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December 1999 Defense Discovery in White-Collar Criminal Prosecutions: Federal Rule of Criminal Procedure in Subpoenas By Peter J. Henning Peter J. Henning is an associate professor at Wayne State University Law School, Detroit, MI. Professor Henning teaches white-collar crime and criminal procedure. Before entering academia, he was a prosecutor in the Department of Justice Fraud Section and a senior attorney in the Enforcement Division of the Securities and Exchange Commission. This article is based on his presentation to a symposium on criminal discovery conducted by the Georgia State University Law Review in November 1998. Can a defendant in a criminal prosecution subpoena the President of the United States to produce documents that might cast doubt on the credibility of the government’s principal witness? It was Chief Justice Marshall who first considered that issue in 1807 in United States v. Burr.1 The Chief Justice, sitting as a district court judge, enforced a subpoena duces tecum issued by Aaron Burr, the former Vice-President who had been accused of treason, to President Thomas Jefferson. The subpoena sought to compel the President to turn over correspondence he received about Burr’s conduct. Rejecting the government’s argument that a court could not enforce a subpoena directed to the President, Chief Justice Marshall stated: A subpoena duces tecum, then, may issue to any person to whom an ordinary subpoena may issue, directing him to bring any paper of which the party praying it has a right to avail himself as testimony; if, indeed, that be the necessary process for obtaining the view of such a paper.2 The government is not necessarily the sole repository of relevant documents, so the scope of permissible discovery should extend beyond just documents in the prosecutor’s office. For example, a state licensing agency’s investigation of the defendant may involve a large volume of documents that might be relevant to a criminal prosecution by federal authorities arising from the same conduct. Similarly, civil litigation or a bankruptcy proceeding might generate a large cache of records and, equally important, statements by the defendant and other witnesses. Financial records held by banks, claims for reimbursement submitted to insurance companies, and audit reports by accountants often provide crucial evidence for a defendant regarding the flow of funds and a course of performance. Third parties may have records about which the prosecutor is completely unaware, or that the government reviewed but did not consider relevant to its investigation. The records may shed light on whether a defendant’s conduct conformed to industry standards, or otherwise was not unusual or questionable.3 The Federal Sentencing Guidelines create a powerful incentive for organizations to cooperate with the government by alerting it to misconduct by employees. Whether or not the organization is involved in the conduct, it can have valuable information regarding the defendant’s activities. The combinations are almost endless, so that an individual or organization may be dragged into a number of different venues and called upon to defend itself.4 Defending a white-collar case requires access to more than just what the prosecutor gathered in an investigation and decides to use at trial, because what may be relevant to the grand jury’s probable cause determination and proof of guilt may not encompass the documents needed to mount a credible defense. Documents that are not in the hands of the “government” are not subject to discovery because Rule 16(a)(1)(C) only reaches those offices that fall within the definitional scope of the Rule. If a regulatory agency does not come within the ambit of the “government” for the purposes of Rule 16(a)(1)(C), or if a private party holds the records, then a discovery order will not compel the government to obtain and disclose those records. Is a defendant completely bereft of any means to require a third party to produce records? Rule 17(c) permits a defendant to issue a subpoena duces tecum to require the recipient to produce records at trial. The Rule even provides that a court can compel the subpoenaed party to produce the documents before trial, thereby permitting the parties to examine them without interrupting the proceeding. Rule 17(c) appears to provide an obvious means by which defendants can use the power of the government to obtain documents that fall outside the scope of Rule 16(a)(1)(C). The defendant’s ability to use a subpoena has been severely — and by my reading improperly — restricted to only those items the defendant can establish will be admissible at trial. Courts support a narrow reading of the provision by repeating a mantra that Rule 17(c) is not a discovery rule, which is only permissible under Rule 16. That mantra is traceable to two decisions by the Supreme Court that, while reaching a correct result, used overly broad language that created an unfortunate perception of Rule 17(c) as a provision that provides only the most constrained right of a defendant to gather evidence to prepare for trial. Understood in context, the Court’s decisions do not support the broad dictum that Rule 17(c) cannot be used as a means to secure at least some discovery from documents from third parties. Properly understood, Rule 17(c) furnishes an important adjunct to the more familiar discovery procedure in Rule 16(a)(1)(C), that should permit defendants to obtain records from third parties, including government agencies, if defendants can show a sufficient need for them. Development of Rule 17(c) Rule 17 governs the issuance of subpoenas in criminal cases, covering both the grand jury investigation and the trial of criminal charges. Rule 17(c) authorizes subpoenas to obtain documents, subject to certain limitations: (c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. 