Before trial on an indictment for violation of § 1 of the
Sherman Act, defendants obtained under Rule 16 of the Federal Rules
of Criminal Procedure an order requiring the Government to produce
for inspection all documents or objects obtained from defendants
and obtained by seizure or process from others. The Government
complied with that order. Defendants also moved, under Rule 17(c),
for an order directing compliance with a subpoena
duces
tecum requiring the production for inspection of certain
documents and objects obtained by the Government by means other
than seizure or process and which (a) had been presented to the
grand jury, or (b) were to be offered as evidence at the trial,
or
"(c) are relevant to the allegations or charges contained in
said indictment, whether or not they might constitute evidence with
respect to the guilt or innocence of any of the defendants."
For refusal to comply with this order, respondent, a government
attorney who had possession of the subpoenaed materials, was found
guilty of contempt.
Held:
1. Under Rule 17(c), any document or other material which has
been obtained by the Government by solicitation or voluntarily from
third persons, and which is admissible in evidence, is subject to
subpoena. Pp.
341 U. S.
218-221.
(a) It is not required that materials thus subpoenaed be
actually used in evidence, but only that a good faith effort be
made to obtain evidence, and the court may control the use of Rule
17(c) to that end by its power to rule on motions to quash or
modify. Pp.
341 U. S.
219-220.
(b) Where such materials are required to be produced, the court
should be solicitous to protect against disclosures of the identity
of informants and the method, manner and circumstances of the
Government's acquisition of the materials. P.
341 U. S.
221.
2. Clause (c) of the subpoena is invalid, being not intended to
produce evidentiary materials, but being merely "a fishing
expedition to see what may turn up." P.
341 U. S.
221.
Page 341 U. S. 215
3. The subpoena being part good and part bad, respondent may not
be held in contempt for refusal to comply with it. P.
341 U. S.
221.
185 F.2d 159, judgment vacated.
Upon review of an order of the District Court finding a
government attorney guilty of contempt for refusal to comply with a
subpoena
duces tecum, the Court of Appeals reversed. 185
F.2d 159. This Court granted certiorari. 340 U.S. 919.
Judgment
vacated and cause remanded to the District Court, p.
341 U. S.
222.
MR. JUSTICE MINTON delivered the opinion of the Court.
Petitioners were indicted for a violation of § 1 of the Sherman
Act. [
Footnote 1] Before the
case was set for trial, each petitioner filed a motion under Rule
16 of the Federal Rules of Criminal Procedure [
Footnote 2] for an order requiring the
Page 341 U. S. 216
United States to produce for inspection all books, papers,
documents, or objects obtained from petitioners and obtained by
seizure or process from others. An agreed order was entered by the
court and the Government fully complied therewith. The validity of
this order is not in question.
Petitioners also moved under Rule 17(c) [
Footnote 3] for an order directing the Government at a
time and place to be specified therein to produce for inspection
certain other books, papers, documents and objects obtained by the
Government by means other than seizure or process. Petitioners
filed and served on the Government attorneys a
Page 341 U. S. 217
subpoena
duces tecum, the pertinent part of which reads
as follows:
"all documents, books, papers and objects (except memoranda
prepared by Government counsel, and documents or papers solicited
by or volunteered to Government counsel which consist of narrative
statements of persons or memoranda of interviews), obtained by
Government counsel, in any manner other than by seizure or process,
(a) in the course of the investigation by Grand Jury No. 8949 which
resulted in the return of the indictment herein, and (b) in the
course of the Government's preparation for the trial of this cause,
if such books, papers, documents and objects, (a) have been
presented to the Grand Jury; or (b) are to be offered as evidence
on the trial of the defendants, or any of them, under said
indictment; or (c) are relevant to the allegations or charges
contained in said indictment, whether or not they might constitute
evidence with respect to the guilt or innocence of any of the
defendants. . . ."
A hearing was held and the court entered an order directing the
Government to produce for petitioners' inspection the materials
designated in the subpoena.
Thereafter, the Government moved to quash the subpoena and to
set aside the order, contending that the access of a defendant in a
criminal proceeding to materials in custody of Government attorneys
is limited to rights granted by Rule 16, and that the District
Court had erred in ordering production of the subpoenaed materials.
