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MICHAEL BAILEY 

United States Attorney 

District of Arizona 

KEVIN M. RAPP (Ariz. Bar No. 14249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov) Special Assistant U.S. Attorneys 

312 N. Spring Street, Suite 1200 

Los Angeles, CA 90012 

Telephone (213) 894-3391 

BRIAN BENCZKOWSKI 

Assistant Attorney General Criminal Division, U.S. Department of Justice 

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116 

Washington, D.C. 20530 

Telephone (202) 616-2807 Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Scott Spear, 

 Defendant. 

No. CR-18-422-003-PHX-SMB 

UNITED STATES’ RESPONSE TO 

DEFENDANT SCOTT SPEARS’ 

AMENDED MOTION FOR 

ISSUANCE OF 17(c) SUBPOENAS 

(Doc. 1019) 

SUMMARY OF ARGUMENT 

Defendant Scott Spear’s amended motion for issuance of 17(c) subpoenas should 

be denied for several reasons. First, Spear has failed to demonstrate the relevance of the 

information that he seeks—a threshold requirement for issuance of pretrial Rule 17(c) 

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subpoenas. Second, Spear’s requests are entirely non-specific; he seeks broad, general 

categories of information, and Rule 17(c) cannot be used to compel the production of such 

generalized requests from third parties. Third, to the extent Spear’s proposed subpoenas 

seek impeachment evidence, Rule 17(c) is not the appropriate vehicle to obtain such 

material. Fourth, Spear also cannot use his proposed subpoenas to obtain witness 

statements—Rule 17(h) expressly forecloses such requests. In sum, Spear’s subpoenas 

constitute nothing more than a broad fishing expedition that courts routinely reject. His 

motion should denied. 

RELEVANT FACTS 

 On November 16, 2018, the United States responded to Defendants’ request for 

Brady disclosure that demanded the same material that Spear seeks in his latest filing. (See

Ex. A, Nov. 16, 2018 letter from K. Rapp to M. Piccarreta). The United States asked 

Defendants to provide authority supporting their request. (Id.) Defendants never did so. 

Nearly a year later, Defendants filed a Motion to Compel Production of Brady Material 

(Doc. 777) that again requested the same information, as follows: 

 All communications to and from any local, state, or federal law

enforcement agents, officers, investigators, prosecutors, and other 

officials involved in any manner with the investigation or prosecution of 

Backpage or its directors, officers, or employees. 

 All communications to and from NCMEC relating to the possible 

Criminal prosecution of Backpage or its directors, officers, or

employees. 

 All communications to and from Nanci Clarence, or any lawyers 

representing Mr. Ferrer or Backpage, that relate in any manner to plea 

negotiations or the plea agreement and all documents to or from

the government and any other local, state, or federal law enforcement 

agents, officers, investigators, prosecutors, and other officials relative to 

Mr. Ferrer that relate to the plea negotiations or plea agreement and 

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all writings subsequent to said plea agreement. 

 All communications to and from K.C. Maxwell or any lawyers 

representing Mr. Hyer that relate in any manner to plea negotiations or 

the plea agreement and all documents to or from the government and any 

other local, state, or federal law enforcement agents, officers, 

investigators, prosecutors, and other officials relative to Mr. Hyer that 

relate to the plea negotiations or plea agreement and all writings 

subsequent to said plea agreement. 

(Doc. 777.) The Government responded to the motion. (Doc. 810.) Defendants replied but 

did not mention their request for communications between the prosecution and attorneys 

for Ferrer and Hyer. (Doc. 825.) Instead, their reply largely focused on their request for the 

federal prosecution team’s communications with NCMEC and the Texas and California 

Attorney General’s Offices. (Id.) The Court has not ruled on that motion. 

 On April 3, 2020, and again on April 27, 2020, the United States responded to 

correspondence from Spear requesting the communications that are the subject of his 

proposed subpoenas.1

 (Ex. B). In response, Spear never articulated the requested 

information’s relevance. 

