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United States v. Hansen

United States District Court, D. Idaho

September 13, 2019

DAVID HANSEN, Defendant.




         Pending before the Court is the Government's Motion to Quash Defendant's Rule 17 Subpoenas. Dkt. 75.[1]

         Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).

         For the reasons set forth below, the Court GRANTS in PART and DENIES in PART the Government's Motion.


         Yellowstone Partners, LLC, (“Yellowstone”) is an investment advisory firm located in Idaho Falls, Idaho. David Hansen was the owner and Chief Executive Officer of Yellowstone. The Government has charged Hansen with multiple counts of wire fraud and tax violations. Broadly speaking, the Government alleges that Hansen targeted certain Yellowstone clients in a vast overbilling scheme.

         During the pendency of this litigation, Hansen has frequently argued that he is entitled to know the “search terms” and “filters” employed (primarily) by FBI Special Agent Drew McCandless (“SA McCandless”) to search the electronically-stored information (“ESI”) seized from Yellowstone. Additionally, Hansen requests the Special Agent Report (“SAR”) of IRS-Criminal Investigation Special Agent Melissa Ripley (“SA Ripley”). The Government has maintained-and put Hansen on notice as early as February 2019-that it considers this information to be privileged and/or not discoverable.

         In preparation for the (then scheduled) suppression hearing, Hansen issued Rule 17(c) subpoenas to SA McCandless and SA Ripley requesting, among other things, the above-mentioned items. The Government moved to quash the subpoenas.


         Federal Rule of Criminal Procedure 16 provides, in part, that:

Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or o ther i n ternal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500 [the Jencks Act].

         Fed. R. Crim. P. 16(a)(2). This rule is commonly referred to as the government's “work product” rule. See United States v. Fort, 472 F.3d 1106, 1115 (9th Cir. 2007) (citing cases). The rule not only protects the “the mental impressions, conclusions, opinions, or legal theories of the attorney for the government or other government agents, ” but also all “reports, memoranda, or other internal government documents.” Id. (citing Fed. R. Crim. P. 16 (1975 enactment) Advisory Committee's Note D).

         Under Federal Rule of Criminal Procedure 17(c), a subpoena may order a witness to produce books, papers, documents, data, or other objects. Fed. R. Crim. P. 17(c)(1). This rule, however, does not expand discovery beyond the dictates of Rule 16. Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951) (“Rule 17(c) was not intended to provide an additional means of discovery . . . . 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 sense.”). Indeed, a motion to compel production made pursuant to Rule 16 is the exclusive mechanism for a defendant to discover from the government documents and objects “material to the defense.” See Fed. R. Crim. P. Rule 16(a)(1)(E)(i) and (d).

         The party issuing the Rule 17(c) subpoena must demonstrate that:

(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.'

United States v. Nixon, 418 U.S. 683, 699-700 (1974). The decision whether to enforce a subpoena is left to the district court's discretion. Nixon, 418 U.S. at 702 (“Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues.”).

         A court may quash or modify a criminal defendant's Rule 17 subpoena if compliance would be unreasonable or oppressive. See Fed. R. Crim. P. 17(c)(2). Further, Rule 17(c) subpoenas may not be used to obtain the “statement of a witness or of a prospective witness” before they have testified, also known as Jencks Act materials. Fed. R. Crim. P. 17(h) (“No party may subpoena a statement of a witness or of a prospective witness under this rule.”).

         IV. ANALYSIS

         In its Motion, the Government requests three things: first, that the Court quash the Rule 17 subpoenas; second, that the Court limit inquiry into certain topics at the suppression hearing; and third, that the suppression hearing not be continued.

         The Government's third request is moot as the Court has already moved the date of the suppression hearing. The Government's second request is somewhat convoluted, and the Court will discuss it in greater detail below. The Court begins, however, with the most relevant issue: the Rule 17 subpoenas.

         A. Subpoenas

         Throughout this case, both parties have discussed the search terms and filters utilized by agents analyzing ESI seized from Yellowstone.

         On July 18, 2019, as part of a “Status Notice, ” the Government explained that it would not turn over this information and, furthermore, that testimony at the Motion to Suppress hearing from SA McCandless and SA Ripley was unnecessary. During the actual status conference on July 19, 2019, Hansen made clear he intended to question SA McCandless and SA Ripley on these topics. Subsequently, on July 23, 2019, Hansen issued Rule 17 subpoenas to SA McCandless and SA Ripley requesting these, and other, items. The Government moved to quash the subpoenas arguing that the information sought was irrelevant, or alternatively, privileged and protected from disclosure. The Court will address each argument in turn.

         Initially, though, the Court must address two supplemental issues.

         First, in its moving papers, the Government criticizes Hansen, claiming that the proper avenue for seeking this information is a Motion to Compel rather than Rule 17 subpoenas. Accordingly, Hansen filed a Motion to Compel (Dkt. 82) incorporating his argument and analysis contained in his Response to the Government's Motion to Quash. No. response or reply briefs were filed in that motion (by design).

         Second, Hansen criticizes the Government for not submitting the disputed materials to the Court for an in camera inspection and review. Accordingly, in replying to its Motion to Suppress, the Government submitted the search terms for all searches conducted using the FBI's review software. Dkt. 83, exhibit G (submitted in camera ...

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