United States District Court, D. Nevada
ORDER (MOT. SUBPOENAS TRIAL WITNESSES - ECF NO.
A. LEEN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant Joshua Sadat
Washington's Motion Requesting Subpoenas for Witnesses
for Trial(ECF No. 175), which was filed pursuant to Rule
17(b) of the Federal Rules of Criminal
Procedure on February 12, 2018. This Motion is
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-7(g) of the Local Rules of Practice.
August 17, 2016, the United States initially filed a Criminal
Complaint (ECF No. 1) against Mr. Washington. The initial
complaint charged Washington with interference with commerce
by robbery in violation of 18 U.S.C. § 1951 and §
2, and transportation of stolen goods in violation of 18
U.S.C. § 2314 and § 2. The interference with
commerce by robbery charge arises out of a robbery at a Las
Vegas jewelry store that occurred on August 13, 2016. The
transportation of stolen goods charge arises from a package
that UPS representatives alerted to on August 16, 2016. UPS
representatives found the heavy package suspicious and, upon
further examination, determined that the package was full of
September 2016, a federal grand jury returned an indictment
charging Mr. Washington with interference with commerce by
robbery and transportation of stolen goods. See
Indictment (ECF No. 11). A Superseding Indictment (ECF No.
19) was filed in November 2016, charging Washington and
co-defendant Fedel Ezekiel Sakers with interference with
commerce by robbery and transportation of stolen goods. A
Second Superseding Indictment (ECF No. 29) was returned
January 25, 2017, which charged both defendants with the
additional count of brandishing a firearm in furtherance of a
crime of violence in violation of 18 U.S.C. §
924(c)(1)(A)(ii) and § 2. The parties have stipulated to
numerous continuances of the calendar call, trial date, and
motions deadline since the second superseding indictment was
returned. Trial is currently set for February 27, 2018, at
9:00 AM, with calendar call on February 20, 2018, at 1:30 PM.
See Mins. of Proceedings (ECF No. 132); Order
Regarding Trial (ECF No. 173).
Motion (ECF No. 175) asks the court to issue subpoenas to 27
witnesses to compel their testimony at his trial: Petra
Martinez, Africa Calvillo, Alfredo Valiente, and Terry
Valiente, employees and owners of Alfredo's Jewelry
store; Thomas Ticano, Phalon Mauntel, Travis T. Cunningham,
LVMPD robbery detectives and officers; James J. Mollica, Jr.,
SA Schlumpf, Matthew Lanthorn, Arthur Hopewell, and
Alejandro, Las Vegas and Miami FBI agents; Nathaniel Baez, a
Verizon store sales representative and witness; Lonnie Lemos,
a “witness”; Halley Joiner, Maria Chiang, and
Laurie Bonnefin, employees and a manager of a Las Vegas UPS
Store; Randy Cambridge, Rafael Bonelly, and Andrew Paul
Davis, a UPS driver, supervisor, and security investigator in
Hialeah, Florida; Julie Foster, Broward County Sherriff;
Brian Jerome, an employee of the Florida Department of Law
Enforcement; Joseph Castro and Michael Ruiz, employees of the
Miami Gardens Police Department; Larry Anderson and Annette
Anderson, employees of Storage West; and Daniel Schiess, an
Assistant United States Attorney serving in the District of
Nevada. The Motion states that Washington is requesting these
witnesses be present for an “adequate defense.”
Sixth Amendment guarantees that every person charged with a
federal crime shall have compulsory process for obtaining
witnesses in his favor. U.S. Const. amend. VI. Criminal
defendants have the right under compulsory process clause to
the government's assistance in compelling the attendance
of favorable witnesses at trial. United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982); United
States v. Collins, 551 F.3d 914, 926-27 (9th Cir. 2009).
governs the issuance of subpoenas in criminal proceedings.
