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United States v. Felton

United States District Court, E.D. Michigan, Southern Division

May 25, 2017

HERBERT T. FELTON, JR., Defendant.



         In this criminal case, the Government alleges that Defendant Herbert T. Felton Jr. (“Defendant”) transported a minor (identified by his initials - “P.W.”) across state lines (from Illinois to Michigan) to engage in sexual activity. The charges also include several counts of receipt, possession and manufacture of child pornography, also involving P.W. (Dkt. 53; Superseding Indictment).

         This case is set for trial on June 12, 2017. During discovery, defense counsel learned that P.W. had sought treatment with a mental health counselor shortly after the events alleged in the indictment took place. Defendant has filed an ex parte application for a Rule 17 subpoena (Dkt. 48) seeking production of the counselor's records. Specifically, Defendant requests the Court to “conduct an in camera review of … all written notes, documents, and audio recordings from mental health counseling of [P.W.], including statements made, but limited to the facts and circumstances of his involvement with [Defendant].” Defendant seeks to have the counselor's treatment notes turned over to the Court because he believes they may contain prior statements of P.W. that could be inconsistent with P.W.'s eventual trial testimony. Thus, Defendant would like the Court to review the records and, only after hearing P.W.'s testimony, make a determination as to whether any of the records should be turned over to Defendant to be used as impeachment material.

         The Government, on behalf of P.W., objects[1] to the production of the treatment notes, and has filed a motion to quash the subpoena ap plication (Dkt. 50). Defendant filed a response to this motion (Dkt. 54), and the Government filed a reply (Dkt. 57). The Court heard oral argument on these motions on May 11, 2017. For the reasons set forth below, Defendant's application for a Rule 17 subpoena is DENIED, and the Government's motion to quash Defendant's application is GRANTED.


         The facts that led to Defendant facing criminal charges are as follows. On May 7, 2014, P.W., then a 14-year-old boy living in Tilton, Illinois was reported missing (Dkt. 1, Compl. ¶ 1). Video from a nearby bus station showed him boarding a bus sometime after 11:45 a.m. Id. P.W.'s father obtained his son's cell-phone records, and noticed that they contained calls with an unfamiliar out-of-state number with an “810” area code. Id. ¶ 2. On May 8, 2014, P.W.'s father travelled to Michigan, and met with a police detective. Id. The detective was able to trace the unknown 810 telephone number to Defendant, who was living in Flint, Michigan. Id. Around midnight, police arrived at Defendant's home, and located both Defendant and P.W. Id. Defendant was arrested, and P.W. was interviewed by local police. This interview was summarized in written notes. The next day, May 9, 2014, P.W. was interviewed at the Genesee County Sheriff's Office. This interview was video-taped.

         Subsequent investigation revealed suspected illicit images of P.W. on Defendant's cell-phone. This discovery led to additional charges in a superseding indictment for manufacturing, receipt, and possession of child pornography (Dkt. 53). As part of the ongoing investigation, P.W. was interviewed a third time by an FBI child forensic interviewer on July 28, 2014. This interview was also video-taped. The most salient aspect of P.W.'s two video-taped interviews, for purposes of the motions now before the Court, is that P.W. apparently made inconsistent statements in the two interviews. The Court has not been provided the videos themselves, but during oral argument on these motions, counsel for the Government indicated that P.W. denied any sexual contact between him and Defendant at the May 9, 2014 Sheriff's interview, but confirmed such sexual contact at the July 28, 2014 FBI interview.

         Shortly after his father travelled to Michigan to retrieve him, P.W. began meeting with a counselor at the Vermilion County Rape Crisis Center in Tilton, Illinois. Specifically, on May 12, 2014, P.W. and his mother met with Crystal Burson, the clinical coordinator of the Crisis Center. Ms. Burton is not a licensed psychotherapist or social worker, but has a master's degree in “family relations, ” completed 40 hours of counselor training, and holds a “Qualified Mental Health Professional (QMHP)” certification. P.W. attended his first individual counseling session with Ms. Burson on May 21, 2014, and continues to consult with Ms. Burson on a weekly basis as scheduling permits.


         In criminal cases, Rule 17(c) authorizes a party to issue a subpoena duces tecum. Under this rule, the Court has discretion to direct a witness to produce subpoenaed documents in court prior to trial for inspection by the parties and their attorneys. See Fed. R. Cr. P. 17(c). Rule 17(c) provides a mechanism for the production and inspection of evidentiary material before trial for the purpose of expediting trial, but it is not intended to supplement or authorize a broader scope of discovery in criminal cases than that which is already provided under Rule 16, Rule 26.2, the Jencks Act, and the Brady/Giglio line of cases. See Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951); United States v. Nixon, 418 U.S. 683, 697-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Specifically, Rule 17(c)(1) 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. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

         Rule 17(c)(3) governs subpoenas that request the production of personal or confidential material related to a victim, and states:

After 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.

         In this case, after Defendant filed his application for a Rule 17 subpoena, the Court required the Government to notify P.W. of Defendant's subpoena application, and authorized the ...

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