United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
before the Court is the Government's Motion to Quash
Defendant's Rule 17 Subpoenas. Dkt. 75.
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).
reasons set forth below, the Court GRANTS in PART and DENIES
in PART the Government's Motion.
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.
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.
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.
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
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).
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).
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.”).
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.”).
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
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
this case, both parties have discussed the search terms and
filters utilized by agents analyzing ESI seized from
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.
though, the Court must address two supplemental issues.
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
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 ...