UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 14-20685 

v.

HONORABLE DENISE PAGE HOOD

JIM-PAULO RUBIO SERHAN (D1),

Defendant.

________________________________/

ORDER DENYING MOTION TO COMPEL PRODUCTION

OF WITNESSES FROM THE PHILIPPINES,

GRANTING MOTION TO APPOINT DEFENSE COUNSEL

UNDER THE CRIMINAL JUSTICE ACT, AND

GRANTING DEFENDANT’S ORAL MOTION TO ADJOURN TRIAL

I. BACKGROUND

This matter is before the Court on Defendant Jim-Paulo Rubio Serhan’s Motion

to Compel the People to Produce Joseph Maliwat, Joshua Maliwat and Andrew

Bunglon from the Philippines, Motion to Appoint Current Retained Defense Counsel

as appointed counsel under the Criminal Justice Act, and Defendant’s oral Motion to

Adjourn the Trial. The Government filed responses to the two written motions.

On October 28, 2014, the Indictment was handed down charging Defendant

Jim-Paulo Rubio Serhan with: Production of Child Pornography, 18 U.S.C. § 2251(c)

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 1 of 7 Pg ID 339
(Count One); Production of Child Pornography, 18 U.S.C. § 2251(c) (Count Two);

and, Transportation of Child Pornography, 18 U.S.C. § 2252A(a)(1) (Count Three);

Possession of Child Pornography, 18 U.S.C. § 2252A(a)(5)(B) (Count Four), and a

Forfeiture Allegation, 18 U.S.C. § 2253. 

The Magistrate Judge ordered Serhan detained pending trial after a detention

hearing was held. (Doc. No. 10; Doc. No. 17 (transcript)) The Court upheld the

Magistrate Judge’s order detaining Serhan pending trial. (Doc. No. 20) The Court has

also entered an Order denying Serhan’s Motion to Suppress. (Doc. No. 41) The trial

is currently scheduled for August 25, 2015, which now the defense seeks to adjourn.

II. ANALYSIS

A. Defendant’s Motion to Compel

Serhan seeks an order compelling the Government under Fed. R. Crim. Rule 17

to produce defense witness Joseph Maliwat, Joshua Maliwat and Andrew Bunglon

from the Philippines. Serhan asserts that these witnesses will give exculpatory

information and favorable testimony on behalf of Serhan. Serhan claims that he is

now indigent since his mother has now exhausted her savings and is unable to pay the

defense legal fees. Serhan does not have the necessary resources to facilitate the

witnesses’ travel to the United States. 

Rule 17(b) provides that upon a defendant’s ex parte application (which this

2

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 2 of 7 Pg ID 340
was not since it was filed on the public docket by the defense), the court must order

that a subpoena be issued for a named witness if the defendant shows an inability to

pay the witness’s fees and the necessity of the witness’s presence for an adequate

defense. Fed. R. Crim. P. 17(b). If a witness resides in a foreign country, 28 U.S.C.

§ 1783 governs the service of a subpoena. Fed. R. Crim. P. 17(e)(2). Courts have

held that Rule 17(b) does not apply to witnesses who are not citizens, nationals, or

residence of the United States, in light of the provision in 28 U.S.C. § 1783(a). See

Gillars v. United States, 182 F.2d 962, 978 (C.A. D.C. 1950). Section 1783(a)

provides that a court in the United States may order the issuance of a subpoena

requiring the appearance as a witness before it “of a national or resident of the United

States who is in a foreign country ...” 28 U.S.C. § 1783(a)(italics added). “Aliens

who are inhabitants of a foreign country cannot be compelled to respond to a

subpoena. They owe no allegiance to the United States.” Gillars, 182 F.2d at 978

(citing Blackmer v. United States, 284 U.S. 421 (1932)).

In light of 28 U.S.C. § 1783(a), the Court does not have the authority to issue

a subpoena directing Serhan’s non-citizen or non-resident witness residing in the

Philippines, even if Serhan is able to show that he is unable to pay for his own

witnesses. Serhan does not cite any other authority which allows the Court to require

the Government to arrange for and pay the travel expenses for the three defense

3

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 3 of 7 Pg ID 341
witnesses from the Philippines. Serhan’s Motion to Compel the People to Produce the

three witnesses from the Philippines is denied.

