United States District Court, N.D. California, San Jose Division
ORDER RE UNITED STATES' MOTION FOR
RECONSIDERATION RE: DKT. NO. 779
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.
United States asks the Court to reconsider its November 12,
2019 order granting in part and denying in part defendant
Daniel Chavez's motion for authorization to serve
document subpoenas pursuant to Federal Rule of Criminal
Procedure 17(c) on fifteen non-party state and local agencies
(Dkt. No. 769). Dkt. No. 779. In that order, the Court
concluded that Mr. Chavez had articulated a basis for
obtaining documents concerning his alleged role in the
criminal enterprise charged in the superseding indictment,
the 129 uncharged criminal acts on which the United States
intends to rely at trial, and Mr. Chavez's own
statements. Dkt. No. 769 at 4-5. However, the Court concluded
that Mr. Chavez's document requests were not sufficiently
specific with respect to those matters. Id. at 5.
The Court ordered Mr. Chavez to submit revised proposed
subpoenas to the Court for review and approval. Id.
November 27, 2019 motion, the United States cites the
following grounds for reconsideration:
1. The Court erred in concluding that the proposed subpoenas
met the requirement of relevant and admissible evidence under
United States v. Nixon, 418 U.S. 683, 699 (1974);
2. The Court erred in permitting the proposed subpoenas to
encompass statements of witnesses, particularly
“insider” witnesses; and
3. The Court erred in concluding that the United States lacks
standing to object to issuance of subpoenas to non-parties,
and even if the Court did not err, the United Stated should
be permitted to object to issuance of the revised subpoenas,
regardless of standing.
Dkt. No. 779. Mr. Chavez opposes the United States'
request for reconsideration as improper under the applicable
local rule and on the merits. Dkt. No. 786.
considered the parties' submissions and for the reasons
explained below, the Court declines to modify its prior
conclusions or its principle directive to Mr. Chavez
regarding submission of revised subpoenas for review and
approval. However, the United States' concern regarding
protection of insider witnesses is well-taken, and the Court
takes this opportunity to further address that issue.
Relevant and Admissible Evidence
Chavez's original motion, the Court concluded he had made
a sufficient showing that the state and local entities he
wishes to subpoena have potentially admissible evidence
concerning matters pertaining to his guilt and his punishment
if convicted. Dkt. No. 769 at 4-5; Nixon, 418 U.S.
at 699 (requiring preliminary showing that materials sought
are likely to contain relevant and admissible evidence). In
addition to the United States' own representations about
information these non-party entities possess (see
Dkt. Nos. 117, 123), Mr. Chavez showed that these entities
have some exculpatory information about his alleged role as
the leader of the criminal enterprise (Dkt. No. 758 at 6;
Dkt. No. 761 at 6); that they have some exculpatory
information about one or more of the 129 uncharged criminal
acts (Dkt. No. 758 at 6; Dkt. No. 761 at 6-7); and that they
have records of written or oral statements Mr. Chavez made
that are relevant to the penalty phase (Dkt. No. 761 at 7).
The Court also concluded that Mr. Chavez had established that
he cannot obtain this evidence through Rule 16 discovery, as
the United States has stated that the non-party entities are
not part of the prosecution team or otherwise within the
scope of the United States' Rule 16 obligations.
See Dkt. No. 758 at 6.
this showing, the Court declined to authorize issuance of the
subpoenas as drafted because the proposed document requests
were not limited to the specific categories of information
for which Mr. Chavez made the requisite showing of relevance
and admissibility. Dkt. No. 769 at 5. The Court ordered Mr.
Chavez to submit revised proposed subpoenas that addressed
this problem. Id. Mr. Chavez has not yet submitted
revised subpoenas, and in the interim, the United States
sought reconsideration without waiting for the revisions.
seeking reconsideration, the United States emphasizes that it
has already requested from the non-party agencies much of the
material Mr. Chavez seeks to obtain via subpoena and that it
has produced all of this material to Mr. Chavez or his
counsel, with the exception of materials concerning
“insider” witnesses. However, as before, the
United States does not represent that its collection of
relevant material from these agencies is complete, and it
does not assume any collection, review, or disclosure
obligations with respect to material in the agencies'
possession. Mr. Chavez acknowledges the United States'
recent production of this material, but he emphasizes that
this production is incomplete. Dkt. No. 786 at 3.
Court finds no basis to conclude that Mr. Chavez is
attempting to use Rule 17(c) as an end run around Rule 16.
Rather, Mr. Chavez is using Rule 17(c) because the complete
evidence he seeks is available only from non-parties, not the
United States. These circumstances distinguish this case from
cases like United States v. Fort, where the material
in question was in the possession of federal prosecutors,
even though it had originated with local law enforcement.
See472 F.3d 1106, 1119-20 (9th Cir. 2007); see
also United States v. Etienne, No. CR 17-00093 WHA, 2018
WL 6305614, at *3 (N.D. Cal. Dec. 2, 2018) (“Where, as
here, the government disavows an agency relationship with
local police for purposes of Brady, a narrowly
directed and reasonable Rule 17 subpoena should be allowed. .
. . Nor would the use of Rule 17(c) in such a manner - i.e.,
to obtain documents that have not made it into the hands of
the federal government - run afoul of Rule 16(a)(2) and our
court of appeals' ...