Oral Argument December 9, 2014
Appeal from Clark Superior Court. Docket No: 11-1-00704-9. Judge signing: Honorable Scott a Collier. Judgment or order under review. Date filed: 04/15/2013.
Anthony F. Golik, Prosecuting Attorney, and Rachael R. Probstfeld, Deputy, for appellant.
Steven W. Thayer; and David T. McDonald (of David T. McDonald PC ), for respondent.
Concurring: Thomas R Bjorgen, Jill M Johanson.
[184 Wn.App. 905] Rich Melnick,
[¶1] The State appeals the trial court's order dismissing with prejudice charges against Darin Richard Vance based on the State's failure to produce federal agents for interviews. Based on a federal investigation, the State searched Vance's home and charged him with various child-pornography-related offenses. The trial court authorized Vance to subpoena federal investigators for depositions and subsequently ordered the agents to submit to depositions. When the federal agents failed to comply, the trial court redacted the search warrant to remove all information obtained by the agents. The trial court then retested the search warrant for probable cause, suppressed all of the evidence obtained under the warrant, and dismissed the charges with prejudice.
[¶2] The State argues that the trial court abused its discretion by finding that the State violated discovery rules, because the State had no obligation to produce federal agents not under state control, and by redacting the information from the warrant. We agree. We further hold that because
Vance did not comply with applicable federal statutes and agency regulations required to obtain testimony and information from federal agents, the agents were not permitted to testify or provide information. Therefore, [184 Wn.App. 906] the trial court's remedy of redacting the agents' information from the search warrant affidavit was an abuse of discretion. We reverse and remand to the trial court to reinstate the charges against Vance.
[¶3] In the course of an undercover online investigation, Federal Bureau of Investigation (FBI) Special Agent Alfred Burney discovered child pornography images being received and uploaded from an internet protocol (IP) address belonging to Vance and Vance's wife. United States Immigration and Customs Enforcement (ICE) Special Agent Julie Peay assisted in the investigation. FBI Special Agent Laura Laughlin provided the Vancouver Police Department with the information obtained through the investigation.
[¶4] On the basis of the federal agents' information, state police officers obtained a search warrant for Vance's home. The police executed the warrant in January 2011, and the search of Vance's home revealed evidence of child pornography. In April 2011, Vance was arrested in Clark County. The State charged him with three counts of dealing in depictions of a minor engaged in sexually explicit conduct in the first degree and seven counts of possession of depictions of a minor engaged in sexually explicit conduct in the first degree.
[¶5] In August 2011, Vance e-mailed the State and requested the opportunity to interview Agents Laughlin, Burney, and Peay. The State responded that it did not intend to call the agents as witnesses at trial and if Vance still wanted to interview them, he would have to arrange the interviews himself. Later in the month, Vance mailed letters to Agents Laughlin, Burney, and Peay requesting interviews. Responding on behalf of Agent Laughlin, the [184 Wn.App. 907] United States Department of Justice (DOJ) directed Vance to 28 C.F.R. § § 16.21 and 16.22. These sections required Vance to submit a scope and relevancy letter to obtain testimony or information from a DOJ employee. Neither Agent Burney nor Agent Peay responded to the letters.
[¶6] On June 4, 2012, Vance moved the court to suppress " any and all evidence seized and/or derived from the execution of a search warrant at his residence" and to dismiss the charges with prejudice. Clerk's Papers (CP) at 4. Two days later, Vance moved the trial court for an order to take the depositions of Agents Peay and Burney. On August 16, the trial court authorized Vance to subpoena Agents Burney and Peay for depositions. Vance served them with notices of deposition, court orders authorizing depositions, and subpoenas duces tecum.
[¶7] The United States Attorney's Office (USAO) responded on Agent Burney's behalf, stating that the FBI is an agency within the United States DOJ and, thus, the production of documents and testimony of Agent Burney could not be compelled by a subpoena issued by the superior court. The USAO again directed Vance to 28 C.F.R. § § 16.21 and 16.22. The USAO stated that once Vance provided the required information, it would review his request.
[¶8] The Office of the Chief Counsel of the United States Department of Homeland Security (DHS) responded on Agent Peay's behalf. DHS informed Vance that ICE is a component of DHS, and as a DHS employee, Agent Peay was prohibited from providing documents or testimony related to information she acquired while working for DHS. DHS directed Vance to 6 C.F.R. § § 5.44 and 5.45, which require ...