United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO QUASH SUBPOENAS
S. LASNIK UNITED STATES DISTRICT JUDGE
matter comes before the Court on the “Government's
Motion to Quash Subpoenas.” Dkt. # 57. The parties'
dispute surrounds subpoenas that defendant Jesus
Estrada-Contreras issued seeking documents from Homeland
Security Investigations (HSI). The government appears willing
to produce the materials if the parties meet and confer, and
the Court encourages them to do so. For the following
reasons, however, the motion, Dkt. # 57, is GRANTED.
matter's underlying case, defendants were charged with
conducting a drug conspiracy after a raid yielded an
abundance of contraband and led to defendants' arrests.
Investigators conducted defendants' post-arrest
interviews, and the Miranda warnings that preceded
them, in Spanish. This dispute stems from an effort by Mr.
Estrada-Contreras to obtain materials about those
investigators' Spanish language skills and HSI protocols
for agents using Spanish in the field. Defendant issued
subpoenas to HSI and two of its agents, commanding them to
appear or provide the materials instead.
governs subpoenas in criminal cases, including subpoenas
duces tecum for pretrial production of evidence. The
Rule empowers the Court to order the production of “any
books, papers, documents, data, or other objects the subpoena
designates.” Fed. R. Crim. P. 17(c)(1). Though Rule 17
is an instrument for gathering evidence, it is not
“intended to provide a means of discovery.”
United States v. Nixon, 418 U.S. 683, 698 (1974). To
ensure the scope of a Rule 17 subpoena is properly
circumscribed, the party seeking pretrial production bears
the burden of establishing relevancy, admissibility, and
specificity of the material sought. Id. at 700. In
making that showing, each element must be shown with
particularity and conclusory allegations are insufficient.
United States v. Eden, 659 F.2d 1376, 1381 (9th Cir.
government argues that Mr. Estrada-Contreras seeking evidence
through a Rule 17 subpoena circumvents and undermines the
discovery process provided for in Rule 16, the provision in
the Criminal Rules that governs discovery and mandatory
disclosures between the parties. The Court rejects that
argument and the government's suggestions that Rule 17
extends no further than Rule 16's scope and that a
defendant must seek information from the government before
invoking Rule 17. The two rules are complementary and
overlapping, but still have different scopes. Rule 16 applies
only to material in the government's possession, it
covers discovery information that need not be admissible, and
it only governs disclosures between the government and the
defendant. In contrast, Rule 17 covers subpoenas that seek
evidence and that apply to the government and third parties
alike. Its scope is bounded by the requirements of relevancy,
admissibility, and specificity, Nixon, 418 U.S. at
700, not by the terms of Rule 16, see United States v.
Llanez-Garcia, 735 F.3d 483, 493-94 (6th Cir. 2013).
the Court rejects the government's argument about Rule
17's scope, defendant must still show that the requested
material is relevant, admissible, and specific. Id.;
Eden, 659 F.2d at 1381. The Court concludes
defendant has not met his burden of showing with
particularity that the requested material is relevant and
contains admissible evidence. See Nixon, 418 U.S. at
700; Eden, 659 F.2d at 1381. The Court grants the
government's motion without prejudice to defendant
showing the material's relevancy, admissibility, and
specificity with greater particularity in a subsequent
subpoena application, including an application submitted
ex parte if necessary. See United States v.
Sellers, 275 F.R.D. 620, 624-25 (D. Nev. 2011).
Court notes that Rule 16 may require the government to
disclose the material described in this matter's briefing
upon defendant's request. See Fed. R. Crim. P.
16(a)(1)(E)(i) (requiring that, upon request, the government
produce items within its possession that are material to
preparing the defense). The government appears willing to
confer and meet defendant's needs, and the Court assumes
the government will maintain that approach going forward. The
Court encourages the parties to meet and confer to facilitate
an exchange of appropriate material and information.
See LCrR 16(e) (requiring parties to confer with a
view toward cooperating before moving the Court for
additional Rule 16 discovery).
foregoing reasons, the government's motion, Dkt. # 57, is
GRANTED. The Court hereby ORDERS that the subpoenas issued to
Homeland Security Investigations and Special Agent Michelle
Hardin-Pineda are QUASHED.
 Given this conclusion, the Court
declines to address the government's assertion that
defendant failed to comply with applicable Touhy