The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. The defendant Vicente Corona ("Corona") has filed a motion titled Motion For Date Of Production To The Court Of Subpoenaed Items For Examination By Counsel Pursuant To Fed. R. Crim. P. 17(c) [Doc. 206], a Supplement to the Motion [Doc. 226], a Second Supplement [Doc. 243], filed on February 6, 2007, and a Third Supplement [Doc. 258], filed on March 14, 2007. The government has filed a Response in opposition [Doc. 228] and Corona has filed a Reply thereto [Doc. 229]. The Court conducted a hearing on March 6, 2007 attended by counsel for the government, counsel for Corona, and the defendant Corona.
In his motion [Doc. 206], the defendant Corona asks the Court to set a "date certain for pre-trial production of items that defendant Corona intends to subpoena so that the items may be provided to and examined by counsel for the parties a sufficient amount of time prior to trial." Specifically, Corona wants recordings and other records of conversations made involving inmates at the Knox County and Blount County Detention Centers. Corona argues that these items "could be inconsistent with trial testimony offered by the prosecution or could be otherwise exculpatory."
The government, objecting to Corona's Motion, argues that the movant is not entitled, under Rule 17(c)(1) of the Federal Rules of Criminal Procedure, to have designated items produced by a witness in court prior to trial. The government relies on United States v. Nixon, 418 U.S. 683, 698-700 (1974), in which the Court held that in order to require production prior to trial, the moving party must show, inter alia, that the items subpoenaed are evidentiary and relevant and are requested with specificity and not part of a broad discovery strategy. The Nixon Court, moreover, plainly stated that the "need for evidence to impeach witnesses is insufficient to require its production in advance of trial." Id. at 701.
Finally, in its response the government moves to quash the subpoenas [Docs. 220, 221, 252, and 253] served on the Knox and Blount County Detention Centers.
In reply, Corona relies on the Order of Magistrate Judge Inman in United States v. Gunter, 2:06-CR-05,*fn1 a case where the defendant issued subpoenas to 10 law enforcement agencies to produce documents regarding several potential witnesses in the case. In that Order, Judge Inman balanced the legitimate need of the defendant for impeachment material against the well-settled law that Rule 17(c) subpoenas must not be used as a discovery device. Judge Inman then noted that District Judge Greer had voluntarily agreed to review, in camera, the subpoenaed materials five (5) days before trial. Judge Greer then would determine what information in those documents, if any, should be disclosed to the defendant for his use at trial. Judge Inman's ruling, therefore, was predicated on Judge Greer's personal preference in that specific case for the handling of materials subpoenaed pursuant to Rule 17.
In the present case, Corona caused to be issued subpoenas [Docs. 220 and 221] to the Knox and Blount County Detention Centers, requesting all recordings of telephone calls of six "current or former inmates"*fn2, and also requesting:
"any and all associated reports of telephone calls or telephone logs pertaining to the "pin", other identification numbers, or other system of associating the above inmates for purposes of their making and/or receiving telephone calls while at your facility, or reports or logs of telephone calls otherwise affiliated with the above inmates."
The subpoenas specify no time frame relative to the items requested. The defendant Corona seeks the recordings for all time periods when the subject inmates were incarcerated. The subpoenas were served on December 6, 2006, and directed that the items be produced at the undersigned's courtroom on December 18, 2006, the date set for hearing pretrial motions. After filing his motion, apparently Corona anticipated, for a time, that he would receive the items on December 18, 2006 and that his motion would be moot. [Doc. 226]. However, on December 18, 2006, the court, due to substitute counsel entering the case for defendant Hughes, re-scheduled the hearing for pretrial motions from December 18, 2006 to March 6, 2007. [Doc. 232]. The Court later re-scheduled the hearing on pretrial motions to April 2, 2007. [Doc. 244]. Although representatives of the Knox and Blount County Detention Centers apparently were at Court on December 18, 2006, along with the subpoenaed items, prepared to comply with the subpoenas, they did not deliver the items to counsel for Corona. Corona now [Doc. 243] is asking for the Court to order that the subpoenaed items be produced to him prior to the April 2, 2007 hearing on pending motions.
A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The Court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
Fed. R. Crim. P. 17(c)(1).
Corona argues [Doc. 243] that the Blount and Knox County Detention Centers routinely provide audio recordings of inmate's phone conversations to the government. Corona further alleges that the investigating agents of the government, in the present case, have already been provided with the recordings, or copies thereof, of the phone calls in which Corona is a party to the conversation. Corona alleges that these recording have not been provided to his counsel, despite his ...