UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`UNITED STATES OF AMERICA
` Case No. 8:24-cr-00068-KKM-TGW
`v.
`
`TIMOTHY BURKE
`
`UNITED STATES’ RESPONSE IN OPPOSITION TO
`DEFENDANT’S MOTION FOR RULE 17(c) SUBPOENAS
`TO COMPEL EARLY PRODUCTION OF DOCUMENTS
`
`The United States of America submits this response in opposition to
`defendant’s Motion for Rule 17(c) Subpoenas to Compel Early Production of Documents (the
`“Motion”), filed July 30, 2025. Doc. 164. The Motion seeks the issuance of thirteen
`subpoenas to various third-party entities, including multiple victim entities, for an
`astoundingly vast array of materials that Burke has conclusively asserted are
`“evidentiary, relevant, not otherwise procurable, necessary for trial preparation, and
`sought in good faith.” Id.
`For the reasons discussed below, the United States opposes the Motion on
`several grounds, including Burke’s: (1) failure to comport with his obligations under
`Fed. R. Crim. P. 17(c) and relevant case law; (2) failure to address or comply with
`the victim protection obligations under Rule 17(c)(3) provided for subpoenas to third-
`parties that may have “confidential or personal” information about a victim; (3)
`proposed subpoenas to entities not directly identified with the charged conduct or the
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`United States’ related disclosures and therefore not likely to lead to relevant
`admissible evidence at trial; and (4) proposed subpoenas that command “fishing
`expedition”-level productions that are broader in scope than even the materials
`summarized in his Motion. This Court should therefore deny Burke’s Motion.
`MEMORANDUM OF LAW
`The issuance of a Rule 17(c) subpoena is within the sound discretion of the
`trial court. United States v. Thomas, 62 F.3d 1332 (11th Cir. 1995). The appellate court
`will not disturb the district court’s ruling on a request for subpoena absent an abuse
`of discretion. United States v. Lee, 68 F.3d 1267 (11th Cir. 1995). Rule 17(c) provides a
`procedural mechanism allowing parties to request issuance of a subpoena to aid in
`readiness for trial. However, as multiple courts have opined, it does not permit the
`issuance of broad subpoenas to conduct general discovery. See e.g., United States v.
`Hardy, 224 F.3d 752, 756 (8th Cir. 2000) (denying Rule 17(c) subpoena where
`defendant was attempting to use it as a discovery device, “which it is not”); United
`States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992) (Rule 17— “is not intended to
`provide an additional means of discovery”); United States v. Cuthbertson, 630 F.2d 139,
`144 (2d Cir. 1980) (Rule 17(c) does not permit the issuance of subpoenas that would
`conduct a “general fishing expedition”).
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`Rule 17(c) provides:
`(c) Producing Documents and Objects
`(1) In General . A subpoena may order the witness to produce any books,
`papers, documents, data, or other objects the subpoena designates. The court may
`direct the witness to produce the designated items in court before trial or before they
`are to be offered in evidence. When the items arrive, the court may permit the parties
`and their attorneys to inspect all or part of them.
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`(2) Quashing or Modifying the Subpoena . On motion made promptly, the
`court may quash or modify the subpoena if compliance would be unreasonable or
`oppressive.
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`(3) Subpoena for Personal or Confidential Information About a Victim. After
`a complaint, indictment, or information is filed, a subpoena requiring the production
`of personal or confidential information about a victim may be served on a third party
`only by court order. Before entering the order and unless there are exceptional
`circumstances, the court must require giving notice to the victim so that the victim can
`move to quash or modify the subpoena or otherwise object.
`
`The Supreme Court established a four-part test to govern the issuance of Rule
`17(c) subpoenas in United States v. Nixon, 418 U.S. 683 (1974). Under Nixon, before
`being permitted to issue a Rule 17(c) subpoena duces tecum, the moving party must
`demonstrate to the court that: (1) the documents sought are both evidentiary and
`relevant, that is, admissible; (2) the documents are not otherwise procurable before
`trial through reasonable diligence; (3) the party cannot properly prepare for trial
`without early production; and (4) the application is not intended as a general fishing
`expedition. Id. at 671. In addition to the Nixon test, other lower courts have opined
`on the limits of Rule 17(c) as a discovery device. For example, both Nixon and other
`cases have made clear that materials whose evidentiary use is limited to
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`impeachment or cross-examination does not provide a justifiable basis for compelled
`early disclosure under Rule 17(c). Nixon, 418 U.S. at 701; see also Hardy, 224 F.3d at
`755–56; United States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981).
