Opinion
3:15-CR-015-LRH-VPC
09-30-2015
UNITED STATES OF AMERICA, Plaintiff, v. SHAUN JERMAINE ESTES, Defendant.
ORDER
Before the Court is Defendant Shaun Jermaine Estes' ("Estes") ex-parte application for issuance of a subpoena pursuant to Federal Rule of Criminal Procedure 17(a) and 17(b), filed under seal. Doc. #24. On September 4, 2015, the Court deferred consideration of Estes' subpoena application so that the United States could respond. Doc. #29. The United States filed a timely Response (Doc. #30), to which Estes replied (Doc. #31).
Refers to the Court's docket number.
I. Legal Standard
The party seeking pretrial production of evidence bears the burden to show good cause for production before trial. United States v. Sellers, 275 F.R.D. 620, 623 (D. Nev. 2011). Federal courts generally follow the standard established by United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y. 1952), to determine whether the moving party has established good cause for production. United States v. Nixon, 418 U.S. 683, 699 (1974). Iozia provides that good cause for pre-trial production requires a showing:
(1) That the documents are evidentiary and relevant;13 F.R.D. at 338.
(2) That they are not otherwise procurable by the defendant reasonably in advance of trial by the exercise of due diligence;
(3) That the defendant cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial;
(4) That the application is made in good faith and is not intended as a general fishing expedition.
The party seeking pretrial production bears the burden of establishing relevancy, admissibility, and specificity. Nixon, 418 U.S. at 700. Conclusory allegations of relevance and admissibility are insufficient to meet the moving party's burden. Sellers, 275 F.R.D. at 623-24 (citing United States v. Eden, 659 F.2d 1376, 1381 (9th Cir. 1981)). Rather, there must be a "sufficient likelihood that the requested material is relevant to the offenses charged in the indictment, and the moving party must make a sufficient preliminary showing that the requested material contains admissible evidence regarding the offenses charged." Id. at 624 (citing Nixon, 418 U.S. at 700).
Federal Rule of Criminal Procedure 17(c)(1) governs the production of documents and objects, and provides:
A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.Although Rule 17 is not a discovery device, it may be used to obtain evidentiary materials. Sellers, 275 F.R.D. at 622 (citing Nixon, 418 U.S. at 689, 699-700). Leave of court is required for a pretrial subpoena under Rule 17(c)(1) in criminal proceedings. Id. at 623. Granting a pretrial subpoena under Rule 17(c)(1) is "committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues." Nixon, 418 U.S. at 702.
II. Discussion
Estes seeks personnel information about Madhu Karup, a law enforcement officer employed by Amtrak who was involved in Estes' arrest. Estes argues that the subpoena is necessary because "the requested information is critical to Mr. Estes in terms of impeachment but also to revealing possible bias and motives at play." Doc. #31 at 2. The United States argues that "the Brady/Giglio doctrine does not require the government to disclose neutral, irrelevant, speculative or inculpatory evidence." Doc. #30 at 3 (citing United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011)).
In United States v. Henthorn, the Ninth Circuit considered a defendant's request for federal prosecutors to produce "the personnel files of all law enforcement witnesses whom it intends to call at the trial . . . for evidence of perjurious conduct or other like dishonesty, in camera, to determine if those portions of the officers' personnel files ought to be made available to defense counsel for impeachment purposes." 931 F.2d 29, 30 (9th Cir. 1991). The court held that "the government has a duty to examine personnel files upon a defendant's request for their production." Id. at 31. The court rejected the assertion that it is the defendant's burden to make an initial showing of materiality, adding that "[t]he obligation to examine the files arises by virtue of the making of a demand for their production. However, following that examination, the files need not be furnished to the defendant or the court unless they contain information that is or may be material to the defendant's case." Id.
This District has held that when a criminal defendant requests a law enforcement officer's personnel files, the government is entitled to "review the file and disclose to the defense materials therein relevant to the impeachment of testifying officers . . . because evidence reflecting negatively on a Government witness's credibility constitutes a species of Brady material." United States v. Booth, No. 2:08-cv-0283, 2011 WL 6139062, at *3 (D. Nev. Dec. 9, 2011) (citing Henthorne, 931 F.2d at 30-31). "If the United States is unsure as to the impeachment value of certain information, it must submit it for in camera review." Id. The government might later be found to have violated Brady for improperly withholding certain documents, but courts nonetheless do not require the government to disclose all personnel records without a showing of relevance, admissibility, and specificity. Id.
The Court has reviewed Estes' application for a subpoena and finds that Estes has not met his burden of establishing relevancy, admissibility, and specificity. Estes' proposed subpoena seeks "[a]ll documents regarding citizen complaints, files containing information regarding performance and disciplinary issues, written or verbal reprimands, suspensions, codes of conduct, internal investigations and all reports or documents pertaining to criminal and civil law suits including forfeiture, civil rights violations filed against or in regards to Amtrak employee Madhu Karup." Although there appears to be no dispute that Karup was involved in Estes' arrest, Estes has not identified any reason to believe that information in his personnel records is relevant to the arrest such that they should be compelled now rather than through the standard Brady and Giglio process if Karup is called as a witness at trial. Thus, Estes' conclusory allegations about relevance and admissibility amount to little more than a fishing expedition and are insufficient to establish that pretrial production of the officers' personnel records is necessary at this point. Sellers, 275 F.R.D. at 623-24. A review of Brady materials for disclosure of relevant documents to defense counsel may be appropriate, however, if and when the officers are identified as witnesses who will testify at trial. Booth, 2011 WL 6139062, at *3 (ordering a review of personnel files "relevant to the impeachment of testifying officers").
The United States represents that it sent a Henthorn request to Amtrak, which "advised the Government that there are not any Henthorn issues regarding Detective Kurup." Doc. #30 at 3. --------
III. Conclusion
IT IS THEREFORE ORDERED that Estes' Application for the Issuance of a Subpoena (Doc. #24) is DENIED.
IT IS SO ORDERED.
DATED this 30th day of September, 2015
/s/_________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE