United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
the Court is the United States' Motion to Quash
Defendant's Rule 17(c) Subpoenas [Doc. No. 32] and
Defendant's Motion to Compel Brady/Giglio Materials [Doc.
No. 41]. The parties have filed their respective responses
and replies in opposition to, and in support of, the
aforementioned motions [Doc. Nos. 39, 44, 48, 49]. The matter
is fully briefed and at issue.
was charged with several counts of, inter alia, bank
fraud, conspiracy to commit bank fraud, and money laundering.
A dispute arose between the parties regarding whether certain
sub-agencies of the Federal Deposit Insurance Corporation
(“FDIC”) could be considered part of the
government's “prosecution team” for purposes
of determining the extent of its obligation to identify and
produce exculpatory material under Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972). Specifically, at issue was
whether the FDIC's Division of Risk Management
(“FDIC-RMS”), the Office of Inspector General
-Office of Investigations (“FDIC-OIG”), and the
FDIC in its capacity as receiver (“FDIC-R”) could
be considered part of the prosecution for their actions taken
in response to the collapse of the Bank of Union, where
Defendant was President and Chairman of the Board.
See Order, July 26, 2017 at 3-5 [Doc. No. 51]
(“Order”). After review of the parties'
submissions and hearing oral argument, the Court concluded
that, with the exception of the FDIC-OIG, the FDIC was not
otherwise part of the “prosecution team” for
Brady/Giglio purposes. See Order at 14.
discovery issues have arisen from the parties'
“prosecution team” dispute. First, the government
has moved to quash two subpoenas Defendant has served on the
FDIC-R and FDIC-RMS on the grounds that Defendant has failed
to make the requisite showing under Rule 17(c), Federal Rules
of Criminal Procedure [Doc. No. 32]. In addition, Defendant
has filed a Motion to Compel [Doc. No. 41], which asks the
Court to compel the government “to identify and produce
any and all documents subject to disclosure pursuant to
Brady/Giglio or that are otherwise
exculpatory.” Mot. to Compel at 1. The Court addresses
Defendant's Motion first.
Defendant's Motion to Compel
Court has held the FDIC-RMS and FDIC-R are not part of the
“prosecution team” for Brady/Giglio
disclosure purposes. Accordingly, to the extent Defendant
asks the Court to compel the government to identify and
produce any potential Brady/Giglio material within
these agencies' possession,  the Motion is denied. To the
extent Defendant seeks a more general order compelling the
government to identify and produce “any and all
documents subject to disclosure pursuant to
Brady/Giglio, ” Mot. at 1, that request is
also denied. “The Brady rule is not a rule of
pretrial discovery[.]” United States v. Gray,
648 F.3d 562, 567 (7th Cir. 2011); United States v.
Weld, No. CR-08-83 PJH, 2009 WL 901871, at *2 (N.D. Cal.
Apr. 1, 2009) (“[D]efendants cannot use Brady
simply to search for Brady materials. Brady
is not a pretrial discovery tool.”) (citations
previously noted by the Court, this is a complex,
document-intensive case with document production expected to
number in the millions of pages. To that end, Brady
does not require the government to review all documents that
have been produced to Defendant for purposes of locating and
identifying Brady/Giglio material:
To charge prosecutors with knowledge of exculpatory evidence
buried in the computer databases of institutions that collect
and store vast amounts of digitized data would be an
unreasonable extension of the Brady rule. The
courts, rightly in our view, have refused to make it. The
government is not “obliged to sift fastidiously”
through millions of pages (whether paper or electronic). It
is “under no duty to direct a defendant to exculpatory
evidence [of which it is unaware] within a larger mass of
Gray, 648 F.3d at 567 (citing United States v.
Warshak, 631 F.3d 266, 297 (6th Cir. 2010); United
States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009),
vacated in part on other grounds, ___ U.S.
___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); United
States v. Joseph, 996 F.2d 36, 37, 39-41 (3d Cir.
1993) (paraphrasing in original)).Of course, the government
does have a duty to identify and disclose exculpatory
evidence of which it becomes aware during its review of such
documents. Accordingly, the Court finds
Defendant's Motion to Compel should be denied.
The Government's Motion to Quash
course of discovery, Defendant issued subpoenas to the
FDIC-RMS and FDIC-R [Doc. Nos. 32-3, 32-4]. The subpoenas
seek documents relating to, among other things, the
investigations of Defendant, the Bank of Union's failure,
and other defendants to this action. The government moves to
quash or modify these subpoenas on the grounds they (1)
significantly overlap with joint trial subpoenas agreed to by
the parties or (2) exceed the bounds of Rule 17(c), Federal
Rules of Criminal Procedure. Mot. to Quash at 4.
Alternatively, the government argues that if the subpoenas
are allowed to proceed in their current form, any responsive
documents should be produced to the Court.
defendant seeking to enforce a subpoena duces tecum pursuant
to Rule 17(c) must show that (1) the requested documents are
evidentiary and relevant; (2) the defendant cannot, even with
due diligence, procure them; (3) the defendant cannot
adequately prepare for trial without obtaining their
production in advance; and (4) the request was made in good
faith and is not a fishing expedition. United States v.
Nixon, 418 U.S. 683, 699-700 (1974); United States
v. Morris, 287 F.3d 985, 991 (10th Cir. 2002). In order
to meet this burden, the defendant must make a preliminary
showing that the information sought is relevant, admissible,
and specific. Nixon, 418 U.S. at 700;
Morris, 287 F.3d at 991. Courts in this circuit have
applied this standard to subpoenas directed to third parties.
See, e.g., United States v. Wittig, 250 F.R.D. 548,
551-52 (D. Kan. 2008) (“The Court agrees with the
reasoning of other courts that have applied Nixon to
assess the validity of Rule 17(c) subpoenas issued to third
parties, and finds no compelling reason to employ a lesser
standard in this case.”); United States v.
Leavitt, No. 2:11-cr-501, 2016 WL 503060, at *2 (D. Utah
Feb. 8, 2016) (holding Nixon standard applied to