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feder law office p.a.

2930 East Camelback Road, Suite 160

Phoenix, Arizona 85016

602-257-0135 phone

602-954-8737 fax

bf@federlawpa.com

Bruce Feder – State Bar No. 004832

Attorney for Defendant Scott Spear

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v.

Scott Spear,

Defendant.

CASE NO. CR2018-00422-003-PHX-SMB

DEFENDANT SPEARS’ REPLY IN

SUPPORT OF MOTION FOR

ISSUANCE OF RULE 17(c)

SUBPOENAS

(Assigned to the Hon. Susan M. Brnovich)

Defendant’s Motion for issuance of Rule 17(c) subpoenas should be granted.

As an initial matter, the government does not have standing to challenge Defendant’s

motion, as the motion does not seek records from the government. In any event, the

government’s objections to the subpoenas largely rely on the misguided extrapolation

of non-binding dicta from cases involving subpoenas that were very different in both

scope and content than those at issue here. Further, as the motion sufficiently

demonstrates, defendant has met his burden of establishing the Nixon factors,

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specifically: (1) relevancy; (2) admissibility; and (3) specificity. The Court’s analysis

need go no further.

A. The Government Has No Standing to Challenge Defendant’s Third-Party

Subpoenas.

The government lacks standing to challenge the issuance of third-party

subpoenas – its “response” in opposition to the issuance of the subpoenas should

therefore be stricken and/or disregarded. “As the Supreme Court has explained, it is

the responsibility of the court, not the opposing party, to ensure that a subpoena

secured under rule 17(c) is for a proper purpose.” U.S. v. Tomison, 969 F.Supp. 587,

594 (E.D. Cal. 1997), citing Bowman Dairy Co. v. United States, 341 U.S. 214, 221

(1951) (“[T]here is no reason to suppose that the government’s participation is

required to ensure that the court performs its duty in determining that the requisites for

issuing the subpoena have been demonstrated. . .”); see also, e.g., U.S. v. Jenkins, 895

F.Supp. 1389, 1397 (D. HI 1995) (“Just because the decision to allow pretrial

production is left to the court does not mean that it should be heard in an adversary

proceeding.”).

Further, Rule 17(c) expressly provides that “the court may quash or modify the

subpoena if compliance would be unreasonable or oppressive. Fed R. Crim. Pro.

17(c)(2). This language indicates that “the party to whom the subpoena is directed is

the only party with ‘standing’ to oppose it. This is because no matter what interest a

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party to whom the subpoena is not directed may have, it does not arise out of the

difficulty of compliance.” Tomison, 969 F.Supp. at 591-92 (emphasis added).

“Accordingly, the government lacks standing to raise the exclusive grounds for

quashing the subpoena, since it lacks the sine qua non of standing, an injury in fact

relative to those grounds.” Id. at 596 (emphasis added).

There are exceptions to this rule that are not applicable here – a party may have

standing to move to quash a subpoena issued to another when the subpoena infringes

upon the movant’s legitimate interests. U.S. v. Ramos, 2014 WL 8817652, *3 (C.D.

Cal. Sept. 17, 2014), citing Tomison, 969 F.Supp. at 596. In other words, the

government may have standing to oppose a third-party subpoena when it infringes on

the government’s interest in preventing undue lengthening of the trial, undue

harassment of its witness, and prejudicial over-emphasis on the witness’s credibility.”

U.S. v. Lester, 2016 WL 5109611, *2 (E.D. Cal. Sept. 19, 2016). Accord U.S. v.

Somnang Chea, 2019 WL 2465492, *2-3 (E.D. Cal. June 13, 2019) (same). In the

instant case, however, the only “interest” set forth by the government is ensuring

Defendant’s compliance with the prerequisites of Rule 17, which is the duty of the

Court, not the government. Courts in the Ninth Circuit do not consider this to be a

legitimate government interest. See Ramos, 2014 WL 8817652 at *3; U.S. v. Ortiz,

2013 WL 6842559 (N.D. Cal. Dec. 27, 2013) (“The government argues that it has an

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interest in ensuring that defendants properly comply with Federal Rule of Criminal

Procedure 17(c). This is not a legitimate interest that would confer standing upon the

government.”); U.S. v. Johnson, 2014 WL 6068089, *3 (N.D. Cal. Nov. 13, 2014)

(“The Government . . . seeks to police Defendant’s use of the Federal Rules of

Criminal Procedure, calling Defendant’s subpoenas an “improper fishing expedition”

. . . The Government’s [] argument for standing is invalid . . .”). The government

plainly lacks standing to challenge the subpoenas at issue. Tomison, 969 F.Supp. at

596.

