United States District Court, D. Kansas
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION
TO ISSUE RULE 17 SUBPOENA
D. CRABTREE, UNITED STATES DISTRICT JUDGE
Thomas S. Fritzel and Keela Lam, moving under Fed. R. Crim.
P. 17(c), have asked the court to issue a subpoena duces
tecum to the City of Lawrence, Kansas. Their motion, Doc. 49,
asks for a subpoena seeking certain records for the
12th & Oread Tax Increment Financing District
and the 12th & Oread Transportation
Development District. Defendants originally presented this
request on an ex parte basis, and the court denied that ex
parte motion. Doc. 48. It concluded that the original motion
had failed to demonstrate why the court should hear it
entirely on an ex parte basis, as this court's cases
require. See United States v. Daniels, 95 F.Supp.2d
1160, 1163 (D. Kan. 2000). An entirely ex parte proceeding
seemed especially unwarranted here because the putative
recipient of the subpoena was a state-governmental entity.
And thus, it seemed likely that the United States and the
public generally likely would learn about the subpoena.
decision on defendants' ex parte motion, the court
explained that it would consider issuing the requested
subpoena if defendants filed a publicly available motion.
But, the court recognized, requiring defendants to provide
their rationale for the records sought by the subpoena in a
publicly available motion would prejudice defendants
unfairly. Namely, providing defendants' rationale to the
government would require defendants to share their case
theory and other trial strategy with the prosecutor. The
court thus granted defendants leave to file that portion of
their motion on an ex parte basis. Defendants responded with
a new motion, Doc. 49, and filed their rationale for
requesting this subpoena in the ex parte filing the court had
permitted. Docs. 49 & 50.
approach limited the prosecution's visibility.
Specifically, the government only could see Doc. 49, and it
did not have access to the extensive rationale provided in
defendant's ex parte Memorandum, Doc. 50. Reasonably
believing that defendants had provided a skeletal, conclusory
motion, the government has now filed an Opposition. Doc. 51.
It objects to the defendants' motion. Defendants filed a
publicly-assessible reply countering the government's
Opposition. Doc. 52.
court has decided to overrule the government's objection
and grant defendants' motion. The court thus orders the
Clerk to issue the requested subpoena to the City of Lawrence
under Rule 17(c). The explanation provided in defendants'
ex parte filing satisfies the standards imposed by Rule 17,
and the cases construing it. Also, the court concludes that
issuing the subpoena will expedite the trial and minimize the
burden imposed on the jurors empaneled for it. The subpoena,
contrary to the government's objection, isn't a
fishing expedition. Instead, it seeks documents that have a
demonstrated potential to be relevant. Defendants cannot
otherwise procure the records without the subpoena, and they
cannot prepare effectively for trial without having access to
them before trial. Finally, nothing suggests that
defendants' request lacks good faith. United States
v. Nixon, 418 U.S. 683, 699-700 (1974).
court recognizes that the process the court has directed
defendants to follow compromises the general rule against
fully visible, adversarial proceedings. But this process is
the best one available under the circumstances. It permits
the non-issuing party-here, the government-to know about the
request and the documents it would seek, should the subpoena
issue. It allows the court to review the rationale for
requesting the subpoena, insuring that Rule 17's
processes and standards are not abused. And finally, it
permits the subpoena's proponent to preserve its trial
strategy and case theory. This approach balances the equities
appropriately. Nothing requires the government to share its
case theory with defendants. And, Article II agencies
sometimes issue administrative subpoenas to assist the
Department of Justice's work investigating and
prosecuting criminal charges. The government has not
explained why the court should deprive defendants of access
to compulsory process to accumulate their defense
government's Opposition makes two final arguments. Rule
17(c) provides that the court “may” require the
recipient to submit the responsive records to the court who,
in turn, may permit the parties to inspect all or any part of
them. Id. at 698. The government argues that
defendants “flout the Federal Rules of Criminal
Procedure [by] demanding that the documents be
produced” to defendants' counsel in Arizona. Doc.
51 at 3. The government's argument is partially correct,
as Rule 17 provides that the issuing court “may
direct” the witness to produce the designated items in
court, before trial or use at trial. While the court has
required strict compliance with this process in some
instances, it is unnecessary here. None of the requested
records appears to present a privilege or privacy concern for
anyone other than the subpoena's recipient. If the
subpoena will present such a concern for the City of
Lawrence, it is a sophisticated governmental entity whose
lawyers surely will raise any such concern. The
government's argument is particularly perplexing because
defendants' proposed order requires defendants to provide
the United States with access to all records provided
“in a timely manner.” In contrast, the court is
persuaded that requiring the City of Lawrence to produce the
records at counsel's office in Phoenix, Arizona, might
impose a needless burden on the City of Lawrence. Though this
is unlikely in the digital age of record production, the
court nonetheless directs the Clerk to issue a subpoena
requiring production of the records at Mr. Lemon's office
in Topeka, Kansas.
defendants' motion asks that the order issuing the
subpoena include a “records-custodian affidavit
pursuant to Rule 902(11) of the Federal Rules of
Evidence.” Doc. 49 at 1. Defendants have supplied no
authority authorizing the court to direct that a Rule 17(c)
subpoena include such an Affidavit. While it might make sense
someday for the City of Lawrence to provide a custodian's
affidavit that could satisfy the authentication requirement,
the court declines to imposes that as part of the subpoena
that the Clerk will issue under Rule 17.
IT IS ORDERED THAT defendants' Motion for
Production of Documents and Objects [Under] Fed. R. Crim. P.
17(c) (Doc. 49) is granted in part and denied in part. The
Clerk of the Court shall issue the subpoena sought by Doc.
49. But the subpoena shall require the recipient to produce
the designated records at the law offices of counsel of
record Thomas G. Lemon, Cavanaugh, Biggs & Lemon, PA,
2942A Southwest Wanamaker Drive, Suite 100, Topeka, Kansas,
66614 on or before April 30, 2019.
IS FURTHER ORDERED THAT defendants' counsel must
provide the United States with copies of all records provided
by the City of Lawrence within five days of receipt.
IS FURTHER ORDERED THAT defendants' request for
issuance of a custodian's affidavit as part of the Rule
17(c) subpoena is denied.
IS SO ORDERED.