USA v. Johnson

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Mark Allen Johnson
Case No. 3:21-cr-00021-TMB-MMS-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
This matter comes before the Court on Defendant Mark Allen Johnson’s Motion to Renew Motion
for 17(c) Subpoena (the “Renewed Motion”).1 On January 19, 2023, Johnson filed a Motion for
Subpoena Duces Tecum for Alaska Regional Hospital Records (the “Motion”), requesting the
Court issue a subpoena under seal and on an expedited basis.2 The Court denied the Motion without
prejudice, finding that Johnson had failed to comply with the notice requirement of Federal Rule
of Criminal Procedure (“Rule”) 17(c)(3).3 On February 2, 2023, Johnson filed the Renewed
Motion; the United States (the “Government”) does not oppose the Motion or the Renewed
Motion.4
On February 9, 2023, the Court issued a text order directing the parties to file a joint motion to
include a protective order and request for in camera review of the documents produced by the
third-party subpoena.5 Following this directive, the Government filed a Joint Motion for Protective
Order (the “Joint Motion”) and a Joint Notice Re In Camera Review (the “Joint Notice”).6 Almost
one month later, Johnson filed a Joint Status Report with an update confirming that the parties had
complied with the Rule 17(c)(3) notice requirements.7 For the reasons stated below, the Court
GRANTS the Renewed Motion at Docket 79 and the Joint Motion at Docket 81, and ACCEPTS
the Joint Notice at Docket 82 and the Joint Status Report at Docket 85.
On August 30, 2021, Johnson pleaded guilty to Felon in Possession of Firearms and Ammunition.8
On August 31, 2022, the Court continued Johnson’s Imposition of Sentence proceedings and
directed the parties to file supplemental briefing regarding the assault allegations previously
1 Dkt. 79 (Renewed Motion).
2 Dkt. 68 (Motion); Dkt. 69 (Sealed Subpoena); Dkt. 70 (Motion for Leave to File Under Seal);
Dkt. 71 (Motion for Expedited Consideration); Dkt. 73 (Defendant’s Response to Court Order).
3 Dkt. 77 (Order Denying Motion Without Prejudice); Dkt. 78 (Text Order).
4 Dkt. 75 (Government Response); see generally Dkt. 68; Dkt. 79.
5 Dkt. 80. (Text Order).
6 Dkt. 81 (Joint Motion for Protective Order); Dkt. 82 (Notice re In Camera Review).
7 Dkt. 85 (Joint Status Report).
8 See 18 U.S.C. §§ 922(g)(1), 924(a)(2); Dkt. 2 (Indictment); Dkt. 26 (Minute Entry).
Case 3:21-cr-00021-TMB-MMS Document 86 Filed 03/14/23 Page 1 of 4

2
asserted against Johnson by alleged victim L.T.9 The parties filed supplemental briefing and the
Court set an evidentiary hearing on the matter.10
On January 19, 2023, Johnson filed the Motion, requesting the Court issue a “subpoena duces
tecum to compel the production of L.T.’s medical records.”11 Johnson contended that these records
were relevant to his upcoming evidentiary hearing and sentencing “because they bear on the
credibility of L.T. and are likely to contain statements to medical professionals regarding [the
assault].”12 Accordingly, Johnson asked the Court to compel third party Alaska Regional Hospital
to release all medical records for L.T. between February 1, 2020 and July 10, 2020.13
The Government did not oppose the Motion but asked the Court to “order [Johnson] to provide
any material received in response to the [G]overnment in discovery in sufficient time to prepare
for the evidentiary hearing.”14
The Court denied the Motion without prejudice, holding that Johnson had failed to comply with
the requirements of Rule 17(c)(3) because he had not provided L.T. with notice and an opportunity
to respond to the subpoena as required by the rule.15 The Court stated that neither Johnson nor the
Government had alleged “exceptional circumstances” to justify issuing the subpoena without
notice to the victim at issue.16
In the Renewed Motion, Johnson informs the Court that “L.T. has absconded from probation and
has multiple active warrants.”17 Johnson asserts that he “has undergone significant efforts to locate
L.T. and to apprise her of the subpoena he is seeking.”18 Johnson outlines his efforts, which
include: (1) contacting her state attorney, (2) attempting to contact her relatives, (3) and trying to
“discern her current whereabouts through different databases.”19 Johnson indicates that the
Government has also been unable to locate L.T.20
During these location attempts, Johnson provided Kevin Coe, L.T.’s state counsel, with the
proposed subpoena. Coe conveyed to Johnson that “he had not been in recent contact with L.T.”
but would attempt to relay the message to her.21 In a subsequent email, Coe stated that he believed
that L.T. “would be opposed to the disclosure of these records out of both privacy and safety
9 Dkt 47 (Text Order); Dkt. 52 (Minute Entry).
10 Dkt. 55 (Government Supplement); Dkt. 56 (Johnson Supplement); Dkt. 61 (Government
Response); Dkt. 62 (Johnson Response); Dkt. 65 (Sealed Exhibits); Dkt. 66 (Minute Entry).
11 Dkt. 68 at 1–2.
12 Id. at 2.
13 Dkt. 69 (Sealed Proposed Subpoena).
14 Dkt. 75 at 1.
15 Dkt. 77 at 2.
16 Id.
17 Dkt. 79 at 2.
18 Id.
19 Id.
20 Id.
21 Id. at 3.
Case 3:21-cr-00021-TMB-MMS Document 86 Filed 03/14/23 Page 2 of 4

