United States District Court, E.D. Pennsylvania
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).
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.
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
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
Discovery Under Rule 16
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).
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).
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)).
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.