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.5 Federal Rule of Civil Procedure 45(b), referred to in the Advisory Committee Notes as the analogue for Rule 17(c), authorized issuance of a subpoena compelling a non-party to produce documents at a deposition.6 Rule 45(b) was part of a liberal civil discovery regime providing that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”7 What did the Advisory Committee mean when it asserted that Rule 17(c) is “substantially the same as rule 45(b)”? Rule 17(c) is not limited only to subpoenas to non-parties, and while the language of the provisions is similar, it is not identical. For example, Rule 45(b) permitted the recipient to quash the subpoena production if compliance would be “unreasonable and oppressive,” while Rule 17(c) authorizes a motion to quash or modify the subpoena “if compliance would be unreasonable or oppressive.” More importantly, the policy supporting the broad right to discovery in civil cases is radically different from the limited discovery available under Rule 16, which originally limited discovery to those documents the government “obtained from others by seizure or by process upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.”8 Unlike civil discovery, the Federal Rules of Criminal Procedure begin with the presumption that discovery for a criminal defendant is a limited right. The broad subpoena authority set forth in Rule 17(c), not limited to just non-parties to the prosecution, would essentially swallow the modest provision for discovery granted in Rule 16 if interpreted along the lines of Federal Rule of Civil Procedure 45(b). Rule 17(c) is an enigma because it cannot be interpreted as authorizing an alternative form of discovery through the issuance of a subpoena duces tecum, despite the unadorned language of the provision apparently granting such a right. The Advisory Committee’s reference to Rule 45(a) is enlightening by putting in context the grant of authority for subpoenas for records. Until the amendment of Federal Rule of Civil Procedure 45 in 1991, a civil litigant’s demand for documents from a non-party could only be made through a subpoena directing the witness to produce the documents at a deposition. On the other hand, a litigant could compel another party to produce records by a request under Rule 34(a). The Federal Rules of Civil Procedure provided different means for gathering documents, depending on the recipient’s relation to the underlying proceeding. Using the limited scope of Rule 45(a) as a guide, Rule 17(c) should be understood to provide authority to subpoena third parties to produce records, and not as a potential means to supplant the limited discovery right of Rule 16, which governs the discovery duty owed to the other party. The Federal Rules of Criminal Procedure only provided for depositions in “exceptional circumstances,”9 so the provision in Rule 17(c) for pretrial production of records to the court is more in the nature of a substitute for the civil deposition than a substantive limitation on the right to compel a third party to produce documents. Rule 16, limited as it is, is the effective counterpart to Federal Rule of Civil Procedure 34, governing the discovery rights between the parties without reference to obtaining records from a third party. The failure to identify clearly that Rule 17(c) only authorizes subpoenas to non-parties for records opened an avenue to bypass the more limited discovery right provided in Rule 16. Defendants took advantage of the Rule’s broad language by issuing subpoenas to the government for documents that the prosecutor did not have to produce otherwise, because they fell outside the bounds of Rule 16. Rather than treat Rule 16 as the exclusive means of discovery from the opposing party in the case, courts considered whether Rule 17(c) granted a broader discovery right that effectively supplanted Rule 16. Early cases analyzed whether, for example, defendants could compel production of their statements,10 statements of other witnesses,11 impeachment evidence,12 and all documents obtained during the course of an investigation.13 The Supreme Court entered the fray by reviewing a defense subpoena to the prosecutors in Bowman Dairy Co. v. United States 14 that changed the balance between the discovery right of Rule 16 and the subpoena authority of Rule 17(c). Bowman Dairy: The Confusion Begins In Bowman Dairy, the grand jury indicted the defendants for an antitrust violation, and before trial they subpoenaed the prosecutors to produce all documents gathered in the investigation, including documents the government intended to introduce at trial. The documents at issue included materials voluntarily supplied by third parties for the government’s use in the grand jury investigation. The government moved to quash the subpoena on the ground that “the access of a defendant in a criminal proceeding to materials in custody of Government attorneys is limited to rights granted by Rule 16. . . .”15 The Supreme Court noted the limited scope of Rule 16, that only those records “obtained from others by seizure or by process” were subject to disclosure. The