United States District Court, E.D. Virginia, Norfolk Division
S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motions for
Issuance of Subpoenas Duces Tecum Ex Parte, ECF Nos. 161,
162, and on the Government's Motion to Quash Subpoenas,
ECF No. 164. For the reasons stated below, the
Defendant's motions for issuance of subpoenas are
DENIED and the Government's motion to
quash is DISSMISSED AS MOOT.
Daryl G. Bank ("Defendant") has been charged with
mail fraud, wire fraud, securities fraud, unlawful sale of
unregistered securities, securities fraud, and conspiracy to
commit those offenses, as well as conspiracy to launder
monetary instruments and engaging in unlawful monetary
transactions. Second Superseding Indictment, ECF No. 105.
These charges arise from allegations that Defendant and
others executed a scheme to defraud numerous individuals by
creating, promoting, and selling fraudulent investment
opportunities. Id. at 3-4. At least some of these
opportunities allegedly involved investing in different
business entities. Id. For example, it is alleged
that Bank and others "pitched" an investment that
offered partial ownership of a franchise that was not
actually in operation. Id. at 4-6.
January 24, 2019, Defendant filed two motions for issuance of
subpoenas duces tecum for records from two business entities.
ECF Nos. 161, 162. These motions were labeled as ex parte,
but were actually filed under seal with such docket entry
visible to the Government. Having received electronic filing
notifications about Defendant's motions, the Government
requested copies of the motions, which Defendant then
provided to the Government. The Government filed its motion
to quash said subpoenas on January 30, 2019, arguing that
Defendant did not adequately explain why the requested
documents need to be produced months before trial is set to
begin. ECF No. 164. Defendant filed a response to the
Government's motion on March 7, 2019. ECF No. 166.
to Federal Rule of Criminal Procedure 17, a defendant is
permitted to file an ex parte request for issuance of a
pretrial subpoena duces tecum, United States v.
Beckford, 964 F.Supp. 1010, 1026-27 (E.D. Va. 1997),
and, in response to such a request, a district court has the
authority to order a witness ``to produce any books, papers,
documents, data, or other objects .... before trial or before
they are to be offered in evidence." Fed. R. Crim. P.
17(c)(1). In the context of an ex parte motion for a subpoena
duces tecum, a district court has the authority to quash or
modify the subpoena. Beckford, 964 F.Supp. at
1024-25. A district court may also `` [o] n a motion made
promptly, quash or modify the subpoena if compliance would be
unreasonable or oppressive." Fed. R. Crim P. 17(c)(2).
district court has discretion to decide whether to require
that subpoenaed documents be produced before trial.
United States v. Nixon, 418 U.S. 683, 699
(1973); United States v. Rand, 835 F.3d 451, 462
(4th Cir. 2016). In a criminal case, the party seeking the
pretrial production of documents ``must clear three hurdles:
(1) relevancy; (2) admissibility; (3) specificity."
Nixon, 418 U.S. at 700. More specifically, the
moving party has the burden to show the following:
(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."
Nixon, 418 U.S. at 699-700; Rand, 835 F.3d
at 462. ``Rule 17(c) implements the Sixth Amendment guarantee
that an accused have compulsory process to secure evidence in
his favor." In re Martin Marietta
Corp., 856 F.2d 619, 621 (4th Cir. 1988) (citing
California v. Trombetta, 467 U.S. 479, 485 (1984)).
But, ``Rule 17(c) is not intended to provide a means of
pretrial discovery; rather, its primary purpose is simply to
expedite the trial by providing a time and place before trial
for the inspection of subpoenaed materials."
Rand, 835 F.3d at 462 (quoting United States v.
Richardson, 607 F.3d 357, 368 (4th Cir. 2010)) (internal
quotation marks omitted).
Defendant requests subpoenas for the financial statements,
tax returns, documents detailing capital structure, operating
agreements, and valuation documents from two business
entities: Warped Cigars, LLC and Collins Asset Group, LLC.
Def's Mot.'s, ECF Nos. 161, 162. The Government has
moved to quash such subpoenas on the ground that the motions
filed by Defendant were insufficient to meet the standard
established by the Supreme Court in Nixon because
Defendant did not provide a detailed recitation of the
Nixon requirements. Gov't Mot. ¶ 6, ECF No.
164. Defendant's reply expands on its motion and
specifically addresses the Nixon requirements.
Def.'s Resp., ECF No. 166.
motions are insufficient because Defendant fails to address
the Nixon requirements in either of them.
See Def.'s Mots., ECF Nos. 161, 162. The only
justification Defendant provides the Court in his motions is
that he ``has a good-faith basis to believe that the
documents, records, and other materials sought are necessary
and material to [his] defense." Def.'s Mots., ECF
Nos. 161, 162. Such justification is not enough for this
Court to issue the requested subpoenas. See
Fitzgerald, 416 Fed.Appx. at 244-45 (holding that it was
appropriate to deny a motion for issuance of a subpoena duces
tecum where ``[t]he only reason given in [Defendant's]
motion for the subpoenas was `for the defendant to raise his
defense of innocence, as well as cast doubt on the evidence
of the government.'") .
Defendant has provided more detail in his reply to the
Government's motion, the Court still finds such detail
insufficient to meet the Nixon standard. See
id. (finding that, even when the defendant gave more
detail at a hearing, he ``failed to make the necessary
showing" under Nixon). While Defendant's
reply adequately demonstrates that (1) the documents are
relevant to his defense,  (2) there is a need for the production
of the documents before trial,  and (3) the application is made
in good faith and is sufficiently specific that it is not a
"fishing expedition,  he does not adequately demonstrate
other requirements under Nixon. See Nixon,
418 U.S. at 699-700 (listing the requirements for issuance of
a subpoena). For example, Defendant has not addressed the
admissibility of the documents, one of the three main
"hurdles" that must be overcome under
Nixon. Nixon, 418 U.S. at 700. Further,
Defendant has not shown that the documents are not otherwise
procurable. See Nixon, 418 U.S. at 699-700 (holding
that a defendant must show that the documents "are not
otherwise procurable reasonably in advance of trial by
exercise of due diligence."). While Defendant has
indicated that, ...