Opinion
Case No. 3:18-cr-00035-SLG-MMS
02-03-2021
UNITED STATES OF AMERICA, Plaintiff, v. LOUIS HOLGER EKLUND, Defendant.
ORDER REGARDING MOTION FOR RULE 17 SUBPOENA FOR PHILIP KAUFMAN AND HIS EXPERT REPORT
Before the Court at Docket 415 is defendant Louis Holger Eklund's pro se Motion to Issue Subpoena for a Witness and Document Pursuant to Fed. R. Crim. P Rule 17(c)(1). No response from the government is necessary.
See Docket 197 (text order stating that "the government need not respond to any filing by the defendant unless the Court orders a response").
Mr. Holger seeks to have the Court "issue a subpoena for Philp N. Kaufman & his expert witness report . . . to testify & be presented to the jury at trial." Mr. Kaufman's expert witness report was prepared for an Alaska state court Child in Need of Aid case. Mr. Holger asserts that he will pay for the witness fees and service fees and requests that the Court "just issue the subpoenas & mail them to [Mr. Holger]."
Docket 415 at 4.
Docket 415 at 4.
A served subpoena for a witness "must . . . command the witness to attend and testify at the time and place the subpoena specifies." There is currently no trial date scheduled in this case. Thus, at this time Mr. Holger would be unable to issue a subpoena for Mr. Kaufman to appear at trial because there is no trial date to put on the subpoena and no trial proceeding for Mr. Kaufman to attend.
Fed. R. Crim. P. 17(a) (emphases added). Cf. United States v. Sellers, 275 F.R.D. 620, 623 (D. Nev. 2011) ("Rule 17(c)(1) does not authorize a party to subpoena a witness and require him to report at some time or place other than either a trial or hearing to be held at which he is to testify. Its purpose is to permit the issuance of subpoenas only to compel attendance at hearings conducted by the court and trial.").
It appears that Mr. Kaufman's expert report has already been discovered to Mr. Holger by the government. Mr. Holger previously filed a Brady motion requesting, inter alia, "[t]he expert witness report" used in the Alaska state court Child in Need of Aid case related to Mr. Holger's son. The Court has reviewed that prior motion, and there the "expert witness report" listed as "Item #5" is described nearly identically to the report described as Mr. Kaufman's in the instant motion. The government responded to "Item #5" in the Brady motion by stating that it had already discovered to Mr. Holger the "report of an expert witness in a Child in Need of Aid case" as requested in Mr. Holger's Brady motion. Because Mr. Kaufman's expert report has already been provided to Mr. Holger in discovery, it is not reasonable for a subpoena to be issued to require Mr. Kaufman to produce the same report.
Docket 369 at 2 (item #5).
Compare Docket 369 at 2 (item #5) with Docket 415 at 3.
Docket 374 at 5.
See United States v. RW Prof'l Leasing Servs. Corp., 228 F.R.D. 158, 163 (E.D.N.Y. 2005) (finding a criminal defendant's subpoena duces tecum request to be "unreasonable" because it sought third-party records that had already been provided to the defendant and the defendant could find the documents with its "own efforts"). Cf. Docket 384 (order requiring standby counsel to provide Mr. Holger with printed copies of the documents listed in the Brady motion that had been provided in discovery).
In light of the foregoing, IT IS ORDERED that the motion at Docket 415 is DENIED without prejudice to Mr. Holger to renew the Rule 17(a) motion to compel Mr. Kaufman to testify at trial when a trial date is scheduled in this case and is DENIED as to the Rule 17(c) motion.
DATED this 3rd day of February, 2021, at Anchorage, Alaska.
/s/ Sharon L . Gleason
UNITED STATES DISTRICT JUDGE