On June 12, 2020, Spear filed a motion for the issuance of three subpoenas, with a 

compliance date that has since passed (May 30, 2020), seeking essentially the same 

communications as the previous correspondence and the Brady motion.2

 

 1

 Despite the United States’ request, Spear neglected to attach to his motion all 

pertinent correspondence regarding the categories of information he seeks. It appears that Spear included a May 13, 2018 letter to attorney Michael Piccarreta in error as it only has marginal relevance to his request for the issuance of the subject subpoenas. (Doc. 1019-3.) Spear included the United States’ correspondence dated April 3, 2020, but not the May 18, 2020 letter that was also responsive to his request for subpoenas. (Ex. B.) 

2

 Despite suggesting that the motion was based on the collective experience of all defense counsel (Mot. at 4), none of the other Defendants has joined Spear’s motion. 

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LAW AND ARGUMENT 

Federal Rule of Criminal Procedure 17(c) states: “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.” To require pretrial production, the requesting 

party must show: 

(1) that the documents [or other materials] are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure 

to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” 

United States v. Nixon, 418 U.S. 683, 699-700 (1974); see also United States v. Reed, 726 

F.2d 570, 577 (9th Cir. 1984) (“[Rule] 17(c) requires a showing of relevancy, admissibility, 

and specificity to support the issuance of a subpoena duces tecum”). Rule 17’s “specificity” 

requirement is not satisfied if the defendant does not know what the evidence consists of 

or what it will show. See United States v. Arditti, 955 F.2d 331, 346 (5th Cir. 1992) (“[I]t 

appears that Arditti was attempting to use the subpoena to gain knowledge that he could 

not obtain under rule 16(a)(1), as much as to obtain evidence, i.e., that he was trying ‘to 

use the subpoena duces tecum as a discovery device, which it is not.’”). A defendant’s 

“mere hope” that the documents will produce favorable evidence will not support the 

issuance of a subpoena. United States v. Hang, 75 F.3d 1275, 1283 (8th Cir. 1996). 

In addition, the Supreme Court has explained: “Rule 17(c) was not intended to 

provide an additional means of discovery. Its chief innovation was to expedite the trial by 

providing a time and place before trial for the inspection of the subpoenaed materials.” 

Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). Specifically, Rule 17(c) 

was not intended to expand the scope of criminal discovery under Rule 16. See id. The 

Ninth Circuit has similarly made clear that seeking documents or other materials solely for 

purposes of impeachment “is generally insufficient to justify the pretrial production of 

documents.” United States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981) (citing Nixon, 418 

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U.S. at 701). 

Rule 17(h) contains a further limit on the types of information that may be sought 

under the rule, stating: “No party may subpoena a statement of a witness or of a prospective 

witness under this rule. Rule 26.2 governs the production of the statement.” Rule 26.2 

incorporates 18 U.S.C. § 3500, also known as the Jencks Act. The rule allows “witness 

statements” to be requested only after the witness has testified on direct examination. Fed. 

R. Crim. P. 26.2(a). Rule 26.2 defines a “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, 

however taken or recorded, or a transcription of such a statement.” Fed. R. Crim. P. 26.2(f). 

Defendant’s request for issuance of his three proposed subpoenas runs afoul of 

several of these requirements, and his motion should be denied.

A. Spear Has Failed to Show that His Proposed Subpoenas Seek Relevant 

Information. 