`Several cases illuminate and provide context for the general prohibition on the
`use of Rule 17(c) subpoenas as a tool for general discovery. In U.S. v. Abdush-Shakur,
`465 F.3d 458 (10th Cir. 2006), defendant Abdush-Shakur, sought to appeal his
`conviction for attempted murder and possession of a handmade knife by a prison
`inmate, after stabbing a correctional officer. Prior to trial, Abdush-Shakur sought to
`use a Rule 17(c) subpoena to procure records from his correctional facility regarding
`prior altercations between Abdush-Shakur and the stabbed corrections officer, which
`the trial court denied. Reviewing the denial under an abuse of discretion standard, a
`panel of the Tenth Circuit upheld the denial. The court cited Bowman Dairy Co. v.
`United States, 341 U.S. 214, 220 (1951) for the principle that “Rule 17(c) is ‘not
`intended to provide an additional means of discovery’ but ‘to expedite the trial by
`providing a time and place before trial for the inspection of the subpoenaed
`materials.’” Abdush-Shakur, 465 F.3d at 467. The court noted that Abdush-Shakur’s
`characterization of his request as “pertaining only to ‘records relating to prior
`incidents [between the parties]’” was misleading, in that Abdush-Shakur, in his Rule
`17(c) subpoena, also requested such materials as: (1) all incident reports for the
`previous five years involving stabbings; (2) complete personnel records of the stabbed
`officer; (3) complete copy of his own prison file; (4) a list of policies and procedures
`[for prison operations]. Id. at 468. In support of what the court described as an
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`“expansive” request, Abdush-Shakur merely had stated that the requested documents
`were “material and integral to the defense” and that they were “evidentiary, relevant, and
`. . . requested in good faith” without any additional articulation or evidentiary support.
`Id. (emphasis added). Per the court:
`“We agree with the district court that this is insufficient to satisfy Rule 17(c).
`Abdush-Shakur failed to state in his motion how the requested material related to
`the charges against him, or how the documents were to be used in his defense.
`Conclusory statements do not establish relevance.”
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`Id. (emphasis added).
`Mere conjecture that a document will contain evidentiary or favorable
`material to a defendant is not a basis for a subpoena under Rule 17(c). In U.S. v.
`Bradford, 806 F.3d 1151 (8th Cir. 2015), defendant Bradford appealed his conviction
`following entry of his plea agreement, in part, because the district court did not allow
`him to use a Rule 17(c) subpoena to compel the production of hospital records that
`he claimed could advance his argument for leniency at sentencing. In affirming
`Bradford’s conviction, the Eighth Circuit noted that Rule 17(c) requires that “[t]he
`requesting party must identify the documents with adequate specificity and show that
`the documents are relevant and admissible.” Id. at 1155 (citation omitted).
`Importantly, the Bradford court affirmed previous Eighth Circuit holdings, opining
`that “The relevance and specificity elements [of Nixon] ‘require more than the title of a
`document and conjecture as to its contents,’ and a subpoena ‘should not issue based upon
`a party’s mere hope that it will turn up favorable evidence.’” Id. (emphasis added, Nixon
`context added).
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`The four-part test established in Nixon applies not only to subpoenas served by
`a defendant upon the United States, but also to Rule 17(c) subpoenas served upon
`third parties. In U.S. v. Rand, 835 F.3d 451 (4th Cir. 2016), defendant Rand appealed
`his conviction for conspiracy and his unlawful conduct as the chief accounting officer
`for a home-building company, arguing, in pertinent part, that the Nixon test only
`applied in the narrow scope of a subpoena served upon the United States by the
`defendant. As to other subpoenas, such as those served upon third parties, Rand
`argued Rule 17(c)(2) applied only subpoenas that contained “unreasonable or
`oppressive” language. Id. at 462. The Fourth Circuit rejected Rand’s argument,
`holding that the Nixon factors applied to all Rule 17(c) subpoenas. Id. at 463. In its
`discussion, the Rand Court noted that the purpose of Nixon was not, as Rand
`suggested, merely “to not allow bypass of Rule 16 through Rule 17 . . .” such that it
`should only apply to subpoenas issued to the government; rather the Nixon
`framework is the appropriate standard for all Rule 17(c) subpoenas. Id. The court
`reiterated the holding in Nixon that a subpoena duces tecum “was not intended to
`provide a means of discovery for criminal cases.” Id. Additionally, the court, citing a
`district court order, explained that “[t]he right to defend oneself does not extend to using
`the power of the Court to compel third parties to provide information that may not even be
`admissible at trial or at a hearing or that is merely ‘investigatory.’” Id. (citing United
`States v. Al-Amin, No. 1:12-cr-50, 2013 WL 3865079 at *8 (E.D. Tenn. July 25, 2013)
`(emphasis added)).