See, e.g., United States v. Sellers, 275
F.R.D. 620, 622 (D. Nev. 2011). LCR 17-1 of the Local Rules
of Criminal Practice also governs the issuance of subpoenas
in criminal cases. LCR 17-1(b) states that pro se defendants
are required to apply under Rule 17(b) “for the
issuance of subpoenas, whether for service within or outside
of the District of Nevada.” Rule 17(b) describes the
procedure for defendants who are unable to pay the requisite
witness fees and permits an ex parte sealed
application by a defendant requesting that the court issue a
subpoena. Although prior judicial authorization is required,
a defendant may file a Rule 17(b) subpoena request under seal
and ex parte in order to “put the defendant on
equal footing with the Government because the Government is
not required to give a defendant notice as to those witnesses
that it intends to subpoena to testify at trial.”
Sellers, 275 F.R.D. at 622-24 (quoting United
States v. Reyes, 162 F.R.D. 468, 469 (S.D.N.Y. 1995)).
“A motion under Rule 17(b) is addressed to the sound
discretion of the trial court.” United States v.
Shirley, 884 F.2d 1130, 1132 (9th Cir. 1989) (citation
court may authorize issuance of a subpoena to an indigent
defendant if the defendant shows (1) “an inability to
pay the witness's fees, ” and (2) “the
necessity of the witness's presence for an adequate
defense.” Fed. R. Crim. P. 17(b). However, a defendant
“does not have an absolute right to subpoena witnesses
at government expense.” Shirley, 884 F.2d at
1132; see also United States v. Moore, 917 F.2d 215,
231 (6th Cir. 1990) (“ ‘Neither rich nor poor
defendants have an unfettered right to subpoenas without
discretionary review by the district court'.”)
(quoting United States v. Bennett, 675 F.2d 596 (4th
Cir. 1982)). A trial court may properly refuse to issue a
subpoena when: (i) a defendant fails to shows the necessity
of the witness' testimony, (ii) the testimony sought is
cumulative, (iii) a defendant's request is untimely, or
(iv) the requested subpoena would in some other way
constitute an oppressive and unreasonable use of the process.
United States v. Sims, 637 F.2d 625, 629 (9th Cir.
1980) (collecting cases).
17(b) requires that a subpoena be issued on the condition
that a witness' presence is necessary to the defense.
“Necessary” means “relevant, material and
useful.” See, e.g., United
States v. Hernandez-Urista, 9 F.3d 82, 83-84 (10th
Cir. 1993); Moore, 917 F.2d at 230; United
States v. Greene, 497 F.2d 1068, 1079 (7th Cir. 1974).
“To show necessity, a defendant must demonstrate
particularized need.” Hernandez-Urista, 9 F.3d
at 83-84. “Mere allegations of materiality and
necessity are not sufficient to establish that a witness is
necessary to an adequate defense.” United States v.
Youngman, 481 F.3d 1015, 1017 (8th Cir. 2007) (citation
omitted). “A ‘conclusory statement' that a
witness is needed for a defense does not satisfy the burden
under Rule 17(b).” Id. (citing United
States v. Oates, 173 F.3d 651, 659 (8th Cir. 1999)
(statement that witness is needed to “introduce
testimony at trial for his defense” does not satisfy
Rule 17(b)); see also United States v. Weischedel,
201 F.3d 1250, 1255 (9th Cir. 2000) (holding that district
court did not abuse its discretion in denying subpoenas
because defendant failed to explain what the additional
witnesses' testimony could add to previous testimony)
(citing Sims, 637 F.2d at 629); United States v.
Smith, 924 F.2d 889, 896 (9th Cir. 1991). “A
defendant bears the burden of demonstrating that the
testimony of the witness is both material and favorable to
the defense.” Youngman, 481 F.3d at 1017
(citation omitted); United States v. Redd, 355 F.3d
866, 878 (5th Cir. 2003); United States v. Rinchack,
820 F.2d 1557, 1566 (11th Cir. 1987).
Washington's Motion provides no information at all
regarding the witnesses' proposed testimony. The Motion
merely identifies 27 individuals and states they are needed
for an adequate defense. This is insufficient. Rule 17(b)
requires that he explain to the court how each witness is
necessary to his defense. He must show that each witness is
both material and favorable to his defense, not just that he
wants them all to appear at trial. See Redd, 355
F.3d at 878 (finding that a criminal defendant “
‘must at least make some plausible showing' ”
of how a proposed witness' testimony would be “