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United States v. Craig

United States District Court, E.D. Missouri, Eastern Division

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER RYAN CRAIG, Defendant.

          MEMORANDUM AND ORDER

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         In this 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).

         The dispute between defendant and the government involves a federal regulation that controls when a federal government employee may testify in a judicial proceeding.

         That regulation provides:

§ 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 § 5.44(b).
(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.

         6 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 valid.

         The 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 states:

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[1] 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 ...

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