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United States v. Underwood

United States District Court, D. South Carolina, Rockhill Division

October 10, 2019

The United States of America,
George Alexander Underwood, et. al., Defendants.


         This matter is before the court on the South Carolina Attorney General Alan Wilson's Motion to Quash (ECF No. 72). Defendant George Underwood (“Underwood”), through counsel, served the Attorney General with a subpoena (ECF No. 75-1) to produce various documents regarding prosecutorial matters related to the instant criminal case and the potential prosecution of Kevin and Earnestine Simpson (“the Simpsons”). The subpoena orders the Attorney General to produce these documents at the Moore Taylor Law Firm in West Columbia, South Carolina on August 12, 2019 at noon. (Id.) The Attorney General now moves to quash the subpoena, asserting that it is unreasonable and improper under Rule 17 of the Federal Rules of Criminal Procedure. For the reasons set forth below, the Motion to Quash is GRANTED.


         On November 20, 2018, Underwood, along with other officers, arrested two individuals- the Simpsons. (ECF No. 1 at 8 ¶ 12.) State charges were filed against the Simpsons, but were dropped several days after the arrest. The instant case involves the Department of Justice's (“DOJ”) subsequent charges against Underwood for alleged misconduct in executing the Simpsons' arrest, whereby the DOJ alleges that Underwood, inter alia, arrested the couple without probable cause and falsified records. (Id. at ¶ 12.) Underwood denies all allegations in the indictment. (ECF No. 31.) In an attempt to “compel testimony and other admissible evidence” and to develop a defense in the instant criminal case, Underwood served a subpoena upon the South Carolina Attorney General. (ECF No. 72 at 10-12; ECF No. 75-1.) Underwood contends that the DOJ and the South Carolina Attorney General's Office “colluded regarding the dismissal of the State warrants against the Simpsons” in order to build a stronger case against Underwood. (ECF No. 75 at 3.)

         Underwood's subpoena includes two requests:

(1) all written or electronic communications, to include emails, between the Attorney General's Office and the U.S. Department of Justice (as well as any other federal agency) pertaining to Underwood's instant criminal case or the State charges against Kevin and Ernestine Simpson.
(2) all written and electronic communications, to include email, between the Simpsons' attorney and the Attorney General's Office related to those state charges.

(ECF No. 72 at 10-12; ECF No. 75-1.)

         In response to the subpoena, the South Carolina Attorney General filed its Motion to Quash the subpoena (ECF No. 75). The court heard arguments on this Motion to Quash on August 20, II. LEGAL STANDARD

         Under Rule 17 of the Federal Rules of Criminal Procedure, “[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.” Fed. R. Crim. P. 17(c)(1) (emphasis added). Stated differently, “Rule 17 authorizes subpoenas for production of evidence at trial.” United States v. Skeddle, 178 F.R.D. 167, 168 (N.D. Ohio 1996).

         “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). Specifically, in the third-party subpoena context, the district court is bound to follow the U.S. Supreme Court's precedent in United States v. Nixon, 418 U.S. 683, 700 (1974). In Nixon, the Court required the requesting party to show: (1) relevancy; (2) admissibility; and (3) specificity. Nixon, 418 U.S. at 463; see also United States v. Rand, 835 F.3d 451, 463 (4th Cir. 2016) (upholding the district court's use of the Nixon standard, specifically). A district court's decision to quash a subpoena is reviewed for an abuse of discretion. In re Grand Jury, John Doe No. G.J.2005-2, 478 F.3d 581, 584 (4th Cir. 2007). “A district court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Id. (quoting Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006)) (quotations omitted).


         To compel production, the Supreme Court has required that subpoenas cover (1) relevant evidentiary materials or documents; (2) that are not otherwise procurable by exercise of due diligence; (3) without which the party cannot properly prepare for trial; and (4) which is not intended as a fishing expedition. Nixon, 418 U.S. at 699. Further distilled, Nixon requires that a party seeking pre-trial production of documents demonstrate (1) relevancy, (2) admissibility, and (3) specificity with respect to the documents. In re Martin Marietta 712 Corp., 856 F.2d 619, 621 (4th Cir.1988). Additionally, Rule 17 subpoenas are not a substitute for discovery. United States v. McDonald,444 Fed.Appx. 710, 711 (4th Cir. 2011) (quoting Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 7 ...

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