United States District Court, D. Connecticut
RULING ON DEFENDANT'S APPLICATION FOR ISSUANCE OF
A SUBPOENA AND REQUEST FOR HEARING
VICTOR
A. BOLDEN UNITED STATES DISTRICT JUDGE
Alexander
Pedraza (“Defendant”) is charged by indictment
with sex trafficking of a minor in violation of 18 U.S.C.
§ 1591.
On
October 31, 2018, Mr. Pedraza moved for permission to issue a
subpoena on the Massachusetts Department of Children and
Families (“DCF”) to produce records relating to
the complaining witness in this case. Appl. for Issuance of a
Subpoena and Request for Hr'g, ECF No. 34. On November
21, 2018, the United States filed a motion in opposition to
Defendant's subpoena motion. Gov't. Mem. in Opp. to
Defs. Mot. for Subpoena, ECF No. 40. On December 18, 2018,
Defendant filed a reply. Reply to Gov't Opp. to Defs.
Appl. for Issuance of a Subpoena and Request for Hr'g,
ECF No. 45. On December 19, 2018, the Court held a hearing on
all pending motions in limine, including
Defendant's motion for issuance of a subpoena. Minute
Entry, ECF No. 46.
For the
reasons set forth below, the Court DENIES
Defendant's application for issuance of a subpoena and
request for a hearing, ECF No. 34, without prejudice to
renewal.
I.
STANDARD OF REVIEW
Federal
Rule of Criminal Procedure 17(c) enables defendants to obtain
evidence to support their defenses, even if the Government
does not plan to use that evidence. Fed. R. Crim. P. 17(c);
Bowman Dairy Co. v. U.S., 341 U.S. 214, 219-20
(1951) (“But if such materials or any part of them are
not put in evidence by the Government, the defendant may
subpoena them under Rule 17(c) and use them himself. It would
be strange indeed if the defendant discovered some evidence
by the use of Rule 16 which the Government was not going to
introduce and yet could not require its production by Rule
17(c). There may be documents and other materials in the
possession of the Government not subject to Rule 16. No. good
reason appears to us why they may not be reached by subpoena
under Rule 17(c) as long as they are evidentiary. That is not
to say that the materials thus subpoenaed must actually be
used in evidence. It is only required that a good-faith
effort be made to obtain evidence.”).
“[I]n
order to require production prior to trial, the moving party
must show: (1) that the documents are evidentiary and
relevant; (2) that they are not otherwise procurable
reasonably in advance of trial by exercise of due diligence;
(3) that the party cannot properly prepare for trial without
such production and inspection in advance of trial and that
the failure to obtain such inspection may tend unreasonably
to delay the trial; and (4) that the application is made in
good faith and is not intended as a general ‘fishing
expedition.'” U.S. v. Nixon, 418 U.S. 683,
699-700 (1974).
A
movant must obtain a court order to serve a subpoena on a
third party for production of personal or confidential
information about an alleged victim. Fed. R. Crim. P.
17(c)(3).
II.
DISCUSSION
Mr.
Pedraza seeks records from the Massachusetts DCF because
“[i]nformation provided by the Government shows that
the complaining witness, who is no longer a minor, was
previously in the care and custody of DCF before and possibly
during the period of the alleged offense conduct.”
Appl. for Issuance of a Subpoena and Request for Hr'g at
1. While neither party alleges that the Government has the
DCF records, both parties credibly believe that DCF records
exist.
Mr.
Pedraza asserts that those records might bear on the
complaining witness's credibility and reliability.
Id. The United States argues that his subpoena
request is “extremely overbroad and does not meet the
relevance, admissibility, or specificity standards that
govern the issuance of subpoenas under Federal Rule of
Criminal Procedure 17(c).” Gov't. Mem. in Opp. to
Defs. Mot. for Subpoena at 1. The Court agrees.
While
Rule 17 provides defendants with a mechanism for compelling
the production of evidence, particularly evidence in the
possession of the government, Bowman Dairy Co., 341
U.S. at 219-20, the Rule “was not intended to provide a
means of discovery for criminal cases[.]”
Nixon, 418 U.S. at 698, citing Bowman Dairy
Co., 341 U.S. at 220. Defendants must make a threshold
showing that the requested materials are evidence, and that
this evidence has some relevance to the defense. Rule 17 does
not permit criminal defendants to use the power of subpoena
to engage in a “fishing expedition” that might
turn up some exculpatory evidence. Nixon, 418 U.S.
at 700.
Mr.
Pedraza has failed to meet the minimum threshold showing
required by Bowman Dairy Co., Nixon, and
their progeny. He has provided no basis for a determination
that the DCF records contain relevant evidence. He has laid
no evidentiary foundation beyond the assertion that he has
“limited access to information about the alleged
victim[.]” Reply to Gov't Opp. to Defs. Appl. for
Issuance of a Subpoena and Request for Hr'g. Mr. Pedraza
has proffered no theory of the case that would support an
order of this Court to Massachusetts DCF. He also has not
argued that the records might be admissible, and that the
information is unavailable through other means. Mr. Pedraza
further has not limited the subpoena to a particular time
period, or in any way sought to target the scope of his
subpoena.
Instead
of providing support for the subpoena, Mr. Pedraza proposes
that the Court subpoena the DCF file, review it in
camera, and flag any potentially relevant, exculpatory
evidence for Defendant's review. Id. at 2-3. Not
only would this be the sort of “fishing
expedition” disallowed under prevailing Rule 17
standards, see U.S. v. Nixon, 418 U.S. at 700, it
would require the Court to make threshold findings ...