USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG
ORDER REGARDING MOTIONS FOR RULE 17(a) SUBPOENAS
Pending before the Court are six motions for Rule 17(a) subpoenas filed by
pro se defendant Louis Holger Eklund:
• Docket 442: Motion to Issue Subpoena for Former AK House
Representative, Tammie Wilson, Pursuant to Fed. R.Crim.P Rule 17(a)
• Docket 443: Motion for Subpoena for Anchorage Correctional Complex Sgt.
Jason Marvel, Pursuant to Fed.R.Crim.P Rule 17(a)
• Docket 448: Motion to Issue Subpoena for Philip N. Kaufman Pursuant to
the Federal Rules of Criminal Procedure Rule 17(a)
• Docket 452: Motion to Issue Subpoena for Deputy United States Marshal,
Ryan Thompson, Pursuant to Fed.R.Crim.P Rule 17(a)
• Docket 456: Motion to Issue Subpoena for Federal Bureau of Investigation
Agent, Joshua J. Ronitsch, Pursuant to Fed.R.Crim.P Rule 17(a)
• Docket 468: Motion to Issue Subpoena for Sophia Lottie Mercure Pursuant
to Fed.R.Crim.P Rule 17(a)
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Mr. Holger asserts that he does not need the Court to pay for service or
witness fees and that each motion is brought pursuant to Federal Rule of Criminal
Procedure 17(a). The issue presented by the pending subpoena motions is
whether Rule 17(a) requires the Court to provide Mr. Holger with blank subpoenas
for him to issue to witnesses, not all of whom appear to be relevant to this case.
Mr. Holger is charged with two counts of Cyberstalking based on conduct
stemming from an Alaska state court Child in Need of Aid (CINA) case that resulted
in Mr. Holger losing custody of his son. The alleged victims both played a role in
the CINA case: One was the assistant attorney general who represented the State
of Alaska and the other was the executive director of the Native Village of
Kotzebue, which was involved pursuant to the Indian Child Welfare Act.
Throughout the course of this federal criminal proceeding, it has become
apparent that Mr. Holger seeks to raise numerous issues at this trial that are not
relevant to the Cyberstalking charges. Specifically, it appears that Mr. Holger
seeks to turn this criminal case into a case against various state and federal
government actors for what he believes to be their participation in, or failure to
prevent or report, child kidnapping and trafficking and the sexual abuse of Alaska
Native women.1 To that end, Mr. Holger has engaged in such conduct as mailing
1 For example, in one motion Mr. Holger writes: “The bad people are doing this out of retaliation
for me exposing, to the public en masse, a government bad actor kidnapping & child human
trafficking machine that trafficks [sic] native children, in violation of the Indian Child Welfare Act,
for federal grant money, while lying about operating pursuant to—& not in violation of—the
Indian Child Welfare Act. After I began to expose the child human trafficking machine the bad
people retaliated upon me by targeting & preying upon innocent women & innocent children who
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unfounded information about the alleged victims, the government actors involved
in this case and in the CINA case, and court personnel to a variety of public figures
such as local elected officials, federal congressional members, celebrities, and
news outlets. He has also filed frivolous civil suits in this district and in Alaska state
court that include similar unfounded information. And he has repeatedly violated
court orders in this case.2 The Court has also had to strike from the record
numerous irrelevant letters sent by Mr. Holger to various people not associated
with this case, which Mr. Holger then attempted to file into the docket in this case.3
Mr. Holger has also created and filed false documents into the record that purport
to be court orders, which has caused the Court to order those filings to be marked
“Void: This is not a valid court order. It is a filing by a self-represented litigant.”4
Mr. Holger’s conduct demonstrates his attempts to expand this case far beyond
the scope of the charged conduct.
I know & love (my wife, children & personal female friends & tribal members). Kidnap, violence,
& rape was their preferred method of retaliation.” Docket 448 at 1–2.
2 Based on the record in this case, the Court found it “likely that Mr. Holger would attempt to
intimidate, harass, or tamper with witnesses and that a protective order would not adequately
protect the witnesses from such attempted conduct.” Docket 393 at 4.
