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United States v. Smukler

United States District Court, E.D. Pennsylvania

July 30, 2018



          DuBois, J.


         On October 24, 2017, a federal grand jury in the Eastern District of Pennsylvania named defendant Kenneth Smukler and co-defendant Donald “D.A.” Jones in a six count Indictment charging violations of the Federal Election Campaign Act (“FECA”). On March 20, 2018, the Government filed a Superseding Indictment charging additional violations of FECA. The Superseding Indictment charges Smukler with: participation in a conspiracy in violation of 18 U.S.C. § 371 (Count I); causing unlawful campaign contributions in violation of 52 U.S.C. §§ 30109(d)(1)(A)(i), 30116(f), and 18 U.S.C. § 2 (Counts II & VII); causing false campaign reports in violation of 52 U.S.C. §§§ 30104(a)(1), 30104(b)(5)(A), 30109(d)(1)(A)(i), and of 18 U.S.C. § 2 (Counts III, IV & X); causing false statements in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count V & VI); making contributions in the name of another in violation of 52 U.S.C. §§ 30109(d)(1), 30116(f), 30122, and 18 U.S.C. § 2 (Counts VIII & IX); obstruction of a pending agency proceeding in violation of 18 U.S.C. §§ 2 and 1505 (Count XI).

         Presently before the Court is Defendant Kenneth Smukler's Motion to Compel Discovery Under Rule 16 or, in the Alternative, for Issuance of Subpoenas Under Rule 17. For the reasons that follow, the Motion is denied.


         The Superseding Indictment charges defendant with campaign finance violations in connection with two congressional campaigns: (1) the 2012 congressional primary campaign of United States Representative Robert Brady (“Brady”) and (2) the 2014 congressional primary campaign of Marjorie Margolies. The Court summarized the charges at length in its Memorandum dated July 13, 2018. It does so in this Memorandum only as necessary to explain its rulings.

         In his Motion to Compel or in the Alternative for Issuance of Subpoenas, defendant seeks documents from the Federal Election Commission (“FEC”), Perkins Coie attorney Karl Sandstrom, and Marjorie Margolies.[1]


         A. Discovery Under Rule 16

         Discovery in criminal cases is governed by Federal Rule of Criminal Procedure 16. “In contrast to the wide-ranging discovery permitted in civil cases, Rule 16 of the Federal Rules of Criminal Procedure delineates the categories of information to which defendants are entitled in pretrial discovery in criminal cases, with some additional material being discoverable in accordance with statutory pronouncements and the due process clause of the Constitution.” United States v. Ramos, 27 F.3d 65, 68 (3d Cir. 1994).

         Upon request, Rule 16 requires the government must “permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, ” subject to certain limitations. Fed.R.Crim.P. 16(a)(1)(E). This obligation only arises “if the item is within the government's possession, custody, or control and: (1) the item is material to preparing the defense; (2) the government intends to use the item in its case-in-chief at trial; or (3) the item was obtained from or belongs to the defendant.” Fed.R.Crim.P. 16(a)(1)(E).

         B. Rule 17(c)

         Federal Rule of Criminal Procedure 17(c) governs the use of subpoenas to obtain documentary evidence in criminal cases. To obtain pretrial production materials from a third party witness under Rule 17(c), defendant bears the burden of showing:

“(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.” United States v. Cuthbertson, 630 F.2d 139, 145 (3d Cir. 1981)(quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)).

         Rule 17(c) was not intended to be a broad discovery device, which would “undercut[] the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.” Cuthbertson, 630 F.2d at 146. Accordingly, defendant must present more than his or her “own subjective belief (i.e. hope) that he or she may find something useful by casting a subpoena upon the waters.” United States v. Eisenhart, 43 Fed. App'x 500, 505 (3d Cir. 2002).

         IV. ...

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