United States v. Layton

90 F.R.D. 514, 1981 U.S. Dist. LEXIS 14884
District Court, N.D. California·Decided April 6, 1981·No. No. CR-80-0416 RFP·Published·Cited by 4 cases

Opinion

MEMORANDUM AND ORDER

PECKHAM, Chief Judge.

Laurence Layton has been indicted on four criminal counts arising from the events which occurred at the Port Kaituma airport in the nation of Guyana on November 18, 1978. Those events resulted in the death of Congressman Leo J. Ryan, then a member of the United States House of Representatives from the 11th Congressional District of California, and the wounding of Richard Dwyer, the Deputy Chief of Mission for the United States in the Republic of Guyana. Congressman Ryan had traveled to Guyana for the purpose of investigating certain allegations that had risen concerning the Peoples Temple settlement in Jonestown. Mr. Layton had lived in Jonestown for the few months preceding the events in question here. The indictment charges Mr. Layton with (1) conspiracy to murder a Congressman, under 18 U.S.C. § 351(d); (2) aiding and abetting in the murder of a Congressman, under 18 U.S.C. §§ 351(a), 2; (3) conspiracy to murder an internationally protected person, under 18 U.S.C. § 1117; and (4) aiding and abetting in the attempted murder of an internationally protected person, under 18 U.S.C. §§ 1116(a), 2.

The defendant has moved, under Federal Rule of Criminal Procedure 17, for the issuance of subpoenas duces tecum to the F.C.C., the Department of State, and the House Foreign Relations Committee. For the reasons set forth below, we find that defendant has not established “good cause” within the meaning of rule 17(c) to order production of some of the material it requests, although good cause is established with respect to the remainder of the material. - Accordingly, this court orders that the subpoenas be issued as modified.

Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951), observed two fundamental characteristics of a rule 17(c) subpoena. First, rule 17(c) is not a discovery device. Id. at 220, 71 S.Ct. at 678. Second, its chief innovation was to provide a time before trial for the inspection of documents, not to expand the scope of rule 16. Id. at 220 n.5, 71 S.Ct. at 678 n.5. Most of the cases following Bowman have adopted the formula set forth in U. S. v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952), for determining whether the requisite showing of good cause has been made. That test requires the moving party to show: (1) that the documents sought are evidentiary and relevant; (2) that they are not otherwise procurable in advance of trial by the exercise of due diligence; (3) that the movant cannot properly prepare for trial without such production; and (4) that the application is made in good faith, and not as a general “fishing expedition.”

As explained by the United States Supreme Court in U. S. v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039 (1974), application of this standard means that the movant “must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity.” The Court also noted that where, as in the case of one of the subpoenas sought here, the subpoena is directed to a coordinate branch of government, the court should be “particularly meticulous to ensure that the standards of rule 17(c) have been correctly applied.” Id. at 702, 94 S.Ct. at 3104. The subpoena must represent a “good faith effort to obtain identified evidence rather than a general ‘fishing expedition.’ ” U. S. v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980). The movant bears the burden of showing in what respect the documents sought are material to any issue in the case. A mere hope that the documents, if produced, may contain evidence favorable to the defendant’s case will not suffice. U. S. v. Bookie, 299 F.2d 130 (7th Cir. 1956).

Some cases, it is true, define the rule 17(c) standard in fairly open-ended language, stating that “if the accused avers facts which, if true, would be relevant to any issue in the case, the request for sub[517]*517poenas must be granted . . . . ” See, e. g., Welsh v. United States, 404 F.2d 414, 417-18 (5th Cir. 1968); U. S. v. Moudy, 462 F.2d 694 (5th Cir. 1952); U. S. v. Hathcock, 441 F.2d 197, 199-200 (5th Cir. 1971); Greenwell v. U. S., 317 F.2d 108, 113 (D.C.Cir.1963). Examination of these cases, however, reveals that in each case the movant had made an extremely particularized showing of relevancy that would satisfy the standard set forth in U. S. v. Nixon, supra. In each case the movant “averred facts” which showed with a good deal of precision the substance of the material sought and the purpose for which it would be offered.

In the instant case, on the other hand, it is entirely unclear what bearing much of the material sought would have on the defendant’s guilt or innocence. Defendant argues that he cannot know how the material would be relevant to his case until he has examined it. By this argument, defendant is, in effect, asking us to allow him to use rule 17 as a device to embark on a “fishing expedition.” As explained above, however, rule 17 is not intended as a tool of discovery. Rather, a rule 17 subpoena presupposes that the movant has some minimum showing as to how the material sought would advance the movant’s cause.

Applying these principles to the instant motions, we find that defendant has failed to make this threshhold showing with respect to much of the material which he seeks. We will discuss each of the subpoenas separately.

I. Subpoena to House of Representatives Committee on Foreign Affairs

The House Committee on Foreign Affairs conducted an investigation into the assassination of Congressman Ryan and generally into the operations of the Peoples Temple. Two reports resulted from that inquiry, many sections of which are classified. There is little clue as to what most of these classified sections might contain or as to how they might advance defendant’s case. Virtually all we have on which to base our assessment of possible relevance is the minimal description of each classified section which appears in the table of contents to the report. Some of these descriptions are quite uninformative, while others affirmatively suggest that the information contained in the deleted sections would be quite irrelevant to the instant case. For example, section 11(A)(1) of the Report of the Staff Investigative Group to the Committee on Foreign Affairs, dated May 15, 1979 is described only as “The Investigation; A.

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United States v. Layton, 90 F.R.D. 514, 1981 U.S. Dist. LEXIS 14884 (N.D. Cal. 1981).

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