United States District Court, E.D. California
ORDER DENYING THE GOVERNMENT'S MOTION FOR LEAVE
TO ISSUE RULE 17(C) SUBPOENAS
this Court is the government's motion requesting an order
permitting it to issue early return subpoenas pursuant to
Rule 17(c) of the Federal Rules of Criminal Procedure to Fort
Brooke Funding LLC and Kevin Koehler IRA LLC.
motion the government contends as follows. Chester L. Neal,
Jr., (“Neal”) executed a plea agreement by which
he pled guilty to one count of mail fraud on July 2, 2019.
(Doc No. 28.) In the plea agreement, Neal agreed to pay
mandatory restitution to his victims and he agreed to pay
additional restitution arising from all relevant conduct.
(Id. at 3.) From around July 2008 through around
December 2017, Neal defrauded at least 35 victims.
(Id. at A-1.) Specifically, Neal secured government
contracts and then induced vendors into performing the work
required by the contracts without paying them. (Id.)
Restitution is no less than $2, 869, 945.32 and no more than
$3, 734, 927.50. (Id. at 3.) Under the parties plea
agreement, Neal agreed to provide the United States with
financial information and documents within three weeks of his
change of plea hearing, which was held on August 19, 2019.
(Id. at 5.) The United States sent a financial
statement form to Neal's counsel on July 3, 2019 for Neal
to complete and return to the United States, but the United
States has not received any financial information or
documents from Neal. Sentencing in this case is set for
December 9, 2019, at 10:00 a.m. (Id.) The United
States is informed and believes that Neal may have purchased
real estate in Florida in July 2019 via an LLC created in May
2019. Because of Neal's failure to complete and return a
financial statement, the circumstances regarding the LLC and
the real estate are largely unknown. The United States is
concerned that Neal may be engaging in a pre-sentencing
attempt to encumber assets and concealing the conduct by
failing to provide the United States with the financial
court has determined that the government, as well as a
defendant may utilize Rule 17(c) of the Federal Rules of
Criminal Procedure. See 2 Wright & Henning,
Federal Practice and Procedure: Criminal 2d, §
275 (4th ed. 2009) (government may use rule, subject to such
limitations as are imposed by the Fourth and Fifth
Amendments). The court will also presume that the government
wishes to introduce the documents it seeks into evidence at
the sentencing hearing scheduled in this case.
Rule of Criminal Procedure 17(c) requires a showing of
relevancy, admissibility, and specificity to support the
issuance of a subpoena duces tecum. United States v.
Nixon, 418 U.S. 683, 700 (1974); United States v.
Komisaruk, 885 F.2d 490, 495 (9th Cir. 1989). A Rule
17(c) subpoena is “not intended to provide a means of
discovery for criminal cases.” United States v.
George, 883 F.2d 1407, 1418 (9th Cir. 1989) (quoting
Nixon, 418 U.S. at 698)); see also Bowman Dairy Co. v.
United States, 341 U.S. 214, 220 (1951). Thus, there
must be a substantial foundation for the movant's belief
that the requested material exists and will be relevant and
admissible. United States v. Reed, 726 F.2d 570, 577
(9th Cir. 1984). In meeting the specificity requirement, the
movant must request specific documents and not entire
categories of files since Rule 17(c) was not intended to
“allow a blind fishing expedition seeking unknown
evidence.” Reed, 726 F.2d at 577 (quoting
United States v. MacKey, 647 F.2d 898, 901 (9th Cir.
court concludes that the pending application is not
sufficiently specific to meet the standard set forth above.
The government merely represents in conclusory fashion that
“The United States is informed and believes that Neal
may have purchased real estate in Florida in July 2019 via an
LLC created in May 2019. Because of Neal's failure to
complete and return a financial statement, the circumstances
regarding the LLC and the real estate are largely
unknown.” (Doc. No. 33 at 2.) The government does not
explain how or to what degree the information it relies on is
known, nor does it describe any connection between
“lender Fort Brooke Funding LLC and lender Kevin
Koehler IRA LLC, ” the third parties the government
seeks to obtain documents from, to the real estate purchase
it apparently suspects occurred in July 2019. Notably, no
declaration accompanies the government's motion. Finally,
such vague and unspecific representations regarding broad
categories of documents (“all documents related to the
purchase of the Florida real estate that occurred in July
2019” (Doc No. 33 at 2)) as are sought by the pending
application are insufficient to justify the issuance of the
Rule 17(c) subpoena the government seeks. In this respect,
the application may be a mere “fishing
expedition” in the hopes of discovering useful
information, the type clearly prohibited by the case law
interpreting Rule 17(c). See Reed, 726 F.2d at 577
(“Appellants did not request specific documents, but
sought entire arson investigation files.”).
reasons set forth above, the government's motion for the
issuance of a Rule 17(c) subpoena is denied without prejudice
to the filing of an application adequately ...