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United States v. Limon

United States District Court, D. Nevada

April 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EDGAR LIMON, Defendant.

          ORDER (DOCKET NO. 23)

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Order Presently before the Court is Defendant's sealed ex parte motion for issuance of a Rule 17 subpoena. Docket No. 23.[1]

         I. BACKGROUND

         Defendant asks the Court to issue a subpoena to the Clark County District Attorney's Office, directing it to produce either the original Request for Prosecution form for Edgar Limon in case number 17F20485X or, if it has been destroyed, a certificate of non-existence. Id. at 4. Additionally, Defendant asks the Court to issue a subpoena to the Las Vegas Justice Court for any and all filings, records, and reports relating to case number 17F19562X. Id. at 3.

         II. ANALYSIS

         The issuance of subpoenas in criminal cases is governed by Federal Rule of Criminal Procedure 17. Rule 17(b) sets forth the procedure for defendants who cannot pay the requisite witness fees and permits a defendant to submit an ex parte application requesting that a court issue a subpoena. A court will permit issuance of a subpoena to a named witness “if the defendant shows an inability to pay the witness's fees and the necessity of the witness's presence for an adequate defense.” Fed. R. Crim. P. 17(b). “Although prior judicial authorization is required, the ex parte nature of a Rule 17(b) application serves to put a defendant on an 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.” United States v. Sellers, 275 F.R.D. 620, 622 (D. Nev. 2011) (citation and internal quotation marks omitted).

         Federal Rule of Criminal Procedure 17(c) describes the process by which a court can issue a subpoena duces tecum for the production of evidence before trial. Rule 17(c)(1) governs the production of documents and objects. It 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.

         Unlike a subpoena issued under Rule 17(a) or 17(b) to compel a witness to appear at trial, subpoenas duces tecum may, within a court's discretion, be made returnable before trial. Rule 17 is not, however, a discovery device. See, e.g., Sellers, 275 F.R.D. at 622-23 (collecting cases). Nevertheless, Rule 17(c) may be used to obtain evidentiary materials. See, e.g., id. at 623 (citing cases). Rule 17(c)(1) permits a party to subpoena a witness and require him to report only at either a trial or hearing at which he is to testify. See, e.g., id. (collecting cases).

         A party must obtain leave of court for a subpoena duces tecum, and various courts have held that a court may, in its discretion, require production of documents prior to trial. See, e.g., id. (citations omitted). The Supreme Court has stated that:

Enforcement 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. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17(c).

United States v. Nixon, 418 U.S. 683, 702 (1974).

         The party seeking production bears the burden of showing good cause for production before trial. See Sellers, 275 F.R.D. at 623 (citation omitted). In United States v. Iozia, 13 F.R.D. 335, 338 (D.C.N.Y. 1952), the court established a standard that many other courts have since adopted. See Sellers, 275 F.R.D. at 623 (collecting cases). The Iozia test ...


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