United States District Court, D. Columbia.
For MICHAEL T. SESTAK, Defendant: J. Michael Hannon, LEAD ATTORNEY, HANNON LAW GROUP, Washington, DC.
For BINH TANG VO, also known as, BINH VO, Defendant: Danny C. Onorato, LEAD ATTORNEY, Stuart A. Sears, SCHERTLER & ONORATO, LLP, Washington, DC.
For HONG CHAU VO, Defendant: Robert A. Feitel, LEAD ATTORNEY, LAW OFFICE OF ROBERT FEITEL, P.L.L.C., Washington, DC; Sandi S. Rhee, LEAD ATTORNEY, LAW OFFICE OF SANDI RHEE, Washington, DC.
For TRUC THANH HUYNH, Defendant: John James Carney, LEAD ATTORNEY, CARNEY & CARNEY, Washington, DC; Robert A. Spelke, LEAD ATTORNEY, THE LAW FIRM OF ROBERT A. SPELKE, PLLC, Washington, DC.
For USA, Plaintiff: Brenda J. Johnson, Catherine K. Connelly, Christopher Robert Kavanaugh, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC; Mona N. Sahaf, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Washington, DC.
Emmet G. Sullivan, United States District Judge.
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. 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.
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, 53 F.Supp.3d 77, 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. 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 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 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, 76 F.Supp.3d 224, 2014 WL 7373218, at *10 (D.D.C. Dec. 29, 2014) (quoting Associated Builders & Contractors, Inc. v. Shiu, No. 13-1806, 30 F.Supp.3d 25, 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. 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,'" ).
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, 71 S.Ct. 675, 95 L.Ed. 879 (1951) (" The burden is on the court to see that the subpoena is good in its entirety and it is 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, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (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 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.
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. 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 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.