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`The mere ability to articulate what you hope to find in subpoenaed evidence
`does not meet the Nixon standard as to the relevance prong. In U.S. v. Trump, 703
`F.Supp.3d 89 (D.D.C. 2023), the defendant sought to use multiple Rule 17(c)
`subpoenas issued to various governmental agencies and committees, none of whom
`were part of the prosecution team, to obtain what the defendant claimed were
`“missing materials” from those obtained in discovery. In the trial court’s denial of
`the motion for Rule 17(c) subpoenas, the court, citing United States v. Cuthbertson, 630
`F.2d 139, 146 (3d Cir. 1980), explained that “[c]ourts must be careful that rule 17(c)
`is not turned into a broad discovery device, thereby undercutting the strict limitation
`of discovery in criminal cases found in Fed. R. Crim. P. 16.” Trump, 703 F.Supp.3d
`at 92. In defendant’s motion, the defendant had suggested “that [certain of the
`missing materials] could be used for the [i]mpeachment of witnesses.” Id. at 93. The
`district court rebuffed this as sufficient to establish relevance, noting “[d]efendant
`provides no basis for concluding that [the subpoenaed evidence] contain any such
`impeachment evidence. This falls well short of his burden. The relevance prong is not
`satisfied merely because a defendant can articulate what they hope to find in the
`subpoenaed evidence.” Id. at 94 (emphasis added, internal citations omitted).
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`ARGUMENT
`I. Burke Fails to Meet the Nixon Factors for Admissibility and Makes
`Conclusory Statements Regarding the Relevance of Subpoenaed
`Materials.
`
`As described in Nixon and further refined by the holdings and discussion in
`Abdush-Shakur, Bradford, Rand, and Trump, subpoenas duces tecum under Fed. R.
`Crim. P. Rule 17(c) are not a means for the defendant to engage in general discovery,
`fact-finding, or other ‘investigatory’ ends. Rather, the scope of the Rule 17(c)
`subpoena is properly limited to ensuring that evidentiary and relevant (i.e.
`admissible) materials are available to the parties at trial. Parties moving for the
`issuance of Rule 17(c) subpoenas must be able to sufficiently articulate the four-
`prongs of the Nixon holding before a subpoena may be issued at the trial court’s
`discretion.
`The first prong of the analysis is whether the documents to be subpoenaed are
`relevant and evidentiary. In Burke’s Motion, he provides the Court one sentence in
`support of his claim that the documents to be subpoenaed are relevant. Doc. 164 at 5.
`That one sentence conclusion asserts ipse dixit that “the documents are directly
`related to the charges against the defendant and are expected to contain information
`that will be used to challenge the prosecution’s evidence and support the defense’s case.
`Id. (emphasis added). Much like the defendant in Abdush-Shakur, Burke not only fails
`to provide sufficiently articulable grounds for relevancy, he fails to provide any
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`particularized analysis whatsoever. As the Tenth Circuit asserted in Abdush-Shakur,
`“Conclusory statements do not establish relevance.” Abdush-Shakur, 465 F.3d at 468.
`Even if Burke had provided some analysis to support his various requests, the
`sheer scope of the materials requested within the motion, to include multi-year
`timelines, and whole categories of information, is not reconcilable with Nixon and its
`progeny. For example, when summarizing the information to be produced by the
`National Sports League (NSL), Burke seeks reports for any investigations during a
`two-year period related to the identified ‘flipfactory’ FTP account. Doc. 164 at 8.
`Likewise, in the subpoena to StreamCo Inc., Burke seeks all “StreamCo data
`regarding unauthorized access to StreamCo or compromised credentials” over a two-
`year period. Id. Burke’s requested subpoenas are replete with examples of
`“Information related to [X] topic” or “[X] documents within [multi-year date
`range].” See Id. at 8–13. These potentially voluminous categories of information lack
`any appreciable degree of specificity such that they could be considered a tailored
`request for a particular admissible document or specified material, rather than what
`they are—a mere “fishing expedition” in search of a wishful production of favorable
`discovery. As explained by the Eighth Circuit in Bradford, a subpoena for documents,
`even where a defendant can provide a “title of a document and conjecture as to its
`content”, such a subpoena “should not issue based upon a party’s ‘mere hope’ that it will
`turn up favorable evidence.” Bradford, 806 F.3d at 1155. Here, Burke’s level of
`articulation falls far short of that in Bradford.
