United States District Court, D. Colorado
ORDER GRANTING IN-PART AND DENYING IN-PART MOTION FOR
ISSUANCE OF SUBPOENAS
GORDON
P. GALLAGHER UNITED STATES MAGISTRATE JUDGE
Defendant
moves for the issuance of subpoenas (ECF #36)[1] and the
Government objects-essentially moving to quash (ECF #38).
Based on the unanimous consent of the parties (ECF #15) and
the referral from Chief Judge Krieger (ECF #16) I have
jurisdiction to determine this non-dispositive
matter.[2]
Defendant
moves for the issuance of two subpoenas, one for Trooper
Shane Gosnell and the other for Deputy Mike Miller, for a
motion hearing set before the Court on July 13, 2018. As an
initial matter, the Court finds it appropriate to issue the
Gosnell subpoena for the presence of that witness and will do
so contemporaneously with this Order, but striking the
duces tecum language on the proposed subpoena.
As
indicated above, it is the duces tecum language that
is at issue. Defendant requests the following from Trooper
Gosnell:
All information sent to and received from both Trooper
Gosnell and Deputy Miller's MDC, (Mobile Data Computer)
including but not limited to: all logs to including all
dispatch logs, all dispatch information including all
driver's license information, all vehicle information,
and any and all information contained within. All terminal to
terminal (car to car) messages sent from and received by both
their MDCs (Mobile Data Computer) on July 5, 2017.
ECF #36-1. And the following from Deputy Miller:
All information sent to and received from both Trooper
Gosnell and Deputy Miller's MDC, (Mobile Data Computer)
including but not limited to: all logs to including all
dispatch logs, all dispatch information including all
driver's license information, all vehicle information,
and any and all information contained within. All terminal to
terminal (car to car) messages sent from and received by both
their MDCs (Mobile Data Computer) on July 5, 2017.
IN LIEU OF TESTIFYING, Trooper Miller and/or any custodian of
records may email or fax the above listed records to the
address and number listed below accompanied by a Business
Records Affidavit in accordance with CRE 803.
ECF #36-2.
Fed. R.
Crim P. Rule 17 permits the issuance of subpoenas to
witnesses to produce documents and other data before trial.
The relevant standard Defendant must meet to require
production is outlined in United States v. Nixon,
418 U.S. 683 (1974). In determining whether a criminal
defendant has a right to materials through a subpoena on
third party, the court must consider the following factors:
(1) whether the materials are evidentiary and relevant; (2)
whether the materials are not otherwise procurable reasonably
in advance of trial by the exercise of due diligence; (3)
whether the requesting party cannot properly prepare for
trial without such production and the failure to obtain such
inspection may tend unreasonably to delay the trial; and (4)
whether the requesting party's application is made in
good faith and is not intended as a general fishing
expedition. Nixon at 699-700. The burden of
establishing these elements is on the party seeking
enforcement of the subpoena under Rule 17. United States
v. Morris, 287 F.3d 985, 991 (10th Cir.2002).
As
indicated above, this action is currently set for a motion
hearing on July 13, 2018. Defendant's motion to suppress
(ECF #24), challenges the reasonable suspicion and probable
cause for law enforcement to stop Defendant. In support of
the motion for subpoenas, Defendant merely notes that the
evidence sought “is relative to the Constitutional
issues raised by Defendant's previously filed Motion to
Suppress Evidence.” Id. at p. 2. While the
Court can see that the first Nixon factor, relevance
is perhaps obvious on its face, no effort has been made-or at
least not expressed to the Court-to show why these materials
are not otherwise available. As factor two, availability, has
not been addressed, the Court need not move on to the other
Nixon factors.
As to
the Miller subpoena, based on the qualifying language
allowing satisfaction upon production of records, it does not
appear to the Court that Deputy Miller is required for
testimony. For that reason, and in keeping with the above
application of the Nixon factors, the Miller
subpoena will be denied.
For the
foregoing reasons, Defendant's motion for issuance of
subpoena ECF #34, is DENIED as MOOT as it is superseded by
ECF #36.
Defendant's
motion for issuance of a subpoena to Trooper Gosnell is
GRANTED as to his physical presence for testimony only. The
Clerk of Court SHALL issue the attached subpoena.
Defendant's motion for ...