R. ALLAN EDGAR, Chief United States District Judge
The United States moves pursuant to FED. R. CRIM. P. 17(c) for the pretrial production of documents. [Court File No. 40]. The government wants defendant Tyson Foods, Inc. ("Tyson") to produce two categories of documents: (1) all final, implemented wage increases, by wage class, for each of sixteen specified Tyson plants during the period from January 1, 1997, through the present time; and (2) plant production cost summary reports, monthly and year-to-date for sixteen Tyson plants for the fiscal year ending September 31, 1997, through the present time. Tyson opposes the motion.
Rule 17(c) provides in part:
The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
The enforcement of a pretrial subpoena duces tecum under Rule 17(c) is committed to the trial judge's discretion. United States v. Nixon, 418 U.S. 683, 702 (1974); United States v. Hughes, 895 F.2d 1135, 1145 (6th Cir. 1990). Production prior to trial pursuant to Rule 17(c) is appropriate where the movant shows four elements: (1) the documents sought are evidentiary and relevant; (2) the documents are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) the party cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) the application under Rule 17(c) for production in advance of trial is made in good faith and is not intended as a general "fishing expedition." Nixon, 418 U.S. at 699; Hughes, 895 F.2d at 1146. Rule 17(c) is not intended to provide an additional means of discovery. Nixon, 418 U.S. at 698; Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951); United States v. Hardy, 224 F.3d 752, 755-56 (8th Cir. 2000); United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998).
After reviewing the record, the Court finds that the government has met its burden of showing all four factors. For the reasons expressed by the government, its motion is well taken and will be GRANTED pursuant to FED. R. CRIM. P. 17(c).
I. The Documents Are Evidentiary And Relevant
Tyson contends the documents are only relevant to the calculation of any forfeiture that might be imposed as punishment following a conviction which is merely a sentencing issue. Tyson argues the documents are not relevant to proving any of the substantive charges in the indictment. Tyson takes the position that none of the 36 counts in the indictment has as an element of the criminal offense that the defendants reaped an economic gain or profit. It is asserted that the documents the government seeks to have produced under Rule 17(c) have nothing to do with proving at trial that any of the defendants committed a crime.
It is clear, however, that documents showing financial gain are relevant to Counts 1, 3-12, and 14-20 of the indictment. These counts explicitly charge, as part of the criminal offenses alleged, that illegal aliens were brought to the United States or transported "for the purpose of commercial advantage and private financial gain" which tracks the language in 8 U.S.C. § 1324(a)(2)(B)(ii). Financial gain is relevant to proving these counts.
Moreover, Tyson's financial gain is relevant to the issue of motive. The government contends that Tyson and its corporate executives hired illegal alien workers for the purpose of commercial advantage and financial gain. The government plans to present expert testimony at trial to establish the cost savings realized by Tyson through its alleged practice of hiring illegal aliens. The government plausibly asserts that to accurately quantify and prove the financial gain to Tyson, the government's experts need access to the Tyson documents and records showing actual wage increases and production costs. The government has met its burden of showing that the documents are evidentiary and relevant.
II. Documents Are Not Otherwise Procurable By Exercise Of Due Diligence
The Court finds that at this stage of the case, the documents are not otherwise procurable by the government reasonably in advance of trial by the exercise of due diligence. Once the grand jury returned the indictment, Tyson has naturally refused to voluntarily produce the documents. Tyson will not voluntarily comply with the government's request for the documents. The only way for the government to now gain access to and inspect the Tyson documents in advance of trial is to obtain a court order pursuant to Rule 17(c). There is no dispute that the government has a right to subpoena Tyson to produce these documents at trial. Consequently, the government should be permitted to subpoena the production of the documents in advance of trial pursuant to Rule 17(c) so that the government's attorneys and expert witnesses can have a reasonable opportunity to review and analyze the voluminous documents in preparation for trial.
Tyson contends the documents were available to the government prior to the indictment by means of grand jury subpoena which the prosecutors chose not to use. Tyson argues that the government fails to demonstrate the documents are not otherwise procurable reasonably in advance of trial by exercise of due diligence because the documents could have been subpoenaed by the grand jury. In Tyson's view, this does not constitute reasonable diligence. Tyson says the government made a strategic choice to cause the grand jury to return the indictment before the government had completed its investigation and gathered all of the documents. Tyson does not cite any legal precedent directly on point in support of its position. The Court is not aware of any case law which holds that the government is precluded from obtaining documents in advance of trial under Rule 17(c) merely because the documents were not subpoenaed by the grand jury.
Tyson's argument is not persuasive. When an indictment is returned by a grand jury, the government's investigation does not come to a halt. The government has the right and obligation to vigorously continue its investigation and prepare for trial. The issue to be resolved here is not whether the government could have subpoenaed the documents to be produced to the grand jury prior to indictment. Rather, the critical issue is whether, at this stage of the criminal proceeding, the documents are not otherwise procurable in advance of trial by the exercise of due diligence. The Court must focus its attention on the circumstances that exist in the case at the present time instead of, as Tyson suggests, concentrating on what did or did not occur during the grand jury investigation. If the government exercised due diligence at this point in time, it could not procure the documents from Tyson reasonably in advance of trial except pursuant to Rule 17(c). Tyson declines and refuses to comply with the government's explicit requests that Tyson voluntarily produce the documents. This is sufficient to satisfy the second factor in the Rule 17(c) analysis.
If the Court were to follow Tyson's argument to its logical conclusion, then it would be virtually impossible for the government to ever avail itself of the provision in Rule 17(c) for the production of documents in advance of trial because corporate defendants could always contend the government failed to take advantage of the opportunity to have the grand jury issue a subpoena to produce the documents to the grand jury. Such an anomalous result is not required.
