Prison Phone Justice

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
GARY EYE,
Defendant.

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Criminal Action No.
05-00344-01-CR-W-ODS

REPORT AND RECOMMENDATION TO DENY
DEFENDANT’S MOTION TO SUPPRESS RECORDED PHONE CONVERSATIONS
FOR IMPROPER USE OF RULE 17(C)
Before the court is defendant’s motion to suppress recorded
telephone conversations on the ground that the government
improperly used Rule 17(c).

I find that the government did

improperly use Rule 17(c) but that suppression is not warranted
because there was no constitutional violation and because
defendant admittedly suffered no prejudice from the violation.
Therefore, defendant’s motion to suppress should be denied.
I.

BACKGROUND
On September 29, 2005, an indictment was returned charging

defendant with two counts of interference with federally
protected activities, in violation of 18 U.S.C. § 245(b)(2)(B);
one count of using or discharging a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); two
counts of using or discharging a firearm during a crime of
violence causing murder, in violation of 18 U.S.C. §§
924(c)(1)(A)(iii) and (j)(1); one count of tampering with a

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witness, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and
(a)(3)(A); one count of obstruction of justice, in violation of
18 U.S.C. § 1519; and one count of using fire to commit a felony,
in violation of 18 U.S.C. § 844(h)(1).

Co-defendant Steven

Sandstrom was charged in all of these counts and with one count
of threatening to retaliate against a federal witness, in
violation of 18 U.S.C. § 1513(b)(2).
On November 26, 2007, defendant filed the instant motion to
suppress (document number 265).

On December 5, 2007, the

government filed a response indicating that it was not merely
searching for impeachment material as was the case in Cardarella,
cited by defendant, and pointing out that defendant was not
prejudiced (document number 282).
I held a hearing on defendant’s motion on December 6, 2007.
Defendant was present, represented by John Osgood.

The

government was represented by David Ketchmark and Eric Gibson.
Special Agent Heith Janke, Federal Bureau of Investigation,
testified.

In addition, the following exhibits were admitted:

P. Ex. 1
P. Ex. 2

II.

Stipulation
Trial subpoena issued to CCA requesting recorded
calls from August 15, 2007, through August 30,
2007

FINDINGS OF FACT
Based on the evidence presented at the hearing, I make the

following findings of fact:

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1.

The indictment returned on September 29, 2005,

contained a count against defendant and co-defendant Steven
Sandstrom alleging murder to prevent the victim from relaying
information to law enforcement, and another count against
Sandstrom for threatening to retaliate against a witness (Tr. at
12-13).

In addition, a criminal complaint was filed against

Justin Buchanan which alleges that he threatened retaliation
against a witness who was believed to be cooperating in the
criminal case against defendant and Sandstrom with Sandstrom
having initiated that threat (Tr. at 13).
2.

In February 2006, agents spoke with Justin Buchanan who

provided information suggesting that defendant may have been
engaging in ongoing threats to have witnesses harmed while he was
at CCA (Tr. at 14).
3.

In approximately July 2006, an inmate at CCA named Eric

Eymard contacted the FBI requesting that he be interviewed (Tr.
at 14).

Eymard was interviewed by the FBI on July 10, 2006 (Tr.

at 15).

Eymard said that defendant was engaging in plots to have

witnesses harmed (Tr. at 15).

Eymard indicated that defendant’s

fiancée at the time but who is now defendant’s wife, Stephanie
Eye, was also involved (Tr. at 15).

Eymard said that defendant

used the phone a lot at CCA (Tr. at 15).
4.

Based on the charges in the original indictment dealing

with killing or harming witnesses, the information received from

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Mr. Buchanan, and the information received from Mr. Eymard, the
FBI decided to open a collateral investigation surrounding the
alleged threats in which defendant was purportedly involved (Tr.
at 15-16, 24).

On August 30, 2006, a grand jury subpoena was

issued in connection with that threat investigation in order to
obtain recordings of defendant’s phone calls at CCA from June 8,
2006, through the date of the subpoena (Tr. at 16, 26).

June 8,

2006, was chosen as the start date because that was the day Eric
Eymard was placed in segregation at CCA and is the earliest date
he would have had contact with defendant (Tr. at 16).
5.

CCA provided recordings of defendant’s telephone calls

as requested (Tr. at 16).

Those calls were reviewed by FBI

agents and Elsie Marko of the United States Attorney’s Office
(Tr. at 16).