3
concerns.”22 Coe then requested, on L.T’s behalf, that the Court “review the records in-camera
prior to disclosing them” and “redact any portions that are not relevant for the federal case.”23 To
protect L.T.’s privacy and safety, Coe specifically requested that “any records disclosed” also be
subject to a protective order to ensure that they not be distributed to Johnson.24
In response to L.T.’s state counsel, the parties filed the Joint Motion, asking the Court to “issue an
order prohibiting the alleged victim’s medical records from Alaska Regional Hospital, or copies
thereof, from being left in the custody of the defendant and/or being distributed, shown, or made
available to individuals other than the defense attorney(s), prosecutor(s), their staffs, their
investigators, or experts or consultants specifically retained by either party.”25 Further, the parties
request “that the order require counsel to advise all members of The Defense and Prosecution
Teams of the terms of this protective order and require all members of The Defense and
Prosecution Teams to abide by it.”26
In the Joint Notice, the parties assert that the protective order proposed in the Joint Motion is
“sufficient to protect L.T.’s privacy” and “there is no need for in camera review in this case.”27
On March 20, 2023, the parties filed a Joint Status Report, clarifying that Johnson was recently
able to locate L.T. and had provided her with a copy of the third-party subpoena through Coe.
After notifying L.T., Coe communicated that L.T had “indicated that [he could] accept service of
materials related to this issue on her behalf” and that she had “privacy and safety concerns,” and
“would like the records to remain as private/confidential as possible.”28
Under Federal Rule of Criminal Procedure (“Rule”) 17(c)(1), a subpoena may compel production
of “any books, papers, documents, data, or other objects.” Rule 17(c)(3) provides that
[a]fter a complaint, indictment, or information is filed, a subpoena
requiring the production of personal or confidential information
about a victim may be served on a third party only by court order.
Before 	entering 	the 	order 	and 	unless 	there 	are 	exceptional
circumstances, the court must require giving notice to the victim so
that the victim can move to quash or modify the subpoena or
otherwise object.
Considering that the parties have now located L.T. and provided her with notice of the subpoena
and meaningful time to respond, the Court finds that the parties have satisfied the Rule 17(c)(3)
notice requirement. Accordingly, and because the Joint Motion provides a protective order that
aligns with L.T.’s privacy and safety concerns, the Court GRANTS the Renewed Motion at
22 Id. (quoting Coe email).
23 Id.
24 Id. at 4.
25 Dkt. 81 at 1–2.
26 Id. at 2.
27 Dkt. 82 at 1–2.
28 Dkt. 85 at 1.
Case 3:21-cr-00021-TMB-MMS Document 86 Filed 03/14/23 Page 3 of 4

4
Docket 79 and the Joint Motion at Docket 81 and ACCEPTS the Joint Notice at Docket 82 and
the Joint Status Report at Docket 85. THEREFORE, the sealed Subpoena Duces Tecum at Docket
69-1 shall be issued, directing Alaska Regional Hospital to produce the medical records for L.T.
from February 2020 through July 10, 2020. The parties should confer and file a joint request for
hearing once they are ready to proceed with the Evidentiary Hearing.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: March 14, 2023.
Case 3:21-cr-00021-TMB-MMS Document 86 Filed 03/14/23 Page 4 of 4