                                                                                                                    FILED
                                                                                                             Cain C ,   PPFALS
                                                                                                                 DIVISMN
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                            20111 DEC - 9 . AM 10: 3u
                                                     DIVISION II
                                                                                                                               GiON
                                                                                   No. 44761 -4 -II
 STATE OF WASHINGTON,                                                                                       BY,
                                         Appellant,


           v.




 DARIN RICHARD VANCE,                                                           PUBLISHED OPINION


                                          Respondent.


         MELNICK, J. —       The State appeals the trial court' s order dismissing with prejudice charges

against Darin Richard Vance based on the State' s failure to produce federal agents for interviews.

Based on a federal investigation, the State searched Vance' s home and charged him with various

child   pornography -related           offenses.     The trial court authorized Vance to subpoena federal


investigators for depositions and subsequently ordered the agents to submit to depositions. When

the federal agents failed to comply, the trial court redacted the search warrant to remove all

information      obtained   by   the   agents.     The trial court then retested the search warrant for probable

cause, suppressed all of the evidence obtained under the warrant, and dismissed the charges with

prejudice.




         The State argues that the trial court abused its discretion by finding that the State violated

discovery rules, because the State had no obligation to produce federal agents not under State

control,   and   by   redacting the information from the             warrant.    We   agree.      We further hold that


because Vance did not comply with applicable federal statutes and agency regulations required to

obtain testimony and information from federal agents, the agents were not permitted to testify or

provide    information. Therefore, the trial          court' s   remedy   of redacting   the   agents'   information from
44761 -4 -II




the search warrant affidavit was an abuse of discretion. We reverse and remand to the trial court

to reinstate the charges against Vance.

                                                         FACTS


        In the course of an undercover online investigation, Federal Bureau of Investigation ( FBI)


Special Agent Alfred Burney discovered child pornography images being received and uploaded

from   an   internet   protocol (    IP)   address   belonging   to Vance    and   Vance'   s wife.   Immigration and


Customs Enforcement ( ICE) Special Agent Julie                   Peay   assisted   in the investigation. FBI Special


Agent Laura Laughlin provided the Vancouver Police Department with the information obtained

through the investigation.


        On the basis of the federal agents' information, state police officers obtained a search

warrant     for Vance'   s   home.    The police executed the warrant in January 2011, and the search of

Vance' s home revealed evidence of child pornography. In April 2011, Vance was arrested in Clark

County. The State charged him with three counts of dealing in depictions of a minor engaged in

sexually explicit conduct in the first degree' and seven counts of possession of depictions of a

minor engaged in sexually explicit conduct in the first degree.2

          In August 2011, Vance e- mailed the State and requested the opportunity to interview

Agents Laughlin,        Burney,     and    Peay. The State responded that it did not intend to call the agents

as witnesses at trial and if Vance still wanted to interview them, he would have to arrange the

interviews himself. Later in the month, Vance mailed letters to Agents Laughlin, Burney, and


Peay   requesting interviews.          Responding on behalf of Agent Laughlin, the Department of Justice

 DOJ) directed Vance to 28 C. F.R. §§ 16. 21 and 16. 22. These sections required Vance to submit




1 RCW 9. 68A.050.

2 RCW 9. 68A.070.


                                                             2
44761 -4 -II




a scope and relevancy letter to obtain testimony or information from a DOJ employee.3 Neither

Agent Burney nor Agent Peay responded to the letters.

          On June 4, 2012, Vance moved the court to suppress " any and all evidence seized and /or

derived from the execution of a search warrant at his residence" and to dismiss the charges with

prejudice.     Clerk' s Papers ( CP) at 4. Two days later, Vance moved the trial court for an order to

take the depositions of Agents      Peay   and   Burney. On August 16, the trial court authorized Vance

to    subpoena   Agents   Burney   and   Peay for    depositions.   Vance served them with notices of


deposition, court orders authorizing depositions, and subpoenas duces tecum.

          The United States Attorney' s Office (USAO) responded on Agent Burney' s behalf, stating

that the FBI is an agency within the United States DOJ and, thus, the production of documents and

testimony of Agent Burney could not be compelled by a subpoena issued by the superior court.

The USAO       again   directed Vance to 28 C. F. R. §§ 16. 21   and   16. 22.   The USAO stated that once


Vance provided the required information, it would review his request.