According to Ms. Marko, there were calls that

appeared to corroborate the information provided by Mr. Eymard
(Tr. at 16-17).
6.

CCA included attorney-client calls in the recorded

disks even though the subpoena had requested that those calls be
excluded (Tr. at 17).

In August or September 2007 when the

government disclosed those disks to the defense, government
counsel became aware that attorney-client calls were on the disks
(Tr. at 17).

At that point the government had turned over to the

defense the calls that were provided by CCA in response to the
subpoena (Tr. at 17).

By then the covert nature of the

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investigation was out in the open (Tr. at 17).
7.

On August 22, 2007, Special Agents Janke and Gothard

attempted to interview defendant’s wife, Stephanie Eye (Tr. at
19, 27).

When they approached her at her residence, she was on

the phone, and the agents believed she was talking to defendant
(Tr. at 19).
8.

On October 17, 2007, the government obtained a trial

subpoena requesting defendant’s recorded conversations between
August 15, 2007, and August 30, 2007 (Tr. at 18, 27, 33-34; P.
Ex. 2).

This was the two weeks following defendant’s awareness

of the threat investigation, including who was cooperating and
what those witnesses had said (Tr. at 18-19, 33-34).

That

information came out when the government provided discovery to
the defense (Tr. at 27, 28).
9.

The subpoena directed CCA to deliver the recordings of

defendant’s phone calls to the courthouse on January 10, 2008
(the date the trial was set); however, CCA complied with the
subpoena by mailing the additional disk to Special Agent Janke
(Tr. at 30, 34).

The disk was copied and ready to be turned over

to defense counsel, but at that time the issue of the propriety
of turning over the previous disks due to attorney-client calls
had been raised and the government waited for some clarification
from the court on whether it was appropriate to turn over this
additional disk (Tr. at 31, 32, 40).

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10.

Special Agent Janke has not listened to the recorded

calls (Tr. at 35).

When he was going to try to isolate the call

with Stephanie Eye on the date the agents tried to interview her,
he saw that the next call was to defendant’s attorney, so he did
not listen (Tr. at 35-36).

As soon as the government got

approval from the court to turn over the disk, defense counsel
received a copy of it (Tr. at 36, 37).
11.

Defense counsel agreed that no prejudice resulted from

the government’s actions (Tr. at 38).
III. RULE 17(C)
Federal Rule of Criminal Procedure 17 states in pertinent
part as follows:
(a) Content. A subpoena must state the court’s
name and the title of the proceeding, include the seal
of the court, and command the witness to attend and
testify at the time and place the subpoena specifies.
The clerk must issue a blank subpoena -- signed and
sealed -- to the party requesting it, and that party
must fill in the blanks before the subpoena is served.
* * * * *
(c)

Producing Documents and Objects.

(1) In General. A subpoena may also 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) describes special matters concerning a subpoena
duces tecum, giving the court discretion to direct that the
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subpoenaed items be produced in advance of trial and made
available to both sides for inspection.

United States v.

Florack, 838 F. Supp. 77, 79 (W.D.N.Y. 1993).
Rule 17(c) does not authorize an ex parte procedure for
obtaining records prior to trial.

See United States v. Florack,

838 F. Supp. 77, 80 (W.D.N.Y. 1993) (“‘a different situation
would be presented’ if the subpoena requested production of
documents at trial.

That is a critical difference.”); United

States v. Najarian, 164 F.R.D. 484, 487-488 (D. Minn. 1995)
(“Rule 17(c) expressly contemplates the review of documents so
subpoenaed by the other parties to the dispute”); United States
v. Urlacher, 136 F.R.D. 550, 556 (W.D.N.Y. 1991) (“[t]here can be
no ‘right’ to ex parte procurement of subpoenaed documents
pretrial if the court has discretion to supervise their
production by permitting both parties’ inspection prior to
trial.”).
Rule 17(c) was not intended to provide an additional means
of discovery.
220 (1951).

Bowman Dairy Co. v. United States, 341 U.S. 214,

Rather, “[i]ts chief innovation was to expedite the

trial by providing a time and place before trial for the
inspection of the subpoenaed materials.”
original).

Id. (emphasis in the

When deciding whether to require the production of

documents prior to trial, courts must determine whether the
moving party has shown that (1) the subpoenaed documents are

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relevant, (2) they are admissible, and (3) they have been
requested with adequate specificity.
F.3d at 1283.