Court held that, to the extent records held by the government were not subject to Rule 16, “No good reason appears to us why they may not be reached by subpoena under Rule 17(c) as long as they are evidentiary.”16 The Court never explained why it read Rule 17(c) as permitting a party to subpoena an opponent in the litigation whose documents otherwise were protected from disclosure to the defendant in a clearly described, if quite limited, discovery provision. Having recognized the broad applicability to Rule 17(c), Bowman Dairy had to keep it from swallowing Rule 16. The Court asserted, “It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. Rule 17(c) was not intended to provide an additional means of discovery.”17 The Court somehow asserted this despite enforcing the subpoena for some of the government’s documents, thereby granting discovery through the auspices of Rule 17(c). If Rule 17(c) only pertained to a subpoena issued to the opposing party, then the Court’s statement might be a defensible reading of the provision. But, Rule 17(c) makes no mention of any limitation regarding who can be subpoenaed for records, so the Court’s holding that the defendants could compel the government to turn over documents not subject to the discovery provision was insupportable. If the Court’s concern was that Rule 16 was too narrow, precluding a defendant from reaching important materials, the answer was to change the Rule that it approved just a few years earlier. The problem, of course, was that in the case before it, important documents the government planned to use to prove the defendant’s guilt had been turned over voluntarily, and therefore were exempt from discovery because they were neither seized nor obtained by process. Rule 16 unfairly limited the defendant’s ability to prepare for trial by rendering important evidence unavailable until the government chose to introduce it at trial. While Bowman Dairy solved the immediate problem of disclosure of relevant documents by the government, the Court’s broad assertion that Rule 17(c) was not a means of discovery was wrong. Understood in the context of the too-narrow grant of discovery under Rule 16, the Court permitted a novel use of Rule 17(c), authorizing a subpoena duces tecum to the prosecutor that effectively created a new discovery right. As Rule 16(a)(1)(C) now reads, the defendants in Bowman Dairy would receive all of the government’s exhibits, including those drawn from voluntarily supplied documents, plus any other records that they could show were “material to preparation of the defendant’s defense.” It is unlikely that a defendant today would need to issue a subpoena for the types of documents at issue in the case, and if one was issued, it would likely be quashed.18 In light of the changes in the discovery rule, the Court’s limited reading of the scope of Rule 17(c) in Bowman Dairy should be rewritten as follows: “Rule 17(c) was not intended to provide an additional means of discovery, against the government, of documents already subject to Rule 16.”19 Although it acquiesced to a defendant subpoenaing the prosecutor, the Court limited its enforcement of the subpoena to items that were “admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons. . . .”20 Rule 17(c) permits the production of items pursuant to a subpoena “prior to the time they are to be offered in evidence.” This limitation on the scope of a Rule 17(c) subpoena allowed the Court to require the government to produce documents it intended to use at trial because those items were by definition evidence for use at trial, without granting defendants the right to pursue a broad range of documents from the government that might not be part of its case in chief. In order to keep this new disclosure obligation as narrow as possible, the Court converted Rule 17(c)’s timing notion into a strict limitation of what would be subject to the subpoena, that only those records or objects that would be admissible at the time of its issuance could be obtained by subpoena. In this manner, the Court rejected the defendant’s expansive request for all documents gathered in the investigation, “whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants.”21 Mixing in an aquatic metaphor that is oft-repeated in this area, the Court assailed the defendants’ catchall demand as “merely a fishing expedition to see what may turn up.”22 While Bowman Dairy essentially created a discovery right against the government broader than that provided in Rule 16, the Court’s effort to limit the scope of this new right ensured that Rule 17(c) would be misunderstood by Bowman Dairy’s blanket assertion that the provision is not a means for defendants to engage in discovery. The Court adopted the concept that the subpoena could only compel the production of evidence, strictly defining that term, so that a defendant would have to meet a high threshold before the subpoena could be enforced against the prosecutor. What the Court failed to consider was the effect of its analysis on what appears to be the original purpose of Rule 17(c), recognized by the Advisory Committee, that defendants could obtain documents from third parties prior to trial by a subpoena duces tecum. Bowman Dairy shifted the focus of the Rule to determining what constitutes “evidence” that may be subject to a subpoena for production before trial. The Court addressed that issue again in a little-noticed aspect of one of its most famous cases, United States v. Nixon,23 in the process of deciding one of its most