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`Burke, in support of his argument that his subpoenas are specific enough as to
`not be a “general fishing expedition” cites a handful of district court opinions,
`primarily within the Second Circuit. Burke uses these fact-specific rulings to try to
`erode Nixon’s bright line specificity requirement. However, these case specific rulings
`are easily distinguished from the wide categories of information sought by Burke in
`his subpoenas. Meanwhile, in the only circuit-level opinion indirectly cited by Burke
`on the issue of specificity, that of United States v. Silverman, 745 F.2d 1386, 1397 (11th
`Cir. 1984), Burke seeks to vastly expand the narrow holding as opening the door to
`permitting blanket subpoenas for a wide-range of “impeachment” material,
`irrespective of their relevance and admissibility under the Nixon framework.
`In addition to Burke’s mere conclusions on the issue of relevance and
`specificity, Burke has also failed to adequately demonstrate support within the
`Motion for the other Nixon prongs. Burke recites mere conclusions for both the
`prongs that: (1) the documents are not otherwise attainable by exercise of due
`diligence; and (2) the defendant cannot prepare an adequate defense without access
`to the materials. Doc. 164 at 13. Burke fails to make any showing of his efforts
`undertaken to procure these materials by alternative means, or how the materials
`requested go towards the specifics of Burke’s anticipated defense, rendering the
`requested documents essential.
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`II. Burke’s Motion Fails to Meet the Notice and Review Obligations for
`Victim Protection under Rule 17(c)(3).
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`Burke not only fails to address the Nixon prongs, he also fails to acknowledge
`or address the movant’s obligations under Fed. R. Crim. P. Rule 17(c)(3), regarding
`subpoenas to third parties which may involve “personal or confidential information”
`about a victim. The Committee Notes for Fed. R. Crim. P. Rule 17 include a 2008
`annotation noting the addition of subsection (c)(3), which implements the Crime
`Victims’ Rights Act (“CVRA”). The CVRA, codified at 18 U.S.C. § 3771, states in
`part that victims have a right to respect for their “dignity and privacy.”
`Many of the subpoenas requested by Burke are either to victim entities, or to
`associated third parties, and seek information that “may involve personal or
`confidential information” about a victim. Specifically, Burke’s proposed subpoenas
`make numerous references to procuring communications between victim entities and
`their legal counsel, as well as many documents, such as policies, procedures,
`decision-making processes, and other material which reasonably contain information
`the victim entities may believe are of a “personal or confidential nature.”
`However, Burke’s motion makes no effort to guide or assist the Court in
`developing a reasonable course of action to ensure that the victim entities involved
`have reasonable time to move to “quash or modify . . . or otherwise object” to the
`subpoenas before a court order permitting the subpoenas is issued to the various third
`parties. The Committee Notes for Rule 17 further explains that the term “otherwise
`object[ing]” as used in subsection (c)(3) can include steps short of formal legal
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`intervention, such as the opportunity to review the proposed subpoenas and submit a
`letter with objections, or other action short of a motion to quash. However, under the
`Rule, the Court must exercise its discretion to ensure proper notice and opportunity
`to object in order to give meaning to the victim privacy rights in the CVRA.
`III. Burke Seeks to Subpoena Entities Not Identified with the Conduct
`Charged in the Indictment or the United States’ Related Disclosures.
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`Burke, in addition to the expansive subpoenas to victim entities and other
`entities disclosed as involved in related conduct to the charged offenses, additionally
`seeks materials from entities not otherwise identified, and from whom there is not
`likely to be any admissible materials. For example, Burke has proposed a subpoena
`to “FedNet,” a service purported to provide access to audiovisual streams related to
`sessions of Congress, to obtain various categories of materials related to a claimed
`cease-and-desist letter of unidentified date. See Doc. 164–10. In this subpoena, Burke
`seeks over a year’s worth of IP access history logs, over five years’ worth of licensure
`agreements, to include any agreements with any third parties involving the
`sublicensing of content obtained from government proceedings, and various internal
`communications. Id.
` “FedNet” is neither a victim entity associated with the charged conduct, nor
`has the United States asserted any intent to put forth evidence of related conduct
`involving this entity during its case-in-chief. As “FedNet” is not an entity involved in
`the government’s case, the possible relevance of this material—such that Burke seeks
`to use the power of the Court to compel these materials—is unclear, at best.