United States v. Hang, 75

See also United States v. Nixon, 418 U.S. 683,

699-700 (1974).

A Rule 17(c) subpoena cannot properly be issued

upon a “mere hope.”

United States v. Hang, 75 F.3d 1275, 1283

(8th Cir. 1996), citing United States v. Cuthbertson, 630 F.2d
139, 146 (3d Cir. 1980) (“We do not think that [a] ‘mere hope’
justifies enforcement of a subpoena under [R]ule 17(c).”), cert.
denied, 449 U.S. 1126 (1981).
In this case, there is no question that the government
violated Rule 17(c).

The question is what is the appropriate

remedy.
The subpoena was obtained without a court order.

However,

defendant acknowledges that in the Western District of Missouri,
this has been an acceptable practice for years1.

The government

requested production of the recorded phone calls on the day of

1

“In the past attorneys for both the government and the
defense have taken a somewhat liberal approach in the use of
17(c). One interpretation of the rule is that since attorneys
are officers of the court and may issue trial subpoenas under the
authority of the court, bearing the seal of the Clerk of the
Court, that such constitutes a ‘court order’ to appear to
testify. It follows therefore that a Rule 17(c) subpoena for
pre-production of documents is merely an extension of this power
and the rule is complied with so long as the issuing party
provides the opposing party notice and copies of the materials
delivered to the Court per the subpoena. [footnote] Undersigned
counsel has used the Rule in prior cases in this manner both as
an Assistant U.S. Attorney and a defense attorney without
incident in past cases.” See p. 1-2 of defendant’s motion.
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trial; therefore, there was no finding by the court that the
subpoenaed material was relevant, admissible, and requested with
adequate specificity, which is required for pre-trial production.
Despite the subpoena having directed CCA to produce the material
on the day of trial, CCA mailed the material to the agent shortly
after the subpoena was received.

The government states that it

had planned and prepared to turn over the material to defense
counsel upon receipt by CCA; however, at the time it received the
recorded phone calls, the issue of attorney-client calls having
been recorded and disseminated to attorneys had just been raised
by the defendant and the government waited for direction from the
court before doing anything with the calls (including listening
to the disks themselves).

Defendant does not contradict these

facts and raises no issue with respect to the intention of
government counsel to share the material once it was received.
The material sought was not requested with adequate
specificity as required for pretrial production under 17(c).

As

discussed above, a Rule 17(c) subpoena cannot be issued upon a
mere hope.

In this case, the evidence establishes that Special

Agents Janke and Gothard “believed” Stephanie Eye was on the
phone with her husband, defendant Gary Eye (no evidence was
presented that she was indeed talking to defendant), when the
agents attempted to question her on August 22, 2007.

In late

August or early September 2007, defense counsel were made aware

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of the collateral threat investigation.

The Rule 17(c) subpoena

was issued because of “a desire to try to obtain calls as it
would have related to when the disclosure would have gone out to
see if Mr. Eye and his wife or other individuals were still
talking about the desire to have witnesses harmed” (emphasis
added)(Tr. at 18).
The Rule 17(c) subpoena was issued for the exact same reason
the government sought a grand jury subpoena the year before -they had reason to believe that defendant was using the phone at
CCA to further a plan to harm or intimidate witnesses and they
wanted to see if there was any evidence on those recorded phone
calls to substantiate that belief.

In 2007, the government

believed that defendant was continuing to try to facilitate a
plan to harm or intimidate witnesses using his wife, and it
issued a Rule 17(c) subpoena to see if there was any evidence on
recorded phone calls to substantiate their belief2.
Under Rule 17(c), in order to require production of material
prior to trial, the moving party must show: (1) that the
materials are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by exercise

2

Although in its response the government alleges it was
obtaining evidence of consciousness of guilt, the evidence
presented at the hearing was that the reason the calls were
requested was to see if there was any further evidence of an
intent to threaten witnesses given the defendant’s newly-obtained
knowledge that a threat investigation had been undertaken by the
government.
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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.”
(1974).

United States v. Nixon, 418 U.S. 683, 699-700

Here, the government would be unable to establish that

it could not properly prepare for trial without the production
and inspection, because it had no idea whether the recorded phone
calls during that two-week period would contain any relevant
conversations.

It was, indeed, a general fishing expedition.

All of this, however, applies only if a subpoena seeks
pretrial production.