B. Serhan’s Motion to Appoint his Current Counsel under the CJA

Serhan’s retained counsel, Barton W. Morris, seeks to be appointed as counsel

for Serhan under the Criminal Justice Act, 18 U.S.C. § 3006A. Counsel admits he is

not currently a member of the CJA panel in this District, but has an application

pending for consideration. As noted in his Motion to Compel, Serhan’s mother, who

had been responsible for paying counsel’s fees, is no longer able to do so. After

reviewing Serhan’s signed Financial Affidavit, the Court finds he is unable to afford

counsel.

The Government opposes the motion asserting that counsel is not a CJA panel

member and that under the CJA and District’s CJA plan, “exceptional circumstance”

must be shown to appoint counsel who is not a member of the panel be appointed. 

The Government has no position as to counsel’s abilities, but notes that counsel has

not shown “exceptional circumstance” in order for the Court to appoint him under the

CJA in this case.

This District’s CJA Plan provides that the court establish a panel of private

attorneys after receiving recommendations from the Panel Selection Committee. (CJA

Plan, III.A.1.) If the district judge presiding over a case determines that the

4

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 4 of 7 Pg ID 342
appointment of an attorney who is not a member of the CJA panel “is in the interest

of justice, judicial economy or continuity of representation, or there is some other

compelling circumstance warranting his or her appointment, the attorney may be

admitted to the CJA panel pro hac vice and appointed to represent the CJA

defendant.” (CJA Plan, III.A.4.) The CJA Plan further states that, “[c]onsideration

for preserving the integrity of the panel selection process suggests that such

appointments should be made only in exceptional circumstances.” (CJA Plan,

III.A.4.) If the district judge were to appoint counsel not on the CJA Panel, “[n]otice

of such appointment shall be sent to the District Court Executive at the time of the

appointment.” (CJA Plan, III.A.4.)

At the time of Serhan’s arraignment on the Complaint on September 9, 2014

and on the Indictment on October 28, 2014, the Federal Defender was appointed to

represent Serhan. (Doc. Nos. 6 and 12) On December 3, 2014, the Assistant Federal

Defender filed a Motion to Suppress on behalf of Serhan. (Doc. No. 11) Shortly

thereafter, on December 15, 2014, current retained counsel filed an appearance on

behalf of Serhan. (Doc. No. 24) 

Although it is at the Court’s discretion to appoint retained counsel under the

CJA, under the District’s CJA Plan, the Court must find “exceptional circumstances”

to appoint retained counsel. Based on defense counsel’s submissions and arguments

5

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 5 of 7 Pg ID 343
before the Court, it appears current counsel is sufficiently knowledgeable of the

procedures and rules in this District and under federal law. In this instance, there

exists exceptional circumstances since Serhan trial is scheduled for October 2015, a

little over two months away. Serhan has been represented by current counsel since

December 2014 and it appears that Serhan is satisfied with defense counsel’s

representation of Serhan. The Court finds in this instance that it is in the interest of

justice, judicial economy and continuity of representation for current retained counsel

to be appointed under the CJA. The Court grants Defendant’s Motion to Appoint

Counsel Pursuant to the CJA.

C. Defendant’s Oral Motion to Adjourn Trial

At the August 6, 2015 hearing, defense counsel moved to adjourn the August

25, 2015 trial (which was scheduled at the defense’s insistence and in opposition to

the Government’s prior motion to adjourn trial). Serhan waived his right to a speedy

trial. The Court granted the motion on the record.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendant’s Motion to Compel the People to Produce

Joseph Maliwat, Joshua Maliwat and Andrew Bunglon from the Philippines (Doc. No.

42) is DENIED.

6

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 6 of 7 Pg ID 344
IT IS FURTHER ORDERED that Defendant’s Motion to Appoint Counsel for

Defendant Pursuant to the Criminal Justice Act (Doc. No. 43) is GRANTED.

IT IS FURTHER ORDERED that Defendant’s Oral Motion to Adjourn Trial

heard on August 7, 2015 is GRANTED.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: August 17, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of

record on August 17, 2015, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

7

2:14-cr-20685-DPH-RSW Doc # 51 Filed 08/17/15 Pg 7 of 7 Pg ID 345