Harsh Words for Feds on Abuse of Subpoena Power

(CN) - The U.S. government's defense for subpoenaing a prison's recordings of inmate telephone calls smacks of "a grade schooler seeking to avoid detention," a federal judge ruled.

Prosecutors had issued the subpoenas in July 2014 as they prepared for the trial of Binh Vo, a woman accused of participating a visa-fraud conspiracy, according to the ruling.

The government had already obtained two guilty pleas from Hong Vo and Truc Huynh with regard to their roles in the conspiracy, and Huynh faced an August deposition related to the charges against Binh Vo.

Its subpoena to the Correctional Treatment Facility of the District of Columbia, the prison housing Hong Vo and Huynh, sought their visitation logs, call logs and recorded telephone calls.

U.S. District Court Judge Emmet Sullivan granted the women's motions to quash those subpoenas on Jan. 15 under Federal Rule of Criminal Procedure 17.

He noted that Rule 17 does not authorize the pretrial production of the phone calls absent court approval, and that the U.S. government never sought such approval before issuing the subpoenas in this case.

The 20-page decision chides the government for its child-like defense: "Our actions are authorized because nothing specifically prohibits them."

It is "telling" that the government cannot provide legal support for its actions, according to the ruling.

"There is no support," Sullivan wrote.

Though the government had argued that the women consented to the recording and waived any privacy interest, the court found "the record does not demonstrate that Ms. Vo and Ms. Huynh consented to their telephone calls being given to anyone who secretly subpoenaed them."

Even if the government was right and the inmates lack standing, Sullivan said that "the court has an independent duty to review the propriety of the subpoena."

It is true that the government also subpoenaed the prison's appearance at Binh Vo's trial, then scheduled for April 2015, but Sullivan found that "the government erred ... when it added to the subpoena the statement that "[i]n lieu of personally appearing before the court ... you may comply with this subpoena by promptly providing the undersigned Assistant U.S. Attorney with [the requested documents]."

The ruling goes on to quote a transcript from the Dec. 15, 2014, hearing on the motions to quash, in which an attorney for the government "could not articulate any legal basis for" the supposedly "standard practice" of inviting a subpoenaed party to make a pretrial production directly to the U.S. Attorney's Office.

"I don't know what the authority is that we can't," the attorney says, according to the transcript.

"The court then asked 'So that's your authority: There's nothing that says we can't do it?' to which the government responded '[r]ight . ... That's my authority,'" Sullivan wrote.

This theory would turn Rule 17's limited authorization for the issuance of subpoenas into a blanket authorization, according to the ruling.

"The government bases its defense on a proposed distinction between requiring pretrial production and merely inviting it," Sullivan wrote. "The government offered no legal support for this distinction, however."

In declining to approve the subpoenas retroactively, Sullivan said the government could not make a convincing argument for the production of the recordings.

Sullivan concluded that the the subpoenas were "a general 'fishing expedition' that attempts to use the rule as a discovery device."

The ruling notes that another co-conspirator who pleaded guilty, former U.S. Foreign Service officer Michael Sestak, is awaiting sentencing.

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