          The Office of the Chief Counsel of the United States Department of Homeland Security

    DHS) responded on Agent Peay' s behalf. DHS informed Vance that ICE is a component of the

United States Department of Homeland Security, and as a DHS employee, Agent Peay was

prohibited from providing documents or testimony related to information she acquired while

working for DHS. DHS directed Vance to 6 C. F. R. §§ 5. 44 and 5. 45, which require individuals




3
          If oral testimony is sought by a demand in any case or matter in which the United
          States is not a party, an affidavit, or, if that is not feasible, a statement by the party
          seeking the testimony or by his attorney, setting forth a summary of the testimony
          sought and its relevance to the proceeding, must be furnished to the responsible
          U.S. Attorney.

28 C. F. R. § 1622( c).




                                                        3
44761 -4 -II




to submit a scope and relevancy letter regarding the information sought.4 DHS also stated that

Agent Peay did not have authority to accept service of subpoenas and that Vance should serve the

subpoena on DHS to the attention of a senior attorney. DHS stated that it would review Vance' s

request after Vance had properly served DHS and submitted a scope and relevancy letter. Vance

served the subpoena as requested, but did not submit a scope and relevancy letter despite being

reminded by DHS.

          On October 31, Vance moved the trial court to dismiss the charges against him under CrR


4. 7 and CrR 8. 3 because the State had failed to abide by the trial court' s order to allow Vance to

take the depositions    of   Agents   Burney        and   Peay.   In the alternative, Vance moved to excise


statements and information obtained from Agents Burney and Peay from the affidavit in support

of the application for the search warrant. Vance argued that " Agent Burney and Agent Peay are

crucial   to the defense mounting     a non -facial challenge      to the   warrant."   CP at 506.


          On November 19, the trial court ordered Agents Burney and Peay to submit to depositions.

After Vance served the subpoena on Agent Burney, the USAO again responded that sovereign

immunity deprived the trial court of jurisdiction over the FBI and that the subpoena could not be

legally   enforced   against   the FBI   or   its   employees.     The USAO again directed Vance to the


applicable C. F. R. provisions that required Vance to submit a scope and relevancy letter.

          On November 29, Agent Peay appeared for a deposition, but she did not bring any

documents as demanded by the subpoena duces tecum. Vance subsequently advised the court that


4
          If official information is sought, through testimony or otherwise, by a request or
          demand, the party seeking such release or testimony must ( except as otherwise
          required by federal law or authorized by the Office of the General Counsel) set forth
          in writing, and with as much specificity as possible, the nature and relevance of the
          official information sought.


6 C.F.R. § 5. 45( a).



                                                            4
44761 -4 -II




at the deposition Agent Peay had stated that she had instructions to not answer certain questions.

In contrast, the State told the court that Agent Peay did not refuse to answer any questions.

Subsequently, the State provided Vance with 28 pages of Agent Peay' s reports.

            On December 21, the trial court denied Vance' s motion to dismiss and ordered Vance to


submit      the subpoena and a            scope and     relevancy   letters to the USAO summarizing the testimony

and materials          sought     from Agent         Burney. The trial court stated that it would determine the

adequacy of the scope and relevancy letter. The trial court also ruled that Vance could renew his

motion to dismiss if Agent Burney failed to make himself available for an interview and to provide

the relevant discovery requested within a reasonable time.

            On December 27, Vance e- mailed the State' s prosecutor to request a follow -up deposition

with Agent Peay. On January 4, 2013, Vance sent the USAO a scope and relevancy letter regarding

an interview with Agent Burney. The USAO responded a couple of weeks later and advised Vance

that    he failed to comply           with   the requirements of 28       C. F.R. § 16. 22( c)   and ( d).   The USAO again


directed Vance to submit a relevancy letter in accordance with the C. F. R. and stated that his request

would be timely addressed.

            A few days later, Vance renewed his motion to dismiss or, in the alternative, to excise


information         obtained     from Agents         Burney   and   Peay from     the   search warrant affidavit.          A new


prosecutor took over the case, and the trial court orally ordered the State to attempt to arrange

interviews or depositions one last time.6



5 The superior court stated that Vance need only submit a " broad scope and relevancy, and if they
get    too nitpicky     on   it, I   am   going to be   limiting   them    and maybe    gutting   your case."        V RP at 112.