3 See, e.g., Dockets 290–292, 296–304, 312–329, 337–343.
4 See, e.g., Docket 231 and Docket 239-3 (fake “arrest warrants” for various district court judges
and state politicians); Docket 239 (fake “order to cease and desist”); Docket 239-1 (fake “oath of
office”); Docket 240 (text order directing that such filings be marked as void).
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I. Legal standards
Federal Rule of Criminal Procedure 17(a) governs subpoenas to witnesses
to testify at trial and provides that “[t]he clerk must issue a blank subpoena—signed
and sealed—to the party requesting it, and that party must fill in the blanks before
the subpoena is served.” Historically, Rule 17(a) has been used by non-indigent
defendants who can pay for service and witness fees. In contrast, Rule 17(b) was
created to allow indigent defendants to obtain subpoenas for witnesses to testify
at trial at no cost, and provides that the defendant may make an ex parte
application for a subpoena and “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.” Thus, while
Rule 17(b) requires a showing of “the necessity of the witness’s presence for an
adequate defense,” Rule 17(a) does not contain this requirement. It appears that
the Rule 17(a) standard is why Mr. Holger—who has been found indigent and was
previously appointed counsel—has elected to move for subpoenas under Rule
17(a).
II. Requirement of a showing of necessity and relevance
Although Rule 17(a) does not contain an express requirement that a
defendant make a showing of necessity and relevance, the Court concludes that
is a proper requirement in this case. The Court will not issue “signed and sealed”
blank subpoenas to Mr. Holger without first requiring a showing of relevance,
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despite his application for the subpoenas pursuant to Rule 17(a). The Court
reaches this conclusion not because Mr. Holger is indigent nor because he is the
defendant in this case,5 but for the following reasons.
First, the Court has wide discretion to determine whether a subpoena should
issue, and “[t]his discretion is necessary to prevent abuses often attempted by
defendants.”6 Issuing blank subpoenas to a vexatious defendant without requiring
a showing of necessity and relevance (and simply because the defendant asserts
that he will pay for service and witness fees) would provide ample opportunity for
such a defendant to abuse the subpoena process.
The Court acknowledges that Mr. Holger’s right to subpoena witnesses rests
not only on Rule 17 “but also on the Sixth Amendment right to compulsory process,
and on the Fifth Amendment right not to be subjected to disabilities by the criminal
justice system because of financial status.”7 The Court has considered Mr.
Holger’s rights under the Fifth and Sixth Amendments and gives great weight to
his right to compulsory process. “However, the right to compulsory process is not
an unlimited right.”8 Accordingly, “[w]hile the court is ready to allow and enforce
5 If the motions had been made pursuant to Rule 17(b), the Court would reach the same
conclusion it does here. Notably, Mr. Holger has elected to forego the protections offered by
Rule 17(b), including the option to file his subpoena motions ex parte and to have the
subpoenas issued at the expense of the court.
6 United States v. Moore, 917 F.2d 215, 230 (6th Cir. 1990) (internal citations omitted).
7 Id.
8 United States v. Rankin, Case No. 2:15-CR-168, 2017 WL 2987197, at *1 (S.D. Ohio July 13,
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[Mr. Holger’s] right to use the subpoena power of this court for legitimate defense
purposes, it is this court’s duty to make certain that the subpoena power is invoked
legitimately and legally.”9
Second, “subpoena power is a substantial delegation of authority . . . and
those who invoke it have a grave responsibility to ensure it is not abused.”10 Mr.
Holger has demonstrated that he will engage in a campaign of abusing the federal
and state court systems to harass a wide range of individuals. In light of Mr.
Holger’s prior behavior in this case, the pending subpoena motions do not
persuade the Court that Mr. Holger will not abuse the subpoenas to require the
attendance of irrelevant witnesses at trial.
Finally, for a witness to be “necessary,” that witness must be “relevant,
material and useful to an adequate defense.”11 As stated by the Fourth Circuit,
“[n]either rich nor poor defendants have an unfettered right to subpoenas without
2017) (discussing Rule 17(a)) (footnote omitted).