B. The Court Should Disregard the Government’s Response As It Has No

Standing and Find That Defendant’s Subpoenas Meet the Nixon Standard.

A Rule 17(c) subpoena must meet the tests of “(1) relevancy; (2) admissibility;

and (3) specificity.” Nixon, 418 U.S. at 700.

1. Defendant Has Sufficiently Demonstrated That He Seeks “Relevant”

Information.

The Ferrer subpoenas at issue seek that which the government claims it does not

possess, but noticeably absent from the government’s protestations are any

declarations from California or Texas state authorities that they do not possess

evidence relating to the complex federal and state plea agreements entered into by Mr.

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Ferrer or the related (and complicated) forfeiture and privilege waiver agreements.1 It

is virtually impossible that these agreements were negotiated without some

prosecutorial agency’s participation, before April 5, 2018, as the government suggests.

To assert that such negotiations and agreements are not relevant, admissible, and

specific borders on the absurd. Similarly, evidence related to NCMEC’s assertion at a

DOJ function that it facilitated and substantially influenced the present prosecution is

also obviously relevant.

In other words, the documents sought have a “tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Zhiqiang Zhang, 2012 WL

195509, *2, quoting Fed. R. Evid. 401. Especially when this standard, as it must be,

is applied “leniently.” Johnson, 2014 WL 6068089, *7; see also, e.g., U.S. v.

MacKey, 647 F.2d 898, 901 (9th Cir. 1981) (“Because the government has not yet

seen the documents, it would be unreasonable to expect a more detailed connection be

provided between the contents of the documents and the ultimate facts at issue in the

case.”).

1

If neither California nor Texas possess any such documents, however, it would be

neither unreasonable or oppressive for them to respond to the subpoenas saying that is the

case.

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The government erroneously argues that the subpoenas result in an

inappropriate “fishing expedition” or the “mere hope” that they might turn up

evidence. Resp. at 5-6. The government’s boilerplate response, however, does

nothing to refute the Defendant’s threshold showing of relevancy. For example, the

government misguidedly cites U.S. v. Hang, 75 F.3d 1275 (8th Cir. 1996), for the

proposition that the subpoenas in the instant case do not meet the threshold showing

of “relevancy.” Resp. at 5. Unlike the subpoenas in the instant case, however, in

Hang, the subpoenas were “based on nothing but sheer speculation” regarding the

“mental health of certain prosecution witnesses,” and the defense was “hard-pressed”

to justify its request. Id. at 1283. Similarly, the government’s discussion of

“immunity” and “corroborating” evidence (Resp. at 6) has no bearing on whether the

documents sought in the instant case have a “tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Zhiqiang Zhang, 2012 WL 195509,

*2, quoting Fed. R. Evid. 401. Defendant has provided sufficient information to

easily clear the “relevancy” threshold.

2. Defendant Has Sufficiently Demonstrated That He Seeks

“Admissible” Information.

Once the Court has determined that material sought is relevant, it must ask

whether the material would be admissible. “This inquiry is largely governed by the

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Federal Rules of Evidence.” . . . . Because it is often difficult at the pretrial stage ‘to

determine with precision the admissibility of certain documents. . . if a document is

arguably relevant and admissible under the Rules of Evidence. The Nixon

‘evidentiary’ requirement is likely satisfied.’” Zhiqiang Zhang, 2012 WL 195509, *2

(N.D. Cal. 2012). The government does not argue that the subpoenas at issue do not

meet the “admissibility” requirement. In any event, the documents sought involve

admissible plea and other negotiations and benefits, as well as promises and evidence

of influence by a private entity over the prosecution decision of the government.

