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United States v. Smith

United States District Court, W.D. North Carolina, Asheville Division

July 17, 2018

UNITED STATES OF AMERICA
v.
DENISE ANN SMITH.

          ORDER

          DENNIS L. HOWELL UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion to Enforce Compliance with a Subpoena [# 29], Motions to Quash the Subpoena Duces Tecum [# 53, # 56], and the Motion to Quash the Subpoena ad Testificandum [# 55].

         Procedural Background.

         On February 6, 2018, the grand jury returned an indictment charging Defendant with making false statements in connection with the purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6). On March 27, 2018, Defendant filed an ex parte Motion for a Subpoena Duces Tecum [# 24]. In the Motion, Defendant sought two-years' worth of 4473 forms from American Tactical and Pawn (ATP). After the Court issued the Subpoena [see # 25], Adam Queen, general manager of ATP, stated that he had wished to comply with the subpoena but was forbidden to hand over the records. On April 12, 2018, Defendant filed a Motion to Comply with the Subpoena [# 29].

         On April 18, 2018, the Court held a show cause hearing regarding Defendant's Motion to Comply. On April 19, 2018, the Court entered an Order directing Queen to send a copy of a limited number of the requested 4473 forms to the Court for in camera review [# 32]. Further, the Court directed Defendant to file an ex parte brief outlining the defense strategy and the need for the forms [# 32].

         Upon review of the 4473 forms and Defendant's brief, the Court sua sponte ordered that both ATP and Queen must retain counsel or request appointment of such counsel [# 43]. The Court had become concerned with potential violations of Fifth Amendment rights [Id.]. The Court then set a hearing for July 12, 2018 [Id.]. On June 12, 2018, the Court appointed counsel for ATP and Queen. On June 20, 2018, the Court granted Defendant's Motion for a Subpoena ad Testificandum [# 48], ordering Defendant's co-defendant Brandon Randall appear at the July 12th hearing. On July 3, 2018, Queen filed his Motion to Quash [# 53]. On July 5, 2018, co-defendant Randall filed his Motion to Quash [1:18-cr-9-1 # 55].[1] On July 6, 2018, ATP filed its Motion to Quash [# 56]. On July 12, 2018, the Court held a hearing and heard argument on these Motions.

         Legal Standards: Federal Rule of Criminal Procedure 17.

         Rule 17(c) provides the procedure available for the issuance of a subpoena duces tecum. Fed. R. Crim. P. 17(c). Further, Rule 17 states that if a Defendant shows “an inability to pay” and “the necessity . . . for an adequate defense, ” then the fees associated with a subpoena will be paid “in the same manner as those paid for” by the Government. Fed. R. Crim. P. 17(b). Rule 17(c), however, is not intended “to give a right of discovery in the broadest terms.” Bowman Dairy Co. v. U.S., 341 U.S. 214, 220 (1951). Thus, the Supreme Court held in United States v. Nixon, 418 U.S. 683 (1974), that pretrial production of evidence is only appropriate where a moving party can 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.'

Id. at 699. “[T]he decision whether to require production of the requested documents pre- trial rests ultimately within the sound discretion of the district court.” U.S. v. Beckford, 964 F.Supp. 1010, 1022 (E.D. Va. 1997).

         Finally, Rule 17 allows for the quashing of a subpoena duces tecum “on motion made promptly . . . if compliance would be ...


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