For over a year, Defendants have repeatedly requested the communications sought 

in Spear’s motion. Yet they’ve failed to articulate the necessary factors, including 

relevance and specificity, as required by Nixon. 418 U.S. at 699-700. The three proposed 

subpoenas broadly seek communications between government prosecutors and defense 

attorneys, NCMEC employees, and Department of Justice officials; however, Spear’s 

motion contains no indication of what those communications might show. In Hang, the 

court explained that a defendant’s “mere hope” that the requested documents would 

produce favorable evidence is insufficient to support issuance of a subpoena. 75 F.3d at 

1283; see also Deitle v. United States, 302 F.2d 116, 118 (7th Cir. 1962) (denying motion 

for subpoena of witnesses that failed to “set forth the testimony defendant expects the 

witnesses to give nor . . . show that such evidence would be material to his case”). For 

example, here is Spear’s broad and speculative demand: “any written or digital notes, 

commentary, or other statements made by Mr. Ferrer or his attorneys regarding plea 

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negotiations, including anything that might indicate Mr. Ferrer’s disagreement with 

government assertions and accusations, including his refusal or other objections to agree 

to what prosecutors or agents were attempting to have him discuss or allege.” (Mot. at 2 

(emphasis added)). 

In addition, Spear’s reliance on United States v. Sudikoff, 36 F. Supp. 2d 1196 

(C.D. Cal. 1999), “as well as other applicable case law,” for the issuance of 17(c) 

subpoenas is unavailing. (Mot. at 2.) In Sudikoff, the court ordered disclosure of 

communications between the prosecution and counsel for a cooperating informant who, 

unlike here, received immunity. Sudikoff, 36 F. Supp. 2d at 1206 (“‘The need for 

disclosure is particularly acute where the government presents witnesses who have been 

granted immunity from prosecution in exchange for their testimony.’”) (quoting Carriger 

v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997)). Here, neither Ferrer nor Hyer were 

provided immunity for their expected testimony. Instead, they entered plea agreements 

that have been disclosed to Defendants. In addition, both Ferrer and Hyer engaged in 

numerous interviews that have been memorialized in memoranda of interviews (MOIs), 

adopted by those witnesses and disclosed pursuant to the Jencks Act and the Court’s 

scheduling orders. And, unlike Sudijkoff, there is substantial corroborating evidence for 

Ferrer’s and Hyer’s testimony, including hundreds of emails between Ferrer and Hyer 

and Defendants. Cf. Carriger, 132 F.3d at 480-82 (lack of corroborating evidence at trial 

made impeachment evidence material). Moreover, Ferrer’s testimony, in particular, 

involves numerous meetings and/or email exchanges with law enforcement officials (e.g., 

the Washington State Attorney General’s Office, law enforcement members representing 

the Dallas Internet Crimes Against Children Conference, numerous state and federal law 

enforcement representatives seeking information from Backpage) and non-governmental 

organizations (NCMEC, Polaris, the Auburn Theological Seminary, among others) where 

participants in those meetings will testify and largely corroborate Ferrer’s version of the 

meetings. 

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B. Spear’s Requests Are Not Specific and Constitute an Impermissible 

Attempt to Use Rule 17(c) as a Discovery Tool. 

In addition to relevancy, a Rule 17(c) subpoena requires a showing of specificity to 

support its issuance. See Reed, 726 F.2d at 577 (“[Rule] 17(c) requires a showing of 

relevancy, admissibility, and specificity to support the issuance of a subpoena duces 

tecum”). The “specificity” requirement is not satisfied if the defendant does not know what 

the evidence consists of or what it will show. See Arditti, 955 F.2d at 346. 

Spear’s request fails this specificity requirement. The general nature of his request 

is evidenced by such phrases as “anything that might indicate.” (Mot. at 2) The following 

request illustrates the type of overbroad, generalized language contained in his proposed 

subpoenas: 

1) All communications between your firm (Clarence, Dyer and Cohen) 

and/or any co-counsel on the one hand, and any prosecutors and/or 

members of law enforcement on the other, regarding, suggesting or 

related to Carl Ferrer, Backpage, or any defendant in this captioned 

matter, including but not limited to any communications reflecting 

negotiations, facts alleged by the government, attorney proffers, 

interviews or statements of Carl Ferrer, etc. 

(Doc. 1091 (emphasis added).) 

