UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
April 15, 2008
ABDULLAH M. KHOUJ, PETITIONER,
FARZAD DARUI, RESPONDENT.
The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Presently before the Court is Dr. Abdullah M. Khouj's motion  to quash certain Rule 17(c) subpoenas served by defendant Farzad Darui.*fn1 Upon consideration of the motion, the opposition and reply thereto, the applicable law, and the record herein, this Court finds that the motion to quash should be DENIED.
On October 3, 2007, this Court granted Darui's motion for an order permitting Darui to issue early return subpoenas duces tecum under Federal Rule of Criminal Procedure 17(c).*fn2
Pursuant to the Court's Order, Darui issued subpoenas to various entities seeking documents relating to Dr. Abdullah M. Khouj.*fn3 The subpoenas seek financial records from various banking institutions as well as documents from the United States Post Master reflecting Khouj's use of a post office box. Khouj has moved to quash on grounds that, inter alia, the subpoenas misuse Rule 17(c) as a discovery device and that they are impermissibly overbroad and irrelevant under United States v. Nixon, 418 U.S. 683 (1974). Khouj asks this Court to quash the subpoenas notwithstanding the fact that each of the entities at issue have already produced documents to Darui or otherwise complied with the subpoenas.*fn4 Khouj further seeks an order barring Darui's use at trial of any information procured as a result of the subpoenas. Khouj also requests that this Court require Darui to notify him before issuing any additional subpoenas seeking Khouj's personal information.
A. The Court's October 3, 2007 Order
As a preliminary matter, this Court shall address Khouj's argument that Darui lacked authority to issue the subpoenas. According to Khouj, Darui had no authority to subpoena any entities other than those originally listed in this Court's Order dated August 8, 2007. (See Mem. Supp. Am. Mot. to Quash 4.) Darui counters that subsequent to the August 8 Order, the government agreed to a consent motion for an order allowing Darui to issue additional early return subpoenas. Neither Darui's motion nor his proposed order included any restrictions as to the entities to be served. In light of these facts, the subpoenas subsequently issued by Darui were fully authorized pursuant to this Court's October 3, 2007 Order. Khouj's argument that Darui issued the subpoenas at issue in violation of this Court's order must be rejected.
In his motion papers and during the April 11, 2008 hearing, Khouj argued that the subpoenas should be quashed and that the documents produced in response to the subpoenas should be ordered returned or destroyed. According to Khouj, Darui violated Rule 17(c) by issuing the subpoenas returnable to defense counsel rather than to the Court. Khouj claims that if Darui directed the subpoenaed entities to return documents to the Court in the first instance, Darui would never have gained access to the documents. Khouj's arguments fail for two reasons. First, the plain language of Rule 17(c) does not place an absolute requirement on parties to direct subpoenaed entities to return items to the Court as Khouj suggests. Rather, Rule 17(c)(1) provides, in relevant part, The court may direct the witness to produce the designated items in court before trial or before they are to be offered into evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
FED. R. CRIM. P. 17(c)(1) (emphasis added). The Court's October 3, 2007 Order placed no restrictions on where the subpoenaed materials should be delivered.*fn5
Second, Khouj's assertion that Darui would not have gained access to the produced documents had they been returned to the Court is premised on pure speculation. The plain language of Rule 17(c)(1) provides that it is within the court's discretion to permit the parties to inspect the subpoenaed materials. Accordingly, even if Darui directed the entities to return the documents to the Court in the first instance, Khouj may only speculate as to what action the Court would have taken upon receipt of the materials. Khouj ignores that this Court would have had no reason to conduct a Nixon analysis unless presented with a motion to quash. Further, since Khouj did not become aware of the subpoenas until some time after their issuance, there is no basis for this Court to believe that circumstances would have been any different had the documents been returned here rather than to defense counsel. This Court refuses to base its ruling on such speculation.
Moreover, Rule 17(c)(2) provides that "on motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." FED. R. CRIM. P. 17(c)(2) (emphasis added). At all times, the government had standing to file a motion to quash the subpoenas at issue. See United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982) (government has standing to move to quash a third-party subpoena based "upon its interest in preventing undue lengthening of the trial, undue harassment of its witness, and prejudicial overemphasis on [witness] credibility"); United States v. Segal, 276 F. Supp. 2d 896, 900 (N.D. Ill. 2003) (government has legitimate interest in preventing harassment of its witness and in preventing over-emphasis on the witness's credibility, and therefore has standing to quash third-party subpoena). The same is true as to the entities which received the subpoenas. Yet neither the government nor the subpoenaed entities (except for the Post Master) moved to quash and the documents have now been produced. Despite this fact, Khouj argues that "'compliance with the subpoena does not make [his motion] moot.'" (Mem. Supp. Am. Mot. to Quash 7 (quoting SEC v. Inv. Tech, Inc., 200 Fed. App'x 858, 898 (11th Cir. 2006)).) Khouj relies in large part on Church of Scientology of California v. United States, 506 U.S. 9 (1992). In that case, the Supreme Court held that a court's ability to fashion a partial remedy, such as ordering the return or destruction of already-produced materials, is sufficient to prevent mootness on appeal. See Church of Scientology, 506 U.S. at 13. Khouj cites no authority, however, and this Court has found none, that permits such a remedy in a criminal case. Under the circumstances presented here, this Court's post-hoc finding that the subpoenas fail under Nixon must give way to Darui's Sixth Amendment compulsory process right to retain and use materials that he has lawfully obtained.*fn6
For the foregoing reasons, Khouj's motion to quash the Rule 17(c) subpoenas will be DENIED.
A separate order shall issue this date.