Opinion
Criminal 20-cr-00152-PAB
02-10-2022
UNITED STATES OF AMERICA, Plaintiff, v. 5. TIMOTHY R. MULRENIN, 7. JIMMIE LEE LITTLE, 9. GARY BRIAN ROBERTS, and 10. RICKIE PATTERSON BLAKE, Defendants.
ORDER
PHILIP A. BRIMMER Chief United States District Judge.
This matter comes before the Court on Defendant Mulrenin's, Roberts' and Little's Ex Parte Motion Pursuant to Rule 17(c) for Court Order Authorizing Subpoena Duces Tecum to Produce Documentary Evidence in Advance of Trial [Docket No. 975] and Mr. Blake's Motion Pursuant to Rule 17(c) for an Order Authorizing Subpoena Duces Tecum [Docket No. 996]. Mr. Mulrenin, Mr. Roberts, and Mr. Little ask the Court, pursuant to Federal Rule of Criminal Procedure 17(c), to issue subpoenas to Tyson Foods for various records involving an investigation and communications between Tyson and the Department of Justice. See Docket No. 975-1 at 4-5. Mr. Blake joins in these arguments and makes a similar request as Request 1. Docket No. 996 at 1-2; Docket No. 996-1 at 4. The government responded. Docket No. 1008.
Despite the ex parte nature of Mr. Mulrenin, Mr. Roberts, and Mr. Little's motion, the government appears to have gleaned the basis of the motion from other filings.
Federal Rule of Criminal Procedure 17(c) provides that “[a] subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates” and states that the court “may direct the witness to produce the designated items in court before trial.” Fed. R. Crim. P. 17(c)(1). Rule 17(c) is “not intended to provide an additional means of discovery, ” but “to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.” Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). A party seeking a subpoena duces tecum under Rule 17(c) must establish:
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.”United States v. Nixon, 418 U.S. 683, 699-700 (1974). The party requesting the subpoena must satisfy each of these requirements. United States v. Boender, 2010 WL 1912425, at *2 (N.D. Ill. May 12, 2010); cf. United States v. Abdush-Shakur, 465 F.3d 458, 467 (10th Cir. 2006) (failure to show one of Nixon requirements precludes reversal of order denying Rule 17(c) motion).
“Nixon mandates that the party requesting the information identify the item sought and what the item contains, among other things.” United States v. Morris, 287 F.3d 985, 991 (10th Cir. 2002). The defendant in Morris requested a Rule 17(c) subpoena for all documents collected by the FBI during the course of its investigation. Id. at 988. The Tenth Circuit noted that, “[n]ot only is Mr. Morris unable to specify what the items he requests contain, he is also unable to verify whether the requested material even exists.” Id. at 991. In light of this lack of specificity, the court stated:
Courts have held that requests for an entire file are evidence of an impermissible fishing expedition. United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984); United States v. Hughes, 931 F.2d 63, 1991 WL 59383, at *1 (10th Cir. 1991). It appears that defense counsel attempted to use the Rule 17(c) subpoena for impermissible discovery purposes. Mr. Morris' Rule 17(c) subpoena did not overcome the hurdle of specificity as required by Nixon.Id.; see also United States v. Tokash, 282 F.3d 962, 971 (7th Cir. 2002) (Rule 17(c) allows only for the gathering of specifically identified documents which a defendant knows to contain relevant evidence).
Each request is a broadly worded request that does not seek specific documents, but rather seek types of documents. As the court noted in United States v. Noriega, 764 F.Supp. 1480, 1493 (S.D. Fla. 1991), “[i]f the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused.” The level of generality in these requests indicates that they are intended for an improper fishing expedition. See United States v. Castro-Motta, 11-cr-00033-REB, 2012 WL 3400828, at *3 (D. Colo. Aug. 15, 2012) (“Far from requesting specifically identified documents, the subpoenas here rely on the broadest and most general of terms, e.g ., ‘any,' ‘all,' and ‘other documents.'”). The Court will deny the motions on this basis.
The Court includes Mr. Blake's request within the meaning of “each request.”
Mr. Mulrenin, Mr. Roberts, and Mr. Little additionally fail to justify issuance of the subpoena on an ex parte basis. Those courts that permit ex parte issuance of Rule 17(c) subpoenas require that the movant make some showing of why the other side (or co-defendants) should not be aware of the motion or of the documents subpoenaed. See, e.g., United States v. Gomez-Guzman, 2017 WL 4162256, at *3 (D.N.M. 2017); United States v. Sellers, 275 F.R.D. 620, 625 (D. Nev. 2011); United States v. Beckford, 964 F.Supp. 1010, 1030 (E.D. Va. 1997). These defendants argue that the motion is being filed ex parte because “this memorandum necessarily discloses litigation strategy and defenses.” See Docket No. 975 at 2. While an ex parte subpoena may be appropriate to place “a defendant on equal footing with the Government” and prevent a defendant from “detail[ing] [his] trial strategy, ” United States v. Buntyn, 2020 WL 5657602, at *1-2 (D. N.M. 2020) (citations omitted), Mr. Mulrenin, Mr. Roberts, and Mr. Little fail to offer any argument other than this cursory statement. Moreover, despite expressing concerns about revealing trial strategy, all ten defendants jointly filed two pleadings in connection with their Rule 17(c) motion: one, a motion, filed without restrictions, see Docket No. 991, and one, a brief, that was filed with a restriction. See Docket No. 968. Indeed, Mr. Mulrenin, Mr. Roberts, and Mr. Little were parties to those motions. See, e.g., Docket No. 991. There appears to be no reason why Mr. Mulrenin, Mr. Roberts, and Mr. Little are unable to do the same here. Accordingly, the Court will deny Mr. Mulrenin, Mr. Roberts, and Mr. Little's motion on this additional basis.
Wherefore, it is
ORDERED Defendant Mulrenin's, Roberts' and Little's Ex Parte Motion Pursuant to Rule 17(c) for Court Order Authorizing Subpoena Duces Tecum to Produce Documentary Evidence in Advance of Trial [Docket No. 975] is DENIED. It is further
ORDERED that Mr. Blake's Motion Pursuant to Rule 17(c) for an Order Authorizing Subpoena Duces Tecum [Docket No. 996] is DENIED.