United States v. Vo , 78 F. Supp. 3d 171 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal No. 13-168 (EGS)
BINH TANG VO, et al., )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
The government’s power when prosecuting criminal cases is not
infinite. Nor does it extend to any power not specifically
forbidden by law. In this case, the government has ostensibly
exercised the power to serve subpoenas duces tecum, a power
provided by Federal Rule of Criminal Procedure 17. The
government has not relied on any other authority for its
actions, so it would seem obvious that the government may serve
subpoenas only in a manner authorized by Rule 17.
The government in this case overstepped Rule 17. It issued two
subpoenas, without obtaining court approval, which directed the
Correctional Treatment Facility of the District of Columbia
(“CTF”) to produce at trial recorded telephone calls of
defendants Hong Vo and Truc Huynh and related materials. This
much was arguably permitted by Rule 17, which authorizes the
issuance of trial subpoenas by the court clerk, to be completed
and served by a party. The subpoenas, however, also indicated
that “[i]n lieu of personally appearing before the Court . . .
you may comply with this subpoena by promptly providing the
undersigned Assistant U.S. Attorney with [the requested
documents].”
CTF produced the materials directly to the U.S. Attorney’s
Office. Ms. Vo and Ms. Huynh then learned of the subpoenas, and
moved to quash them on the grounds that they improperly sought
pretrial production without court approval. The government
claims to have a longstanding practice of “inviting” subpoenaed
parties to make a pretrial production to it directly, but cannot
articulate the legal basis for doing so. Instead, the government
makes standing and mootness arguments with which the Court
dispenses quickly. At oral argument, the government’s defense
was reminiscent of a grade schooler seeking to avoid detention:
Our actions are authorized because nothing specifically
prohibits them.1 Never mind that Rule 17 does not authorize
pretrial production absent Court approval. The government’s
inability to provide legal support for its actions is telling:
There is no support. Accordingly, upon consideration of the
motions to quash, the response and reply thereto, the oral
argument, the applicable law, and the entire record, the Court
GRANTS the motions.
1
As the grade schooler might say: “You never told me I
couldn’t.”
2
I. Background
This case involves an alleged conspiracy to commit visa fraud.
Defendant Michael Sestak has entered a guilty plea and is
pending sentencing. Defendants Hong Vo and Truc Huynh entered
guilty pleas and have been sentenced. Defendant Binh Vo is
incarcerated pending a trial that will begin on April 21, 2015.
Binh Vo’s trial was previously scheduled to commence on
September 16, 2014. On May 2, 2014, the government moved under
Federal Rule of Criminal Procedure 15 to depose Ms. Huynh,
arguing that she had important information and would be
unavailable for trial because she would soon complete her
sentence and be removed to Vietnam. See Mot. to Take Deposition,
ECF No. 163. Over Mr. Vo’s and Ms. Hunyh’s objections, the Court
granted the government’s motion. See United States v. Vo, No.
13-168, 2014 WL 3056502 (D.D.C. July 1, 2014). Ms. Huynh’s
deposition was scheduled for August 14, 2014.
On July 14, 2014, the government issued subpoenas to CTF,
seeking visitation logs, call logs, and recorded telephone calls
of Hong Vo and Truc Huynh.2 The subpoenas were made returnable on
dates during Mr. Vo’s trial, and were never approved by the
Court. The subpoenas also stated that “[i]n lieu of personally
appearing before the Court on the date indicated, you may comply
2
Similar subpoenas were served regarding Binh Vo and Michael
Sestak, but they are not the subject of the pending motions.
3
with this subpoena by promptly providing the undersigned
Assistant U.S. Attorney with [the requested documents].” Vo
Subpoena, ECF No. 201-1 at 1. CTF quickly complied with both
subpoenas by producing the materials directly to the U.S.
Attorney’s Office.
On August 12, 2014, Ms. Vo moved to quash the subpoena related
to her. See Hong Vo Mot. to Quash, ECF No. 201. Ms. Huynh filed
a substantially identical motion to quash the subpoena related
to her on September 11, 2014. See Hunyh Mot. to Quash, ECF No.
