United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S APPLICATION FOR RULE
17(C) SUBPOENA (DKT. 48) AND GRANTING GOVERNMENT'S MOTION
TO QUASH APPLICATION (DKT. 50)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
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).
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.
Government, on behalf of P.W., objects 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.
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
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
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
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
17(c)(3) governs subpoenas that request the production of
personal or confidential material related to a victim, and
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.
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