Case 3:16-cr-00051-BR

Document 1419

Filed 10/12/16

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
3:16-CR-00051-BR-5

UNITED STATES OF AMERICA

v.
RYAN BUNDY,

GOVERNMENTS MOTION TO QUASH

SUBPOENA ISSUED TO
FRIENDS OF MALHEUR
NATIONAL WILDLIFE REFUGE

Defendant.
The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,
Assistant United States Attorneys, hereby moves the Court, pursuant to Fed. R. Crim. P. 17, to
quash the subpoena issued by defendant Ryan Bundy to Friends of Malheur National Wildlife
Refuge Executive Director Tim Blount or Secretary Jerry Moore, a copy of which is attached as
Exhibit 1. AUSA Knight has notified Lisa Ludwig, standby counsel for defendant Ryan
Bundy, regarding the governments intent to file this motion.

Case 3:16-cr-00051-BR

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Defendant Ryan Bundy has issued a subpoena duces tecum to the Executive Director or
Secretary of the Friends of Malheur National Wildlife Refuge, to testify on October 14, 2016,
and for the records of membership rosters and donation records for members for 2011 to the
present.

See Exhibit 1.

Subpoenas issued under Federal Rule of Evidence 17(c) are not to be

used for the purpose of discovery or to obtain impeachment evidence.

should not be used to harass or intimidate a witness.

Moreover, subpoenas

Because defendants subpoena does not

seek any evidence directly relevant to this case, and because the subpoena cannot be used for a
fishing expedition or to obtain impeachment evidence, the subpoena clearly serves no legitimate
purpose.

For these reasons and others set forth below, this Court should grant the governments

motion and order defendants subpoena quashed.

1.

Defendants Subpoena Falls Outside the Scope of Rule 17

Federal Rule of Criminal Procedure 17(c) governs the issuance of a subpoena duces

tecum in federal criminal proceedings:

(1) In General. A subpoena may order the witness to produce any
books, papers, documents, data, or other objects the subpoena designates. The
court may direct the witness to produce the designated items in court before trial
or before they are to be offered in evidence. When the items arrive, the court
may permit the parties and their attorneys to inspect all or part of them.
(2) Quashing or Modifying the Subpoena. 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).

The purpose behind the rule is to prevent delays during trial by

providing a time and place before trial for the inspection of subpoenaed materials. Bowman
Dairy Co. v. United States, 341 U.S. 214, 220 (1951).
///
Governments Motion to Quash Subpoena Issued to Friends of Malheur
National Wildlife Refuge

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A subpoena duces tecum was not intended to provide a means of discovery for criminal
cases.

United States v. Nixon, 418 U.S. 683, 698 (1974); see also Bowman Dairy Co., 341 U.S.

at 220 (It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17
to give a right of discovery in the broadest terms.).

Nor is Rule 17(c) intended to allow a

blind fishing expedition seeking unknown evidence. United States v. MacKey, 647 F.2d 898,
901 (9th Cir. 1981); see also United States v. Villa, 503 F. Appx 487, 489 (9th Cir. 2012)
(affirming Magistrate Judge Clarkes grant of the governments motion to quash Rule 17(c)
subpoena that failed to meet the relevance or specificity test: Rule 17(c) was not intended as a
discovery device, or to allow a blind fishing expedition seeking unknown evidence. (citing
United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984))). Courts have also recognized that a
subpoena may be unreasonable or oppressive under Rule 17(c) if it is irrelevant, abusive or
harassing, overly vague, or excessively broad. In Re Grand Jury Subpoena, 646 F.3d 159, 164
(4th Cir. 2011).
A valid Rule 17(c) subpoena must seek specific documents that the party already knows
are relevant and necessary for trial; the Supreme Court has outlined the applicable test:
Under this test, in order to require production prior to trial, the moving party must
show: (1) that the documents are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by exercise of due diligence;
(3) that the party cannot properly prepare for trial without sch production and
inspection in advance of trial and that the failure to obtain such inspection may
tend unreasonably to delay the trial; and (4) that the application is made in good
faith and is not intended as a general fishing expedition.
Nixon, 418 U.S. at 699-700 (emphasis added) (footnote omitted).

A party seeking materials

under a Rule 17(c) subpoena must clear three hurdles: (1) relevancy; (2) admissibility;
(3) specificity. Id. at 700.

The movant must also show that the materials sought are

Governments Motion to Quash Subpoena Issued to Friends of Malheur

National Wildlife Refuge

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unavailable through any other means and that the examination and processing of the materials
sought should not wait until trial. Id. at 702.
Defendant has not made a showing that the subpoenaed materials are relevant or
admissible at trial.

Producing membership information and donation records does not appear to

be relevant to any theory of the case, and it would surely include large quantities of information
entirely irrelevant to this case. Moreover, the requested materials would also contain private,
personal information wholly unrelated to defendants case.
2.

Conclusion
Defendants subpoena violates the letter and spirit of the requirements of Rule 17(c).

The information sought is neither relevant, nor material to this case, and compliance would be
overwhelmingly burdensome and intrusive.

To the extent defendant seeks to gather

impeachment material, he has several, viable alternatives, and such a goal should not be met
through the use of a Rule 17(c) subpoena.

The governments motion to quash should be

granted.
Dated this 12th day of October 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Ethan D. Knight
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

Governments Motion to Quash Subpoena Issued to Friends of Malheur

National Wildlife Refuge

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