206. The government filed a consolidated opposition on September
22, 2014. See Gov’t’s Opp. (“Opp.”), ECF No. 212. Ms. Vo and Ms.
Huynh filed their joint reply brief on September 29, 2014. See
Reply, ECF No. 213. The Court was scheduled to hold a hearing on
these motions on October 9, 2014, but Mr. Vo obtained new
counsel, so the Court continued the hearing to permit Mr. Vo’s
new counsel to decide how to proceed. See Minute Order of
October 3, 2014. On November 21, 2014, Mr. Vo joined the motions
to quash filed by Ms. Vo and Ms. Huynh. See Binh Vo Mot. to
Quash, ECF No. 237. The Court held a hearing on the motions on
December 15, 2014.
II. The Movants Likely Have Standing, but the Court Has An
Independent Obligation to Enforce Rule 17 Regardless.
The government argues that Ms. Vo and Ms. Huynh lack standing
to move to quash the subpoenas. See Opp. at 5–6. “To establish
4
Article III standing, [movants] ‘must establish that (1) [they]
suffered an injury-in-fact; (2) there is a causal connection
between the injury and the conduct complained of; and (3) the
injury will likely be redressed by a favorable decision.’” Tex.
Children’s Hosp. v. Burwell, No. 14-2060, 2014 WL 7373218, at
*10 (D.D.C. Dec. 29, 2014) (quoting Associated Builders &
Contractors, Inc. v. Shiu, No. 13–1806, 2014 WL 1100779, at *4
(D.D.C. Mar. 21, 2014)) (second alteration in original). “[A]
party may have standing to move to quash a subpoena directed to
a third party where that subpoena infringes on the moving
party’s rights.” Amobi v. D.C. Dep’t of Corrections, 257 F.R.D.
8, 10 (D.D.C. 2009); see also United States v. Raineri, 670 F.2d
702, 712 (7th Cir. 1982) (standing exists “if the subpoena
infringes upon the movant’s legitimate interests”).
Ms. Vo and Ms. Huynh have an interest in the subpoenaed
materials due to their concern regarding the disclosure of
personal information contained in those materials. Courts have
recognized such privacy interests in connection with subpoenas
for documents such as financial records, Khouj v. Darui, 248
F.R.D. 729, 732 n.6 (D.D.C. 2008); Griffith v. United States,
No. M8-85, 2007 WL 1222586, at *1 (S.D.N.Y. April 25, 2007),
employment records, Warnke v. CVS Corp., 265 F.R.D. 64, 66
(E.D.N.Y. 2010), and mental-health records, Jacobs v. Conn.
Cmty. Tech. Colleges, 258 F.R.D. 192, 195 (D. Conn. 2009). Ms.
5
Vo and Ms. Huynh arguably have a similar privacy interest in
their telephone calls.
The government asserts that the movants “are deemed to have
consented to the recording,” and have thus waived any privacy
interest. Opp. at 5 n.6. Such knowledge may be relevant to a
Fourth Amendment analysis, as the government noted at oral
argument, Transcript of Dec. 15, 2014 Hearing, ECF No. 241 at
44:1–2, but the government cited no authority for the
proposition that an individual suffers no injury-in-fact when
the information is disclosed with neither notice nor legal
process. Indeed, the record does not demonstrate that Ms. Vo and
Ms. Huynh consented to their telephone calls being given to
anyone who secretly subpoenaed them. The inmate handbook warns
only that CTF “record[s] and monitor[s] phone calls for security
reasons.” Id. at 55:18–19; see also id. at 56:4–7 (Mr. Feitel:
“There’s nothing in the waiver and there’s nothing in the
notification at the beginning of the call that says, ‘[a]nd you
waive your right to have these turned over without legal
process,’”).3
3
The government’s cursory argument that Ms. Vo and Ms. Huynh
lack standing due to the fact that their cases are no longer
pending, Opp. at 5, may be rejected swiftly because one need not
be a defendant in a criminal case to file a motion to quash and
Ms. Vo and Ms. Huynh remain co-defendants in this case.
Similarly baseless is the government’s assertion that movants’
waiver of their appearances at the December 15, 2014 oral
argument indicates that they lack an interest in this
6
Even if Ms. Vo and Ms. Huynh lack standing, however, “the
Court has an independent duty to review the propriety of the
subpoena.” United States v. Vasquez, 258 F.R.D. 68, 72 (E.D.N.Y.