It is undisputed that the government did

not request pretrial production; rather, CCA personnel took it
upon themselves to respond to the subpoena prior to trial and by
mailing the material to the FBI rather than delivering it to the
court as directed.

It is also undisputed that this is a normal

procedure, at least in the Western District of Missouri, and has
been for a number of years.

It is also undisputed that defendant

suffered no prejudice since the recorded phone calls were turned
over by the government to the other parties as soon as the court
indicated that was appropriate given the fact that there may be
attorney-client conversations on those disks.

The government has

had no advantage, since the evidence establishes that no one from

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the government listened to the calls before the disk was turned
over to the defendant.

Finally, there is some question about

whether defendant even has standing to challenge the validity of
the subpoenas.

See United States v. Compton, 28 F.3d 1214

(Table), 1994 WL 328303 *3 (6th Cir. July 1, 1994) (“The district
court expressed doubt, and we believe correctly, regarding
whether or not Compton even had standing to challenge the
validity of the subpoenas.

Certainly the universities, had they

wished, could have challenged the subpoenas if compliance would
have been unreasonably burdensome.

The rule, however, contains

no express provision permitting the defendant to challenge the
validity of subpoenas.”)
I find that there was a “harmless technical irregularity” at
most in the government’s obtaining the recorded phone calls in
the manner described above.

See United States v. Duncan, 598

F.2d 839, 867 (4th Cir. 1979) (the government’s Rule 17(c)
subpoena directing documents to be produced to the FBI prior to
trial was “harmless technical irregularity at most” and there was
no finding of prejudice).

I also find that defendant’s request

that the recorded phone calls obtained through the Rule 17(c)
subpoena be suppressed is neither justified nor supported by the
law.
The exclusionary rule was created by the Supreme Court in
Mapp v. Ohio, 367 U.S. 643 (1961).

The exclusionary rule is not

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a remedy the courts apply lightly.

It has been used primarily to

deter certain Fourth and Fifth Amendment violations, including
unconstitutional searches and seizures, Mapp v. Ohio, 367 U.S. at
655-657, and confessions exacted in violation of the right
against compelled self-incrimination or due process, Dickerson v.
United States, 530 U.S. 428, 435 (2000).
Suppression of evidence, however, has always been our last
resort, not our first impulse. The exclusionary rule
generates “substantial social costs,” United States v. Leon,
468 U.S. 897, 907 (1984), which sometimes include setting
the guilty free and the dangerous at large. We have
therefore been “cautio[us] against expanding” it, Colorado
v. Connelly, 479 U.S. 157, 166 (1986), and “have repeatedly
emphasized that the rule’s ‘costly toll’ upon truth-seeking
and law enforcement objectives presents a high obstacle for
those urging [its] application,” Pennsylvania Bd. of
Probation and Parole v. Scott, 524 U.S. 357, 364-365 (1998)
(citation omitted). We have rejected “[i]ndiscriminate
application” of the rule, Leon, supra, at 908, and have held
it to be applicable only “where its remedial objectives are
thought most efficaciously served,” United States v.
Calandra, 414 U.S. 338, 348 (1974), -- that is, “where its
deterrence benefits outweigh its ‘substantial social
costs,’” Scott, supra, at 363 (quoting Leon, supra, at 907).
The Supreme Court has generally declined to impose the
exclusionary rule for non-Constitutional violations.

See

Sanches-Llamas v. Oregon, 548 U.S. 331 (2006) (violation of
foreign nationals’ right to have their consulate informed of
their arrest or detention, finding the exclusionary rule a
“vastly disproportionate remedy”); Hudson v. Michigan, 547 U.S.
586 (2006) (no exclusion of evidence for violation of knock-andannounce rule).

In addition, the Supreme Court has warned that

the exclusionary rule should be used sparingly.

“Any claim for

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the exclusion of evidence logically relevant in criminal
prosecutions is heavily handicapped.

It must be justified by an

over-riding public policy expressed in the Constitution or the
law of the land.”