This motion was denied. Respondent Hotchkiss, one of the Government
attorneys to whom the subpoena was addressed, had possession of the
materials called for, but refused to produce any of them. After a
hearing, the District Court held him in contempt. The Court of
Appeals reversed, 185 F.2d 159. We granted certiorari
Page 341 U. S. 218
because of the importance of the scope of Rule 17(c) in federal
practice. 340 U.S. 919.
During the hearing on petitioners' motions for an order under
Rule 17(c), respondent Hotchkiss, acting for the Government, had
offered to produce, and to enter into a stipulation therefor, all
documents of evidentiary character, in the custody of the
Government obtained other than by seizure or process,
i.e., documents other than the work product of the
Government, solicited and volunteered narrative statements, and
memoranda of interviews. However, this offer did not include
documents furnished the Government by voluntary and confidential
informants.
The subpoena was broad enough to include any documents and other
materials that had been furnished the Government by voluntary
informants and which did not "consist of narrative statements of
persons or memoranda of interviews." The Government's chief
objection to the subpoena, as stated to the court by respondent
Hotchkiss, was as follows:
"Mr. Hotchkiss: There is only one objection -- basic objection
which I would make to the form which is proposed: this language in
this subpoena or proposed subpoena, as I construe it does not
protect those confidential informants who have provided the
Government with confidential material which the Government feels on
the basis of very well established principles followed by the
courts are normally protected from the view of litigants."
It appears from respondent's colloquy with the court that the
confidential material which he would except from the subpoena
consisted of "documents furnished the Government without process or
seizure by voluntary informants."
It was intended by the rules to give some measure of
discovery.Rule 16 was adopted for that purpose. It
Page 341 U. S. 219
gave discovery as to documents and other materials otherwise
beyond the reach of the defendant which, as in the instant case,
might be numerous and difficult to identify. The rule was to apply
not only to documents and other materials belonging to the
defendant, but also to those belonging to others which had been
obtained by seizure or process. This was a departure from what had
theretofore been allowed in criminal cases. [
Footnote 4]
Rule 16 deals with documents and other materials that are in the
possession of the Government, and provides how they may be made
available to the defendant for his information. In the interest of
orderly procedure in the handling of books, papers, documents, and
objects in the custody of the Government accumulated in the course
of an investigation and subpoenaed for use before the grand jury
and on the trial, it was provided by Rule 16 that the court could
order such materials made available to the defendant for inspection
and copying or photographing. In that way, the control and
possession of the Government is not disturbed. Rule 16 provides the
only way the defendant can reach such materials so as to inform
himself.
But if such materials or any part of them are not put in
evidence by the Government, the defendant may subpoena them under
Rule 17(c) and use them himself. It would be strange indeed if the
defendant discovered some evidence by the use of Rule 16 which the
Government was not going to introduce, and yet could not require
its production by Rule 17(c). There may be documents and other
materials in the possession of the Government not subject to Rule
16. No good reason appears to us why they may not be reached by
subpoena under Rule 17(c), as long as they are evidentiary. That is
not to say that the materials thus subpoenaed must actually be used
in evidence.
Page 341 U. S. 220
It is only required that a good faith effort be made to obtain
evidence. The court may control the use of Rule 17(c) to that end
by its power to rule on motions to quash or modify. [
Footnote 5]
It was not intended by Rule 16 to give a limited right of
discovery, and then by Rule 17 to give a right of discovery in the
broadest terms. Rule 17 provided for the usual subpoena
ad
testificandum and
duces tecum, which may be issued by
the clerk, with the provision that the court may direct the
materials designated in the subpoena
duces tecum to be
produced at a specified time and place for inspection by the
defendant. Rule 17(c) was not intended to provide an additional
means of discovery. Its chief innovation was to expedite the trial
by providing a time and place before trial for the inspection of
the subpoenaed materials.
United States v. Maryland &
Virginia Milk Producers Assn., 9 F.R.D. 509. However, the
plain words of the Rule are not to be ignored. They must be given
their ordinary meaning to carry out the purpose of establishing a
more liberal policy for the production, inspection, and use of
materials at the trial.
