Angel Ocasio is apparently a defendant in a federal criminal
prosecution pending in the U.S. District Court for the Western District of Texas: U.S. v. Ocasio, 2013 WL 2458617 (2013). This opinion concerns two
subpoenas he had issued in an effort to obtain certain information Ocasio
apparently believes will support an argument he is making in a motion to
suppress he filed in that case. U.S. v. Ocasio, supra.
The issue in this case is whether the district court judge
should enforce or quash the subpoenas. As this site notes, when a court quashes
a subpoena, it basically cancels it, so the person served with the subpoena
does not have to comply. If you would
like to read more about that process, check out this prior post.
This opinion begins by explaining that
[o]n May 3, 2013, Angel Ocasio served
two subpoenas duces tecum on agents of TLO, LLC. . . . These
subpoenas, issued pursuant to Federal Rule of Criminal Procedure 17, demand that agents of TLO, LLC -- a
third-party software company -- produce the computer source code and
documentation relating to a piece of software created by TLO and identified as
the Child Protection System or CPS. . . .
Ocasio seeks the source code and
documentation to support his argument, made in a motion to suppress, that the
government's use of the CPS software violated the 4th Amendment of the United
States Constitution. . . .
U.S. v. Ocasio, supra.
A couple of weeks later,
[o]n May 21, 2013, the government
learned that these two subpoenas had been served. . . . [O]n May 23, 2013, the
government filed a motion to quash these subpoenas on both procedural and
substantive grounds. . . . In its May 28, 2013, Order, the Court
denied the government's motion to quash on both grounds. . . .
Then, on May 30, 2013, Ocasio filed his
Motion to Compel. . . . [which] seeks an order from the Court requiring TLO to
produce the source code and documentation identified in the two
subpoenas. . . . That same day, . . . TLO filed its Motion to Quash
the two subpoenas. . . . On June 3, 2013, Ocasio filed his Response to TLO's
Motion to Quash. . . .
On June 4, 2013, TLO filed its Response
to Ocasio's Motion to Compel. . . . Finally, that same day, June 4, 2013, TLO
filed a supplement to its Motion to Quash. . . . The Supplement primarily
contains additional affidavits that support the Motion to Quash. . . .
U.S. v. Ocasio, supra.
In its motion to quash, TLO
argues that the subpoenas must be
quashed for a number of reasons. First, TLO argues that the subpoenas are
defective because of procedural issues. . . . Second, TLO argues
that Ocasio's request for the CPS source code and documentation is beyond the
scope of Rule 17. . . . Third, TLO argues that the information
sought is protected by the law enforcement privilege. . . .
U.S. v. Ocasio, supra.
The judge’s opinion then explains that in his motion to
compel, Ocasio
argues that TLO must produce the
requested source code and documentation because service of the subpoenas was
proper. . . . Additionally, in his Response to the Motion to Quash,
Ocasio argues that his request for the CPS source code and documentation is not
beyond the scope of Rule 17 and that the CPS source code and documentation
are not protected by any claim of privilege. . . .
U.S. v. Ocasio, supra.
The judge began her analysis of these arguments by noting
that she would address both the Motion to Quash and the Motion to Compel together
because they “relate to the same subpoenas and raise the same three issues
outlined above”. U.S. v. Ocasio, supra.
She also explained that Federal Rule of Criminal Procedure
17(c)(1) governs motions for subpoenas duces tecum and states that a
subpoena can 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.
U.S. v. Ocasio, supra. She also pointed out that Federal Rule of Criminal
Procedure 17(c)(2) states that “`[o]n motion made promptly, the
court may quash or modify the subpoena if compliance would be unreasonable or
oppressive.’” U.S. v. Ocasio, supra.
As to the first issue – procedural defects – TLO argued that
the subpoenas were
flawed because they were served by mail
without consent, served on improper agents, lack appropriate date and time
indications for delivery, and incorrectly order the CPS source code and
documentation to be delivered to defense counsel. . . .
Ocasio argues that the subpoenas are
not technically defective, and, even if they are defective, the subpoenas
provided TLO with notice of the requested materials for over a month, yet TLO
was unwilling `to answer the subpoenas in any fashion.’ . . .
U.S. v. Ocasio, supra.
The judge found that she did not need to address TLO’s
procedural defect arguments because Ocasio had addressed these concerns by
serving,
on June 3, 2013, a new subpoena on
TLO's custodian of records. . . . This Second Subpoena seeks the
same information sought in the previous two subpoenas. . . .
Indeed, in its Response to Ocasio's Motion to Compel, TLO states that it was `properly
served yesterday, on June 3, 2013 with a subpoena dated May 29, 2013.’ . . .
Moreover, the Second Subpoena appears
to correct the alleged defects in the previous subpoenas. Specifically, the
Second Subpoena is addressed to TLO's custodian of records and directs that the
CPS source code and documentation be delivered to this Court without
delay. . . . Therefore, because the Second Subpoena has been
properly served and seeks the same materials but adequately addresses TLO's
procedural concerns, the Court does not decide whether the initial subpoenas
were defective.
U.S. v. Ocasio, supra.
The judge then took up TLO’s argument that “the CPS source
code and documentation are beyond the scope of Rule 17 because,
according to TLO, Ocasio is `merely fishing for any possible support that might
be beneficial to him.’” U.S. v. Ocasio,
supra. She explained that to support this argument, TLO had submitted an
affidavit
of William Wiltse, an employee of
TLO. . . . In his First Affidavit, Wiltse explains . . .that CPS is
a complex software system that is useful to law enforcement agencies. .
. . Seemingly to provide additional support to this claim, TLO has provided
a second affidavit from Wiltse with its Supplement. . . .