9 United States v. Santiago-Lugo, 904 F. Supp. 43, 45 (D. P.R. 1995).
10 Theofel v. Farey–Jones, 359 F.3d 1066, 1074 (9th Cir. 2004); see also United States v.
Montanez-Ortiz, 290 F.R.D. 33, 33 (D.P.R. 2013) (“The use of Rule 17 subpoenas is strictly
regulated to avoid misuse, and to protect third-party rights.”); United States v. Binh Tang Vo, 78
F. Supp. 3d 171, 176 (D.D.C. 2015) (“Because subpoenas are issued with the Court’s seal and
backed by the threat of court-imposed sanctions, the mere fact that an attorney abuses the
subpoena power directly implicates the court itself and creates an embarrassment for the
institution.”).
11 United States v. Moore, 917 F.2d 215, 230 (6th Cir. 1990) (internal citations omitted); accord
United States v. Barker, 553 F.2d 1013, 1021 (6th Cir. 1977) (“[T]he appropriate standard is
whether defendants have alleged that the witnesses will testify about facts that are relevant to
any issue in the case.”).
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discretionary review by the district court. The district court may . . . deny a motion
for compulsory production of witnesses who could not offer relevant evidence and
which the court believed would bring confusion to the trial[.]”12 The Ninth Circuit
has set forth the standard for assessing whether Rule 17(b)’s “necessity of the
witness’s presence for an adequate defense” requirement has been met: “If the
accused avers facts which, if true, would be relevant to any issue in the case, the
requests for subpoenas must be granted, unless the averments are inherently
incredible on their face, or unless the Government shows, either by introducing
evidence or from matters already of record, that the averments are untrue or that
the request is otherwise frivolous.”13 The Court has applied this standard when
considering Mr. Holger’s motions for Rule 17(a) subpoenas.
III. Application of standard to the instant motions
The Court has carefully reviewed the six pending motions for facts that, if
true, would be relevant to this case. The elements of Cyberstalking as charged in
this case are:
• The intent to harass or intimidate a named victim
• by knowingly using the mail, any interactive computer service or
electronic communication service or electronic communication system of
interstate commerce, or any other facility of interstate or foreign
commerce
• to engage in a course of conduct
12 United States v. Bennett, 675 F.2d 596, 598 (4th Cir. 1982).
13 United States v. Sims, 637 F.2d 625, 627 (9th Cir. 1980) (emphasis added).
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• that knowingly causes, attempts to cause, or would be reasonably
expected to cause substantial emotional distress
• to a named victim, an immediate family member of the named victim, or
a spouse or intimate partner of a named victim.14
Mr. Holger’s proposed testimony falls into five categories: (1) testimony from
a former state legislator about her views on “legal kidnapping” by the Alaska Office
of Children’s Services15; (2) testimony about a Prison Rape Elimination Act (PREA)
report Mr. Holger filed in December 2018 regarding the purported sexual assault
of Alaska Native women in the Kotzebue jail and the status of the investigation into
that PREA report16; (3) testimony from the author of an expert report that was
introduced in the CINA case17; (4) testimony from law enforcement agents about
whether an alleged victim in this case is a suspect or person of interest in
connection with “the kidnappings, beating & rapes of my wife and children”18; and
(5) testimony that Mr. Holger had repeatedly tried to call the Office of Children’s
Services in July 2016 during the time period that an OCS employee—who is not
14 See 18 U.S.C. § 2661A(2); Docket 97 (First Superseding Indictment).
15 Docket 442.
16 Docket 443.
17 Docket 448.
18 Docket 452; Docket 456.
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an alleged victim in this case but is a named witness—claims she was unable to
contact Mr. Holger.19
The CINA case has considerable relevance here to the extent it forms the
basis and background of the Cyberstalking charges. Nonetheless, the Court does
not intend to allow any evidence as to the merits of the CINA case—that case has
already been litigated in state court and its merits are not at issue here. However,
the Court intends to allow limited evidence of the CINA case for the sole purpose
of showing that the case occurred and demonstrating the relationship between Mr.