important separation of powers cases. Nixon: Don’t Forget Who Was Asking The prosecution at issue in Nixon involved the former Attorney General and six high-ranking aides to the President, charged by the Special Prosecutor with, among other things, conspiracy and obstruction of justice.24 After indicting the defendants, the Special Prosecutor issued a subpoena duces tecum to President Nixon for pretrial production of tapes “relating to certain precisely identified meetings between the President and others.”25 The President asserted executive privilege regarding the tapes, and further sought to quash the subpoena on the ground that the Special Prosecutor had not met the requirements of Rule 17(c) for pretrial production. The Court began its analysis by noting that the only ground provided by the Rule for quashing a subpoena was if the production would be “unreasonable or oppressive.” The Court then cited its decision in Bowman Dairy as the “leading case” on this standard, despite the fact that the earlier opinion never referred to the “unreasonable or oppressive” language as a basis for its decision. In fact, Bowman Dairy focused on whether the items were “evidentiary,” to determine whether to permit discovery from the government beyond the confines of Rule 16. Nixon then adopted District Judge Weinfeld’s four-part test in United States v. Iozia26 for what constitutes “evidentiary” material that a party may seek through a subpoena duces tecum under Rule 17(c) for pretrial production: Under this test, in order to require production prior to trial, the moving party must show: (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.”27 Looking at the Special Prosecutor’s subpoena for the tapes, the Court had no trouble finding that the three elements for a subpoena were met. Regarding specificity, the Special Prosecutor identified the dates, times, and participants in the recorded meetings, and through cooperating witnesses could even offer a description of the subjects discussed.29 For the purely evidentiary issues of relevancy and admissibility, the defendants participated in some of the conversations, so the conspiracy charge meant that the statements of co-conspirators would be admissible against each conspirator without objection under the hearsay rule. The Special Prosecutor had already amassed powerful evidence of criminality, and the tapes proved to be the coup de grāce for the Nixon presidency. The Court adopted a high standard for enforcement of the subpoena because it was mindful of the sensitive issues it faced, noting that “[i]n a case such as this . . . where a subpoena is directed to the President of the United States, appellate review, in deference to a coordinate branch of government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied.”30 Nixon’s tripartite requirements of relevancy, admissibility, and specificity for enforcement of a subpoena under Rule 17(c) has the virtue of being plain and direct in addressing the significant issues facing the Court. Despite the weighty matters of constitutional law it grappled with, the Court took only 16 days after the oral argument to issue its opinion. The Rule 17(c) issue, while an important prelude, was unlikely to generate much controversy given the strength of the Special Prosecutor’s evidence supporting the subpoena. Therefore, it is understandable that the Court adopted a high standard, because it would be met by the Special Prosecutor, and demonstrated the care the Court took in reviewing an order compelling the President to turn over the tapes. Yet, in establishing the standard for enforcement of a subpoena under Rule 17(c), the Court never considered the context in which the case arose. Nixon apparently adopted a single standard for judging the propriety of every subpoena seeking pretrial production of records. Unlike Bowman Dairy, however, Nixon involved a prosecutor, not a defendant, seeking items after an indictment. The existence of the tapes was known to the Special Prosecutor before the grand jury handed up its indictment, having been revealed the prior year in the Senate Watergate hearings, so a grand jury subpoena could have been used to obtain the tapes from the President. While the President could have raised the same privilege claim at that point in the investigation, the Special Prosecutor had at his disposal the broad authority of the grand jury, which is entitled to “everyman’s evidence,” yet chose to forego that option for obtaining the information. Unlike a defendant, a prosecutor has a powerful means of gathering evidence before filing charges, so the government’s choice of using a subpoena duces tecum to obtain evidence after an indictment should be subject to a higher standard. The Supreme Court recognized in United States v. R. Enterprises 31 that grand jury subpoenas are different from trial subpoenas under Rule 17(c). The Court held that “the Nixon standard does not apply in the context of grand jury proceedings,” and that a grand jury subpoena is enforceable “unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject matter of the grand jury’s investigation.”32 The question is whether Nixon’s high standard should also apply to defendants issuing subpoenas who did not, and could not, use a grand jury to gather evidence to aid their defense. R. Enterprises makes clear that the “unreasonable or oppressive” standard for quashing a subpoena differs, depending on whether the government issues the subpoena during a grand jury investigation or after filing charges. Rule 17(c) does