17(b) and (c) SUBPOENAS
Attorneys for Defendant *
UNDER SEAL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
(HON. _________________)
UNITED STATES OF AMERICA, ) Criminal No.
)
Plaintiff, ) Trial Date:
) Time:
v. )
) EX PARTE APPLICATION FOR
THE DEFENDANT, ) ISSUANCE OF RULE 17(b) AND
) (c) SUBPOENAS AND REQUEST
) FOR ADVANCE AUTHORIZATION
Defendant. ) OF FUNDS FOR WITNESSES
____________________________) AND
DOCUMENTS
Defendant *, by and through his counsel, Federal Defenders of San Diego, Inc., and
pursuant to the Due Process Clause of the Fifth Amendment, the Compulsory Process Clause
of the Sixth Amendment and Fed. R. Crim. P. 17(b) and (c), hereby makes this ex parte application for the issuance of (1)
Rule 17(b) subpoenas ad testificandum and
(2) Rule 17(c) subpoena duces tecum.
This ex parte application is based on the instant application and the following statement of facts.
I.
STATEMENT OF FACTS
[omitted]
II.
POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION PURSUANT TO FED. R. CRIM. P. 17(b)
Rule 17(b) provides in pertinent part:
Defendants unable to pay. The Court
shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a
satisfactory showing that the defendant is financially unable to pay the fees of the
witness and that the presence of the witness is necessary to an adequate defense.
Before its amendment in 1966, the Rule required that all defendants proceeding in forma pauperis who requested subpoenas issued at government expense had to support such request with affidavits
"in which the defendant shall state the name and address of each witness and the
testimony which he is expecting the witness to give if subpoenaed, and shall show that the
evidence of the witness is material to the defense ... ."
This procedure required indigent defendants to reveal many of the theories of their defenses to the prosecution, although defendants able to pay for witnesses were able to have blank subpoenas issued. Congress acted to cure this inequitable situation by amending the Rule in 1966 to provide that applications for subpoenas by defendants unable to pay for them be made to the court ex parte. In United States v. Meriwether, 486 F.2d 498, 505-506 (5th Cir. 1973), cert. denied, 417 U.S. 948 (1974), the court rejected the government's position that ex parte meant that the prosecutor should not participate in the discussions about the subpoenas, although he may be present during the argument since "this interpretation of the Rule conflicts with both the general understanding of the term ex parte, and with the purpose of the 1966 Amendment to the rule." In its analysis of the rationale for the rule, the court went on to state:
The government should not be able to obtain a list of adverse witnesses in the case of a defendant unable to pay their fees when it is not able to do so in the cases of defendants able to pay witness fees. When an indigent defendant's case is subjected to pre-trial scrutiny by the prosecutor while the monies defendant is able to proceed without such scrutiny, serious equal protection questions are raised, and it appears that a major reason for the amendment was to avoid such questions.
Id. at 506 (footnote omitted). Moreover, the Advisory Committee notes to Rule 17 included the following observation:
Criticism has been directed at the requirement that an indigent defendant disclose in advance the theory of his defense in order to obtain the issuance of a subpoena at government expense while the government and defendants able to pay may have subpoenas issued in blank without any disclosure.
United States v. Meriwether, 486 F.2d at 507 & n.8. Cf. United States v. Brown, 535 F.2d 424, 428-29 (8th Cir. 1976) (local rule requiring copies of subpoena applications under Fed. R. crim. P. 17(b) be sent to the government unfairly discriminated against indigent defendants).
Mr. * respectfully requests that this Court authorize the issuance and service of subpoenas ad testificandum for the following persons:
(1) Witness 1
[ address ]
(2) Witness 2
[ address ]
Mr. *'s defense will be lack of knowledge of the presence of marijuana in the car. Mr. Witness 1's presence is required because he is the registered owner of the subject vehicle. Additionally, defense counsel has information that the subject vehicle was stolen and that a stolen vehicle report was filed indicating the same.
Mr. Witness 2's testimony is necessary to establish that Mr. * was nowhere near the vicinity where the vehicle was claimed to have been stolen, and in fact, was in Los Angeles when the car was reported stolen. Thus, under Fed. R. Crim. P. 17(b), Mr. * requests this court to authorize advance payment of funds for the trip to San Diego and hotel and food accommodations.
III.
POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION PURSUANT TO FED. R. CRIM. P. 17(c)
Rule 17(c) of the Federal Rules of Criminal Procedure provides in pertinent part:
For Production of Documentary Evidence and of
Objects. A subpoena may also command the person to whom it is directed to produce
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