2009). Because subpoenas are issued with the Court’s seal and
backed by the threat of court-imposed sanctions, “[t]he mere
fact that an attorney abuses the subpoena power directly
implicates the court itself and creates an embarrassment for the
institution.” United States v. Santiago-Lugo, 904 F. Supp. 43,
48 (D.P.R. 1995). For that reason, courts have found that
“regardless of whether the [movant] has standing, the Court is
obligated under Rule 17 to assess each subpoena for compliance.”
United States v. Richardson, No. 13-86, 2014 WL 6475344, at *2
(E.D. La. Nov. 18, 2014) (emphasis added); see also United
States v. Hankton, No. 12–1, 2014 WL 688963, at *2 n.1 (E.D. La.
Feb. 21, 2014); United States v. Dupree, 10-cr-627, 2011 WL
2006295, at *3 (E.D.N.Y. May 23, 2011); Vasquez, 258 F.R.D. at
72; United States v. Tucker, 249 F.R.D. 58, 60 n.3 (S.D.N.Y.
2008); United States v. Weissman, No. 01-529, 2002 WL 31875410,
at *1 n.1 (S.D.N.Y. Dec. 26, 2002); cf. Bowman Dairy Co. v.
United States, 341 U.S. 214, 221 (1951) (“The burden is on the
court to see that the subpoena is good in its entirety and it is
proceeding. See Transcript of Dec. 15, 2014 Hearing, ECF No. 241
at 41:24–42:3. Parties waive their appearances at hearings for a
variety of reasons entirely unrelated to their interest in the
litigation.
7
not upon the [subpoenaed party] to cull the good from the
bad.”). Accordingly, “it is this court’s duty to make certain
that the subpoena power is invoked legitimately and legally.”
Santiago-Lugo, 904 F. Supp. at 45.
III. The Motions to Quash Are Not Moot.
The government also asserts that the motions to quash are moot
because the recordings have already been produced by CTF. See
Opp. at 5 n.5. “It has long been settled that a federal court
has no authority ‘to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.’”
Church of Scientology v. United States, 506 U.S. 9, 12 (1992)
(quoting Mills v. Green, 159 U.S. 651, 653 (1895)). The movants
assert, however, that the Court retains the ability to provide a
remedy by ordering the return or destruction of the recordings
in the government’s possession. See Reply at 4–5.
In civil cases, a motion to quash is not necessarily rendered
moot by production of the requested materials because “[w]hile a
court may not be able to return the parties to the status quo
ante . . . a court can fashion some form of meaningful relief.”
Church of Scientology, 506 U.S. at 12 (emphasis in original).
Specifically, the Court may “order[] the Government to destroy
or return any and all copies it may have in its possession.” Id.
at 13. “The availability of this possible remedy is sufficient
8
to prevent [a] case from being moot.” Id. The same logic applies
here.
Courts have recognized that this principle extends beyond
civil cases. See, e.g., In re Grand Jury Investigation, 445 F.3d
266, 271 (3d Cir. 2006) (grand-jury proceedings). Although
another Judge of this Court previously held that it does not
extend to criminal cases because of the absence of authority
permitting a court to order the return or destruction of
materials as a remedy for granting a motion to quash, Khouj, 248
F.R.D. at 731, the Fifth Circuit very recently recognized such
potential authority. In United States v. Jackson, 771 F.3d 900
(5th Cir. 2014), the Fifth Circuit was presented with an appeal
of the denial of a newspaper’s motion to quash a subpoena duces
tecum. See id. at 901. As that appeal was pending, the newspaper
“complied [with the subpoena] and delivered the documents, and
the district court declined to turn them over to [the
defendant], who pleaded guilty.” Id. The Fifth Circuit reviewed
whether the appeal was moot, applying Church of Scientology,
holding that it was moot because the defendant could not offer
the Church of Scientology remedy because the documents were
produced to the court but never turned over to the defendant,
leaving nothing to return or destroy. See id. at 902.4
4
In addition, at least one district court has relied on the
existence of such a remedy to find that a motion to quash filed
9
When circumstances are such that the Court can order the
return or destruction of subpoenaed materials, the controversy
remains live, just as it would in a civil case.5 At oral
argument, the government sought for the first time to provide a
reason why circumstances in this case prevent the Court from
granting a remedy. The government noted that any order that all
documents received in response to the subpoena be destroyed
would mean that “[w]e would essentially have to unwind what’s
happened so far” as the materials had also been provided to the
defendant. Transcript of Dec. 15, 2014 Hearing, ECF No. 241 at
49:6–7. The government asserted that it “would not be in favor
of unwinding anything that would prevent the defense from having
access to records that could be exculpatory.” Id. at 49:9–11.