not impose a unitary standard of reasonableness, so there does not appear to be an a priori reason why a court cannot use a different standard than Nixon’s in deciding whether to enforce a defense subpoena for records from a third party than it would apply to the government. Nixon is a reasonable standard to apply to prosecutors who seek additional evidence to bolster their case, having already gathered sufficient information to decide to seek an indictment and commence the process leading to a criminal trial. The government has the advantage of the grand jury because of the burden it bears in establishing guilt at trial beyond a reasonable doubt. Applying the identical standard to defendants is wrong because they have none of the investigatory advantages of the government, nor the means to compel the production of items about which they may not have a significant amount of information. Treating defendants and prosecutors the same under Rule 17(c) ignores the important distinctions between them. Nixon imposed a high standard, but not because the language of Rule 17(c) either demands or implies that every party using a subpoena for pretrial production must establish relevancy, admissibility and specificity to compel the production of documents. The Rule is silent on what is required before a court can require pretrial production, and Bowman Dairy and Nixon do not provide the only, or even the best interpretation of the defendant’s right to subpoena a third party to produce records. Defense Subpoenas: Changing the Perceived Wisdom Professor Wright’s treatise on federal practice summarized quite starkly the unreflective view of Bowman Dairy and Nixon on subpoenas by defendants: “The availability of Rule 16 should now make it impossible to show good cause for use of Rule 17(c) as a discovery device.”33 Courts have relied on the Supreme Court’s two opinions as the basis to uncritically assail discovery requests as “more in the nature of a ‘treasure hunt’,”34 or as a “pure total fishing expedition.”35 In United States v. Najarian,36 the district court asserted that “if the restrictions of Rule 17(c), upon full-bodied discovery in criminal proceedings, should appear to be unduly constraining, then the answer would seem to lie in its amendment so as to provide for a more expansive exploration into the documentary evidence of third persons.”37 The district court’s statement exemplifies a misapprehension about Rule 17(c), because the rule should provide defendants the means to gather documents from third parties that supplements the discovery provided by Rule 16, but does not supplant it. The problem with the high threshold set by Nixon is that it can discourage defense counsel from even attempting to gather documents from third parties. Courts considering requests for pretrial production of documents under Rule 17(c) require the defendant to demonstrate both the contents of the documents, to meet the specificity element, and describe how the item will be admissible, relevant evidence that establishes a defense. As one district court described the burden on the defendant, “The moving party must specify why the materials are wanted, what information is contained in the documents, and why those documents would be relevant and admissible at trial.”38 The Nixon standard is not easily met because “the documents sought cannot be potentially relevant or admissible, they must meet the test of relevancy and admissibility at the time they are sought.”39 The problem encountered under Rule 16 for determining what is material is exacerbated when the defendant must demonstrate both the content of the document and its evidentiary use at trial before being allowed to examine it to prepare for trial. The Supreme Court’s restrictive interpretation of Rule 17(c) can make a subpoena for records hardly worth the effort, or at least an avenue that only the most hardy defendant will travel when the chance for success seems so remote. I do not mean to imply that defendants never succeed in obtaining pretrial discovery of documents held by third parties under the restrictive analysis of Bowman Dairy and Nixon. In In re Martin Marietta Corp.,40 the trial court granted ordered production to the defendant before trial, of the internal audit workpapers of his former employer in a mail fraud prosecution based on alleged falsified travel records submitted by the defendant to the government for reimbursement. The trial court found the defendant satisfied Nixon’s requirement of relevance, admissibility, and specificity by disclosing how the documents related to his defense “that he was made a scapegoat” for overbilling by his corporate employer, even though the subpoena only described the general category of documents sought.41 Similarly, in United States v. Caruso,42 the district court refused to quash a subpoena duces tecum issued to the defendant’s former employer for documents related to the organization’s internal policies and procedures. The court found that the records met the Nixon test because of the relationship to the defendant’s assertion that they would assist him in establishing that he did not have the requisite intent to defraud the employer.43 In each case, the defendant’s success in gaining access to documents before trial was dependent on the fact that the defendants already knew, based on their employment, which types of documents the former employer held. Requiring that a defendant essentially know the contents of documents before they can be subpoenaed puts a defendant in an almost