United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
D. NOCE UNITED STATES MAGISTRATE JUDGE.
the Court is the motion (“federal discovery
motion”) of defendant Christopher Ryan Craig for an
order compelling the United States to produce email and other
communications between Assistant Missouri Prosecuting
Attorney Jennifer Bartlett, federal Department of Homeland
Security ("DHS") Special Agent Larry Porter, and
DHS Assistant Chief Counsel Jennifer A. May. The motion seeks
production of emails that occurred between August 16, 2016,
and April 28, 2017. (Doc. 29). As stated below, this motion
is the only one defendant did not waive in this Court on
April 20, 2018. (Doc. 31).
federal case, on November 1, 2017, the grand jury indicted
defendant Craig in one count for conspiring with others,
between June 24 and July 20, 2016, to possess an amount of
marijuana with the intent to distribute it, in violation of
21 U.S.C. § 846. (Doc. 1).
dispute between defendant and the government involves a
federal regulation that controls when a federal government
employee may testify in a judicial proceeding.
§ 5.44Testimony and production of documents prohibited
unless approved by appropriate Department officials.
(a) No employee, or former employee, of the Department shall,
in response to a demand or request, including in connection
with any litigation, provide oral or written testimony by
deposition, declaration, affidavit, or otherwise concerning
any information acquired while such person is or was an
employee of the Department as part of the performance of that
person's official duties or by virtue of that
person's official status, unless authorized to do so by
the Office of the General Counsel, or as authorized in §
(b) No. employee, or former employee, shall, in response to a
demand or request including in connection with any
litigation, produce any document or any material acquired as
part of the performance of that employee's duties or by
virtue of that employee's official status, unless
authorized to do so by the Office of the General Counsel or
the delegates thereof, as appropriate.
C.F.R. § 5.44. The parties refer to this regulation as
the Touhy regulation, reflecting the holding of the
Supreme Court in United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). In Touhy, the
Supreme Court ruled that a similar government regulation was
cardinal factual premises of defendant's federal
discovery motion are largely uncontested. (Doc. 32).
Defendant was first charged in the Circuit Court of St.
Charles County with the marijuana offense that was later
charged in the federal indictment now before this Court.
Before the federal indictment, in the state court case
defendant sought to depose the state's witness, DHS
Special Agent Porter. Agent Porter was served with a subpoena
for his deposition. Both Agent Porter and the assistant
prosecuting attorney assigned to the case failed to appear
for the deposition. The deposition was rescheduled twice and
each time Agent Porter did not appear. (Doc. 29 at 1).
Defendant's instant federal discovery motion further
6. The defense made a final attempt to take SA Porter's
deposition, noticing one up for April 28, 2017. Suspecting
that the witness [(Porter)] was being told to outright
disobey the subpoena, the defense filed a Missouri 25.04
motion for the disclosure of the same
communications that are the subject of this [federal
discovery] motion and a notice of deposition for Jennifer
May, an attorney with the Department of Homeland Security
(“DHS Attorney May”).
7. Shortly after serving the MO 25.04 motion and notice on
the State of Missouri, APA Bartlett called defense counsel
and advised him that SA Porter had a change of heart and
would attend the April 28 deposition.
8. On April 28, 2017 SA Porter gave his deposition but
refused to answer questions about whether anyone had told him
to disobey the subpoena, saying it was all between defense
counsel and DHS Attorney May.
9. Eventually the defense filed an amended MO 25.04 motion
for the communications between APA Bartlett, DHS attorney
May, and SA Porter and scheduled it for a hearing. The day
before the hearing was to be held the ...