United States District Court, D. Nevada
ORDER, (EX PARTE APP. SUBPOENA - ECF, 29)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendant Joel Smith's
Ex Parte Application Requesting Subpoena (ECF No.
29), which was filed March 16, 2018, pursuant to Rule 17(c)
of the Federal Rules of Criminal Procedure and LCR 17-1 of
the Local Criminal Rules of Practice. This Application is
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-3 and 1-7(g) of the Local Rules of
reviewed and considered the matter, the court finds that Mr.
Smith has met his burden under United States v.
Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952), of
establishing the need for pretrial production of the
materials described in the Application. The Application
provides information regarding how the materials are
necessary to his defense. Producing the records in advance
will avoid delaying the trial while counsel reviews what may
prove to be voluminous records. The court also finds good
cause for Smith's Application to remain ex parte
and under seal. Mr. Smith has already been found indigent.
The court therefore finds that he is financially unable to
pay process costs or witness fees for a subpoena.
Accordingly, the court will grant the Application and issue
subpoenas duces tecum to Texas Station Gambling Hall
& Hotel, Palace Station Hotel and Casino, Circus Circus,
and Chase Bank.
the court finds good cause for the Application to remain ex
parte, the request for issuance of ex parte subpoenas
returnable directly to defense counsel is denied. Rule 17 is
not a discovery device. United States v. Sellers,
275 F.R.D. 620, 622 (D. Nev. 2011) (citing United States
v. Nixon, 418 U.S. 683, 689 (1974)); United States
v. Fletcher, 461 F.Supp.2d 1101, 1102 (D. Ariz. 2006)
(Rule 17(c) subpoenas “ may not be used to expand the
scope of Rule 16”). Rule 17(c) states that the
“court may direct the witness to produce the
designated items in court before trial or before they
are to be offered in evidence.” Fed. R. Crim. P.
17(c)(1) (emphasis added). The rule does not authorize
subpoenas requiring a witness to produce the designated items
directly to one party, or to produce the materials at some
time or place other than the trial or evidentiary hearing in
court. See, e.g., United States v. Binh Tang
Vo, 78 F.Supp.3d 171, 178-80 (D.D.C. 2015) (quashing
subpoena that added a statement regarding time and place of
production to only one party: “ ‘[i]n lieu of
personally appearing before the Court . . . you may comply
with this subpoena by promptly providing the undersigned
Assistant U.S. Attorney' ” with the documents);
Sellers, 275 F.R.D. at 624-25.
court may authorize pretrial production in order to prevent
delays when documents produced in response to a subpoena
duces tecum are offered into evidence during trial or a
hearing. See Iozia, 13 F.R.D. at 338. If a
defendant's ex parte application is approved, the court
issues Rule 17(c) subpoenas with notice to the parties and
requires the witness to deliver responsive documents directly
to the Clerk of the Court. Sellers, 275 F.R.D. at
The clerk's office then notifies the parties that the
documents are available for inspection and copying.
Id. Although an ex parte application is permitted,
it does not follow that a Rule 17(c) subpoena entitles a
defendant to strategic advantage or tactical surprise.
Id. at 624. Cf. Fed.R.Civ.P. 45(a)(4)
(requiring notice to other parties before service of a
subpoena duces tecum).
Smith's Application and attached proposed subpoenas
request that documents be produced along with a declaration
of the Custodian of Records directly to defense counsel's
law offices. Smith does not identify any of the limited
circumstances justifying ex parte production. Defense counsel
and their support staff may, of course, investigate possible
defenses and keep their own work product protected from
disclosure under the qualified work product privilege.
However, counsel may not use the court's subpoena power
to obtain discovery and fail to disclose the information
obtained through the subpoena. The court will therefore order
issuance of the subpoenas duces tecum directing the
custodians of records to produce the designated items to the
Clerk of the Court on or before 4:00 p.m., May 7,
2018. Upon receipt of the documents, the Clerk shall
notify counsel for the parties that the documents are
available for inspection and copying.
reviewed and considered the matter, IT IS
Defendant Joel Smith's Ex Parte Application for
Subpoenas (ECF No. 29) is GRANTED IN PART AND DENIED
IN PART, consistent with the body of this order. The
application shall remain ex parte and under seal.
Clerk of the Court shall issue subpoenas duces tecum
to Texas Station Gambling Hall & Hotel, Palace Station
Hotel and Casino, Circus Circus, and Chase Bank, and deliver
a copy of this order and the subpoenas to the U.S. Marshal
custodians of records for Texas Station Gambling Hall &
Hotel, Palace Station Hotel and Casino, Circus Circus, and
Chase Bank shall produce records responsive to the subpoena
by on or before 4:00 p.m., May 7, 2018, along with a copy of
this order, to:
Clerk of Court
United States District Court for the District of Nevada
333 Las Vegas Blvd., ...