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United States v. Marshall

April 1, 2010


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



The government moves this court for an order quashing or modifying the subpoena duces tecum previously issued to Douglas C. Moring, custodian of records at the National Records Center in Lee's Summit, Missouri. Docket Nos. 698, 703. The government's motion also serves as its response to the court's previous order to show cause why Mr. Moring should not be held in contempt of court for refusing to comply with the district court's order directing him to produce evidence in this case. Docket No. 676.

By its order of January 20, 2010, the district court granted Mr. Marshall's motion for the issuance of a subpoena duces tecum directing Douglas C. Moring of the National Records Center in Lee's Summit, Missouri, to deliver certain records in his custody to defense counsel by the close of business on February 2, 2010. Docket No. 576. Mr. Moring did not produce the documents in compliance with the court's order, and Mr. Marshall filed a motion for an order to show cause why Mr. Moring should not be held in contempt for failure to comply. Docket No. 676. That motion was referred to this magistrate for resolution, and this court ordered Mr. Moring to file a response to Mr. Marshall's motion for an order to show cause, or to otherwise show why Mr. Marshall's motion should not issue, by close of business on March 22, 2010. Docket No. 680.

In response, the government filed the present motion requesting the court quash or modify the subpoena issued to the custodian of records. Docket Nos. 698, 703. The government makes its request on grounds that the subpoena is overly broad, unspecific, and seeks information that is not in any way relevant to the underlying criminal case, and is therefore unreasonable and oppressive. Docket No. 698. The government makes an additional argument that the subpoena directs the production of documents that are subject to the protection of the law enforcement privilege. Docket No. 703.

Mr. Marshall's response to the government's motion to quash or modify asserts that his affidavit in support of the motion for the subpoena sufficiently and specifically set forth his need for the documents in the immigration materials and A-file of a particular named witness, as well as the relevance and admissibility of those materials. Docket No. 721. Mr. Marshall also argues that the law enforcement privilege does not apply, but that if the court finds it does apply, that the government has waived the privilege because its motion to quash is untimely. Id. Finally, Mr. Marshall argues that his need for the subpoenaed evidence, combined with his constitutional right to present that evidence at his trial, outweighs the government's right to invoke the qualified law enforcement privilege. Id. The court now turns to the arguments set forth by the parties.


A. Requirements for Issuance of a Federal Rule 17(c) Subpoena Federal Rule of Criminal Procedure 17(c) provides that a subpoena in a federal criminal case "may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates." Fed. R. Crim. P. 17(c)(1). Rule 17 was not intended to provide a means to obtain discovery, unlike its corresponding counterpart in the Federal Rules of Civil Procedure. See United States v. Nixon, 418 U.S. 683, 698 (1974). As the government correctly points out, Rule 17 was intended to "expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials." Id. at 698-99.

To obtain the subpoenaed materials, the party who caused the subpoena to be issued must demonstrate: "(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.' " Id. at 699-700. Put more simply, the moving party "must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity." Id. at 700. The "specificity and relevance elements require more than the title of a document and conjecture as to its contents." United States v. Hardy, 224 F.3d 752, 754 (8th Cir. 2000) (quoting United States v. Arditti, 955 F.2d 331, 346 (5th Cir.), cert. denied, 506 U.S. 998 (1992)).

The government argues generally that Mr. Marshall has not sufficiently demonstrated the relevancy and admissibility of the subpoenaed materials, but argues more forcefully that the subpoena lacks sufficient specificity. Docket No. 703. Mr. Marshall contends that his application and affirmation in support of an order for the issuance of the subpoena (Docket No. 519) sufficiently and specifically sets forth the materials he seeks and why the material is admissible and relevant to this case.

1. Whether the Subpoenaed Materials are Relevant

The government argues that the subpoena "bears no relevance to the charges in the controlling indictment or any defense thereto" and that "there has been no showing, at any time, that the requested documents would be relevant or admissible." Docket No. 703. Mr. Marshall asserts to the contrary that the subpoenaed materials contain important Giglio evidence and evidence as to the particular named witness' bias or motive for testifying. Docket No. 519, at 2; Docket No. 721, at 10; see Giglio v. United States, 405 U.S. 150 (1972).

Without a doubt, evidence as to the particular named witness' bias or motive to give testimony tending to incriminate Mr. Marshall is relevant. "The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' " Davis v. Alaska, 415 U.S. 308, 316 (1974)(quoting 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970)). The Supreme Court has held steadfast to the proposition that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis, 415 U.S. at 316-17 (citing Greene v. McElroy, 360 U.S. 474, 496 (1959)).

Mr. Marshall maintains that the subpoenaed material includes evidence of the particular named witness' biases or motives to testify, and that the particular named witness is a former confidential informant ("CI") who is likely to testify against Mr. Marshall as a government witness. The court finds that these ...

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