Page 341 U. S. 221
There was no intention to exclude from the reach of process of
the defendant any material that had been used before the grand jury
or could be used at the trial. In short, any document or other
materials, admissible as evidence, obtained by the Government by
solicitation or voluntarily from third persons is subject to
subpoena. It was material of this character which the Government
was unwilling to stipulate to produce or to produce in obedience to
the subpoena. Such materials were subject to the subpoena. Where
the court concludes that such materials ought to be produced, it
should, of course, be solicitous to protect against disclosures of
the identity of informants, and the method, manner and
circumstances of the Government's acquisition of the materials.
Clause(c), which is the last clause in the subpoena, reads as
follows:
"are relevant to the allegations or charges contained in said
indictment, whether or not they might constitute evidence with
respect to the guilt or innocence of any of the defendants. . .
."
This is a catch-all provision, not intended to produce
evidentiary materials, but is merely a fishing expedition to see
what may turn up. The clause is therefore invalid.
The subpoena calls for materials which the Government is bound
to produce and for materials it is not bound to produce. The
District Court said: "Give us all." The Government replied: "We
will give you nothing." Both were wrong. The Government should
produce the evidentiary materials called for by the subpoena. It
need not produce anything under clause (c).
One should not be held in contempt under a subpoena that is part
good and part bad. The burden is on the court to see that the
subpoena is good in its entirety, and it is not upon the person who
faces punishment to cull the good from the bad.
Page 341 U. S. 222
Accordingly, the judgment of the Court of Appeals is vacated,
and the cause remanded to the District Court for further
proceedings in conformity with this opinion.
It is so ordered.
MR. JUSTICE BLACK would affirm the District Court.
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
[
Footnote 1]
26 Stat. 209, 15 U.S.C. § 1.
[
Footnote 2]
"RULE 16. DISCOVERY AND INSPECTION."
"Upon motion of a defendant at any time after the filing of the
indictment or information, the court may order the attorney for the
government to permit the defendant to inspect and copy or
photograph designated books, papers, documents or tangible objects,
obtained from or belonging to the defendant or obtained from others
by seizure or by process, upon a showing that the items sought may
be material to the preparation of his defense and that the request
is reasonable. The order shall specify the time, place and manner
of making the inspection and of taking the copies or photographs,
and may prescribe such terms and conditions as are just."
[
Footnote 3]
"RULE 17. SUBPOENA."
"(a) FOR ATTENDANCE OF WITNESSES; FORM; ISSUANCE. A subpoena
shall be issued by the clerk . . . and shall command each person to
whom it is directed to attend and give testimony at the time and
place specified therein. The clerk shall issue a subpoena, signed
and sealed but otherwise in blank to a party requesting it, who
shall fill in the blanks before it is served."
"
* * * *"
"(c) FOR PRODUCTION OF DOCUMENTARY EVIDENCE AND OF OBJECTS. A
subpoena may also command the person to whom it is directed to
produce the books, papers, documents or other objects designated
therein. The court on motion made promptly may quash or modify the
subpoena if compliance would be unreasonable or oppressive. The
court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time
prior to the trial or prior to the time when they are to be offered
in evidence and may upon their production permit the books, papers,
documents or objects or portions thereof to be inspected by the
parties and their attorneys."
[
Footnote 4]
See Advisory Committee's Note to Rule 16, p. 1969.
[
Footnote 5]
"We also find in the same rule, under (c), a provision for the
production of documentary evidence or objects -- the familiar
subpoena
duces tecum -- and if the person upon whom the
subpoena is served thinks it is broad or unreasonable or oppressive
he may apply to the court to quash the subpoena. Furthermore,
while, normally, under a subpoena, the books and other things
called for would merely be brought into court at the time of the
trial, let us say immediately before they are to be offered in
evidence, there is a provision in this rule that the court may, in
the proper case, direct that they be brought into court in advance
of the time that they are offered in evidence, so that they may
then be inspected in advance, for the purpose, of course, of
enabling the party to see whether he can use it or whether he wants
to use it."
Statement of Mr. G. Aaron Youngquist, Member of Advisory
Committee, Federal Rules of Criminal Procedure, Proceedings of the
Institute on Federal Rules of Criminal Procedure (New York
University School of Law, Institute Proceedings, Vol. VI, 1946),
pp. 167-168.