, he complied with this order and filed a motion for issuance of ex parte mitigation-related subpoenas. Rec. doc. 59. The United States of America (the "Government") opposes the motion. A co-defendant, Hebert Jones, Jr. ("Jones"), was permitted to adopt as his own all pleadings filed by his co-defendants which may in any way be applicable to him as a defendant. Rec. doc. 60. Accordingly, the relief is sought on behalf of Smith and Jones.
Smith reports that he is preparing mitigation defenses for the penalty phase that may follow a guilty verdict. He asserts that discovery is sought of mitigation-related information. He urges that without an ex parte procedure, it would be necessary to describe his need for the documents with particularity and reveal work product and trial strategy to the Government. The Government objects that Fed.R.Crim.P. 17(c) does not provide for the issuance of ex parte subpoenas duces tecum. The Government correctly shows that no appellate court has addressed the issue. The undersigned addressed the same issue in United States of America v. Johnny Davis. 01-0282"R"(1). In a minute entry inDavis dated March 1, 2002, the undersigned granted the defendant's motion for issuance of ex parte mitigation-related subpoenas.
The Government cites United States v. Urlacher, 136 F.R.D. 550 (W.D.N.Y. 1991), and United States v. Hart, 826 F. Supp. 380 (D. Colo. 1993). In both Urlacher and Hart, the defendants were represented by retained counsel and had the financial means to defend themselves. In United States v. Beckford, 964 F. Supp. 1010 (E.D. Va. 1997), the defendant was an indigent charged with the capital crime of intentional murder. This is the situation presented by Smith's motion. In Beckford. the court ruled that Fed.R.Civ. Crim. P. 17(c) permits indigent defendants to apply ex parte for subpoena duces tecum returnable prior to trial only in exceptional circumstances. The undersigned agrees with that conclusion. The key element is that the indigent defendant facing a capital charge be placed on the same footing as a defendant of financial means with retained counsel. The Government's position would deny that to an indigent defendant.
In Beckford the court identified those district courts that considered the issue. It found two that held Rule 17(c) permitted the issuance of pre-trial subpoenas duces tecum upon ex parte applications, one that would permit it only in extraordinary circumstances and three that found it was generally improper. 964 F. Supp. at 1025-26. At least three additional district courts have followed Beckford. See U.S. v. Daniels. 95 F. Supp.2d 1160, 1163 (D.Kan. 2000), U.S. v. Tomison, 969 F. Supp. 587, 595 (E.D.Cal. 1997); and U.S. v. Colima-Monge, 1997 WL 543052, *1 (D.Or. 1997). The undersigned did not find any cases that rejected Beckford. nor did the Government cite any such decisions.
The Government contends that even assuming Beckford is correct, Smith has not demonstrated exceptional circumstances.Beckford found such circumstances when disclosure would: (1) divulge trial strategy, witness list or work-product; (2) imperil the source or integrity of subpoenaed evidence; or (3) undermine a fundamental privacy or constitutional interest of the defendant. Id. at 1030. Based upon the discussion in Beckford of those circumstances, the undersigned finds that Smith has presented exceptional circumstances and that his motion for issuance of ex parte mitigation-related subpoenas should be granted.
The Government also argues that Smith has failed to demonstrate the relevance of the documents to his case. Beckford shows that after a determination has been made on whether an ex parte procedure is warranted, the next step is for the court to assess the proposed subpoena under the following standard from United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090 (1974):
[I]n order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general `fishing expedition.' (Footnote omitted).Id. at 3103. The undersigned determines that the documents sought by Smith meet these requirements.
The only portion of this ruling that is applicable to Jones is the determination that Fed.R.Civ. Crim. P. 17(c) permits indigent defendants to apply ex pane for subpoena duces tecum returnable prior to trial in exceptional circumstances. He has not made any request for the issuance of a subpoena duces returnable prior to trial, nor has he demonstrated exceptional circumstances and compliance with U.S. v. Nixon.
The undersigned will take no action on an ex parte motion for a mitigation-related subpoena until either the deadline for an objection to this order expires or the Government's appeal is resolved.
IT IS ORDERED as follows:
1.Smith's motion for issuance of ex parte mitigation-related subpoenas (Rec. doc. 59) is GRANTED.
2.Any application and any subpoenas duces tecum filed under seal shall remain under seal until further order of the Court. This order is not meant to affect pretrial disclosure of exhibits as mandated by the Federal Rules of Criminal Procedure or as ordered by the Court.