United States District Court, D. Nevada
ORDER (DOCKET NO. 25)
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant's sealed ex parte
motion for issuance of a Rule 17 subpoena. Docket No.
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.
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).
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
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).
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). .
. . .
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 ...