USA v. $85, 201.00 In United States Currency

Filing 23

ORDER denying 21 Motion to Order Production of Witnesses and Documents. Signed by Magistrate Judge Donald G. Wilkerson on 9/8/2011. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
v.
$85,201.00 IN UNITED STATES
CURRENCY,
Defendant.

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Case No.: 3:10-cv-0079-JPG

ORDER
This matter is before the Court on a Motion to Order Production of Witnesses and
Documents Pursuant to Rules 30 and 45 of Federal Rules of Civil Procedure filed by Maude L.
Callahan and Daniel Phillips (“Claimants”) on July 29, 2011 (Doc. 21). For the reasons set forth
below the motion is DENIED.
BACKGROUND
The instant action arises out of a seizure of $85,201.00 by the Drug Enforcement Agency on
October 21, 2009. Claimants filed the pending motion asking the Court to enter an order directing
the Government to produce certain law enforcement officials for deposition and trial testimony and
requiring the officials to answer any interrogatories and requests to produce. The Government
opposes the motion arguing that Claimants have not followed department regulations and policy in
seeking the requested discovery.
ANALYSIS
In United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951), the Supreme Court held that
a government employee may lawfully decline to produce documents in response to a subpoena in
deference to agency regulations authorizing the agency head, not an individual employee, to make

determinations regarding disclosure of government documents.
The United States Department of Justice maintains Touhy Regulations which protect
employees asked to disclose official information. See 5 U.S.C. § 301 (authorizing the head of an
executive department to “prescribe regulations for the . . . custody, use, and preservation of its
records, papers, and property”); 28 C.F.R. §§ 16.21-29. These Regulations set out procedures for
the production or disclosure of materials or information acquired by an employee as part of his or
her official duties. 28 C.F.R. § 16.21(a).1 The Regulations authorize the Department to evaluate the
information sought and absent Department authorization, federal agents are forbidden, as a matter
of law, to testify or otherwise respond. 28 C.F.R. § 16.28. As relevant here, “[i]f oral testimony is
sought by a demand in a case or matter in which the United States is a party, an affidavit, or, if that
is not feasible, a statement by the party seeking the testimony or by the party's attorney setting forth
a summary of the testimony sought must be furnished to the Department attorney handling the case
or matter.” 28 C.F.R. §16.23(c).
The Government asserts that Claimants have not provided the affidavit required by the
Regulations. The Government further represents “that upon compliance with the requirements of
the Regulations, a determination will be made and the [Claimants] notified” (Doc. 22). The Court
finds that Claimants should follow the steps required by the Regulations before seeking judicial
intervention.

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Under the Regulations, the definition of an employee of the Department of Justice
“includes all officers and employees of the United States appointed by, or subject to the
supervision, jurisdiction, or control of the Attorney General of the United States, including U.S.
Attorneys, U.S. Marshals, U.S. Trustees and members of the staffs of those officials.” 28 C.F.R.
§16.21(b) (emphasis added).
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CONCLUSION
Therefore, the Motion of Claimants Maude L. Callahan and Daniel Phillips to Order
Production of Witnesses and Documents Pursuant to Rules 30 and 45 of the Federal Rules of Civil
Procedure (Doc.21) is DENIED. Claimants are DIRECTED to follow the Touhy regulations
promulgated by the United States Department of Justice described above in seeking to obtain
testimony and documents described in the motion.
IT IS SO ORDERED.
DATED: September 8, 2011

DONALD G. WILKERSON
United States Magistrate Judge

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