United States v. King

164 F.R.D. 542, 1996 U.S. Dist. LEXIS 1550, 1996 WL 50783
District Court, D. Kansas·Decided January 17, 1996·No. No. 95-40075-01-SAC·Published·Cited by 8 cases

Opinion

MEMORANDUM AND ORDER

CROW, District Judge.

On November 1, 1995, the grand jury returned an indictment charging Ritchie Lyn King with seven counts of violating 18 U.S.C. § 2113(b), titled “Bank robbery and incidental crimes.” King is alleged to have stolen money from certain automated teller machines located in Lawrence, Kansas, during the month of October, 1995.

The ease comes before the court on the defendant’s motion for an order granting leave to issue subpoenas duces tecum for the production of records prior to trial pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure (Dk. 22). Specifically, King seeks copies of the patrol logs of the Lawrence Security and Courier Services, Inc.; for the month of October 1995. King also seeks the personnel records on all employees employed by the Douglas County Bank and the Mercantile Bank of Lawrence who had access to the automated teller machines. In his motion, King alleges that the materials he seeks are material and integral to his defense, that his request is made in good faith, that the materials are not available from other sources, that the materials are necessary for his counsel to prepare for trial, and [545]*545that pretrial production of the materials will avoid delays during trial. The government opposes King’s motion.

Subpoena Duces Tecum

Rule 17(e) provides in pertinent part: The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.

A subpoena duces tecum under Rule 17(c) “was not intended to provide a means of discovery for criminal cases ... but to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials.” United States v. Nixon, 418 U.S. 683, 698-99, 94 S.Ct. 3090, 3102-03, 41 L.Ed.2d 1039 (1974). “In other words, Rule 17(e) is not a discovery tool but offers' compulsory process for securing specific, identifiable evidence for trial.” United States v. Jackson, 155 F.R.D. 664, 667 (D.Kan.1994).

For an order to issue requiring production before trial, the moving party must demonstrate:

(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.”

Nixon, 418 U.S. at 699-700, 94 S.Ct. at 3103; see also United States v. Gonzalez-Acosta, 989 F.2d 384, 389 (10th Cir.1993). The Supreme Court in Nixon summarized the moving party’s burden as clearing the three hurdles of relevancy, admissibility, and specificity. 418 U.S. at 700, 94 S.Ct. at 3103; see United States v. Kalter, 5 F.3d 1166, 1169 (8th Cir.1993) (“A subpoena duces tecum must be reasonable and specific, and the documents sought must be relevant.”). It is left to the trial court’s discretion to judge whether these hurdles have been cleared. United States v. Eden, 659 F.2d 1376, 1381 (9th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1450, 71 L.Ed.2d 663 (1982).

That the requested material is “potentially” relevant or admissible is not enough, for both tests must be satisfied when the evidence is sought. United States v. Burger, 773 F.Supp. 1419, 1425 (D.Kan.1991), conviction affd but remanded for resentencing, 964 F.2d 1065 (10th Cir.1992). There must be a “sufficient likelihood” that the requested material is “relevant to the offenses charged in the indictment,” and a “sufficient preliminary showing that ... [the requested material] contains evidence admissible with respect to the offenses charged.” Nixon, 418 U.S. at 700, 94 S.Ct. at 3104. Conclusory allegations of relevance and admissibility are insufficient. Burger, 773 F.Supp. at 1425; see United States v. Eden, 659 F.2d at 1381.

“Specificity is the hurdle on which many subpoena requests stumble.” Jackson* 155 F.R.D. at 667. “This requirement ensures that the subpoenas are used only to secure for trial certain documents or sharply defined groups of documents.” Id. (citing United States v. Crosland, 821 F.Supp. 1123, 1129 (E.D.Va.1993)). It also serves to prevent the subpoena from being converted into a license for what the Supreme Court in Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879 (1951), decried as a “fishing expedition to see what may turn up.” See United States v. Noriega, 764 F.Supp. 1480, 1493 (S.D.Fla. 1991) (“If the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused”). The specificity requirement provides the subpoenaed party or other party having standing with enough knowledge about what documents are being requested so as to lodge any objections on relevancy or admissibility. See Black v. Sheraton Corp. of America, 564 F.2d 531, 545 (D.C.Cir.1977).

[546]*546In describing the documents, the subpoena must refer to specific documents or, at least, to specific kinds of documents. 2 Charles A. Wright, Federal Practice and Procedure § 275 at 159 (1982); see United States v. McCollom, 651 F.Supp. 1217 (N.D.Ill), aff'd, 815 F.2d 1087 (7th Cir.1987). Requesting entire files instead of specific documents indicates a fishing expedition. United States v. Reed, 726 F.2d 570, 577 (9th Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 221,. 88 L.Ed.2d 151 (1984). The specificity hurdle, however, cannot be cleared by simply naming the title of the document. United States v. Arditti, 955 F.2d 381, 345-6 (5th Cir.), cert. denied, 506 U.S. 998, 113 S.Ct. 597, 121 L.Ed.2d 534 (1992). The moving party must specify why the materials are wanted, what information is contained in the documents, and why those documents would be relevant and admissible at trial. See Arditti, 955 F.2d at 345-46.

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United States v. King, 164 F.R.D. 542, 1996 U.S. Dist. LEXIS 1550, 1996 WL 50783 (D. Kan. 1996).

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