Opinion
Case No. CR405-59.
March 16, 2006
ORDER
Defense counsel in this case have served a subpoena upon Shari Klinger, a Miami physician who is not a party to the case, commanding her to appear and testify at trial and to produce certain documents. Through counsel, Dr. Klinger has filed a "Motion for Protective Order" seeking to be excused from the subpoena on the following grounds: (1) improper service, (2) failure to provide for her travel, hotel accommodations, and "per diem" expenses, and (3) medical reasons. Doc. 497. She also objects to the production of certain documents on the grounds of privilege. Id.
Counsel for defendant Jose A. Trespalacios filed a response in opposition to the motion within hours of its filing, seeking enforcement of the subpoena. Doc. 498. Defendant describes Dr. Klinger as a "critical defense witness" and contends that she was properly served on December 28, 2005 when a process server delivered a copy of the subpoena to Klinger's custodian of records, who represented that she was designated to accept service on Dr. Klinger's behalf. Id., Ex. A(process server's affidavit of service). Defense counsel further notes that on March 10, 2006, he spoke with Dr. Klinger and advised her "that travel was being arranged" and that she would not be required to incur expenses for airfare, transportation to court, or the cost of food and lodging if an overnight stay in Savannah was required. Id. at 3.
Defendant has not challenged the witness's contention that the subpoena should be quashed in part because it seeks certain documents that are subject to a doctor/patient privilege.
The Federal Rules of Criminal Procedure require a party serving a subpoena to (1) "deliver a copy of the subpoena to the witness" and (2) "tender to the witness one day's witness-attendance fee and the legal mileage allowance." Fed.R.Crim.P. 17(d). Courts have recognized that "there must be strict compliance with the rules for service of a subpoena." See 25 Moore's Federal Practice § 617.05 [4] (3d ed. 2005); 2 Charles A. Wright, Federal Practice and Procedure § 276 (3d ed. 2000). Since the rule requires delivery of a copy of the subpoena "to the witness," "[p]ersonal service is required." 25 Moore's Federal Practice § 617.05 [2].
Dr. Klinger argues that the subpoena was "merely left at her office" rather than being served upon her personally. Doc. 497 at 1. Defendant responds that Klinger's employee represented to the process server that she was "the designated person to accept service on their behalf." Doc. 498, Ex. A. If it can later be shown that Dr. Klinger in fact authorized the records custodian to act as her agent for accepting service of subpoenas of this kind, then the Court may be able to fashion an exception to the personal service requirement. Dr. Klinger should abandon her claim of inadequate service if such authority was actually given. But these are matters that the Court cannot resolve at this time. Because of obvious time constraints and the risk of an adverse court ruling on the issue of agency, counsel's safest course would be to effect personal service of the subpoena upon Dr. Klinger.
Dr. Klinger concedes that she has received the required witness-attendance fee but states that she has not been provided with airfare, hotel accommodations, or any subsistence allowance. While representing that Klinger was advised that travel "was being arranged" and that she would "not be required" to pay for airfare or lodging, defense counsel has not affirmatively stated that a plane ticket has been purchased or funds furnished to the witness for that purpose. Rule 17 simply requires the server of the subpoena to tender "the legal mileage allowance." Fed.R.Crim.P. 17(d);see also Fed.R.Civ.P. 45(c) (which uses similar language). Courts have recognized that the "plain meaning" of this language requires the simultaneous tendering of both the witness fee and "the reasonably estimated mileage allowed by law with service of a subpoena." CFI Steel Corp. v. Mitsui Co., 713 F.2d 494, 496 (9th Cir. 1983) (construing Fed.R.Civ.P. 45(c)); United States v. Moore, 225 F.3d 637, 644 n. 2 (6th Cir. 2000); United States v. Boffa, 513 F. Supp. 512, 517 (D. Del. 1981); 2 Federal Practice and Procedure § 276 at 270 ("Service of a subpoena has been held to be effective only if the fee for one day's attendance and the mileage allowed by law are tendered to the witness when the subpoena is delivered."). The legal mileage allowance is currently $0.445 per mile. See 5 U.S.C. § 5704(a)(1) (authorizing the General Services Administration to establish the mileage reimbursement for federal employees who use privately owned vehicles on official business); 28 U.S.C. § 1821(c)(2) (computation of mileage is to be made on the basis of the "uniformed [sic] table of distances adopted by the Administrator of General Services.").
Defendant may comply with Rule 17(d) by calculating and tendering the mileage allowance required by law. But the Court wishes to emphasize that in lieu of the standard legal mileage allowance, it would behoove the witness to accept an airplane ticket if provided by defendant's counsel, for while a witness who travels by common carrier shall be paid for the actual expenses of travel, reimbursement for such expenses is typically not provided until after the expense has been incurred and a "receipt or other evidence of actual costs" has been furnished. 28 U.S.C. § 1821 (c)(1). Prudence may suggest accepting a pre-paid ticket now, rather than relying on an obligation to later pay the witness for expenses incurred.
Because it does not appear that the provisions of Fed.R.Crim.P. 17(d) have been strictly complied with, the motion to quash is GRANTED. The witness is cautioned, however, that should these technical deficiencies be remedied, the witness must honor the subpoena and appear in Savannah, Georgia at the appointed time to provide testimony in this criminal case. The defendant in this case faces the prospect of the loss of his liberty and his property. He is entitled to the testimony of any witness, whatever their circumstance or station in life, that may be critical to the presentation of his defense. An episode of low back pain (with which the Court is all too familiar) will not excuse compliance with a subpoena properly issued under Rule 17. This Court may hold in contempt any witness who disobeys a subpoena without adequate excuse. Fed.R.Crim.P. 17(g). That is a power the Court will not hesitate to exercise in this case.
"`Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly.'" Branzburg v. Hayes, 408 U.S. 665, 688 n. 26, (1972) (quoting 4 The Works of Jeremy Bentham 320-21 (J. Bowring ed. 1843)).
SO ORDERED.