Nardone v. United States, 308 U.S. 338, 340

(1939).
The few cases in which we have suppressed evidence for
statutory violations do not help Sanchez-Llamas. In those
cases, the excluded evidence arose directly out of statutory
violations that implicated important Fourth and Fifth
Amendment interests. McNabb [v. United States, 318 U.S. 332
(1943)], for example, involved the suppression of
incriminating statements obtained during a prolonged
detention of the defendants, in violation of a statute
requiring persons arrested without a warrant to be promptly
presented to a judicial officer. We noted that the
statutory right was intended to “avoid all the evil
implications of secret interrogation of persons accused of
crime,” 318 U.S. at 344 . . . . Similarly, in Miller [v.
United States, 357 U.S. 301, 305 (1958)], we required
suppression of evidence that was the product of a search
incident to an unlawful arrest; see California v. Hodari D.,
499 U.S. 621, 624 (1991) (“We have long understood that the
Fourth Amendment’s protection against ‘unreasonable . . .
seizures’ includes seizure of the person”).
Clearly no Constitutional violation has occurred in this
case, and defense counsel freely admitted that because he was
given copies of the disks shortly after the government received
them (and before the government listened to them) that the
defendant has suffered no prejudice.

This case certainly does

not call for suppression of the recorded phone calls.
The only legal authority cited by defendant in his motion is
the order filed by Chief Judge Fernando Gaitan, Jr., in United
States v. Cardarella, 07-00007-02-CR-W-FJG.

However, that case

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does not support defendant’s request.

In Cardarella, the

defendants used a Rule 17(c) subpoena to obtain for impeachment
purposes recorded phone calls of a government witness
incarcerated at CCA.
4, 2007.

Defendant obtained the recordings on June

The trial began on October 22, 2007, and the government

learned of the recordings on October 25, 2007.

Therefore, in

that case, the court was unable to consider less-drastic remedies
such as ordering that the material be turned over or continuing
the trial to give the government time to review the material.

In

that case, the trial had already started; jeopardy had already
attached.
Here, defendant has had possession of the subpoenaed
material for the past six months, and the trial is still a month
away.

There is no evidence that the government intended to keep

the evidence secret from the defendant; in fact, the
uncontradicted evidence establishes that the government intended
to turn over the disks upon their receipt, and that the
government did indeed turn them over once the court resolved the
issue of the attorney-client calls having been copied to the
disks.

Defendant is in no worse position than he would have been

had the government properly used Rule 17(c).
I am concerned, however, that the government appears to be
less than consistent in its interpretation of Rule 17(c).

In one

case, Cardarella, the government states that a Rule 17(c)

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subpoena cannot be used without a court order, when in substance
the government used Rule 17(c) without first obtaining a court
order in this case.

Therefore, the government should be

admonished (1) not to use a Rule 17(c) subpoena without a court
order3, and (2) to circulate among their entire staff the
position the United States Attorney’s Office will take with
respect to the use of Rule 17(c) so that their arguments to the
court are consistent from case to case.
IV.

CONCLUSION
I find that (1) the government’s use of Rule 17(c) in this

case was at most a harmless technical irregularity, (2) defendant
admitted he suffered no prejudice, and (3) defendant is in no

3

Although the government technically did not request advance
production of the material, it is common practice for CCA to
honor the subpoenas upon receipt and to mail the material to the
agent. The government’s practice of requesting material in the
hopes that something incriminating will be found, without a court
order, may lead to the inference that although pre-trial
production was not requested, it was certainly expected.
Furthermore, the defendant in Cardarella obtained voluntary
production of the recorded phone calls rather than the
institution complying with the subpoena. The government argued,
and Judge Gaitan found, that this technicality did not change the
fact that in substance, it was a Rule 17(c) subpoena issued
without a court order. The practice of issuing a subpoena
directing the recipient to provide the material in court on the
day of trial, knowing full well that the material will be mailed
to the agent prior to trial, creates the possibility that the
agent will fail to share all of the material with the defense (or
vice versa, which was the case in Cardarella) with no one being
the wiser -- the very thing that Rule 17(c) was designed to
prevent. I do not mean to imply that any agent or attorney in
this case would be inclined to do such a thing. I simply point
out the inherent danger in using Rule 17(c) in this fashion.
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worse position now than he would have been had the government not
violated Rule 17(c).

Therefore, it is

RECOMMENDED that the court, after an independent review of
the pleadings and applicable law, (1) enter an order denying the
defendant’s motion to suppress the recorded phone calls obtained
through use of a Rule 17(c) subpoena, and (2) admonish the
government to make consistent use of its Rule 17(c) arguments
before this court including obtaining a court order prior to
issuing a Rule 17(c) subpoena.
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1),
each has ten days from the date of receipt of a copy of this
report and recommendation to file and serve specific objections
unless an extension of time for good cause is obtained.

ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
March 31, 2008

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