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`Certainly, these materials have no reasonable likelihood of being admissible towards
`the charged offenses at trial. The request of these additional subpoenas casts further
`doubts on Burke’s assertion that he is merely seeking to ensure the availability of
`known, admissible, materials under Rule 17(c). Rather, these subpoenas evince an
`effort to conduct a fishing expedition to obtain discovery materials he speculates may
`be favorable to him.
`IV. Burke’s Proposed Subpoenas Identify Broad Categories of Materials
`That Exceed Those Purportedly Sought Within His Motion.
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`Lastly, the subpoenas sought by Burke identify broad categories of materials
`that go beyond even those categories summarized within the Motion. Even if Burke
`had properly articulated the relevancy, specificity, and necessity of the materials
`summarized within the Motion, the subpoenas themselves seek a body of documents
`and materials that go beyond that sought in the Motion.1 There is a material
`difference in scope between those materials summarized within the Motion on pages
`8–13, and the various broad categories of materials sought within the 13 proposed
`subpoenas attached to the Motion. See Doc. 164–1 through 164–13.
`For example, the proposed subpoena to Fox Corporation (Doc. 164–5), lists
`within subpoena attachment ‘A’ a command to produce, in part:
`. . .
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`1 The United States has previously conferred with counsel for Burke, and the United States is not
`asserting that Burke has failed to act in good faith in his summarizing the materials sought in the
`Motion; merely that the subpoenas seek materials beyond the scope of that summarized therein.
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`3. All contracts, agreements, NDAs, releases, editorial control terms, and
`privacy-related provisions entered into between Fox News and Tucker Carlson
`and/or Kanye West, including any provisions addressing on -air appearances,
`recorded communications, or expectations of confidentiality or privacy.
`. . .
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`4. Documents, communications, or other records addressing the existence or
`scope of any “reasonable expectation of privacy” for individuals participating
`in the allegedly intercepted communications, including policies, producer
`notes, emails, or legal opinions.
`. . .
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`19. Communications with legal counsel (Holland & Knight, Norton Rose
`Fulbright, Wilson Sonsini) related to any legal or investigative action
`. . .
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`20. Any and all information regarding the editorial decision about how and
`why the interview between Tucker Carlson and Kanye West was edited.
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`These broad categories of materials, particularly relating to requests for
`internal documents related to “editorial decision”-making, and a blanket request with
`no time period identified for any communications between victim and their various
`legal counsel, go far beyond the listed summary of materials sought for “Broadcaster-
`2 (a.k.a. Fox Corporation)” in the Motion on page 10–11. Burke cannot credibly
`allege that these, in addition to the sixteen other categories of information sought,
`are sufficiently tailored and specific as to not comprise a “tool for general discovery”
`prohibited by Nixon. Indeed, the scope of this subpoena asks the Court to compel a
`wide range of documents that seek to “[use] the power of the Court to compel third
`parties to provide information that may not even be admissible at trial or at a hearing
`or that is merely ‘investigatory.” Rand 835 F.3d at 463.
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`CONCLUSION
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` For the reasons provided, the United States asks this Court to deny the
`Motion and prohibit issuance of all subpoena duces tecum provided as attachments to
`the Motion.
` Respectfully submitted,
`
` GREGORY W. KEHOE
` United States Attorney
`
`
` By: /s/ Adam J. Duso________________
` Adam J. Duso
` Assistant United States Attorney
` Florida Bar No. 1026003
` 400 N. Tampa St., Suite 3200
` Tampa, Florida 33602-4798
` Telephone: (813) 274-6000
` Email: adam.duso@usdoj.gov
`
`
`/s/ Jay G. Trezevant______________
` Jay G. Trezevant
` Assistant United States Attorney
` Florida Bar No. 0802093
` 400 N. Tampa St., Suite 3200
` Tampa, Florida 33602-4798
` Telephone: (813) 274-6000
` Email: jay.trezevant@usdoj.gov
`
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`U.S. v. Timothy Burke Case No. 8:24-cr-68-KKM-TGW
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`CERTIFICATE OF SERVICE
`I hereby certify that on August 13, 2025, I electronically filed the foregoing
`with the Clerk of the Court by using the CM/ECF system which will send a notice of
`electronic filing to the following:
`
` Michael Maddux, Esq.
` Mark D. Rasch, Esq.
`
`/s/Jay G. Trezevant _
` Jay G. Trezevant
` Assistant United States Attorney
`
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