Subpoena for Federal Law Enforcement Agent in State Criminal Case

What happens when a federal agent is involved in a criminal investigation that is ultimately prosecuted in State Court? Must the federal agent appear in response to a subpoena for testimony at a hearing, trial or deposition?

A federal agent such as DEA, FBI, or the United States Marshals Service are sometimes involved in a case that is ultimately prosecuted in state court.

For example, the United States Marshals Service comes to someone's home in Tampa, Hillsborough County, Florida, to execute an extradition warrant for a felony case out of state.

The United States Marshals Service also has several local law enforcement officers present for the raid. During the raid, the Deputy uncover evidence leading to the arrest of the person for a state criminal law violation such as possession of a firearm by a convicted felon, possession of a controlled substance, drug trafficking or another type of felony criminal charge.

How do you subpoena the Deputy with the US Marshals Service to come to state court for a deposition, hearing or trial?

Consider another example. Imagine a case in which the the FBI comes to talk to one person in the house or execute an arrest or search warrant. During the investigation, the FBI agents and local law enforcement officers talk to other people in the house to gain consent to search another bedroom. If the search reveals any contraband, individuals in the house may be arrested for state criminal charges.

When the DEA is involved in a drug bust, they often turn over possibly "illegal searches" to the local law enforcement officers. Many questionable cases are not prosecuted at the federal level. In other cases, the DEA may decide not to prosecute lower level drug busts or trafficking cases involving only marijuana.

When those charges are not prosecuted at the federal level - a distinct problem occurs for the criminal defense attorney defending the case in State Court here in Florida - it is nearly impossible to get the federal agent to show up for the subpoena for deposition or to respond to the subpoena duces tecum.

The federal agents do not want to testify in the state case. In fact, they go to a lot of trouble to keep their name out of any police report. The local prosecutor with the State Attorney's Office for cases in Tampa and the surrounding areas in Florida, will often not list the federal agents as witnesses even through they were in charge of the entire operation - at least until the federal agent realized that the case would be prosecuted by the state and not the federal government.

So in these cases we always subpoena every federal agent involved in the case for the deposition (or at least the main federal agent involved). Why? The federal agent is often a witness to each element of the charge. The federal agent will claim they can't remember anything.

The federal agent will play down their role in the investigation. The federal agent is often a witness to an illegal search and seizure. If the federal agent remembers anything, it might contradict the local law enforcement officers' version of events. Federal agents are terrified of depositions because they are able to avoid giving a deposition in federal criminal cases.

In short, those federal agents help the criminal defense attorney win the case. And the fact that they work so hard to obstruct the process often works to the defense attorney's advantage in resolving the case or getting the charges dropped.

I've had several of these cases over the last year in particular. No matter whether it is DEA, FBI or a US Marshal, the same thing happens every time. For the first subpoena, the witness will often just fail to appear although I usually get a phone call a few hours before the deposition is scheduled to start.

In response to the second subpoena, the General Counsel's Office for the United States Department of Justice for the US Marshals Service (for example) will send out a form letter (although the letters always say the same thing no matter the federal agency):

This office has received your subpoena for testimony and documents issued to a [Deputy with the United States Marshals Service] in the above-captioned state criminal case. Please be advised that there is a general prohibition against furnishing documents and/or testimony in proceedings in which the United States is not a party. See Title 28 C.F.R. Section 16.22.

Accordingly, before the [United States Marshals Service (USMS) / FBI / DEA ] can make a final decision whether to authorize the the federal agent to testify or provide any documents, you must provide a summary of the testimony sought and its relevance to the proceedings. See Title 28 C.F.R. Section 16.22(c). Such regulations were upheld as lawful and valid in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). See also, Moore v. Armour Pharmaceutical Co., 927 F.2d 1194, 1197 (11th Cir. 1991).

