IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 8, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
WQAS KHAN, ET AL., DEFENDANTS.
Defendant Wqas Khan has filed an ex parte motion for the issuance of a subpoena for documents under Rule 17(c) of the Federal Rules of Criminal Procedure. Specifically he seeks all recordings of any interviews with Mr. Fry conducted on December 10, 2009 at the Ceres Police Department by Officers Perry and Bunch. He contends that this information will allow him to demonstrate that information from this interview was used to bolster an insufficient showing of probable cause in the affidavit supporting a search warrant issued before the interview, but retained by the Agent Bunch for several weeks before it was filed.
Rule 17(c) "was not intended to provide an additional means of discovery," Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). A subpoena is properly issued under the rule when the party seeking it has shown "(1) relevancy; (2) admissibility; (3) specificity." United States v. Nixon, 418 U.S. 683, 700 (1974). A court may issue a subpoena 1 ex parte upon a preliminary determination that the Nixon factors have been met. United States v. Tomison, 969 F. Supp. 587, 593-94 & n.14 (E.D. Cal. 1997).
In this case, defendant seeks the material in connection with his preparation of a motion to suppress. In United States v. Lam, 2008 WL 191420 (N.D. Cal. 2008), the court rejected a similar request, noting the evidence sought was not material to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), because no Franks hearing had been scheduled and because the information was material only if the defendant was right about the circumstances of the search. Lam, 2008 WL 191420 at *3; see also United States v. Dossman, 2006 WL 2927484 (E..D. Cal. 2006). In this case, as in Lam, defendant has not shown the materiality of the evidence because no motion to suppress has been filed and no hearing is scheduled.
IT IS THEREFORE ORDERED that defendant Khan's ex parte request (ECF No. 81) is denied without prejudice.
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