6
    The trial      court stated      that " this   whole scope and      relevancy thing I find    a   little bit   offensive."   IX
RP     at    The court added that " I' d love to talk to [ Agents Burney[' s] and Peay' s] supervisor
            233.
and say, ` Don' t come to state court unless you' re going to participate like our other police agencies
do. '       IX RP at 259.



                                                                    5
44761 -4 -II




           On February 25, the State represented that it had communicated with an attorney from the

USA()     who would work with the State to schedule interviews with Agents Burney and Peay. The

trial court gave the State until March 1 to schedule interview dates, stating that if none had been

scheduled by then, the court would grant Vance' s motion to strike from the search warrant affidavit

all   the information Agents              Burney    and   Peay   provided.          The State was unable to arrange the


interviews by the court' s deadline, and the trial court granted Vance' s motion to strike. The trial

court stated that due to Agent Burney' s and Peay' s repeated failure to comply with the court' s

directives and the State' s failure to make discovery available to the defense under CrR 4. 7( c)( 1),

the appropriate remedy was to strike all information Agent Burney and Peay provided from the

search warrant affidavit.



           Pursuant to its order, the trial court ordered specified lines redacted from the search warrant

affidavit.       After   redaction, probable cause no            longer   existed.     The trial court then suppressed all


the   evidence seized and          derived from the         execution of    the     search warrant.      The trial court ruled


that Vance had "          been substantially and materially prejudiced" by the State' s failure to timely

provide        the   requested   discovery,   which affected          Vance'   s"   constitutional right to fully challenge

the   legality       of the manner   in   which   the   evidence was acquired."         CP   at   721. The trial court ordered


that the   case against      Vance be dismissed           with prejudice.'          The State appeals.


                                                           ANALYSIS


I.         STATE' S CrR 4. 7 OBLIGATION IS FOR EVIDENCE IN ITS POSSESSION AND CONTROL


           The State argues the trial court abused its discretion by striking portions of the affidavit

and    dismissing        the charges against Vance with prejudice.                   Vance argues that the State failed to




7 The trial court further commented that the " State ought to go to the feds and say, You created
this problem by not participating, you want it prosecuted, you do it. And not even seek an appeal
on    this."    XIII RP at 362.



                                                                  6
44761 -4 -II




preserve the issue, and even if it did, the trial court did not abuse its discretion by striking the

agents' information in light of their noncompliance with court orders. We agree with the State and

reverse the trial court.


          Discovery decisions based on CrR 4. 7 are within the trial court' s sound discretion. State

v.   Hutchinson, 135 Wn.2d 863, 882, 959 P. 2d 1061 ( 1998). A trial court abuses its discretion when


it makes decisions based on untenable grounds or for untenable reasons. State v. Foxhoven, 161

Wn.2d 168, 174,       163 P. 3d 786 ( 2007) ( quoting State v. Thang, 145 Wn.2d 630, 642, 41 P. 3d 1159

 2002)).


          Where a party fails to comply with an applicable discovery rule or a trial court order

pursuant     to   an applicable      discovery     rule,   the trial   court "   may order such party to permit the

discovery of material and information not previously disclosed, grant a continuance, dismiss the

action or enter such other order as                it deems just     under   the   circumstances."   CrR 4. 7( h)( 7)( i).


Exclusion or suppression of evidence or dismissal for a discovery violation is an extraordinary

remedy and should be applied narrowly. Hutchinson, 135 Wn.2d at 882; State v. Smith, 67 Wn.

App. 847, 852, 841 P. 2d 65 ( 1992).

           CrR 4. 7( a)( 1)( i)   mandates       that the State disclose " material and information within the



prosecuting attorney' s       possession or         control,"   including "      the names and addresses of persons



whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with any

written or recorded statements and the substance of any oral statements of such witnesses."


Additionally, under       CrR 4. 7( c)( 1),      the State must " disclose any relevant material and information

regarding: ( 1) Specified         searches and seizures." "         The prosecutor' s general discovery obligation is

limited ... ` to material and information within the knowledge, possession or control of members


of the   prosecuting attorney'       s staff."    State v. Blackwell, 120 Wn.2d 822, 826, 845 P. 2d 1017 ( 1993)




                                                                7
44761 -4 -II




 quoting CrR 4. 7( a)( 4)).      A prosecutor cannot compel a witness to speak to defense counsel


because a witness is under no obligation to talk to anyone outside the court. State v. Wilson, 108


Wn. App. 774, 779, 31 P. 3d 43 ( 2001).