Mr. Vo, however, has joined the motions to quash. See Binh Vo
Mot., ECF No. 237. His counsel also stated that he would support
a partial remedy that would permit him to keep materials that
may be Brady or similar materials. See Transcript of Dec. 15,
2014 Hearing, ECF No. 241 at 80:1–3. In any event, the parties
in a criminal case was not moot. See United States v. Jenkins,
895 F. Supp. 1389, 1393 (D. Haw. 1995) (“this court may provide
some effective, albeit limited, relief” by “ordering the
documents returned”).
5
The cases cited by the government merely support the basic
point that “[i]nsofar as there is no relief that could be
granted by th[e] court . . . [the case is] moot.” United States
v. Garde, 848 F.2d 1307, 1309 (D.C. Cir. 1988); see also Crooker
v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980).
10
may differ as to precisely what remedy the Court should order,
but the Court could order the return or destruction of some or
all of the materials at issue as a remedy for granting the
motions to quash. The existence of such a remedy is all that is
required to defeat mootness.6
IV. The Subpoenas Were Improper.
The movants argue that Rule 17 was abused and that the
subpoenas should therefore be quashed. The government offered
only a minimal response, in two footnotes, that were not
supported by any legal authority.
A. Rule 17 Does Not Permit the Government to “Invite”
Pretrial Production Absent Court Approval.
In its first footnote, the government maintained that its
“invitation” of pretrial production does not violate Rule 17
because it did not require pretrial production. See Opp. at 4
n.4. Assessing this argument requires a review of the basis for
a party’s subpoena authority.
“Rule 17 governs the issuance of subpoenas in criminal cases.”
Charles Alan Wright, et al., Federal Practice and Procedure, §
271 (4th ed. 2014). Parties are therefore bound to follow—and
6
The Court notes the possibility that “[i]f this court found the
matter moot, it would also evade review.” Jenkins, 895 F. Supp.
at 1392. The subpoenas were issued without court involvement and
CTF complied before anyone—the Court, Mr. Vo, or the movants—
learned of the existence of the subpoenas. If a challenge to
such a subpoena were rendered moot by CTF’s compliance, it could
arguably constitute a wrong capable of repetition yet evading
review. See id.
11
not exceed—its authorization of subpoena power. The Rule,
moreover, “is not intended as a discovery rule.” United States
v. Carter, 15 F.R.D. 367, 369 (D.D.C. 1954); see also United
States v. Brooks, 966 F.2d 1500, 1505 (D.C. Cir. 1992). Rule 17
first creates a general rule: Subpoenas are issued without the
court’s involvement when they command the recipient’s presence
and possibly the production of documents at a particular
hearing. See Fed. R. Crim. P. 17(a), (c). Rule 17(c) creates a
limited exception to this rule, declaring that “[t]he court may
direct the witness to produce the designated items in court
before trial or before they are to be offered in evidence.”
Pretrial production is not otherwise mentioned in the Rule.
The subpoenas at issue here directed the appearance of CTF at
what was then scheduled to be a trial date. In that respect,
they appeared to comply with Rule 17. The government erred,
however, when it added to the subpoena the statement that “[i]n
lieu of personally appearing before the Court . . . you may
comply with this subpoena by promptly providing the undersigned
Assistant U.S. Attorney with [the requested documents].” Vo
Subpoena, ECF No. 201-1 at 1. Despite the assertion that it is
“standard practice” to “invite” a subpoenaed party to make a
pretrial production directly to the U.S. Attorney’s Office, the
government could not articulate any legal basis for doing so.