Because the documents sought are “arguably relevant and admissible under the Rules

of Evidence,” they easily meet the requisite standard. Id.; see also, e.g., U.S. v. Libby,

432 F.Supp.2d 26, 31 (D.D.C. 2006) (“[I]t will often be difficult at the pretrial stage to

determine with precision the admissibility of certain documents; therefore, if a

document is arguably relevant and admissible under the Rules of Evidence, the Nixon

‘evidentiary’ requirement is likely satisfied.”).

3. Defendant’s Subpoenas Meet the “Specificity” Requirement.

The Nixon Court “recognized that in some instances it may be impossible to

‘describe fully’ the documents; therefore, the Court concluded that the specificity

requirement could be satisfied if there is a ‘sufficient likelihood,’ demonstrated

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through rational inferences, that the documents being sought contain relevant and

admissible evidence.” Libby, 432 F.Supp.2d at 31, citing Nixon, 418 U.S. at 700.

Courts have consistently recognized that “one of the major purposes of the

specificity requirement is to provide the subpoenaed party or other party having

standing with enough knowledge about what documents are being requested so as to

lodge any objections on relevancy or admissibility.” Id. at 32. (citations omitted).

The instant subpoenas provide the subpoenaed party with more than enough

information to make any such objections.

The government again relies on inapposite cases that involve subpoenas that

bear no connection to the ones Defendant seeks here. Resp. at 7, citing U.S. v. Arditti,

955 F.2d 331 (5th Cir. 1992) (seeking broad categories of privileged documents from

the government) and U.S. v. Johnson, 2008 WL 62281 (N.D. Cal. Jan. 4, 2008) (with

no basis to presume that any such records exist, “broadly seeking any complaints filed

against the arresting officers and records that may possibly call into question the

veracity of the aged battery victim”); but c.f., e.g., U.S. v. Avenatti, 2020 WL 508682,

*5 (S.D.N.Y. Jan. 31, 2020):

Avenatti contends that email and text message communications between

Franklin and Auerbach . . . are certain to contain relevant information

about this case because the only logical reason they would be mentioning

Mr. Avenatti is in relation to the charges in this case. . . Moreover, this

request is sufficiently specific in that it is limited to communications

between two government witnesses about a specific subject matter – Mr.

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Avenatti. See U.S. v. Skelos, No. 15 Cr 317, 2018 WL 22545438, *6-7

(S.D.N.Y. 2018) (“This request meets the specificity requirement of

Nixon in that it specifies communications with a particular person on a

particular subject matter.”).

Defendant seeks plea and other agreement evidence that must exist or there

could not have been disposition agreements for Ferrer and Hyer. NCMEC alleges

publicly that it lobbied DOJ to prosecute, where it was refused such prosecution

previously.

Here, there is a “‘sufficient likelihood,’ based on rational inferences, that the

information sought is both relevant and admissible.” Zhiqiang Zhang, 2012 WL

195509, *2, citing Nixon, 418 U.S. at 700; Libby, 432 F.Supp.2d at 31. The instant

subpoenas “specify communications with a particular person on a particular subject,”

Avenatti, 2020 WL 508682, *5, namely Messrs. Ferrer and Hyer, and communications

regarding NCMEC’s influence on the government’s decision to prosecute.

Significantly, in discovery disclosed by the government, Ernie Allen, who formerly

headed NCMEC, alleged that he was told by former Attorney General Eric Holder,

prior to 2016, that the DOJ could not appropriately prosecute Backpage.2 Evidence of

the reasons for the changed decision in 2018 is relevant, admissible and specific.

2 Since these documents would arguably constitute Jencks material, such

documents will be filed under seal, if the Court deems it necessary to review such

documents.

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Further, evidence of plea, forfeiture and immunity discussions and promises as

to Ferrer and Hyer are relevant, admissible, and specific. See, id. As discussed above,

the subpoenas sought here meet the threshold showing of “specificity.”

C. Assuming, Arguendo, That the Government Had Standing to Challenge the

Subpoenas, Its Remaining Arguments are Unavailing.

