Filed: Oct. 16, 2017
Latest Update: Oct. 16, 2017
Summary: AMENDED ORDER (Sealed Ex Parte Mots. for Subpoenas — ECF Nos. 2686-88) PEGGY A. LEEN , Magistrate Judge . This amended order corrects a scrivener's error on the last page of the original Order (ECF No. 2700) regarding the witnesses' travel, lodging, and/or expenses. This matter is before the court on Defendant Ryan W. Payne's Sealed Ex Parte Motions for Subpoenas (ECF Nos. 2686, 2687, 2688), which were filed pursuant to Rule 17 of the Federal Rules of Criminal Procedure and LCR 17-1 of
Summary: AMENDED ORDER (Sealed Ex Parte Mots. for Subpoenas — ECF Nos. 2686-88) PEGGY A. LEEN , Magistrate Judge . This amended order corrects a scrivener's error on the last page of the original Order (ECF No. 2700) regarding the witnesses' travel, lodging, and/or expenses. This matter is before the court on Defendant Ryan W. Payne's Sealed Ex Parte Motions for Subpoenas (ECF Nos. 2686, 2687, 2688), which were filed pursuant to Rule 17 of the Federal Rules of Criminal Procedure and LCR 17-1 of ..
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AMENDED ORDER
(Sealed Ex Parte Mots. for Subpoenas — ECF Nos. 2686-88)
PEGGY A. LEEN, Magistrate Judge.
This amended order corrects a scrivener's error on the last page of the original Order (ECF No. 2700) regarding the witnesses' travel, lodging, and/or expenses.
This matter is before the court on Defendant Ryan W. Payne's Sealed Ex Parte Motions for Subpoenas (ECF Nos. 2686, 2687, 2688), which were filed pursuant to Rule 17 of the Federal Rules of Criminal Procedure and LCR 17-1 of the Local Criminal Rules of Practice. These motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-7(g) of the Local Rules of Practice.
The motions ask the court to issue subpoenas to three employees of the Bureau of Land Management to compel their testimony in an evidentiary hearing before the Honorable Chief Judge Gloria M. Navarro on Monday, October 23, 2017, at 9:00 a.m. The court has reviewed the motions and finds that Mr. Payne has met his threshold burden under Rule 17 for issuance of the subpoenas. In addition, the court has already found that Mr. Payne is indigent. Accordingly, the court will grant the motions and issue the subpoenas to the following individuals: Kent Kleman, Danielle Cardenas, and Toni Suminski. In granting the request, the court expresses no opinion regarding the admissibility of the scope of the witnesses' proposed testimony as that is an issue for Judge Navarro to consider.
However, the court does not find good cause for the motions or this order to remain ex parte and under seal. See Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 597 (1978) (recognizing "a general right to inspect and copy public records and documents, including judicial records and documents."). Although ex parte applications are permissible in limited circumstances, they are generally disfavored. United States v. Daniels, 95 F.Supp.2d 1160, 1162-63 (D. Kan. 2000) (ex parte applications permissible where source or integrity of evidence would be imperiled or trial strategy disclosed); United States v. Tomison, 969 F.Supp. 587, 589-95 (E.D. Cal. 1997) (ex parte applications permitted where a subpoena served on third party and notice would compromise trial strategy). In two recent motions (ECF Nos. 2613, 2696), defense counsel informed the court and the government of their intent to subpoena these individuals as witnesses for purposes of this evidentiary hearing. Thus, disclosure to opposing counsel will not compromise defense strategy. The Clerk of the Court will be directed to unseal the motions.
Accordingly,
IT IS ORDERED:
1. Defendant Ryan W. Payne's Sealed Ex Parte Motions for Subpoenas (ECF Nos. 2686, 2687, 2688) are GRANTED.
2. The Clerk of the Court shall UNSEAL Payne's motions (ECF Nos. 2686, 2687, 2688).
3. The Clerk of the Court shall issue the proposed subpoenas (ECF Nos. 2686-1, 2687-1, 2688-1) to the following individuals commanding him or her to appear at the evidentiary hearing before the Honorable Chief Judge Gloria M. Navarro on Monday, October 23, 2017, at 9:00 a.m.: (1) Kent Kleman, (2) Danielle Cardenas, and (3) Toni Suminski.
4. The Clerk of the Court shall deliver a copy of this order and the subpoenas to the United States Marshal.
5. The United States Marshal shall serve a copy of this order and the subpoenas to the designated Department of Interior official:
Kent Kleman
BLM Office of Law Enforcement and Security
1387 S. Vinnell Way
Boise, Idaho 83709
6. Pursuant to the court's September 11, 2017 Order (ECF No. 2351), Kent Kleman will accept and serve defense subpoenas for Department of Interior personnel and promptly inform defense counsel if process cannot be effected.
7. The United States Attorney's Office is not responsible for arranging for or reimbursing the witnesses for travel, lodging, or expenses. See Order (ECF No. 2351), U.S. Marshals Service, Public Defender's Handbook, available at www.usmarshals.gov/prisoner/pdhandbook.