See generally Opp.; Transcript of Dec. 15, 2014 Hearing, ECF No.
12
241 at 28:21–29:17, 33:21–34:15. At oral argument, the
government ultimately stated “I don’t know what the authority is
that we can’t.” Id. at 35:21–22. The Court then asked “So that’s
your authority: There’s nothing that says we can’t do it?” to
which the government responded “[r]ight . . . . That’s my
authority.” Id. at 38:2–7. The government’s theory would turn
Rule 17’s limited authorization for the issuance of subpoenas
into a blanket authorization.
This cannot be reconciled with the language of Rule 17. Rule
17 provides a limited grant of authority, mentioning pretrial
production only in connection with court approval. See Fed. R.
Crim. P. 17(c)(1). The Rule, in “leaving advance production to
the court’s discretion[,] is no mere technicality. It is a vital
protection against misuse or improvident use of such subpoenas.”
United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla.
1991) (quotation marks omitted). “Without the Court’s
supervision, Rule 17(c) would lend itself to discovery of the
broadest sort—a result that the drafters of the Rule decried.”
United States v. Finn, 919 F. Supp. 1305, 1329 (D. Minn. 1995)).
For those reasons, “trial subpoenas may not be used to obtain a
defendant’s prison-recorded conversations prior to the time they
are to be offered in evidence unless leave of court is
obtained.” Noriega, 764 F. Supp. at 1494; see also Charles Alan
Wright, et al., Federal Practice and Procedure § 275 n.10 (4th
13
ed. 2014) (“Leave is required for a pre-trial subpoena duces
tecum.”). In this Court, this principle has been established
(with respect to pretrial subpoenas broadly) since 1965:
Rule 17 is not a rule for discovery. . . . It does
contain the additional provision that the Court may
make a subpoena duces tecum returnable prior to the
trial. It was not the purpose of this provision to
permit some sort of discovery. The object was to
prevent delays during the trial when documents are
produced in response to a subpoena duces tecum and are
offered in evidence.
* * *
The Court realizes that at times this rule has been
used for purposes of additional discovery and some
courts have acquiesced in this course. This was not
the intention of the framers of the Rule. In order to
prevent the Rule from being improvidently used the
return day of the subpoena may be designated in
advance of the trial date, only if the Court so
directs or permits.
United States v. Ferguson, 37 F.R.D. 6, 7–8 (D.D.C. 1965).7
The government bases its defense on a proposed distinction
between requiring pretrial production and merely inviting it.
See Opp. at 4 n.4. The government offered no legal support for
7
See also United States v. Sellers, 275 F.R.D. 620, 623 (D. Nev.
2011); United States v. W.R. Grace, 434 F. Supp. 2d 869, 870,
871 (D. Mont. 2006); United States v. King, 194 F.R.D. 569, 573
(E.D. Va. 2000); United States v. Beckford, 964 F. Supp. 1010,
1020–25 (E.D. Va. 1997); Finn, 919 F. Supp. at 1329; Santiago-
Lugo, 904 F. Supp. at 46; Jenkins, 895 F. Supp. at 1395; cf.
United States v. Medley, 130 F. App’x 248, 249–50 (10th Cir.
2005) (where district court had “quash[ed] pretrial document
subpoenas the defense issued without court authorization,” the
defendant “offer[ed] no discernible reason why the court abused
its discretion . . . and having reviewed the record, we can see
none”).
14
this distinction, however. Rule 17, which “governs the issuance
of subpoenas in criminal cases,” Charles Alan Wright, et al.,
Federal Practice and Procedure, § 271 (4th ed. 2014), does not
create a separate procedure for inviting pretrial production.
The Rule describes only one scenario under which a subpoena may
be used to obtain pretrial production—when the Court so directs.
