United States v. Ruedlinger

172 F.R.D. 453, 1997 U.S. Dist. LEXIS 4485, 1997 WL 159990
CourtDistrict Court, D. Kansas
DecidedMarch 26, 1997
DocketNo. 96-40045-SAC
StatusPublished
Cited by7 cases

This text of 172 F.R.D. 453 (United States v. Ruedlinger) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ruedlinger, 172 F.R.D. 453, 1997 U.S. Dist. LEXIS 4485, 1997 WL 159990 (D. Kan. 1997).

Opinion

MEMORANDUM AND ORDER

CROW, Senior District Judge.

Trial in this case commenced on March 10, 1997. The second superseding indictment charges Douglas Ruedlinger with ten counts of mail fraud, two counts of wire fraud, and five counts of money laundering.1 The second superseding indictment alleges that between 1984 and 1993 the defendant used his insurance related companies to engage in a scheme to defraud, essentially using incoming insurance premiums to pay past and eur[455]*455rent obligations, instead of holding those funds in trust as he had agreed and promised. The agreement primarily at issue in this certain assets has been bifurcated, case is the “Partners in Protection Program” (PIP), a contract administered through one of Ruedlinger’s subsidiary companies,2 Fund Administrators Association (FAA). The alleged victims of the scheme to defraud were state athletic or activities associations who had voluntarily entered the PIP agreement. In an effort to lull his victims into believing that their reserves were safe, Ruedlinger allegedly mailed documents or made interstate telephone calls which contained false representations and promises regarding the actual existence and amounts of the reserves.

This case comes before the court upon the government’s “Motion to Quash” (Dk. 88). In that motion, the government seeks to quash two subpoenas filed by the defendant. One subpoena commands Jerry Martens, a criminal investigator for the Internal Revenue Service (IRS), to bring “[a]ny and all audit reports prepared by the Internal Revenue Service pertaining to DRI (Doug Rued-linger, Inc.) and/or Wheatland Group Holdings, Inc. during the 1990’s time period.” The other subpoena instructs Rick Rindt, an agent employed by the Federal Bureau of Investigation who investigated the criminal acts of Greg Smart,3 to bring his “investigation file pertaining to Greg Smart.” The government contends that such records are not relevant nor discoverable. The government also contends that these subpoenas are merely an unauthorized fishing expedition by the defendant.

The defendant responds, arguing that because Greg Smart is a potential government witness4 “any information that Agent Rindt gathered in the course of his investigation, with respect to the operation of Doug Rued-linger, Inc. or the Wheatland Group Holdings, Inc., during his investigation is essential to” his defense. In regard to the IRS records, Ruedlinger argues that evidence regarding the numerous audits of his personal and business records conducted by that agency must “contain exculpatory evidence.” “Again, it is impossible to delineate what, specifically, is within the possession of the Internal Revenue Service, but clearly, the IRS, through their agent, Jerry Martens, has had access to this information and the final audit reports are clearly Brady material, exculpatory and therefore, the government is duty bound to turn that information over to the defendant as well.”

Subpoena Duces Tecum

Rule 17(c) 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 tidal 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, 3103, 41 L.Ed.2d 1039 (1974). “In other words, Rule 17(c) 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); see United States v. King, 164 F.R.D. 542, 546 (D.Kan.1996) (“Rule 17 was not intended to provide the defendant a mechanism by which to troll the waters of the seas otherwise undiscoverable material in the small hope [456]*456that something beneficial might rise to the surface.”).

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 ajfd. 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. Conelusory 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. Hang, 75 F.3d 1275

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Cite This Page — Counsel Stack

Bluebook (online)
172 F.R.D. 453, 1997 U.S. Dist. LEXIS 4485, 1997 WL 159990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ruedlinger-ksd-1997.