Assuming arguendo that what transpired during the grand jury investigation prior to indictment is material to the issue of due diligence, the Court finds the government did make a reasonable, diligent effort to obtain the documents in question from Tyson. There are two categories of documents: actual wage increases and plant production cost reports. With regard to actual wage increases, the government attempted to obtain the information and documents from Tyson through a grand jury subpoena. In response to the subpoena, Tyson provided computer printouts showing wage increase data for workers at Tyson's plants. The government contends the data supplied by Tyson is confusing and difficult to decipher. The government believes Tyson possesses more basic, simple documents showing actual wage increases implemented by Tyson. According to the government, it made a reasonable, effort to obtain this information by grand jury subpoena, and the government would have been able to obtain the documents if Tyson had been more responsive and timely complied with the subpoena prior to indictment. The Court is satisfied that the government has met its burden of showing it exercised due diligence in its efforts to obtain the wage increase documents.
The second class of documents, the plant production cost reports, were not subpoenaed by the grand jury. Instead, Tyson created plant production cost summary reports by computer as part of Tyson's pre-indictment effort to voluntarily cooperate with the grand jury investigation. On November 19, 2001, Assistant United States Attorney Matthew Morris sent an electronic mail ("e-mail") message to an attorney representing Tyson named Jay Jorgensen. Morris requested that Tyson voluntarily produce plant production cost summaries with regard to fifteen Tyson plants. Jorgensen replied to Morris by e-mail on November 20, 2001. Jorgensen said he would forward the request to Tyson's accounting personnel and get the documents delivered to Morris as soon as possible. Before the documents were produced, the grand jury returned the indictment on December 11, 2001. Tyson subsequently declined and refused to voluntarily produce the documents. The Court has considered the communications that flowed between the United States Attorney and Tyson both before and after the indictment. Based on the facts and circumstances, the Court finds that the government has made a reasonable, diligent effort to obtain the plant production cost summaries from Tyson, even though a grand jury subpoena was not served upon Tyson.
III. The United States Needs The Documents To Prepare For Trial
The government has also met its burden of showing that it cannot properly prepare for trial without production and inspection of the documents in advance of trial. Tyson contends that lack of production of the documents will not hinder the government from preparing its case for trial because the documents are completely irrelevant to proving the substantive offenses charged in the indictment. More precisely, Tyson argues the documents are only relevant to forfeiture. Tyson says that none of the cost savings the government wants to calculate is relevant to the defendants' guilt or innocence of the crimes charged.
Tyson's argument is without merit. As explained supra, the documents are relevant to proving Counts 1, 3-12, and 14-20 in the indictment. These counts charge that Tyson brought illegal aliens to the United States or transported them for the purpose of commercial advantage and private financial gain. Documents showing actual wage increases and production costs are clearly relevant to the issue of financial gain.
Moreover, the Court finds that the government has demonstrated that if it is not allowed to inspect the documents in advance of trial, it may tend to cause an unreasonable delay in the trial. The documents sought by the government will no doubt be voluminous. It will be a difficult, complex, and time consuming task for the government's attorneys and expert witnesses to review and analyze all of the documents and get prepared for trial. If this Court were to deny the government's Rule 17(c) motion, the government could still subpoena Tyson to produce the documents at trial but this would cause a significant delay and interruption in the trial while the government's attorneys and experts take time to review the many documents. The purpose of Rule 17(c) is to help make criminal trials operate in an orderly, efficient manner by avoiding or minimizing unreasonable delays and disruptions. Granting the government's instant motion is consistent with, and best serves, the intent and purpose of Rule 17(c).
IV. Good Faith
Finally, the Court finds that the government's Rule 17(c) motion is made in good faith and it is not intended as a general "fishing expedition." The government's motion is targeted to the reasonable production of documents relevant to specific criminal offenses charged in the indictment.
Tyson contends that the prosecution's failure to obtain the documents in the grand jury investigation is not the result of a good faith oversight or excusable error. Tyson argues there is a lack of good faith because the government made a calculated, strategic decision to go forward with the indictment before it had obtained all of the documents during the grand jury investigation. Tyson asserts that allowing the government to indict the defendants then utilize Rule 17(c) to get pretrial discovery would constitute a misuse of Rule 17(c) as substitute discovery tool.
This argument fails. The government is not prohibited from obtaining production of relevant documents in advance of trial under Rule 17(c) on the theory that the government could have, but did not, obtain the documents during the course of the grand jury investigation. As explained supra, the government did make a reasonable, good faith effort in this case to obtain the documents from Tyson prior to the indictment. In filing the Rule 17(c) motion, the government is acting in good faith in getting prepared for trial. The government is not seeking to misuse Rule 17(c) as merely an additional means for discovery. The government sought to obtain the documents through a grand jury subpoena (wage increases) and requests made to Tyson for voluntary cooperation (plant production cost reports). Because Tyson now declines to voluntarily produce these documents, the government has no other choice but to make a motion under Rule 17(c) for production and inspection of the documents in advance of trial. It is reasonable for the government to want its counsel and experts to have adequate time to review and analyze the documents prior to trial. The Court is persuaded that the government's Rule 17(c) motion has been made in good faith.
Accordingly, the motion will be GRANTED. A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion by the United States of America for pretrial production of subpoenaed documents pursuant to FED. R. CRIM. P. 17(c) [Court File No. 40] is GRANTED. The documents referenced in the attached trial subpoena shall be produced and filed with the Clerk of the District Court by Tyson Foods, Inc. on or before July 1, 2002. The parties and their attorneys may inspect, review, and make photocopies of said documents in the Court Clerk's office pursuant to Rule 17(c).