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United States v. Walker

November 24, 2008

UNITED STATES OF AMERICA
v.
TERRY WALKER



The opinion of the court was delivered by: R. Barclay Surrick, Judge

SURRICK, J.

MEMORANDUM & ORDER

Presently before the Court is Defendant's Ex Parte Motion for Subpoenas Under Seal. For the following reasons, Defendant's Motion will be granted in part and denied in part.

I. BACKGROUND

This matter arises in the context of an ongoing trial for various drug trafficking offenses, including conspiracy to distribute controlled substances. Trial started on Monday, November 17, 2008. On Wednesday, November 19, 2008, counsel for Defendants Terry Walker, Keenan Brown, and Robert Cooper indicated that they had an ex parte motion to make to the Court. At the close of trial that day, we held a sidebar conference at which defense counsel made two requests. One of those requests involved the Court permitting a subpoena to issue for recorded inmate telephone calls made by government witness Monique Pullins at the Federal Detention Center. Pullins was taken into custody in March of 2008 after her conviction for participation in the instant drug conspiracy. Pullins began to cooperate with the Government after her conviction, and the Government expects to call her as a witness in this trial. Defense counsel argued that the recorded inmate telephone conversations could contain impeachment material and requested their disclosure under Brady v. Maryland, 373 U.S. 83 (1963). We directed that defense counsel submit a formal motion setting forth with specificity why the telephone conversations were needed, why the application was being made ex parte, and why the motion was coming three days into trial.

Defense counsel for Terry Walker submitted a Motion on Thursday, November 20, 2008, in which co-defendants Brown and Cooper joined. Defendants request that a subpoena issue to the Custodian of Records for the Federal Detention Center in Philadelphia to produce "[a]ny and all recorded inmate telephone calls made by inmate Monique Pullins for the period of 30 days preceding the service of this subpoena." (Def.'s Ex Parte Mot. at 1.) Defendant argues that the Motion and this Court's subsequent Order should be sealed because "[t]he application contains confidential defense work product and case theory which would be inappropriate to provide to the government at this time. Fed. R. Crim. P. 17 specifically provides for an in forma pauperis defendant to proceed ex parte." (Def.'s Ex Parte Mot. at 1.) Defendant explains that the subpoena for telephone recordings from the Federal Detention Center is made pursuant to Brady v. Maryland as such tapes may contain exculpatory and/or impeachment evidence relating to Monique Pullins, a government cooperator. Defense counsel was made aware of Ms. Pullins' cooperation of November 15, 2008 upon receiving a two page memorandum of interview from the government summarizing proffer sessions with the government from April 1, 2008 until October 24, 2008. The Defendant has been provided no other discovery or Jencks material for Ms. Pullins. The government routinely subpoenas telephone records for inmates in order to investigate cases and for purposes of obtaining impeachment materials when defendants testify at trial. To deny the Defendant the same right of access to such material would be unconstitutional. (Def.'s Ex Parte Mot. at 2.) Defendant asserts that he is aware that Rule 17(c) subpoenas are not meant to provide a means for discovery. (Id. at 3.)

At the close of trial on Friday, November 21, 2008, we held an ex parte hearing with all defendants and defense counsel present. Defense counsel reiterated their position that Defendants are entitled to review potential impeachment material. We took the matter under advisement.

II. DISCUSSION

"It is well settled that there is no general constitutional right to discovery in a criminal case although the prosecution has the 'duty under the due process clause to insure that criminal trials are fair by disclosing evidence favorable to the defendant upon request.'" Diggs v. Owens, 833 F.2d 439, 443-44 (3d Cir. 1987) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)) (internal quotes omitted).

Federal Rule of Criminal Procedure 17 governs subpoenas for the attendance of witnesses, as well as the production of documents and objects. At issue in this case is Rule 17(c), which provides 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). Although Rule 17(c) says nothing about ex parte motions, Rule 17(b) permits indigent defendants to subpoena witnesses ex parte. Fed. R. Crim. P. 17(b). There is a disagreement among courts as to whether Rule 17(c) subpoenas may issue ex parte. Some courts have held that Rule 17(c) subpoenas may issue ex parte in limited circumstances. See United States v. Fox, 275 F. Supp. 2d 1006, 1011 (D. Neb. 2003) (collecting cases). Other courts have concluded that the language of Rule 17(c) does not permit ex parte subpoenas. See, e.g., United States v. Stewart, No. 96-583, 1997 U.S. Dist. LEXIS 2444, at *5 (E.D. Pa. Mar. 4, 1997) ("We agree with the majority of courts which have examined this issue that the plain language of Rule 17(c) does not contemplate ex parte procedure, at least absent extraordinary circumstances.").

We note that in general ex parte proceedings are disfavored in this Circuit. See United States v. Wecht, 484 F.3d 194, 214 (3d Cir. 2007). However, the Court of Appeals "will permit the trial court to entertain such motions where the movant shows good cause." United States v. Wecht, No. 06-0026, 2008 U.S. Dist. LEXIS 8078, at *14-15 (W.D. Pa. Feb. 4, 2008). For example, if defendant wishes to secure documents in advance of a witness' [sic] testimony but, because he fears that filing the motion required by Rule 17(c) will require him to divulge trial strategy to the detriment of his defense or in ...


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