Feitel Law Firm


by Robert Feitel www.rfeitellaw.com

This blog discusses the Government’s post-indictment use of administrative subpoenas to potentially obtain information for use at trial. As discussed herein, defense counsel need to be cognizant that the Government has the ability to use its administrative subpoena power to circumvent the limitations contained in the federal rules of criminal procedure.  The contents of this blog are not intended to constitute legal advice, but rather are the starting point for criminal defense lawyers to think about the issue if it arises in one of their cases. During the investigative phase of a case, the Government has the exclusive and largely unfettered power to issue grand jury subpoenas for witnesses and documentary or physical evidence. After an indictment is returned, it is improper for the government to us a grand jury subpoena for purposes of trial preparation, although in many of the reported cases, the Government claims that its post indictment use of grand jury subpoenas was to related to an ongoing investigation. Unless the defense can prove that the “primary” purpose of the subpoena was to obtain materials for trial, the courts have been unwilling to quash such subpoenas.See United States v. Bin Laden, 116 F.Supp.2d 489 (S.D.N.Y. 2000). Thus, post indictment, in theory, both sides – the defense and the Government – have an equal opportunity to obtain materials for use at trial through a subpoena issued pursuant to Federal Rule of Criminal Procedure 17(c). Of particular importance, the Rule has a provision that sets forth a procedure for obtaining the materials prior to trial, which would facilitate preparation. It provides that:
A subpoena may order the witness to produce the books, papers, documents or other objects the subpoena designates.  The court may direct the witness to produce the designated items in court before trial . . . . When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
The U.S. Attorney’s Office for the District of Columbia (and possibly other federal prosecutors) had long engaged in sending out federal trial subpoenas that “invited” the recipient to comply with its requirements by voluntarily providing the information prior to trial. This enabled the Government to directly obtain potentially useful information, such as an incarcerated defendant’s phone calls or visitor logs, without the Court’s involvement. In United States v. Vo, 78 F.Supp.3d 171, 179-80 (D.D.C. 2015), Judge Emmett Sullivan ruled that the Government has no authority to use subpoenas in this manner, reasoning that:
The government bases its defense on a proposed distinction between requiring pretrial production and merely inviting it. . . . The government offered no legal support for this distinction, however. Rule 17, which “governs the issuance of subpoenas in criminal cases,” Charles Alan Wright, et al., Federal Practice and Procedure, § 271 (4th ed.2014), does not create a separate procedure for inviting pretrial production. The Rule describes only one scenario under which a subpoena may be used to obtain pretrial production—when the Court so directs. See Fed. R. Crim. P. 17(c). A subpoena, moreover, is issued by a court, bears a court’s seal, and is backed by the threat of court-imposed sanctions for non-compliance. It is not the tool of a party to use as desired; rather, it is a tool provided by Rule 17 and limited to those uses authorized by Rule 17. Accordingly, it was improper for the government to issue the subpoenas without obtaining court approval.
In light of the Vo decision, defense counsel have a strong basis to quash any subpoena – or the product thereof – issued under similar circumstances without prior judicial approval. But federal prosecutors have another mechanism to obtain post-indictment evidence outside of the confines of the federal rules: administrative subpoenas, which can be used in in cases involving health care fraud, child abuse, Secret Service protection, controlled substances, inspector general investigations, and tracking unregistered sex offenders. With respect to drug cases, for example, 21 U.S.C. Section 876  provides that:
in any investigation relating to his functions under [the Controlled Substances Act], the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses, and require the production of any records . . . which the Attorney General finds relevant or material to the investigation.” (emphasis added).
In United States v. Apodaca, 251 F.Supp.3d 1 (D.D.C. 2017), the Government sought to obtain post indictment the incarcerated defendants’ recorded jail phone calls. The prosecution first issued a Rule 17(c) subpoena seeking the materials prior to trial, which it later withdrew. The prosecution then requested that the jail voluntarily provide the calls without a subpoena, which was rejected. Finally, the law enforcement agents issued an administrative subpoena for the defendants’ jail calls. The defense moved to quash, noting that it appeared that the administrative subpoena was being used to circumvent the federal rules. The Government objected,  contending that the  defense lacked standing, that the subpoena was part of an investigation and that the materials were needed for an ongoing criminal investigation into “past, present, and future” criminal conduct by the defendants. The district court found that the defendants had standing, but ruled that the Government’s representations were sufficient to meet the minimal standards required to support an administrative subpoena. As a result of the Apodaca decision, it seems fair to assume that the federal courts are going to give the Government significant leeway in issuing administrative subpoenas. The Apodaca court did not address whether the Government could have used the information obtained from the administrative subpoena at the trial of the case. More troubling is the potential that information learned from an administrative subpoena could be used by the prosecution to help shape its theory of the case, or for cross-examination of defense witnesses, even if the materials obtained as a result of the subpoena are not admitted into evidence. All of that could take place without any notice to either the defense or the Court. In light of the foregoing, it would be prudent for defense counsel to consider adding a provision to their standard discovery letter, making an ongoing request for information relating to the issuance of any post-indictment administrative subpoenas. It is most likely that the Government will deny and/or ignore this request and thus it might be necessary to ask the Court to order that the Government report the issuance of any administrative subpoenas ex parte,  explaining why the request is being made. As with all things, defense counsel should make a record of such matters as the basis for future motions and/or appeal.  

Robert Feitel is a former federal prosecutor and now defense attorney in private practice specializing in the representation of defendants in international criminal cases. He can be reached through his website: www.rfeitellaw.com