Holger and the alleged victims and other witnesses. The Court also does not
intend to allow any evidence intended to prove the accuracy of what Mr. Holger
believes about OCS, the CINA case, the purported sexual assault of women held
at the Kotzebue jail, the purported rape of his wife, or a purported child kidnapping
and trafficking ring; allowing evidence to try and prove the accuracy of any of those
beliefs would splinter the criminal trial into multiple sub-trials requiring numerous
witnesses that are irrelevant to the Cyberstalking charges, would confuse the
issues, would cause undue delay, and may mislead the jury.20 However, the Court
intends to allow evidence of Mr. Holger’s state of mind during the time period
alleged in the First Superseding Indictment, regardless of the validity of his
19 Docket 468.
20 Fed. R. Evid. 403.
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beliefs.21 As an example of the intended limitations, Mr. Holger may be permitted
to testify that he believed the CINA case was mishandled because he believes his
tribe did not get proper notice pursuant to the Indian Child Welfare Act; he will not
be permitted to call witnesses or enter exhibits to detail the legalities of the Indian
Child Welfare Act or try to prove that the Act was violated.
In light of those considerations and the standard for relevancy, the Court
finds as follows:
• The testimony of the former state legislator is not relevant because it
appears intended only to prove the accuracy of what Mr. Holger believes,
and any probative value it has is substantially outweighed by the danger of
confusing the issues, misleading the jury, causing undue delay, and wasting
time.
• The testimony of an Anchorage jail sergeant about the PREA report from
2018 is not relevant because it appears intended only to prove the accuracy
of what Mr. Holger believes with respect to the Kotzebue jail, and any
probative value it has is substantially outweighed by the danger of confusing
the issues, misleading the jury, causing undue delay, and wasting time.
• The Court has conducted an in camera review of the reports authored by
Philip Kaufman and finds that Mr. Kaufman may be able to provide relevant
21 The First Superseding Indictment alleges that the Cyberstalking occurred from July 1, 2016,
to March 16, 2019. Docket 97.
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testimony as to Mr. Holger’s state of mind during the relevant time frame.
Therefore, the Court will issue a subpoena for Mr. Kaufman, but he will only
be allowed to testify in accordance with the Federal Rules of Evidence and
Mr. Holger will not be permitted to re-litigate the merits of the CINA case.22
• The testimony of law enforcement agents about whether an alleged victim
in this case is a suspect or person of interest in connection with “the
kidnappings, beating & rapes of my wife and children” is likely comprised of
Mr. Holger’s own statements to the agents, which is inadmissible hearsay if
offered for the truth of the matter asserted. The agents’ testimony about Mr.
Holger’s family members also appears intended to prove the accuracy of
what Mr. Holger believes, which is not relevant evidence in this case, and
any probative value it has is substantially outweighed by the danger of
confusing the issues, misleading the jury, causing undue delay, and wasting
time. Testimony of those agents about the purported assaults and abuse of
other women and children is not relevant because it is only intended to prove
the accuracy of what Mr. Holger believes, and any probative value it has is
substantially outweighed by the danger of confusing the issues, misleading
the jury, causing undue delay, and wasting time.
22 To the extent the motion at Docket 448 could be construed as a Rule 17(c) motion duces
tecum for a copy of Mr. Kaufman’s reports, that portion of the motion is denied. The Kaufman
reports are being provided to Mr. Holger. See Docket 478.
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• Testimony from Mr. Holger’s sister may be relevant as to Mr. Holger’s state
of mind in July 2016 regarding an OCS worker who is not an alleged victim
but is listed as a government trial witness. Therefore, the Court will issue a
subpoena for Sophie Lottie Mercure, but she will only be allowed to testify
in accordance with the Federal Rules of Evidence, and Mr. Holger will not
be permitted to re-litigate the merits of the CINA case.
CONCLUSION
In light of the foregoing, the motion at Docket 448 is GRANTED; the Clerk
of Court shall issue a Rule 17(a) subpoena to Mr. Holger to use to subpoena Philip
Kaufman to testify at trial. The motion at Docket 468 is GRANTED; the Clerk of
Court shall issue a Rule 17(a) subpoena to Mr. Holger to use to subpoena Sophia
Lottie Mercure to testify at trial.23 Because of the concerns outlined in this order,
the Clerk of Court shall pre-fill the subpoenas with Philip Kaufman and Sophia
Lottie Mercure’s names. The motions at Dockets 442, 443, 452, and 456 are each
DENIED.
IT IS SO ORDERED.
DATED this 22nd day of March, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
23 The Court will allow Mr. Holger to renew the motion at Docket 468 to the extent the motion
seeks a Rule 17(c) subpoena duces tecum for the phone records. Such motion must include to
whom (i.e. which cell phone carrier or person) the subpoena should be directed and for which
dates.
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