Please understand that it is neither the desire, nor intent of the Government to interfere with or otherwise frustrate your efforts to secure evidence in this case. However, the [USMS / FBI / DEA] will not authorize any disclosure until you have complied with the statutory regulations. In order to comply, you must provide a summary of the information sought and its relevance to the proceedings to the United States Attorney's Office for the Middle District of Florida (USAO). Upon receipt of the summary. the USAO, with this office, will then determine whether authorization for disclosure of the documents is appropriate. 28 C.F.R. Section 16. 24. Please provide this information to us as soon as practicable so that we have sufficient time to determine whether to authorize the federal agent's testimony.
Ways to Deal with this Problem:

I'm always interested in ways that other attorneys deal with this problem. In order to eliminate the objections, I always provide the United States Attorney's Office a letter that gives a brief summary of what I expect the testimony to provide:

On [date] the federal agent [name and business address] was involved in a search and seizure of [the description of person and property] at [address]. The federal agent was in a position to have witnessed whether the following facts occurred: [then list word for word the information listed in each police report]. See attached police reports and other discovery provided by the prosecutor in the state criminal case.
You can also provide a Touchy request if you want to avoid any further delay to head off the next set of objections that will be raised by the United States Attorney's Office. The United States Attorney's Office will often take the following position:
Please be advised that in seeking records or testimony of a Department of Justice employee in any case (state or federal) in which the United States is not a party, you must comply with the Touhy regulations pertaining to the Department of Justice. This regulation may be found at 28 C.F.R. Section 16.21 et seq. Pursuant to 28 U.S.C. Section 16.22(a), no employee of the Department of Justice shall produce any documents or testify without prior approval of the proper Department official.

Please be advised that the Circuit Court lacks jurisdiction to compel a federal employee to testify regarding matters relating to their official capacity. As it relates to these matters, the United States has not waived its sovereign immunity and subjected itself or its agencies to proceedings in state court. Sovereign immunity bars enforcement of a subpoena against an unwilling sovereign.

If the state court judge does issue a contempt order or you file a motion for sanctions or to compel, the Supremacy Clause allows me to remove that order or motion to Federal Court pursuant to Title 28, United States Code, Section 1442(a)(1) and 1446.

The subpoena power of the State of Florida yields to pre-eminent Federal regulations promulgated pursuant to Federal law. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); St. of La. v. Gsell, U.S. Probation Officer, 978 F.2d 226 (5th Cir. 1992); U.S. Constitution, Article VI, Clause 2. A federal employee cannot be compelled to testify or produce documents in violation of provisions of the Touhy regulations. See, e.g. Touhy, 340 U.S. at 467-70.

If you need assistance in requesting or fomulating the Touhy request, please do not hesitate to contact me. If you have a Touhy request already prepared and it meets the requirements of 28 C.F.R. Section 16.21 et. seq., please mail or fax it to me at the above address or number and I will review it and get back to you as soon as possible.
The United States Attorney's Office will take the position that any subpoena duces tecum must contain the following:
  1. Identify the employee or record sought;
  2. Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
  3. Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs;
  4. Show that the desired testimony or records are not reasonably available from any other source;
  5. Show that no record could be provided and used in lieu of employee testimony;
  6. Provide the substance of the testimony expected of the employee; and
  7. Explain why you believe your Touhy Request complies with Sec. 2.88. (Your explanation can simply state that you do not expect the testimony to concern any electronic surveillance, policies or procedures, confidential informants, et).
Although the law does not require such a showing with any "magic language," it certainly prevents any delay (if you want to prevent any delay). I still get the form letter, but then I just send another copy of my initial letter and the attachments. And if the federal agent fails to appear for the deposition a second time it puts the criminal defense attorney in the best position to argue for sanctions based on the failure to comply with the subpoena for depositions including the dismissal of the charges or exclusion of certain evidence.

Usually upon receipt of the second letter, the United State Attorney's Office for the Middle District of Florida will file a motion to quash and argue that we have not complied with the maze of federal regulations on the issue. However, by providing a summary, the police reports and other discovery, a correct reading of the law cannot support such a position.

After jumping through all of these hoops the federal agent will eventually show up for the depositions in most cases. Often the plea negotiations become much more favorable in the days leading up to the motion to quash hearing or right before the deposition takes place. In other cases, the plea negotiations become much more favorable right after the deposition. I guess it is possible that the federal agent could help the prosecutor's case, although the criminal defense attorney is usually in a position to make an educated guess about that possibility well before filing the subpoena.

I would be interested in hearing from any other criminal defense attorney in Tampa, Florida (or anywhere in the United States) about how they have dealt with that issue and the results. In many of these case, the federal agent is in possession of exculpatory or potentially exculpatory evidence that does not come to light until the deposition or an inspection of documents gathered on the federal end of the investigation which are never given to the local law enforcement officers.

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