Opinion
CRIMINAL ACTION NO. 07-25-S-DLB.
January 18, 2008
MEMORANDUM ORDER
I. Introduction
This matter is before the Court on Defendant Luis Arechiga's Renewed Motion to Compel the Presence of William Davison at Trial (Doc. # 28). A prior motion requesting the same relief was denied without prejudice after defense counsel, during a January 7, 2008 telephone conference, was unable to specifically identify what she believed Mr. Davison would say if called as a witness (Doc. # 27). In that same Order, the Court ordered Arechiga's attorney to make all reasonable efforts to personally interview Mr. Davison by telephone so she could advise the Court as to what he would testify if subpoenaed to testify. (Id. at ¶ 2).
II. Renewed Motion to Compel
In her renewed motion on behalf of Arechiga, defense counsel states that she spoke with Mr. Davison by telephone on Wednesday, January 9, 2008. When she explained the reason for her call, Mr. Davison said he had nothing to say. According to defense counsel, when she asked Davison whether that meant he would have nothing to say at trial or whether that meant he simply didn't want to speak with her, Mr. Davison stated "I have nothing to say. That's the end of the story, right?"
Defendant argues that he has a fundamental constitutional right to confront witnesses against him and compel the presence of witnesses who are necessary to his defense. It is undisputed that Mr. Davison is the victim of Defendants' allegedly assaultive behavior. Arechiga seeks to compel the presence of Mr. Davison as a witness at trial so he can testify that he has nothing to say. According to Arechiga, Davison's proffered statement that he has nothing to say would create reasonable doubt as to not only who the alleged aggressors in the assault were, but also the manner in which Mr. Davison's injuries were inflicted and/or sustained.
Arechiga further states that if the Court denies his motion to compel, Defendant will seek to enter a stipulation as to Mr. Davison's anticipated testimony and will seek to argue his absence to the jury. The denial of Arechiga's motion in no way precludes the parties from entering into a stipulation.
III. Analysis
The resolution of Defendant's motion to compel is governed by both Rule 17(b), Federal Rules of Criminal Procedure, and the Fifth and Sixth Amendments to the U.S. Constitution. Rule 17(b) provides, in relevant part:
The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.
Fed R.Crim. P. 17(b). (emphasis added).
Trial courts are vested with wide discretion in deciding whether to grant a Rule 17(b) motion for the issuance of a subpoena. United States v. Moore, 917 F.2d 215, 230 (6th Cir. 1990), cert. denied, 499 U.S. 963 (1991). However, that discretion is limited by the Fifth and Sixth Amendments to the United States Constitution. See United States v. Barker, 553 F.2d 1013, 1019 (6th Cir. 1977) ("[T]he right of an indigent criminal defendant to subpoena witnesses rests not only on Rule 17(b), but also on the Sixth Amendment right to compulsory process and on the Fifth Amendment right not to be subjected to disabilities by the criminal justice system because of financial status." (citation omitted)). The exercise of the Court's discretion is reversible only when "`the exceptional circumstances of the case indicate that defendant's right to a complete, fair and adequate trial is jeopardized.'" Moore, 917 F.2d at 230.
Despite these constitutional implications, a defendant is not automatically entitled to a Rule 17(b) subpoena. Rather, the defendant bears the burden of demonstrating the particularized need for the subpoena. Before a defendant is entitled to compulsory process, the defendant must show that the testimony of the witness is both material and favorable to the defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). The Sixth Circuit has stated that a defendant must first make a preliminary showing that the witness is "necessary to an adequate defense." See, e.g., Moore, 917 F.2d at 230; Barker, 553 F.2d at 1020. According to the Sixth Circuit, "the word `necessary' must be read to mean relevant, material and useful to an adequate defense." Moore, 917 F.2d at 230 (citation omitted). Additionally, a satisfactory showing of necessity requires that the defendant's averments be sufficiently specific. In Barker, the Sixth Circuit restated the proposition that "generalities . . . are insufficient to make out a `satisfactory showing' that the witnesses are needed." Barker, 553 F.2d at 1020-21; see also United States v. Rigdon, 459 F.2d 379, 380 (6th Cir. 1972) (finding appellant's allegations, which were that "witnesses would `testify and verify the whereabouts of the defendant at the time this crime was allegedly committed,' that the testimony of these witnesses was material to his defense, and that he could not safely go to trial without the witnesses named because he could not otherwise account for his whereabouts or establish his innocence," insufficient to satisfy the requirements of Rule 17(b) because they were "lacking in particular facts concerning the claimed alibi"), cert. denied, 409 U.S. 1116 (1973).
Under this framework, Defendant Arechiga's motion to compel the presence of Mr. Davison must be denied. Requiring the U.S. Marshal Service to transport a federal inmate witness from a federal prison in California to this Court for the mere purpose of him testifying that he "has nothing to say" about the alleged assault is not necessary for an adequate defense. Nor can it be reasonably construed as testimony at all. Rather, it is tantamount to a refusal to testify. Subpoenaing a witnesses to enable him to testify when the crux of their testimony is as described by defense counsel herein is completely contrary to the Sixth Circuit's requirements in Barker and Moore.
Based on the representations of government counsel during the January 7, 2008 telephone conference, the Court further concludes that based on Mr. Davison's statements to prison officials after the alleged assault, any testimony he would give, if he chose to testify consistently with his contemporaneous statement, would most likely be inculpatory to Arechiga, rather than exculpatory. According to AUSA Molloy, Davison said that he didn't know what the issue was over and that those guys, referring to his attackers, don't belong to the group, and they would "get theirs back for what they did to me." (Doc. # 29, Transcript of January 7, 2008 Telephone Conference at p. 7-8). Under these circumstances, neither testimonial scenario ("I have nothing to say" or "they'll get theirs for what they did to me") is relevant, material and useful to an adequate defense.
IV. Conclusion
For these reasons, and the Court being otherwise sufficiently advised;
IT IS ORDERED as follows: denied February 12, 2008 at 9:00 a.m. Ashland, Kentucky.
1. Defendant Arechiga's Renewed Motion to Compel the Presence of William Davison at Trial (Doc. # 28) be, and is hereby, ; 2. This Trial in this matter is scheduled for in The hearing on Defendant's Motion in Limine to Exclude Video Evidence will remain as previously scheduled for 8:30 a.m. on that same day.