United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO QUASH RULE 17(C) SUBPOENAS
THELTON E. HENDERSON, District Judge.
Defendant Valentino Johnson has been indicted for felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(e). Defendant moved the Court to suppress evidence related to the warrantless search that resulted in his arrest. After the Court granted an evidentiary hearing on the motion to suppress, Defendant served two Rule 17(c) subpoenas duces tecum upon the San Francisco Police Department ("SFPD"), which the United States Government ("Government") and the SFPD subsequently moved to quash.
After considering the written and oral arguments of the movants and Defendant, the Court now GRANTS IN PART AND DENIES IN PART the motions to quash for the reasons set forth below.
Valentino Johnson ("Defendant") was indicted on July 31, 2014, for being a felon in possession of a firearm and an armed career criminal under 18 U.S.C. §§ 922(g)(1), 924(e). The indictment was the result of a warrantless search ("Search") conducted by SFPD officers at 905 Missouri Street in San Francisco, California, wherein the officers found a gun that purportedly belonged to Defendant. The residence that was searched belonged to a family friend of Defendant named Ms. McAlpine. On the day of the Search, Defendant's girlfriend called 911 and told the dispatcher that Defendant had threatened to kill himself at 905 Missouri Street. Responding to the call, SFPD officers encountered Ms. McAlpine and Defendant, who by all accounts was in good health. After being advised that Defendant was on parole, the officers claim that they received consent to search the premises, and otherwise had probable cause to conduct a parole search. During the Search, the officers found a gun that was later attributed to Defendant.
After his arrest and indictment, Defendant filed a motion to suppress the evidence produced by the Search, claiming the officers did not have consent or probable cause to search Ms. McAlpine's home. Def.'s Oct. 6, 2014 Mot. to Suppress (Docket No. 17). Because the parties' provided contradictory accounts of what transpired, the Court ordered an evidentiary hearing to assess the witnesses' credibility and determine the facts surrounding the Search. Sept. 30, 2014 Order (Docket No. 33).
In preparation for the evidentiary hearing, Defendant requested two Rule 17(c) subpoenas duces tecum to be served upon the SFPD. The first subpoena was requested pursuant to General Order No. 69, which allows a defendant to subpoena state law enforcement agencies for the personnel files and complaint records of officers that are expected to testify at a federal trial or hearing. Def.'s Oct. 7, 2014 Application for Issuance of Rule 17(c) Subpoena under Gen. Order 69 (Docket No. 37). The Court subsequently granted Defendant's request. Oct. 9, 2014 Order (Docket No. 40). Defendant's second subpoena sought copies of seven categories of documents and materials in the sole possession of the SFPD and relating to the and ensuing investigation. Def.'s Oct. 8, 2014 Application for Indigent Rule 17(c) Subpoena (Docket No. 38). The Court subsequently granted the issuance of the second subpoena, this time without comment. Oct. 15, 2014 Order (Docket No. 42). The Government and the SFPD filed timely motions to quash the two subpoenas. (Docket Nos. 46-51). Defendant responded (Docket Nos. 53-54), and the Government replied (Docket Nos. 55-56). The Court heard oral argument on November 6, 2014.
While Federal Rule of Criminal Procedure 16 governs discovery in criminal cases, Rule 17(c) allows a party to issue a subpoena requiring a witness to produce "books, papers, documents, data, or other objects" before trial. The party seeking the subpoena must demonstrate that: (1) the documents sought are evidentiary and relevant; (2) the party seeking them could not otherwise obtain them reasonably in advance of trial through the exercise of due diligence; (3) the party would be unable to properly prepare for trial in the absence of the documents, and failure to produce them in advance might unreasonably delay trial; and (4) the party is making the application in good faith, and not as part of a "fishing expedition." United States v. Nixon, 418 U.S. 683, 699 (1974). The party seeking to issue or enforce a Rule 17(c) subpoena must therefore demonstrate the relevancy, admissibility, and specificity of its request. Id. at 700. This standard is the same whether the subpoenaed party is the government or a third party. See United States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981) ("[W]e see no basis for using a lesser evidentiary standard merely because production is sought from a third party rather than from the United States.").
The purpose of Rule 17(c) is to provide an opportunity for relevant and evidentiary documents to be inspected by the defense in advance of a hearing or trial. Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). "Rule 17(c) was not intended to provide an additional means of discovery." Id. Additionally, "It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest sense." Id.
Rule 17 also allows a court, in response to a promptly filed motion, to "quash or modify the subpoena if compliance would be unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2). The decision whether to issue or enforce a subpoena is subject to the district court's discretion. Nixon, 418 U.S. at 702 ("Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues.").
"Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial." Nixon, 418 U.S. at 701; see also Fields, 663 F.2d at 881 (reversing a district court's decision not to quash a subpoena where the defendant's only purpose for seeking the Rule 17(c) subpoena was to obtain impeachment materials). However, such materials might otherwise be subject to a Rule 17(c) subpoena where they have some "other valid potential evidentiary uses[.]" Nixon, 418 U.S. at 702. Additionally, in the Northern District of California, General Order No. 69 provides a narrow exception to the general bar on Rule 17(c) subpoenas for impeachment evidence. The General Order expressly provides for the use of a Rule 17(c) subpoena to obtain "personnel and complaint records... of state law enforcement officers who have been or will be subpoenaed to testify in a federal criminal proceeding." Gen. Order No. 69. The General Order, which "reflects the agreements of the Federal Public Defender and the United States Attorney, " was promulgated "to minimize the need for judicial review of subpoena requests and documents produced pursuant to subpoena requests." Id. The General Order, like Rule 17(c), allows the subpoenaed party to move to quash or modify the subpoena or to request an in camera review of the records. Id.