See Fed. R. Crim. P. 17(c).8 A subpoena, moreover, is issued by a
court, bears a court’s seal, and is backed by the threat of
court-imposed sanctions for non-compliance. It is not the tool
of a party to use as desired; rather, it is a tool provided by
8
Precedent governing grand-jury subpoenas, while not cited by
the government, would not provide a basis either. At the grand-
jury stage, the government’s “role necessarily requires
reviewing and analyzing evidentiary submissions outside of the
presence of the grand jury for later presentation to the grand
jury.” In re Possible Violations of 18 U.S.C. §§ 201, 371, 491
F. Supp. 211, 213 (D.D.C. 1980) (quotation marks omitted). In
reliance on that fact, some courts have upheld the use of grand-
jury subpoenas returnable directly to the government. See, e.g.,
United States v. Santucci, 674 F.2d 624, 628–32 (7th Cir. 1982)
(permitting government’s issuance of subpoenas seeking
handwriting exemplars where “neither were the subpoenas sought
or obtained from any grand jury” and recipients were permitted
to make their production to the government directly). Such
considerations do not apply to pretrial subponeas and, in any
event, courts in this jurisdiction have sharply curtailed the
government’s use of grand-jury subpoenas to obtain appearances
at the U.S. Attorney’s Office. See Perez v. United States, 968
A.2d 39, 60–61 (D.C. 2009); In re Grand Jury Subpoenas to
Witness X, No. SP-2802-00, slip op. at 4–5, 7 (D.C. Super. Ct.
Oct. 23, 2001); Durbin v. United States, 221 F.2d 520, 522 (D.C.
Cir. 1954); cf. United States v. Thomas, 320 F. Supp. 527, 529–
30 (D.D.C. 1970) (use of a “phony summons[]” purporting to
compel individuals to appear for interviews at the U.S.
Attorney’s Office).
15
Rule 17 and limited to those uses authorized by Rule 17.9
Accordingly, it was improper for the government to issue the
subpoenas without obtaining court approval.
B. The Government Has Not Justified Retroactive Approval of
the Subpoenas.
In its second footnote, the government asks that the Court
retroactively approve the subpoenas. See Opp. at 6 n.7. The
movants claim that the government has not provided the type of
specific justification that is required for a court to approve a
subpoena. The standard for approval of a subpoena is well
established. “A subpoena duces tecum may not be used for the
purpose of discovery, either to ascertain the existence of
documentary evidence, or to pry into the case of the [opposing
party].” Carter, 15 F.R.D. at 369. Rather, it may be used “to
obtain only evidentiary materials.” United States v. Libby, 432
F. Supp. 2d 26, 30 (D.D.C. 2006) (quotation marks omitted). The
burden rests with the party issuing a subpoena to show “(1)
9
As one district court has noted, the potential for abusive use
of pretrial document subpoenas could arise even where a party
did not request pretrial production, but subpoenaed entities
commonly made voluntary pretrial productions anyway. See United
States v. Eye, No. 05-344-01-CR-W-ODS, 2008 WL 1776400, at *7
n.3 (W.D. Mo. Apr. 15, 2008). This practice “may lead to the
inference that although pre-trial production was not requested,
it was certainly expected.” Id. Even this “inference,” with no
request for pretrial production, may be problematic because it
“creates the possibility that the [party] will fail to share all
of the material . . . with no one being the wiser.” Such
concerns are only heightened when a party requests pretrial
production.
16
relevancy; (2) admissibility; [and] (3) specificity.” United
States v. Nixon, 418 U.S. 683, 700 (1974). In essence, “[t]he
test . . . is whether the subpoena constitutes a good faith
effort to obtain identified evidence rather than a general
‘fishing expedition’ that attempts to use the rule as a
discovery device.” United States v. Cuthbertson, 630 F.2d 139,
144 (3d Cir. 1980).
The movants assert that the only possible use for the
subpoenaed materials is impeachment. See Vo Mot. at 7–8. The
government responded only in a footnote:
Undersigned government counsel have years of
experience obtaining co-conspirator statements,
statements against penal interest, and other evidence
from recorded jail calls. In light of the extensive
participation by Ms. Vo and Ms. Huynh in the
fraudulent visa scheme, and because it appears likely
that Ms. Vo and Ms. Huynh will be uncooperative
witnesses at the trial of their brother and cousin,
Binh Vo, the government properly issued subpoenas for
Ms. Vo and Ms. Huynh’s jail house recordings.
