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United States v. DNRB, Inc.

United States District Court, W.D. Missouri, Western Division

June 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DNRB, INC., d/b/a Fastrack Erectors, Defendant.

          ORDER GRANTING IN PART THIRD-PARTY MOVANT ST. LOUIS STEEL'S MOTION TO QUASH AND OBJECTIONS

          GREG KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE

         This criminal case arises from the death of an ironworker, Eric Roach, on a construction site. He fell while working on a steel beam 36 feet off the ground without fall protection and died the next day from his injuries. After a two-day bench trial, the Court found Defendant DNRB, Inc., d/b/a Fastrack Erectors (“DNRB”), guilty of violating an OSHA regulation and causing death, 29 U.S.C. § 666(e).[1] See Mem. Regarding Verdict (Doc. 68); Mem. Order and Verdict Making Findings of Fact and Conclusions of Law (Doc. 69). The Court has not yet sentenced DNRB.

         Prior to the initially scheduled sentencing hearing, DNRB provided information to the probation office suggesting it was incapable of paying a fine. Believing a successor corporation existed which could pay a fine, the Government issued subpoenas to the suspected successor entity, St. Louis Steel Construction, LLC (“SLSC”). SLSC is steel erection company owned by Debbie Bragg, the wife of DNRB's owner, Clayton Bragg.

         Now before the Court is SLSC's Motion to Quash Subpoena (Doc. 78). Finding that most-but not all-of the information sought is relevant, admissible, and requested with adequate specificity, the Court GRANTS IN PART the motion to quash and modifies the subpoena.

         Background

         On April 18, 2017, the Court issued an order setting the sentencing hearing for May 31, 2017, at 2:00 p.m.

         On May 9, the probation officer released his final presentence investigation report (“PSR”). The PSR concluded that based upon financial statements provided by DNRB, which showed DNRB had a majority of zero balances in its accounts, DNRB would not be able to pay a fine of any amount either now or in the future.

         On May 11, the Court ordered the parties to brief what they believed an appropriate sentence would be, particularly given that DNRB was voluntarily dissolved in January 2016. Among other questions, the Court asked if a fine was an appropriate sentence, and if so, how DNRB could pay a fine since it had been voluntarily dissolved.

         On May 17, the Government served SLSC with a subpoena to obtain a wide variety of business records. The subpoena directed SLSC to produce the information at the sentencing hearing.

         Less than twenty-four hours before the hearing, on May 30 at 2:27 p.m., SLSC filed the pending motion to quash. The Government filed its response the next morning.

         Later that day, at the scheduled time of the sentencing, the Court heard argument from the parties.

         Standard

         Under Federal Rule of Criminal Procedure 17(c)(1), a party may use a subpoena to “order the witness to produce any books, papers, documents, data, or other objects the subpoena designates” before trial or before they are offered into evidence. The purpose of the rule is to expedite a trial or hearing by providing a means before the trial or hearing to inspect subpoenaed materials. United States v. Nixon, 418 U.S. 683, 698-99 (1974). Rule 17 is not a means for generalized discovery or to obtain general discovery from third parties. Id.; United States v. Stevenson, 727 F.3d 826, 831 (8th Cir. 2013).

         The party seeking production under Rule 17(c) must show the subpoenaed materials are: (1) relevant; (2) admissible; and (3) requested with adequate specificity (collectively “the Nixon factors”). Stevenson, 727 F.3d at 831. Other considerations include whether failure to obtain the documents may tend to unreasonably delay the trial, whether the materials are requested in good faith, and whether the subpoena is “unreasonable and oppressive.” United States v. Shepard, 4:09-cr-423 RWS DDN, 2010 WL 750110, at *2 (E.D. Mo. Feb. 26, 2010); see United States v. Jewell, No. 4:07-CR-0103 JLH, 2008 WL 3871736, at *2 (E.D. Ark. Aug. 15, 2008) (‚ÄúThere is no clear ...


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