Having met the threshold showing of the three-prong test set forth in Nixon and

its progeny, the Court’s analysis need go no further. Notwithstanding, the government

crafts various arguments regarding the general prohibitions on subpoenaing attorney

client communications, witness statements, and impeachment evidence. Resp. at 8-

10. These arguments are purely speculative and ill-founded. The subpoenas do not

seek privileged communication between third-party lawyers and their clients, but

rather seek non-privileged discussions between, on the one hand, attorneys and their

clients, and on the other, law enforcement.

Also, contrary to the government’s suggestion, the subpoenas also do not seek

witness statements, especially since the government has been ordered to, and

purportedly has complied with such order. Rule 26.2 defines a witness statement as

“(1) a written statement that the witness makes and signs, or otherwise adopts or

approves; (2) a substantially verbatim, contemporaneously recorded recital of the

witness’s oral statement that is contained in any recording or any transcription of a

record; or (3) the witness’s statement to a grand jury . . .” Fed R. Crim. Pro. 26.2; see

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Johnson, 2014 WL 6068089,*5, citing U.S. v. Miller, 771 F.2d 1219, 1231 (9th Cir.

1985) (“The Jencks Act is, by its terms, applicable only to writings which are signed

or adopted by a witness and to accounts which are substantially verbatim recitals of a

witness’ oral statements.”); U.S. v. Spencer, , 618 F.2d 605, 606 (9th Cir. 1980) (notes

which are a “not complete, are truncated in nature, or have become an unsiftable mix

of witness testimony, investigator’s selections, interpretations, and interpolations” are

not producible ‘statements’ under the Act).

Finally, the government, without substantiation, argues that the subpoenas seek

“impeachment” evidence. It is well settled that, “the need for evidence to impeach

witnesses is [generally] insufficient to require its production in advance of trial.

However, such materials might otherwise be subject to a rule 17(c) subpoena where

they have some other valid potential evidentiary uses.” Johnson, 2014 WL 6068089,

*2, quoting Nixon, 418 U.S. at 702; Ramos, 2014 WL 8817652, *4. The general bar

on impeachment subpoenas does not apply when there are “other valid evidentiary

uses for the same material.” Johnson, 2014 WL 6068089, *6, citing Nixon, 418 U.S.

at 702. In the instant case, the subpoenas seek much more than impeachment

evidence. The evidence sought is necessary to prepare for trial, to facilitate further

investigation, and to gather exhibits. o the extent such material may be disclosed, it

would have “some other valid potential evidentiary uses.” Id.

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D. Conclusion.

The Court should grant the Motion and issue the Rule 17(c) subpoenas. If the

Court decides that the subpoenas need to be more specific, it can grant leave to submit

amended subpoenas.

RESPECTFULLY SUBMITTED this 13th day of July, 2020.

FEDER LAW OFFICE, P.A.

By: _s/Bruce Feder r

Bruce Feder

Attorney for Defendant Scott Spear

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CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of June, 2020, I electronically transmitted

Defendant Scott Spear’s Motion for Issuance of Subpoenas to the Clerk of the Court

via the CM/ECF system for filing.

COPY of the foregoing emailed

this 13th day of June, 2020 to:

The Honorable Susan M. Brnovich

Brnovich_Chambers@azd.uscourts.gov

Erin E. McCampbell, emccampbell@lglaw.com

Ariel A. Neuman, aan@birdmarella.com

Paul J. Cambria, pcambria@lglaw.com

Thomas H. Bienert, Jr. tbienert@bienertkatzman.com

Whitney Z. Bernstein, wbernstein@bienertkatzman.com

Gary S. Lincenberg, glincenberg@birdmarella.com

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com

Michael D. Kimerer, mdk@kimerer.com

Rhonda Elaine Neff, rneff@kimerer.com

David S. Eisenberg, david@deisenbergplc.com

Joy Malby Bertrand, Joy.Bertrand@gmail.com

Attorneys for Defendants

Kevin Rapp Kevin.Rapp@usdoj.gov

Andrew Stone Andrew.Stone@usdoj.gov

Margaret Perlmeter Margaret.Perlmeter@usdoj.gov

John Kucera John.Kucera@usdoj.gov

Reginald T. Jones reginald.jones4@usdoj.gov

Peter Kozinets Peter.Kozinets@usdoj.gov

Attorneys for United States of America

By: /s/ Mali Evans

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