This broad, open-ended request, is anything but specific. Spear’s remaining 

proposed subpoenas are deficient for the same reason, and his motion should be denied. 

United States v. Johnson, 2008 WL 62281, at *4 (N.D. Cal. Jan. 4, 2008) (relying on 

Nixon’s “specificity” requirement to prevent improper use of Rule 17(c) as a discovery 

tool; “[T]his is not merely an improper fishing expedition, this a net cast blindly from an 

ocean troller in the mere hope of dredging some speculative treasure from the bottom of 

the sea.”). 

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C. Rule 17(c) Is Not an Appropriate Tool for Seeking the Pretrial 

Production of Impeachment Material.

 The subpoenas also seek impeachment material because, as Spear argues, “the 

material would be admissible directly as admissions and declarations against interest.” 

(Mot. at 5.) Spear apparently theorizes that defense counsel for Ferrer and Hyer 

provided an overview of their clients’ expected information before meeting with the 

prosecution team, that this information is materially different from what is 

documented in the MOIs, and that Spear is entitled to receive any notes or 

communications memorializing those attorney and witness proffers to determine if 

there are inconsistencies with the MOIs. Spear fails to explain why the information he 

seeks is relevant except for impeachment purposes, which the Supreme Court and the Ninth 

Circuit have held is insufficient. See Nixon, 418 U.S. at 701 (“Generally, the need for 

evidence to impeach witnesses is insufficient to require its production in advance of trial.”); 

Fields, 663 F.2d at 881 (seeking documents or other materials solely for purposes of 

impeachment “is generally insufficient to justify the pretrial production of documents”). 

D. It is Unclear if Rule 17(h) Permits Subpoenas for Witness Statements 

From Third Parties. 

A subpoena requested under Rule 17(c) cannot be used to obtain witness statements. 

Fed. R. Crim. P 17(h) (“No party may subpoena a statement of a witness or of a prospective 

witness under this rule. Rule 26.2 governs the production of the statement.”). Here, the 

defective subpoenas request communications (which are statements) between various 

individuals (e.g., between government prosecutors and attorneys for Ferrer and Hyer, 

Department of Justice officials and NCMEC). The statements sought by Spear (e.g., 

communications between the prosecution team and/or representatives of the Attorney 

General’s Offices of Texas and California and attorneys for Ferrer, Hyer, NCMEC) are not 

statements from a testifying witnesses, nor (if they exist) do they consist of statements that 

have been adopted by Ferrer and Hyer. See 18 U.S.C. § 3500. 

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More importantly, as the subpoenas are directed to third parties (counsel for Ferrer 

and Hyer), notes taken by the attorneys raise privilege issues, among other things. In 

addition, as the attorneys are not witnesses at trial and the notes (if they even exist) are not 

in the possession of the government, no Rule 26.2 or Jencks Act obligations arise. The 

Court should deny the request for the issuance of the subject subpoenas to the extent that 

they seek statements from a witnesses’ attorney. 

Although no appellate court appears to have considered whether Rule 17(h)’s 

prohibition against subpoenaing witness statements applies to statements that are not—and 

may never be—in the United States’ possession, several district courts have concluded that 

Rule 17(h) only applies to witness statements in the possession of a party. See, e.g., United 

States v. Chavez, 2020 WL 109703, at *3-4 (N.D. Cal. Jan. 9, 2020) (discussing split of 

authority; holding that Rule 17(h) should not be interpreted to prevent subpoenaing witness 

statements in the possession of a non-party); United States v. Hussain, 2018 WL 1091083 

at *2 (N.D. Cal. Feb. 28, 2018) (Rule 17(h) applies only to statements in the United States’ 

possession); United States v. Johnson, 2014 WL 6068089, at *3, 11 (N.D. Cal. Nov. 13, 

2014) (limiting subpoena to documents in possession of subpoenaed non-party but not in 

possession of the United States); United States v. Perez, 2014 WL 12697319, at *2 (C.D. 

