United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART THIRD-PARTY MOVANT ST. LOUIS
STEEL'S MOTION TO QUASH AND OBJECTIONS
KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE
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). 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
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.
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.
April 18, 2017, the Court issued an order setting the
sentencing hearing for May 31, 2017, at 2:00 p.m.
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.
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.
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.
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.
that day, at the scheduled time of the sentencing, the Court
heard argument from the parties.
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).
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) (“There is no clear ...