United States District Court, D. Nevada
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the Court on Defendant's Ex Parte Motion for Rule 17 Subpoenas (#163), filed September 9, 2014, and Defendant's Ex Parte Motion for Competency Examination (#164), filed September 12, 2014. By way of these motions, Defendant Phillip Smith requests ex parte consideration of his request for a subpoena pursuant to Fed. R. Crim. P. 17(c) and his request for a competency examination. The Court has reviewed the motions and finds that ex parte consideration is not appropriate for either motion.
1. Defendant's Ex Parte Motion for Subpoena (#163)
Though Defendant indicates this motion is brought pursuant to Fed. R. Crim. P. 17(b) and (c), it is a request issuance of a subpoena duces tecum and properly considered under the standards of Fed. R. Crim. P. 17(c). The standards governing the issuance of subpoenas duces tecum under Fed. R. Crim. P. 17(c) were analyzed recently in United States v. Sellers, 275 F.R.D. 620 (D. Nev. 2011). Rule 17, in pertinent part, 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.
Fed. R. Crim. P. 17(c)(1). Courts have discretion to direct that a subpoena duces tecum be made returnable before trial. Nevertheless, the law is clear that Rule 17 is not a discovery device. See e.g., United States v. Nixon, 418 U.S. 683, 689 (1974); see also Sellers, 275 F.R.D. at 622-23 (collecting cases). As noted in Sellers, "Leave of court is required for a pretrial subpoena duces tecum. " Id. at 623 (citation omitted). The Supreme Court has stated that "[e]nforcement of a pretrial subpoena duces tecum must necessarily be 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.
The moving party bears the burden of showing good cause for the requested pretrial production. Generally, courts look to the factors first identified in United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y. 1952) for guidance in determining whether pretrial production is appropriate. See Nixon, 418 U.S. at 699. The Iozia standard requires a showing: (1) that the documents are evidentiary and relevant; (2) that the documents are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the defendant cannot properly prepare for trial without production in advance of trial and that failure to obtain the documents may unreasonably delay the trial; and (4) that the application is made in good faith and not intended as a fishing expedition. Nixon, 418 U.S. at 699-700 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952)).
Against the backdrop of Ioza, the Supreme Court identified "three hurdles" that a moving party must clear in order to carry his burden: relevancy, admissibility, and specificity. Nixon, 418 U.S. at 700. The moving party must "show the evidentiary nature of the requested materials...." United States v. Skeddle 178 F.R.D. 167, 168 (N.D. Ohio 1996). Conclusory allegations of relevance or admissibility are not sufficient. Sellers, 275 F.R.D. at 623-24 (citations omitted). Documents requested in a Rule 17(c) subpoena must have more than some potential relevance or evidentiary use, there must be a sufficient likelihood that the requested material is relevant to the offenses charged in the indictment. Id. at 624 (citing Nixon, 418 U.S. at 700). The specificity requirement "ensures that the subpoenas are used only to secure for trial certain documents or sharply defined groups of documents." Id. (quoting United States v. Jackson, 155 F.R.D. 664, 667 (D. Kan. 1994)). Requiring specificity also protects against Rule 17(c) subpoenas being used improperly to engage in fishing expeditions. Id. (citation omitted).
The court in Sellers also addressed the issue of whether Rule 17(c) allows for an ex parte application for pretrial production by indigent defendants. Contrary to Rule 17(b), the language of Rule 17(c) does not expressly allow for pretrial production by an indigent defendant. Id. at 624-25. This Court agrees with the conclusion in Sellers that an indigent defendant should be permitted to make an ex parte application under Rule 17(c) under limited circumstances, "such as where identification of the source of evidence potentially imperils the source or integrity of evidence; or where notice of a subpoena duces tecum would compromise defense counsel's strategy; or where a constitutional interest of a defendant is implicated." Id. at 625; see also Reyes, 162 F.R.D. at 470 (noting the strong policy reasons in favor of an ex parte procedure). This Court further agrees that allowing for an ex parte application for a Rule 17(c) subpoena duces tecum does not entitle the defendant to strategic advantage or tactical surprise. Rule 17(c)(1) is clear that "[t]he court may direct the witness to produce the designated items in court before trial or before they are offered in evidence" and "may permit the parties and their attorneys to inspect all or part of them." Fed. R. Crim. P. 17(c)(1).
The Court has reviewed the ex parte application for a Rule 17(c) subpoena duces tecum in this case and declines to consider it on an ex parte basis. Defendant's desire to obtain the requested information has long been known to the Government and was the subject of a recently filed motion to compel (#143), which was denied. See Mins. of Proceedings (#159). There is no risk identification of the source would potentially impair the source or integrity of the evidence. There is no risk that notice of the subpoena would compromise defense counsel's strategy or mental impressions. Consequently, the Court will require that Defendant's counsel serve a copy of the motion on the Government, who will have until September 23, 2014 to file its response. The reply, if any, shall be filed by September 26, 2014.
2. Defendant's Ex Parte Motion for Competency Examination (#164)
The Court also declines to consider Defendant's motion for competency examination on an ex parte basis. In support of the request, Defendant cited to Local Criminal Rule 47-2, which requires "[a]ll ex parte motions... contain a statement showing good cause why the matter was submitted to the Court without notice to all parties[.]" Defendant's counsel's generalized concern regarding the competency of his client and the Fifth Amendment are not sufficient. The statutes and rules cited by Defendant do not support consideration on an ex parte basis either. There is no indication in the motion that Defendant has given the requisite notice under Fed. R. Crim. P. 12.2(b). To the extent the report attached to the motion will be used at trial, the Government is entitled to it under Rule 16(b)(1)(C). To the extent the motion requests an examination under 18 U.S.C. § 4241, there is no basis to preclude the Government from filing a response challenging whether there is "reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(a). Consequently, Defendant shall serve a copy of the motion on the Government. The Government shall have until September 23, 2014, to file its response. The reply, if any, shall be filed by September 26, 2014.
Based on the foregoing and good cause appearing therefore,
IT IS HEREBY ORDERED that Defendant's Ex Parte Motion for Rule 17 Subpoenas (#163) and Defendant's Ex Parte Motion for Competency Examination (#164) will not be considered on an ex parte basis. Defendant's counsel is instructed to serve a copy of the motions on the Government not later than September 15, 2014. The Government shall have ...