         Here, Vance argues Agent Burney and Agent Peay were the State' s witnesses and thus, the

State had the obligation to produce them for interviews. We disagree. Vance wanted to interview


Agents Burney and Peay to obtain information about their investigation and to determine if any

suppression issues existed. The State has the burden to provide only " material and information"

regarding "     searches and seizures."     CrR 4. 7( c)( 1).   The State provided Vance with " material and


information"       about the search and seizure, including details about how the federal agents

conducted their investigation and what they found. There is no evidence that the agents were under

the State' s possession and control or that the State could compel the agents to submit to interviews.


Therefore, we hold that the trial court abused its discretion by finding the State violated CrR

4. 7( c)( 1) and by striking the agents' statements from the search warrant affidavit.

II.       STATE TRIAL COURT IS WITHOUT AUTHORITY To ORDER FEDERAL AGENTS To SUBMIT To
         INTERVIEWS IN STATE COURT


          Federal    agencies   are   authorized   by   5 U.S. C. §   301 to create regulations governing the

conditions and procedures under which their employees may testify concerning their work. United

States   v.   SorianoJarquin, 492 F. 3d 495, 504 ( 4th Cir. 2007) ( citing       United States ex rel. Touhy v.

Ragen, 340 U.S. 462, 468, 71 S. Ct. 416, 95 L. Ed. 417 ( 1951)).              5 U. S. C. § 301 provides:


          The head of an Executive department or military department may prescribe
          regulations for the government of his department, the conduct of its employees, the
          distribution and performance of its business, and the custody, use, and preservation
          of its records, papers, and property. This section does not authorize withholding
          information from the public or limiting the availability of records to the public.




                                                            8
44761 -4 -II




            Often    called "   Touhy     regulations,"      procedures for subpoenaing employees of government

agencies are contained           in the Code         of Federal   Regulations ( CFR).      The Touhy regulations, and not

a state court' s order, control federal agents Agent Burney and Agent Peay.

            A.        DEPARTMENT OF JUSTICE EMPLOYEES


            The     applicable    DOJ      regulations      are   found in 28 C. F. R. §§         16. 21   and   16. 22.   Section


16. 22( a) provides:


            In any federal or state case or matter in which the United States is not a party, no
            employee ...        of the Department of Justice shall, in response to a demand, produce
            any material contained in the files of the Department, or disclose any information
            relating to or based upon material contained in the files of the Department, or
            disclose any information or produce any material acquired as part of the
            performance of that person's official duties or because of that person' s official status
            without prior approval of the proper Department official.


Under § 16. 22, Vance             was required         to   submit a " scope and       relevancy"     letter summarizing the
                                                                                              8
information he         sought and       explaining its      relevance   to the proceeding.



            The United States Supreme Court has established that these regulatory requirements are

valid     in Touhy, 340 U. S.      at   468,   which upheld       the validity   of a predecessor     to 28 C. F. R. § 16. 22( a).



In   re   Boeh, 25 F. 3d 761 ( 9th Cir. 1994).              Additionally, the DOJ regulations at issue are authorized

                     language           5 U. S. 0 § 301.      Boeh, 25 F. 3d           763 -64.    Sections 16. 21 and 16. 22
by    the   plain                of                                               at




prescribe the conduct of employees, the performance of the agency' s business, and the use of its

records. Smith v. Cromer, 159 F. 3d 875, 878 ( 4th Cir. 1998).




8
     A defendant       whose " scope           andrelevancy" letter is rejected has recourse under the federal
Administrative Procedure Act.                    United States v. Williams, 170 F. 3d 431, 434 ( 4th Cir.), cert.
denied, 525 U.S. 854, 120 S. Ct. 135, 145 L. Ed. 2d 115 ( 1999);                         Edwards v. U.S. Dep' t ofJustice,
43 F. 3d 312, 317 ( 7th Cir. 1994).