Finally, Rule 17(c) subpoenas may not be used to obtain the "statement of a witness or of a prospective witness" before they have testified, also known as Jencks Act materials. Fed. R. Crim. P. 17(h) ("Information Not Subject to a Subpoena. No party may subpoena a statement of a witness or of a prospective witness under this rule.").
I. The United States has, at most, only limited standing.
As a threshold matter, the Court finds that the United States has only limited standing to bring its motion to quash in this case. In a criminal case, a party has standing to move to quash a third party subpoena "if the subpoena infringes upon the movant's legitimate interests." United States v. Jenkins, 895 F.Supp. 1389, 1393 (D. Haw. 1995) (quoting United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982)). Because questions of standing implicate the Court's jurisdiction to hear the matter, the party moving to quash bears the burden of demonstrating that it has standing. United States v. Tomison, 969 F.Supp. 587, 596 (E.D. Cal. 1997) (citing KVOS v. Associated Press, 299 U.S. 269, 278 (1936)). "In many instances, the opposing party in a criminal case will lack standing to challenge a subpoena issued to a third party because of the absence of a claim of privilege, or the absence of a proprietary interest in the subpoenaed material or of some other interest in the subpoenaed documents." Id. (quotation marks omitted).
The courts have recognized several legitimate interests that may confer upon a party standing to move to quash a third party subpoena, including avoiding undue lengthening of a trial, preventing undue harassment of a witness, and preventing prejudicial overemphasis on a particular witness's credibility. See Raineri, 670 F.2d at 712; see also United States v. Nachamie, 91 F.Supp.2d 552, 560 (S.D.N.Y. 2000) (noting that, even if the government invokes these grounds for standing, they "cannot be applied uncritically"). Importantly, ensuring that a defendant properly complies with Federal Rule of Criminal Procedure 17(c) is "not a legitimate interest that would confer standing upon the government." United States v. Ortiz, No. 12-00119, 2013 WL 6842559, at *2 (N.D. Cal. Dec. 27, 2013).
In describing its grounds for standing, the Government states that "the defendant's subpoena is an improper fishing expedition and, if enforced, would violate well-established rules of criminal discovery, including Fed. R. Crim. P. 16(a)(2) and 17, the Jencks Act, and the Ninth Circuit decision in Fort. " Gov's Oct. 20, 2014 Mot. at 3 (Docket No. 46). The Government then provides a quote from United States v. Fort, 472 F.3d 1106 (9th Cir. 2007), which describes the policy rationale for applying Rule 16(a)(2) to preclude the subpoena of investigatory files made by local law enforcement authorities and then turned over to federal prosecutors. Id. Specifically, Fort states that allowing Rule 16 discovery of such local investigatory files "would in all likelihood inhibit cooperation between local and federal law enforcement agencies[.]" Fort, 472 F.3d at 1119. The Government, therefore, essentially identifies two arguments for standing: (1) the Government seeks to police Defendant's use of the Federal Rules of Criminal Procedure, calling Defendant's subpoenas an "improper fishing expedition" that violate well-established rules of criminal discovery; and (2) the Government seeks to protect the spirit of cooperation between local and federal law enforcement agencies that is threatened by a federal defendant's subpoena of SFPD files.
The Government's first argument for standing is invalid, as the Northern District of California made clear in Ortiz. 2013 WL 6842559, at *2 (ensuring that a defendant properly complies with Federal Rule of Criminal Procedure 17(c) is "not a legitimate interest that would confer standing upon the government.").
The Government's second argument for standing applies, if at all, only to Category One of the October 15 Subpoena, which seeks SFPD investigatory files related to the Search. The Court questions even this limited basis for standing, as the risk to inter-agency cooperation articulated in Fort is recognized within the context of a Rule 16(a)(2) analysis, which has no relevance in this case because the subpoenaed documents are not in the possession of the Government. Because Fort is inapposite on its face, the Government fails to cite to any authority supporting its claim that Defendant's subpoenas would inhibit cooperation between state and federal law enforcement agencies. Just the opposite, an interest in inter-agency cooperation does not appear to be at issue where federal prosecutors have failed to take possession of state investigatory files, inaction that suggests a lack of inter-agency cooperation and the absence of behavior that would suggest the prosecution of Defendant is being treated by the two agencies as "one case." Fort, 472 F.3d at 1119.
Nonetheless, the SFPD does have standing to challenge the subpoenas as their recipient, and because it joins the Government's motions to quash, the arguments advanced by both agencies must be considered by the Court.
II. The October 15, 2014 Subpoena
The Court GRANTS IN PART AND DENIES IN PART the motions to quash the October 15 subpoena, as described below.
A. Production of Category One (reports, notes and/or memoranda related to the Search by any SFPD officer)
The Government's motion to quash Category One of the October 15 Subpoena is based on the argument that it "runs afoul of well-established rules of criminal discovery set forth in Rule 16(a)(2), the Jencks Act, and Rule 17." Gov's Oct. 20, 2014 Mot. at 5. The ...