In his Second Affidavit, Wiltse states
that `[a]t more than 4.7 million lines of code, it would be difficult for TLO
to compile and virtually impossible for receiving parties to review prior to
trial. This line count does not include source code for the proprietary database
storage systems designed by TLO.’ . . . Wiltse also suggests that if
information about the CPS system were disclosed, it would harm ongoing
investigations across the world. .
. .
U.S. v. Ocasio, supra.
Ocasio, on the other hand, argued that “the information sought is relevant to
his Motion to Suppress and that TLO has not demonstrated that his request is
either unreasonable or oppressive.” U.S. v. Ocasio, supra.
The judge explained that a subpoena “is only within the
scope of Rule 17 if the party seeking the subpoena can show that the
materials sought are relevant, that they are admissible, and that they are
requested with adequate specificity.” U.S.
v. Ocasio, supra. She also noted that “[i]f the moving party [e.g., Ocasio]
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.” U.S. v.
Ocasio, supra. As she noted earlier, Rule 17(c)(2) lets the court quash a
subpoena if compliance would be unreasonable or oppressive. U.S. v. Ocasio, supra.
The judge then explained that she had addressed “the bulk of
this argument” in her prior ruling and found that Ocasio’s request was “well
within the scope of Rule 17.” U.S. v.
Ocasio, supra. She noted that in her
May 28, 2013 order she found it was
`plain that the information [Ocasio
seeks] is relevant, admissible, requested with adequate specificity, and sought
in good faith.’ . . . [T]he Court noted that Ocasio's request met
the Nixon relevancy requirement because `the CPS source code
and documentation are relevant to resolving [Ocasio's] pending Motion to
Suppress and determining whether or not the government's use of the CPS
software constituted a 4th Amendment violation.’ . . . Additionally, the Court found Ocasio's request met
the other requirements of Nixon and therefore was within the
scope of Rule 17.
U.S. v. Ocasio, supra.
(In U.S. v. Nixon, 418 U.S. 683 (1974), the Supreme Court held that to have a
subpoena duces tecum enforced, the
person issuing it must show the court that the documents are relevant as
evidence, they are not otherwise available, the party cannot prepare adequately
without them and the request is made in good faith and is not a “fishing
expediton.”)
The judge also pointed out that TLO had not cited any cases
that “suggest a different outcome is appropriate”, nor was she “persuaded by TLO's claim that
Ocasio is `merely fishing’ for evidence because this contention is not accompanied
by any explanation, and is in contradiction to the Court's previous findings
that the information sought is relevant and specific.” U.S. v. Ocasio, supra. “Ocasio has sought the CPS software and
documentation for a specific reason and purpose and the size of the software
does not change this.” U.S. v. Ocasio, supra.
She also found that his request was neither unreasonable nor oppressive:
TLO never directly raises this
concern. See Mot. to Quash 5–7 (claiming Ocasio's request is a
fishing expedition but not discussing the unreasonableness or oppressiveness of
compliance). This argument is only hinted at in Wiltse's Second Affidavit to
extent he suggests that the CPS spans many lines of code, will take a significant
amount of time to compile, and harm investigations. . . .
But TLO never explains the significance of the
number of lines of source code in the software and the Court can think of
none. . . . Wiltse also states that `it would be difficult for TLO
to compile’ the CPS source code in time for trial. . . . TLO fails to explain
how this process is difficult, what makes compliance difficult, or why this is
a valid consideration for the Court. . . .
Further, Wiltse's statement that the
CPS source code would be `impossible’ to review before trial is immaterial. .
. .This is because it is not proper for TLO or Wiltse to presuppose the
results of Ocasio's inspection of the CPS source code and documentation.
Finally, any risk of disclosure and harm to ongoing investigations can be
mitigated with a protective order. . . .
U.S. v. Ocasio, supra.
Finally, TLO argued that the “CPS source code and
documentation should not be disclosed because they are protected by the law enforcement privilege”. U.S. v. Ocasio, supra. As
I noted in an earlier post, in Roviaro v.
U.S., 353 U.S. 53 (1957), the Supreme Court recognized the existence of a
privilege that “prevents the ‘disclosure of law enforcement techniques and
procedures, [preserves] the confidentiality of sources, [protects] witnesses .
. . and otherwise [prevents] interference with an investigation.’” In re U.S. Department of Homeland Security,
459 F.3d 565 (U.S. Court of Appeals for the 5th Circuit 2006). For more on the privilege, check out the
prior post.
Here, the judge explained, again, that she had already
addressed the bulk of this privilege
argument in its May 28, 2013, Order. . . . [T]he Court found the government could not assert the law
enforcement privilege as to the CPS source code and documentation because
neither were government documents. . . . The Court also found that,
even if the source code and documentation were government documents, the
privilege would not be applicable in this instance based on the facts of the
case. . . .
U.S. v. Ocasio, supra.
She noted that TLO had not submitted any “case law or
evidence” that would suggest her ruling on that issue was incorrect, nor had it
provided any “reasons that affect the Court's prior conclusion that the facts
of this case do not warrant the application of the privilege in this instance.”
U.S. v. Ocasio, supra. As to
TLO’s concerns about privacy, she reiterated that “any privacy concerns can be
mitigated by the entry of a protective order.”
U.S. v. Ocasio, supra.
The judge therefore denied TLO’s motion to quash and granted
Ocasio’s motion to compel, ordering that “the items sought by Ocasio must be
delivered to the Court on or before 10:00 a.m. Mountain Daylight Time on June
10, 2013, for delivery to defense counsel.”
U.S. v. Ocasio, supra. She
also ordered that a protective order “shall issue forthwith.” U.S. v.
Ocasio, supra.
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