untenable situation. So long as courts repeat the mantra of Bowman Dairy and Nixon — that Rule 17(c) is not a means of discovery for a defendant — then the requirement that a defendant show the content of records to which they may not have had access will deter adequate pretrial preparation. If Rule 17(c) is viewed as an adjunct to the discovery provided by Rule 16, at least giving defendants a means to review documents held by third parties, then a more balanced approach can be formulated. Even Professor Wright now acknowledges the utility of subpoenas to third parties, that “Rule 16 does not apply to documents in the hands of third parties and Rule 17(c) may still be useful to obtain such documents.”44 In United States v. Tomison,45 the district court stated that “[t]he notion that because Rule 16 provides for discovery, Rule 17(c) has no role in the discovery of documents can, of course, only apply to documents in the government’s hands; accordingly, Rule 17(c) may well be a proper device for discovering documents in the hands of third parties.”46 If Rule 17(c) provides a means for defendants to discover documents held by third parties, then the requirements for obtaining pretrial disclosure need not mimic those adopted in Nixon, which should only apply to government subpoenas for evidence that could have been obtained by a grand jury subpoena prior to indictment. Understanding Rule 17(c) as a limited discovery device does not mean that defendants can use it to bypass the limitations of Rule 16(a)(1)(C). Instead, it would be fair to look to Rule 16 as a guide for the scope of the defendant’s right to obtain documents from third parties. The initial point is that the documents subject to a subpoena cannot already be discoverable under Rule 16, precluding a defendant from using Rule 17(c) to avoid the strictures of Rule 16. The teaching of Bowman Dairy at least requires respect for the structure of discovery adopted by Congress, by not having one rule supplant another. Assuming that the government, as defined by Rule 16(a)(1)(C), did not have possession of the records, then the defendant’s subpoena would seek items that the government did not consider important enough to gather during its own investigation, or about which it was unaware. In either case, the documents did not come from the defendant and the prosecution did not intend to use them in the government’s case in chief. A Rule 17(c) subpoena to a third party seeking production of documents, therefore, would be analogous to a Rule 16(a)(1)(C) discovery request for items “which are material to a defendant’s defense.” Evaluation of the defendant’s right to subpoena a third party should track the materiality analysis for discovery because in each case the right to discovery requires an initial showing by the defendant of good cause for production of the documents. The judicial abhorrence of “fishing expeditions” in Rule 17(c) cases would remain intact, even under a lower standard for defense subpoenas to third parties, because the defendant would still have to establish the need for the document and it relation to a defense at trial. Moreover, limiting discovery to items which the government did not obtain in its investigation blocks defendants who try to bypass the limitations on disclosure of witness statements under the Jencks Act47, because Rule 16 discovery does not permit disclosure of those items before trial.48 Rule 17(c) contains only one express ground on which to challenge a subpoena, that it be “unreasonable or oppressive.” The Supreme Court’s interpretation of that standard in Nixon and R. Enterprises demonstrates that reasonableness under the Rule is contingent on the circumstances in which the subpoena arose. Imposing a materiality requirement similar to Rule 16(a)(1)(C) for evaluating defense subpoenas to third parties is another form of the reasonableness analysis, allowing the court to compel pretrial production only after the defendant shows that the information is significantly helpful to a defense to the charges at trial. This adaptation of the materiality requirement as a determination of the subpoena’s reasonableness permits courts to police subpoenas to non-parties to ensure that defendants do not cast a wide net seeking anything that might be of some slight interest in the hope of landing a helpful item. Yet, a reasonableness requirement lower than Nixon better reflects the defendant’s position as a person without the investigatory authority or resources of the government. While a defendant must have more than a mere inkling about the contents of a third party’s documents, the standard would permit discovery even though the defendant cannot describe the documents with sufficient clarity to meet the three requirements of admissibility, relevance, and specificity. As one district court pointed out: “Of course one person’s fishing expedition is another’s exhaustive investigation.”49 A discovery right limited to only the government’s documents, and those few instances in which a defendant can meet the Nixon requirements, makes adequate preparation, especially in a white-collar prosecution, far from meaningful. Conclusion The analysis that I suggest of defense subpoenas to third parties under Rule17(c) reflects the necessity of defending a white-collar criminal prosecution. The documents are the key to the case, and adequate preparation requires access to more than just what the prosecutor saw fit to gather in the investigation. A government agency that has documents related to the