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United States v. Benanti

United States District Court, E.D. Tennessee, Knoxville

January 6, 2017


          VARLAN Judge.


          C. Clifford Shirley, Jr. 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. This case is before the undersigned on the Defendant's Motion for Issuance of a Subpoena Duces Tecum [Doc. 52], filed on September 9, 2016. Defendant Benanti asks the Court to issue a subpoena duces tecum to the Blount County Jail and Henderson County, Kentucky Jail, directing these facilities to produce the recorded jail telephone conversations[1] of his codefendant Brian Witham with Witham's girlfriend Kathy McGrath. The Defendant contends that he needs access to these recordings in order for counsel to listen to the fifteen hours of recorded telephone conversations before trial. He argues that these recordings are evidentiary, relevant, necessary to his trial preparation, and requested in good faith. The Government opposes [Doc. 53] the Defendant's request, arguing that, at most, the recorded calls are relevant to impeach Defendant Witham's testimony and that such is not a permissible use of a subpoena duces tecum.

         The parties appeared for argument on this motion on September 30, 2016. Assistant United States Attorney David P. Lewen appeared on behalf of the Government. Attorneys Richard L. Gaines and Robert R. Kurtz represented the Defendant, who was also present. The Court heard the parties' argument, asked the parties to file supplemental briefs on whether the recorded telephone conversations are “statements” under the Jencks Act, and permitted the Defendant to file an ex parte memorandum, explaining how the requested recordings are relevant to his defense. The Defendant filed his supplemental brief [Doc. 62] on October 7, 2016, and the Government responded [Doc. 66] on October 11, 2016. The Defendant filed the ex parte memorandum [Doc. 64] and six exhibits on October 7, 2016. He also filed an additional exhibit [Doc. 83] on November 11, 2016.

         After receipt of the parties' briefs and exhibits, the Court took the matter under advisement. For the reasons discussed below, the Court finds that the Defendant may not gain the recorded jail telephone conversations through a subpoena duces tecum. However, the Court also finds that the Government should produce the recordings as early Jencks Act materials.

         I. ITEMS SOUGHT

         At the September 30 hearing, AUSA Lewen stated there are audio recordings of sixty (60) telephone calls between Witham and Ms. McGrath, each lasting approximately fifteen (15) minutes, for a total of fifteen (15) hours of recorded telephone conversations. He stated that the Government had reviewed these recorded conversations and that they contained nothing helpful to the defense. He said that while the Government was required to turn over Giglio (impeachment) materials, nothing in the recorded conversations at issue were Giglio material at this point, because Witham had not testified. Mr. Gaines said that the defense had asked the Government for the recordings, but the Government had declined to disclose them. Mr. Gaines stated that the Defendant needed these recordings in order to be prepared to impeach Witham's testimony at trial and because they are relevant and material to a defense theory, which he revealed to the Court in an ex parte filing. He argued that the Government has listened to and analyzed all of these recording and that it is unfair to deny the Defendant access to them in time to prepare for trial.

         II. ANALYSIS

         With regard to the production of documents or objects, Rule 17 of the Federal Rules of Criminal Procedure provides generally that

[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). The Court may quash or modify a Rule 17 subpoena upon a motion promptly made if “compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2). In assessing the propriety of a Rule 17 subpoena, the Sixth Circuit follows the standard formulated by the Supreme Court in United States v. Nixon, 418 U.S. 683, 699 (1974):

[P]roduction pursuant to Rule 17(c) is appropriate where it is shown that: (1) the documents are evidentiary and relevant; (2) they are not otherwise procurable, with due diligence, in advance of trial; (3) the party cannot properly prepare for trial without such production and inspection in advance of trial; and (4) the application was made in good faith and is not a fishing expedition.

United States v. Hughes, 895 F.2d 1135, 1146 (6th Cir. 1990). Rule 17(c) is not intended to be used as a discovery device. Nixon, 418 U.S. at 702; see also United States v. Justice, 14 F. App'x 426, 432 (6th Cir. 2001). “A subpoena duces tecum must be reasonable, specific, and the documents requested must be relevant.” Justice, 14 F. App'x at 433 (citing Bowman Dairy Co. v. U.S., 341 U.S. 214, 220 n.5 (1951) and United States v. Kalter, 5 F.3d 1166, 1169 (8th Cir. 1993)).

         In the instant case, the crux of the disagreement appears to be over whether the recorded jail conversations are admissible at trial for anything other than to impeach Witham. However, the Court discerns a problem even more basic. Rule 17(h) provides that “[n]o party may subpoena a statement of a witness or of a prospective witness under this rule.” Instead, “Rule 26.2 governs the production of ...

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