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 MOTION FOR RULE 17 SUBPOENA FOR PREA
REPORT AND INVESTIGATION DOCUMENTS
Before the Court at Docket 414 is defendant Louis Holger Eklund’s pro se
Motion to Issue Subpoena to Produce Documents Pursuant to Fed. R. Crim. P.
Rule 17(c)(1). No response from the government is necessary.1
Mr. Holger asserts that in December 2018, he made a Prison Rape
Elimination Act (PREA) report regarding alleged sexual assaults by law
enforcement officers against female inmates of the Kotzebue Regional Jail.2 Mr.
Holger seeks to have the Court “issue a subpoena for all documents related to the
PREA report . . . & all documents arising out of the investigation” of the PREA
1 See Docket 197 (text order stating that “the government need not respond to any filing by the
defendant unless the Court orders a response”).
2 Docket 414 at 3.
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report.3 It is unclear whether Mr. Holger seeks pretrial production of the
documents.
A Rule 17(c) subpoena “may direct the witness to produce the designated
[document] in court before trial or before they are to be offered in evidence.”4 Once
the document is delivered to the court, “the court may permit the parties and their
attorneys to inspect” the documents.5 “The party seeking to use the use of a
subpoena under Rule 17(c), Federal Rules of Criminal Procedure, must show: 1)
relevancy, 2) admissibility, and 3) specificity.”6 If a party seeks the pretrial
production of documents pursuant to the subpoena, the moving party must make
four showings:
(1) that the documents 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.”7
3 Docket 414 at 5.
4 Fed. R. Crim. P 17(c)(1).
5 Fed. R. Crim. P 17(c)(1).
6 United States v. Eden, 659 F.2d 1376, 1381 (9th Cir. 1981) (citing United States v. Nixon, 418
U.S. 683, 699–700 (1974)).
7 United States v. Krane, 625 F.3d 568, 574 (9th Cir. 2010) (quoting United States v. Nixon, 418
U.S. 683, 699–700 (1974)).
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A court should “engage[] in a ‘discretionary, case-by-case inquiry’” into these
factors.8
Mr. Holger has broadly asserted that he seeks “all documents related to the
PREA report . . . & all documents arising out of the investigation” of the PREA
case.9 Issuance of a Rule 17 subpoena “depends on whether the subpoena
reflects a genuine effort to obtain identifiable and relevant evidence or instead
constitutes a broad ‘fishing expedition’ which seeks to use the Rule as a means
for obtaining additional discovery.”10 A party “[r]equesting entire files instead of
specific documents indicates a fishing expedition.”11 Mr. Holger has not specified
the information contained in the requested documents or believed to be contained
in the requested documents, and this lack of specificity indicates that his request
is likely a prohibited “fishing expedition.”12
In light of the foregoing, IT IS ORDERED that the motion at Docket 414 is
DENIED without prejudice to Mr. Holger to renewing the motion and addressing
8 Id. (quoting United States v. Bergeson, 425 F.3d 1221, 1225 (9th Cir. 2005)).
9 Docket 414 at 5.
10 United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991) (quoting Bowman Dairy
Co. v. United States, 341 U.S. 214, 220–21 (1951)).
11 United States v. Venecia, Case No. 96-449-FR, 1997 WL 325328, at *3 (citing United States
v. Reed, 726 F.2d 570, 577 (9th Cir. 1984)).
12 See United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991) (“If the moving party
cannot reasonably specify the information contained or believed to be contained in the
documents sought but merely hopes that something useful will turn up, this is a sure sign that
the subpoena is being misused.”)
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the legal standards discussed above. Mr. Holger may move to file his subpoena
motions ex parte if believes that is warranted.13
DATED this 5th day of February, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
13 See Local Civil Rule 7.3(e); Local Criminal Rule 1.1(b).
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