case, but is not sufficiently close to the prosecutor to fit under Rule 16(a)(1)(C)’s definition of “government,” would be a non-party — subject to a defense subpoena under the proposed interpretation of Rule 17(c). If the defendant can establish the materiality of the documents, it is illogical to permit the prosecutor to oppose discovery of records on the ground that they are not in the government’s possession, and then oppose a subpoena for the same records by arguing that the defendant cannot establish the requisite evidentiary foundation for them. Applying two standards to the defendant’s discovery undermines the goal of a fair proceeding through a hypertechnical application of the Rules which allows the prosecutor to thwart disclosure of material documents. White-collar crime involves common occurrences that become criminal through the manipulation of business acts and the intent of the participants to engage in criminal conduct. The transfer of money for a product can change from being ordinary to criminal because of what takes place beneath the surface. Unlike a street crime, white-collar crimes are common acts made criminal, and it is the documents reflecting the conduct that are crucial to establishing whether or not a crime occurred. Denying a defendant access to documents held by third parties, including agencies unaffiliated with the prosecutor, simply because the Supreme Court tried to mask what it did in Bowman Dairy by asserting that Rule 17(c) is not a discovery device elevates an obfuscation into a meaningful legal doctrine. Bowman Dairy and Nixon mean that the Federal Rules of Criminal Procedure intended to exclude a critical area from defense discovery, except in narrow situations when the defendant can show that he knows what is there before even seeing the documents. There is no evidence in the Rules that reflects such a restrictive view of the defendant’s right to discovery, and indeed the language of Rule 17(c) points in the opposite direction. Bowman Dairy and Nixon do not forestall completely a defendant’s efforts to secure documents before trial from third parties, but make it unnecessarily difficult by imposing a high threshold for invoking Rule 17(c) that focuses on the evidentiary nature of the requested documents without reference to the defense at trial. The important limitation on discovery since the adoption of the Federal Rules of Criminal Procedure has been materiality to the defense, not whether the document subject to disclosure meets the prerequisites for admission into evidence at trial. Rule 17(c) should be understood as a counterpart to Rule 16, providing a limited avenue of defense discovery of documents held by third parties that are material to a defense against the government charges. The perceived wisdom derived from Bowman Dairy and Nixon goes too far, and the higher standard they prescribe for defense subpoenas to non-parties for documents misapplies the Rules and denigrates the concept of a fair criminal trial. Notes 1. 25 F.Cas. 30 (C.C. Va. 1807). 2. Id. at 34-35. 3. See United States v. Caruso, 948 F. Supp. 382 (D.N.J. 1996) (enforcing subpoena duces tecum to former employer for records of firm’s internal policies to determine whether employer permitted unwritten deviations from policy); cf. Howard A Matz & Stephen V. Wilson, Obtaining Evidence for Federal Economic Crime Prosecutions: An Overview and Analysis of Investigative Methods, 14 Am. Crim. L. Rev. 651, 651 (1977) (“The ‘proof’ consists not merely of relatively few items of real evidence but of a large roomful of often obscure documents.”). 4. See F. Whitten Peters, Parallel Proceedings, in Federal Criminal Litigation 149 (Barbara A. Reeves et al. eds. 1994) (“A company may be simultaneously threatened, for example, with a congressional investigation, criminal charges, suspension from federal or state contracting, civil fraud, qui tam or false claims actions, and shareholders’ derivative suits.”). I do not deal with the Fifth Amendment privilege against self-incrimination issue in parallel proceedings, which is thoroughly discussed elsewhere. See Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compulsory Process, 47 Vand. L. Rev. 573 (1994). 5. Fed. R. Crim. P. 17(c). 6. “A subpoena may also commend the person to whom it is directed to produce the books, papers, or documents, designated therein. . . .” Fed. R. Civ. P. 45(b). The 1948 amendment added “tangible things” to the items subject to a subpoena. See Charles Alan Wright & Arthur R. Miller, 8A Federal Practice & Procedure (Civil) § 2451 (1995) (reviewing history of Rule 45) 7. Fed. R. Civ. P. 26(b)(1). 8. Fed. R. Crim. P. 16 (prior to 1966). 9. Fed. R. Crim. P. 15(a). 10. See Fryer v. United States, 207 F.2d 134, 137 (D.C. Cir. 1953) (denying inspection of defendant’s statement); United States v. Kiamie, 18 F.R.D. 421, 423 (S.D.N.Y. 1955) (denying inspection of defendant’s statement); United States v. Bryson, 16 F.R.D. 431, 437 (N.D. Cal. 1954) (granting inspection of defendant’s statement). 11. See United States v. Brown, 17 F.R.D. 286, 288 (N.D. Ill. 1955) (denying inspection of written statements of prospective witnesses); United States v. Cohen, 15 F.R.D. 269, 272-73 (S.D.N.Y. 1953) (denying inspection of written statements of witnesses) United States v. Brumfield, 85 F.Supp. 696, 707-08 (W.D. La. 1949) (denying inspection of coconspirator’s grand jury testimony). 