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United States v. Chavez

United States District Court, N.D. California, San Jose Division

January 9, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL CHAVEZ, et al., Defendants.

          ORDER RE UNITED STATES' MOTION FOR RECONSIDERATION RE: DKT. NO. 779

          VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.

         The 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.

         In its 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.

         Having 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.

         I. DISCUSSION

         A. Relevant and Admissible Evidence

         On Mr. 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.

         Despite 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.

         In 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.[1] 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.

         The 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' ...


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