By Sara Kropf
In the first post on this topic, I described the basics of Rule 17(c) subpoenas. This post will offer some practical tips to convince a court to issue a subpoena to a third party to obtain documents for your defense.
As we described in our earlier post, most courts impose three requirements to issue a Rule 17(c) subpoena: (1) admissibility of the documents requested, (2) relevance of those documents, and (3) a specific request for documents.
You can expect that the government will oppose a motion requesting the issuance of subpoenas, so it’s important to make the motion a strong one.
Avoiding a Fishing Expedition
The most challenging part of the standard is that the request be made with specificity, rather than a “fishing expedition.” Defense counsel must therefore make the request as specific as possible. That usually means not requesting documents for a long period of time and not requesting broad categories of documents.
You can try to include information in your motion about what documents are held by a third party. One persuasive method is to attach an affidavit from someone with knowledge about the third party’s documents or by attaching an example of those third-party documents. (It’s best if that affidavit does not come from your client—it could expose him to cross-examination about it at trial, and may be viewed as entirely self-serving by the court anyway.)
For example, if you want to request copies of all canceled checks written by your client to a specific payee, then include an affidavit from someone with knowledge of those checks or an example of a check that you already have. A bookkeeper at a small company may be able to provide an affidavit that the company indeed wrote checks to a vendor and describe them in some detail, or the bookkeeper may have QuickBooks entries reflecting the checks.
The Ex Parte Process for Rule 17(c) Subpoenas
As you are developing your client’s defense to criminal charges, you may not want to alert the government to your request. You don’t want to give the government a roadmap to a possible defense, particularly until you know you have documents that support it.
Federal courts have a filing process by which you can submit motions ex parte, meaning that only the judge will see your motion. The government will not see it. Courts and judges generally don’t like ex parte motions, so it’s important to check with folks who have practiced before this judge to find out whether or not she will entertain these types of motions. The worst that can happen is the judge denies the motion and you get berated for having filed an ex parte motion when you should have filed it publicly.
You can include in an ex parte motion that you consent to the motion being made public once the trial has begun, if you think that will make it more palatable to the judge. That way, you can maintain the secrecy of your defense until trial, while not keeping information from the public in the long term.
In-Camera Review of Documents Produced by a Third Party
Some judges will require that the court conduct an in-camera review of the documents before giving them to the defense. That’s not my first choice, because I’d rather have the documents myself. I’ve already had one case where the third party gave the Court an incomplete set of documents, and we did not find out about it until after trial. (That led to a reversal on Brady grounds (yay!) but we would have preferred the documents before trial to avoid conviction in the first place.)
In camera review, however, is a good backup plan if that’s the only way the judge will issue the subpoenas.
Rule 17 is not entirely clear about whether or not the judge must provide a copy of the documents to the government at the same time the documents are provided to the defense under the subpoena. But be prepared for a judge to require the third-party to produce the documents to both sides. Reciprocal discovery obligations under Rule 16 may require you to provide the documents to the government anyway (see below!).
What about Brady Obligations?
The government always has a Brady obligation to turn over exculpatory material to the defense. Sometimes, however, you believe there is exculpatory material out there but the government has not bothered to obtain it (or is deliberately avoiding obtaining it so that it does not have to disclose it to the defense).
There is an important limit to Brady: the government must only disclose exculpatory material in its possession. Documents held by a third party are not in the government’s possession, so there’s no affirmative obligation to obtain and disclose it.
Rule 17(c) can be a tool to ensure that the government does not get away with avoiding discovery of exculpatory information.
The 17(c) motion could incorporate Brady by explaining to the court what information the third party has, why it would be exculpatory under the Brady standard and then highlighting the fact that that the government has not obtained it for some reason.
A sympathetic judge may order the government to obtain the documents and provide them to the defense. Or the judge may issue the Rule 17(c) subpoena for the defense to do so directly. This type of combination Brady/Rule 17(c) subpoena is a way to not only obtain important information, but to knock back the government on its heels a bit.
What about Rule 16?
The scope of Rule 16 discovery obligations in a criminal case are far too complex for this post. I’ll do a series of posts in the future because there is a lot of confusion about the rule from the defense side.
For our purposes here, you need to be aware that Rule 16 contains reciprocal discovery obligations on the defense. If you’ve made a request for discovery under Rule 16 (which you always should), then you may have to turn over documents you obtained from a Rule 17(c) subpoena that you plan to use in your case in chief.
From Rule 16(b)(1)(A):
(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:
(i) the item is within the defendant’s possession, custody, or control; and
(ii) the defendant intends to use the item in the defendant’s case-in-chief at trial.
It is a dangerous game to hold back documents that you obtained using a Rule 17(c) subpoena that you plan to use as part of your defense. The judge may preclude you from using them at trial because you didn’t turn them over during discovery.
Don’t Stop Believin’
Despite all the moving parts, don’t give up on Rule 17(c) subpoenas. For someone under criminal investigation, they may be the only way to obtain documents that the government did not want to obtain during its grand jury investigation. They may help you prepare a winning defense at trial.
In a very rare case, you may be able to use documents obtained through a Rule 17(c) subpoena to convince the government to drop the case altogether. That would mean that you obtained the proverbial smoking gun (in a good way). Not to mix too many metaphors, Hail Marys are part of the criminal defense game.