12. Compare Fryer v. United States, 207 F.2d 134, 137 (D.C. Cir. 1953) (documents for impeachment are evidentiary under Rule 17(c)), with United States v. Schneiderman, 104 F.Supp. 405, 410 (S.D. Cal. 1952) (denying inspection of documents for rebuttal or impeachment as would not aid in preparation of a defense). 13. See United States v. Maryland & Virginia Milk Producers Association, 9 F.R.D. 509 (D.D.C. 1949) (refusing to permit inspection of all records gathered in investigation). 14. 341 U.S. 214 (1951). 15. Id. at 217. 16. Id. at 219. The subpoena had to reflect a “good faith effort . . . to obtain evidence.” Id. at 220. 17. Id. (emphasis added). 18. See Charles Alan Wright, 2 Federal Practice & Procedure (Criminal) § 274 (1982) (“The distortion of Rule 17(c) that resulted from the desire to use it for discovery purposes should be ended with the 1966 amendments of Rule 16. Any document that might previously have been obtained by defendant through use of a subpoena duces tecum may now be obtained by discovery.”). 19. The only authority that Rule 17(c) does not provide a means for discovery cited by the Supreme Court was United States v. Maryland & Virginia Milk Producers Ass’n, 9 F.R.D. 509 (D.D.C. 1949), a similar antitrust prosecution involving dairy products in which the defendants sought all documents obtained by the government, just as the defendants subpoenaed in Bowman Dairy. Judge Holtzoff, the secretary to the Advisory Committee on the Federal Rules of Criminal Procedure, was the trial judge in Maryland & Virginia Milk Producers Ass’n. He rejected the broad subpoena duces tecum on that ground that Rule 17(c)’s sole purpose “is merely to shorten the trial. It is not intended as a discovery provision.” Id. at 510. The court’s one-page opinion did not cite any support for that proposition, nor is there an analysis of the structure or history of the Rule to explain why the authority to compel the production of records from any person is not a means of discovery. While it may have been Judge Holtzoff’s vie w as a participant in the drafting of the Rule, his ipse dixit proclamation of the meaning of Rule 17(c) certainly is not consistent with either the broad language of Rule 17(c) or its analogue in the Federal Rules of Civil Procedure that permitted subpoenas to non-parties for documents. The Rule does not provide a means to avoid the limitations of Rule 16 on discovery from the government, but that does not mean it cannot be used as a means for discovery outside that context. For a history of Rule 17(c) and discussion of Judge Holtzoff’s role, see Lester B. Orfield, Discovery and Inspection in Federal Criminal Procedure, 59 W.Va. L. Rev. 312, 326-27 (1957). 20. 341 U.S. at 221 (emphasis added). 21. Id. 22. Id. It is not clear whether a recreational excursion such as a fishing trip “turns up” much of anything beyond tall tales, but that was the extent of the Court’s analysis of why a broadly written subpoena was unsatisfactory under Rule 17(c). 23. 418 U.S. 683 (1974). 24. Id. at 687. 25. Id. at 688. “The Special Prosecutor was able to fix the time, place and persons present at these discussions because the White House daily logs and appointment records had been delivered to him.” Id. The Special Prosecutor, Leon Jaworski, obtained the information that allowed him to detail exactly which tapes were sought had been obtained through grand jury subpoenas duces tecum and cooperating witnesses. See Leon Jaworski, The Right And The Power 87-108 (1976). 26. 13 F.R.D. 335 (S.D.N.Y. 1952). 27. Id. at 699-700. 28. 418 U.S. at 700. 29. Id. at 700 (“With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time.”). 30. Id. at 702. 31. 498 U.S. 292 (1991). 32. Id. at 299-300. The lower court had applied Nixon’s three-part test to determine the enforceability of a grand jury subpoena for videotapes related to an obscenity investigation. Consistent with other decisions regarding what evidence a grand jury can consider, see, e.g., United States v. Williams, 504 U.S. 36, 54 (1992) (no authority for district court to require prosecutor to present exculpatory evidence to grand jury); United States v. Dionisio, 410 U.S. 1 (1973) (Fourth Amendment does not apply to grand jury subpoena), the Court adopted a low standard for determining what evidence the grand jury can gather as part of its investigation. 33. Wright, supra, § 274. 34. United States v. Najarian, 164 F.R.D. 484, 487 (D. Minn. 1995). 35. United States v. Hang, 75 F.3d 1275, 1283 (8th Cir. 1996). 36. 164 F.R.D. 484 (D. Minn. 1995). 37. Id. at 488 n.3. 38. United States v. Jackson, 155 F.R.D. 664, 668 (D. Kan. 1994). 39. United States v. Burger, 773 F. Supp. 1419, 1424 (D. Kan. 1991) (emphasis added). 40. 856 F.2d 619 (4th Cir. 1988). 41. Id. at 622. The court even required disclosure of the corporation’s administrative settlements with the government relating to the overbilling on the ground that defendant’s request was “at least a good faith effort to acquire evidence . . . for a defense that Martin Marietta hung him out to dry while protecting its own interest.”Id. 42. 948 F. Supp. 382 (D.N.J. 1996). 43. Id. at 397 (“The documents are relevant to establishing the defendant’s state of mind at the time of the offense, and as such would be admissible at trial.”). 44. Wright, supra, § 274 at 50 n.29 (Supp. 1998). 45. 969 F. Supp. 587 (E.D. Cal. 1997). 46. Id. at 593 n.14. 47. 18 U.S.C. § 3500 (1994). 48. Fed. R. Crim. P. 16(a)(2) (“Nor does the rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.”). 49. United States v. Tomison, 969 F. Supp. 587, 594 n.18 (E.D. Cal. 1997). | |||||||||
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