The opinion of the court was delivered by: Judge Conner
Presently before the court are two motions (Docs. 140, 159) and an application (Doc. 158) filed pro se by defendant Allen Roberts, Jr. ("Roberts"). In these motions, Roberts requests that the court subpoena seven individuals and numerous documents and notes produced by these individuals, for purposes of the suppression hearing set to commence on Friday, November 4, 2011, at 9:30 a.m. (See Doc. 156).
Roberts was criminally indicted by a federal grand jury on September 1, 2010 for a violation of 21 U.S.C. § 841(a)(1) stemming from an alleged controlled buy of crack cocaine on July 19, 2010. (Doc. 1). An arrest warrant issued the same day (Doc. 7), and Roberts was arrested the following day on September 2, 2010. Through suppression motions (see Docs. 43, 111, 112) Roberts, and former counsel on behalf of Roberts, allege numerous Fourth and Fifth Amendment violations which they believe warrant the suppression of evidence and statements obtained by law enforcement officials. Roberts' main allegations are: (1) that the search of Roberts' vehicle on the date of his arrest, September 2, 2010, violated the Fourth Amendment (Doc. 43); (2) that the video surveillance taken of the controlled buy, forming the basis of the indictment against Roberts was obtained in violation of state and federal wiretap laws (Doc. 111, at 4; Doc. 157, at 1-4); (3) that the stop of Roberts' vehicle was unlawful and he was searched and arrested in violation of his rights (Doc. 112, at 1-2); (4) that he was not given his Miranda warnings (id. at 3); and (5) that his participation in a proffer interview on September 29, 2010, was not knowing and voluntary, but coerced by his then counsel Robert Daniels, Esquire. (Doc. 112, at 3-5).
Roberts filed his first motion to subpoena individuals and documents for the suppression hearing on September 19, 2011. (Doc. 140). The court ordered Roberts to provide a description of the testimony he expected to elicit from the witnesses he sought to subpoena and its relevance to the suppression hearing. (Doc. 151). In response, Roberts filed a description of the testimony (Doc. 159), which is docketed as a motion, and an ex parte application for issuance of subpoenas for witnesses, documents, evidence and surveillance. (Doc. 158). For the reasons that follow, the court will grant the motions in part and deny them in part.
Pursuant to Federal Rule of Criminal Procedure 17, the court "must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness's fees and the necessity of the witness's presence for an adequate defense." FED. R. CRIM. P. 17(b). The rule does not provide defendants an absolute right to have witnesses or evidence subpoenaed at government expense. The court must find, in addition to financial inability to pay, that the requested witnesses are necessary for the defendant's defense. Id.
Roberts requests that the court subpoena the following seven individuals for the suppression hearing: (1) Special Agent William Cooke; (2) Detective Jason Paul; (3) Special Agent Keith Kierzowski; (4) Officer Karl Chortanoff; (5) Officer Gray Flyth, Jr.; (6) Officer Jason Turchetta; and (7) Officer Corey Dickerson. (Doc. 140, at 2). The government has informed the court that it will present testimony from Special Agent Kierzowski, and Officer Chortanoff. Roberts' request to subpoena these two individuals is therefore denied as moot. The court will address the request for the remaining five individuals and evidence.
Roberts requests that the court subpoena Special Agent Cooke on his behalf, asserting that Special Agent Cooke arrived at the Lower Paxton Police Department after being contacted by Special Agent Kierzowski subsequent to the arrest, and that Special Agent Cooke later conducted the proffer interview on September 29, 2010. (Doc. 159, at 3-4). The court will grant the request. Although Roberts does not allege any conduct by Special Agent Cook relevant to his claims of illegal search and seizure violations relating to the arrest, with respect to the proffer interview, the court finds that the testimony of Special Agent Cooke, is necessary to determine the voluntariness of Roberts proffer interview. The court will subpoena Special Agent Cooke for the suppression hearing.
Roberts avers that Detective Paul arrived at the scene of the arrest shortly after Roberts was arrested by Officer Chortanoff. Roberts contends that Detective Paul seized his vehicle and removed it from the arrest scene. (Doc. 159, at 2). Roberts also asserts that Detective Paul performed the video surveillance of the controlled buy for which Roberts was indicted. (Id.) The court will grant the request to subpoena Detective Paul. Detective Paul was involved in two activities challenged by Roberts through his suppression motions: the seizure of the vehicle and the video surveillance.
Roberts seeks to subpoena Officer Flyth alleging that Officer Flyth prepared the inventory report of the items seized from Roberts' person and vehicle. (Doc. 159, at 3). The court will deny the request. The inventory report is irrelevant to whether the search and ...