Cal. May 14, 2014) (quashing only unsworn hearsay statements of witness, but permitting 

subpoena for her statements made during investigation of defendants and information about 

her role as police informant, where those materials were not in the United States’ 

possession). 

However, several other courts have concluded that Rule 17(h) applies to all witness 

statements from whatever source. See, e.g., United States v. Benanti, 2017 WL 78734, at 

*3 (E.D. Tenn. Jan. 6, 2017) (denying request for subpoena of co-defendant’s jail telephone 

recordings under Rule 17(h)); United States v. Phoenix, 2015 WL 6094882, at *3 (N.D. 

Cal. Oct. 16, 2015) (Rule 17(h) bars use of a subpoena to obtain witness statements from 

parties or non-parties); United States v. Yudong Zhu, 2014 WL 5366107, at *3 n.3 

(S.D.N.Y. Oct. 14, 2014) (rejecting defendant’s argument that Rule 17(h) applies only to 

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witness statements already in the United States’ possession). 

In all events, Spear seeks the statements of Hyer’s and Ferrer’s attorneys. For 

example, he argues that “Mr. Spear seeks any written or digital notes, commentary, or 

other statements made by Mr. Ferrer or his attorneys.” Aside, from attorney-client 

privilege considerations, Ferrer’s attorneys—who are not testifying witnesses—would be 

under no obligation under Rule 26.2 or the Jencks Act to provide these statements. The 

same argument, of course, applies to Hyer. 

In addition, Spear has asserted on several occasions that his instant request is similar 

to the discovery request made in United States v. Sidoo, CR 19-10080-NMG (D. Mass). 

(See Ex. D). There the Defendant worked proactively with law enforcement to investigate 

targets that were suspected of providing bribes for their children to gain entrance into 

selective universities. The proactive nature of this assistance included wiretaps of phone 

conversations and in person meetings with targets. (Id.) Apparently the cooperator (Rick 

Singer) took notes during his proactive investigative activities and the court found these 

notes discoverable. (Id.) 

The government has advised Spear’s counsel that those circumstances do not exist 

here. (See Ex B and 1019-3 at 8) In short, Ferrer did not meet with the prosecution team 

(both State and Federal) until April 5, 2018. Hyer did not meet with the prosecution until 

August 2018. This fact is detailed in Ferrer’s and Hyer’s MOIs, which Spear received well 

before the government was obligated to provide them. In addition, there is nothing in the 

million pages of discovery that has been provided to Defendants that contradicts this fact. 

Nevertheless, Spear persists in his request. This is a classic fishing expedition. 

Lastly, regarding the request for communications between NCMEC and DOJ, 

Spear acknowledges that Defendants have received Jencks Act statements for NCMEC 

employees testifying at trial. It is unclear what discovery obligation is triggered by the 

video attached as Exhibit E to his motion, but the request for a subpoena fails based on 

the Nixon considerations detailed above. 

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CONCLUSION 

 Based on the foregoing, Spear’s request for the issuance of three subpoenas should 

be denied. 

Respectfully submitted this 26th day of June, 2020. 

 MICHAEL BAILEY 

 United States Attorney 

 District of Arizona 

s/ Kevin Rapp KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER S. KOZINETS 

 ANDREW C. STONE 

 Assistant U.S. Attorneys 

JOHN J. KUCERA 

DANIEL BOYLE 

Special Assistant U.S. Attorneys 

 BRIAN BENCZKOWSKI 

 Assistant Attorney General Criminal Division, U.S. Department of Justice 

 REGINALD E. JONES 

 Senior Trial Attorney 

 U.S. Department of Justice, Criminal Division 

 Child Exploitation and Obscenity Section 

CERTIFICATE OF SERVICE 

 I hereby certify that on this same date, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record. 

s/ Marjorie Dieckman

Marjorie Dieckman 

U.S. Attorney’s Office 

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