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United States v. Jensen

January 14, 2010


The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge



Pending before the court are defendant Thomas Jensen's motions for a subpoena for Mark Waldo [Docket No. 180] and for subpoenas duces tecum. [Docket 177]. These requests are made for the purposes of a continued evidentiary hearing to be held on January 19, 2010, on Mr. Jensen's motion to suppress. The motion to suppress concerns: (1) the voluntariness of Mr. Jensen's Miranda*fn1 waiver and voluntariness of a statement that he made on October 31, 2007; and (2) the fruits of the execution of a search warrant on the person of Mr. Jensen to obtain a DNA sample while he was incarcerated at the Pennington County Jail on July 14, 2008.

Mr. Jensen has previously submitted several ex parte motions for subpoenas and subpoenas duces tecum to the court for his suppression motion. See Docket Nos. 108, 113, 117, and 170. As to the motions for subpoenas, each of those previous motions were granted in part and denied in part. The court previously denied Mr. Jensen's motion to subpoena Mark Waldo and a subsequent motion for the same was denied by the district court.

As to Mr. Jensen's most recent motion for subpoenas duces tecum, this court denied that motion on the grounds that it was improperly made on an ex parte basis. The court instructed Mr. Jensen that he could renew that motion with notice to the government. He has done so in the present motion. The government has now filed a response in opposition to Mr. Jensen's two pending motions.


A. Motion for Subpoena for Mark Waldo

Rule 17 of the Federal Rules of Criminal Procedure addresses the issuance of subpoenas. Although indigent criminal defendants have a limited right to subpoena witnesses for hearings other than trial, an indigent defendant has no absolute right to subpoena witnesses for a suppression hearing. See United States v. Sanchez, 457 F. Supp. 2d 90, 92 (D. Mass. 2006). Courts have discretion in determining whether subpoenas ought to issue in a suppression hearing. Sanchez, 457 F. Supp. 2d at 92.

The standard guiding the issuance of such subpoenas is whether the defendant has demonstrated that the witness's presence is necessary for an adequate defense. See Fed. R. Crim. P. 17(b). A court may refuse to issue a requested subpoena for a witness who would present only cumulative or irrelevant testimony. United States v. Bowman, 636 F.2d 1003, 1013 (5th Cir. 1981). The burden rests on the defendant of making a "satisfactory showing" that he is indigent and that the witness sought to be subpoenaed is necessary to his defense. United States v. Schwanke, 598 F.2d 575, 580 (10th Cir. 1979).

The rules of evidence are not strictly applicable at suppression hearings. See United States v. Raddatz, 447 U.S. 667, 679 (1980) (at the suppression hearing, the court may rely on hearsay and other evidence that would not be admissible in a criminal trial); United States v. Matlock, 415 U.S. 164, 169, 172-177 (1974) (rules of evidence not applicable at suppression hearings and court can consider evidence that would otherwise be inadmissible so long as the evidence contains some indicia of reliability); United States v. Maza, 93 F.3d 1390, 1396 (8th Cir. 1996) (holding that it was permissible for the district court to accept hearsay evidence at a suppression hearing "if the court is satisfied that the statements were made and that there is nothing to raise a serious doubt about their truthfulness.").

Here, Mr. Jensen seeks to subpoena Mark Waldo, who was Mr. Jensen's case manager while he was incarcerated at the Federal Correction Institute ("FCI") in Englewood, Colorado. The court has already held an evidentiary hearing on August 12, 2009, on Mr. Jensen's suppression motion at which Mr. Waldo testified as a witness for the government.*fn2 Mr. Jensen was given wide latitude to cross-examine Mr. Waldo at that hearing. Mr. Waldo testified for over an hour. At the conclusion of his testimony, Mr. Jensen's counsel never asked that Mr. Waldo remain available for further or rebuttal testimony. Accordingly, the court concludes that Mr. Jensen has already had a full and fair opportunity to cross-examine Mr. Waldo. Furthermore, bringing Mr. Waldo back again for a second time would not involve insubstantial cost or inconvenience as Englewood, Colorado, is approximately 415 miles away from Rapid City, South Dakota, where the court sits.

In addition, Mr. Jensen's stated reason for wanting to subpoena Mr. Waldo again for the second half of the evidentiary hearing on the suppression motion is that Mr. Jensen wants to introduce a document into evidence that shows that FCI Englewood had obtained a DNA sample from Mr. Jensen before he was released from its custody sometime prior to April, 2008. Mr. Jensen wants to call Mr. Waldo as a witness to establish the foundation for the admission of this document.

In its response in opposition to Mr. Jensen's motion to subpoena Mr. Waldo, the government has indicated that it will offer no objection on the grounds of foundation to the court's receipt into evidence of this document. This concession by the government, in combination with the already-discussed fact that the rules of evidence are not applicable at suppression hearings, moots any need for the subpoenaing of Mr. Waldo for a second time solely to lay foundation for the document.

Finally, the reason Mr. Jensen seeks to introduce this document is to provide fodder for his argument that the taking of a DNA sample from Mr. Jensen on July 14, 2008, by the Federal Bureau of Investigation ("FBI") was unnecessary. Mr. Jensen has provided no authority or evidence whatsoever that would lead the court to find this fact relevant to whether the FBI used unnecessary force in the taking of that July, 2008, sample. For example, Mr. Jensen has cited no authority that a completely separate federal agency, the Bureau of Prisons, has the discretion or obligation to turn over to the FBI a DNA sample within its possession. Mr. Jensen has likewise cited no authority which would require the FBI to try to obtain a DNA sample from another federal agency prior to requesting a valid search warrant enabling it to obtain its own sample from the defendant. Finally, no scientific evidence or data ...

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