Opp. at 6 n.7. At oral argument, the government added only that:
[T]he notion that we would not –- in a conspiracy case
where they know that a lot of communications happened
over the phone, where the conspirators are family
members, I don’t see why anybody thinks that it would
be a stretch of logic and reason for us to believe
that when they are incarcerated here in the District
of Columbia facing charges, that they would . . . say
things that would be evidence that we could
potentially even use in our case-in-chief.
Transcript of Dec. 15, 2014 Hearing, ECF No. 241 at 87:11–19.
17
The government’s justification rests in part on the potential
for the subpoena to obtain impeachment evidence. See Opp. at 6
n.7 (relying on the claim that “it appears likely that Ms. Vo
and Ms. Huynh will be uncooperative witnesses at the trial”).
That justification cannot support the approval of a subpoena for
pretrial production “because such statements ripen into
evidentiary material for purposes of impeachment only if and
when the witness testifies at trial.” See Cuthbertson, 630 F.2d
at 144.
The remainder of the government’s written justification is
that government counsel have experience obtaining evidence from
jail phone calls in other cases and that the movants
participated in the alleged conspiracy. How this provides the
requisite specificity is unclear. Under the government’s theory,
a party need only assert experience obtaining evidence from the
general category of document at issue and allege that the target
was involved in the crime to obtain a subpoena. Specificity, by
definition, requires more: A link that explains what the
government expected to find and why it expected to find it.
“[T]he specificity requirement could be satisfied if there is a
‘substantial likelihood,’ demonstrated through rational
inferences, that the documents being sought contain relevant and
admissible evidence.” Libby, 432 F. Supp. 2d at 31 (quoting
Nixon, 418 U.S. at 700). “‘[I]f the moving party cannot
18
reasonably specify the information contained or believed to be
contained in the documents sought but merely hopes that
something useful will turn up, this is a sure sign that the
subpoena is being misused.’” Id. (quoting Noriega, 764 F. Supp.
at 1493). The government had the opportunity to provide such a
justification, but did not do so. Its assertion at oral argument
that the movants would undoubtedly “say things that would be
evidence that we could potentially even use in our case-in-
chief,” Transcript of Dec. 15, 2014 Hearing, ECF No. 241 at
87:11–19, is the type of vague justification that makes clear
the subpoenas were “a general ‘fishing expedition’ that attempts
to use the rule as a discovery device.” Cuthbertson, 630 F.2d at
144.
This conclusion is bolstered by the government’s previous
behavior regarding the materials obtained through these
subpoenas. In August 2014, only weeks after the subpoenas were
issued, Mr. Vo sought to require the government to translate Ms.
Huynh’s phone calls in advance of her August 14, 2014
deposition. Mr. Vo had received copies of the Vietnamese-
language phone calls only recently, and asserted that the
government’s discovery obligations—including those created by
Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18
U.S.C. § 3500—required that he be provided translations. In an
attempt to avoid being required to provide translations, the
19
government sought to minimize the utility of the phone calls,
which it was then in the process of reviewing:
 August 4, 2014: “The government does not know if the
conversations are pertinent to this case and the
government does not intend to introduce them into
evidence at this time.” Gov’t’s August 4, 2014 Notice,
ECF No. 184 at 3.
 August 7, 2014, after twenty-four calls had been
translated: “The speakers in these calls spoke of
nothing substantial or pertinent to the case, and only
touched on personal, non-relevant issues, such as
conditions in the jail.” Gov’t’s Reply, ECF No. 186 at
2.
If, in reviewing the phone calls only weeks after the subpoenas
were issued, the government had no idea if they were relevant
and no plan to use them as evidence, it strains credulity that
the government had a basis for issuing the subpoenas in the
first place. When this is combined with the government’s failure
to offer any remotely specific justification for the subpoenas,
it is clear that the subpoenas were just a fishing expedition.
V. Conclusion
For the foregoing reasons, the defendants’ motions to quash
are GRANTED. The Court will address the appropriate remedy at a
later date, after hearing proposals from the parties. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
January 15, 2015
20
Appendix
(In re Grand Jury Subpoenas to Witness X, No. SP-2802-00 (D.C.
Super. Ct. Oct. 23, 2001))
21