                                                                    9
44761 -4 -II



         The     regulations relied on        by   the DOJ and Agent            Burney    are "'   validly promulgated and


 have] the force     of   law.''"    Fed. Bureau ofInvestigation v. Superior Court, 507 F. Supp. 2d 1082,

1093 ( N.D. Cal. 2007) ( quoting Swett                  v.   Schenk, 792 F. 2d 1447, 1451 ( 9th Cir. 1986)).                Agent


Burney is      a subordinate     DOJ    employee who            is bound   by   the DOJ' s   Touhy       regulations.    Without


the prior approval of the proper DOJ official, Agent Burney was not permitted to submit to the

state court process.      28 C. F. R. § 16. 22( a).          Because Vance did not comply with the applicable CFR,

a valid regulation forbade Agent Burney from complying with Vance' s discovery requests, and

the   state court   had   no   authority to   compel         Agent   Burney to do   so.   Cromer, 159 F. 3d at 878.


          B.        DEPARTMENT OF HOMELAND SECURITY AGENTS


          The    applicable     DHS    regulations are         found in 6 C.F. R. §§ 5. 44         and   5. 45.   Section 5. 45( a)


provides:




          If official information is sought, through testimony or otherwise, by a request or
          demand, the party seeking such release or testimony must ( except as otherwise
          required by federal law or authorized by the Office of the General Counsel) set forth
          in writing, and with as much specificity as possible, the nature and relevance of the
          official information sought.


Similar to the DOJ regulations, the DHS' s regulations prescribe how to obtain the testimony of

employees or their records. Soriano -Jarquin, 492 F. 3d at 504. These regulations are valid under


Touhy. Soriano -Jarquin,             492 F. 3d     at   504.    Agent Peay is a subordinate DHS employee and is

bound by the DHS Touhy regulations. Without prior approval of the proper DHS official, Agent

Peay was       not permitted    to   submit   to the state court process.        6 C. F. R. § 5. 45( a). A valid regulation


prohibited Agent Peay from submitting to a deposition or providing information, and the state

court had no authority to order her otherwise.

          This case is distinguishable from the Ninth Circuit' s 2 -1 decision in United States v.

Bahamonde, 445 F. 3d 1225 ( 9th Cir. 2006).                       There, the defendant alleged a Fifth Amendment




                                                                   10
44761 -4 -II




violation despite his noncompliance with the regulations. He argued that the regulations created a

discovery         imbalance in favor        of   the   government.           Bahamonde, 445 F. 3d          at    1230 -31.   The Ninth


Circuit agreed with the defendant. Bahamonde, 445 F. 3d at 1230 -31. However, there are material


factual differences between Bahamonde and the present case. In Bahamonde, the defendant sought


the   testimony       of an       agent   who "     attended the entire trial, sat next to the prosecutor at the


prosecutor' s       table, assisted   him throughout,               and was   listed   on   the   government' s witness       list." 445


F. 3d   at   1228.    Here, Vance wanted to interview Agent Peay to ask about her investigation and

determine if there were any suppression issues. But Agent Peay has not provided any information

that the State did not also share with Vance, and accordingly the discovery imbalance that the

Bahamonde court relied upon is absent here.


             Vance argues that Agent Peay, by submitting to a deposition, waived the requirement to

submit a scope and relevancy letter. But while Agent Peay submitted to an interview without the

requisite scope and relevancy letter, she did not answer all of Vance' s questions and did not

initially     provide all    the    records      Vance        requested.      Agent Peay' s action had no bearing on the

applicability of DHS' s Touhy regulations, and Vance was required to comply with 6 C.F.R. §

5. 45( a) if he      wanted a second          interview        with    Agent    Peay. Soriano- Jarquin, 492 F.3d at 504.

Vance failed to do          so,    because he       never submitted a scope and                   relevancy letter.    Therefore, the


trial court had, no authority to compel Agent Peay to submit to a second interview.

             C.       FEDERAL SOVEREIGN IMMUNITY DEPRIVES THE STATE COURT OF JURISDICTION
                      To ENFORCE THE SUBPOENAS AND COURT ORDERS ON FEDERAL AGENTS


             An action seeking specific relief against a federal official, acting within the scope of his

delegated authority, is an action against the United States, subject to the governmental privilege of

sovereign         immunity. Boron         Oil Co.      v.   Downie, 873 F. 2d 67, 69 ( 4th Cir. 1989). An action against


the United States is defined              broadly " as        any   action   seeking   a    judgment that       would ...    restrain the




                                                                       11
44761 -4 -II




Government from acting              or compel        it to   act."   Fed. Bureau of Investigation, 507 F. Supp. 2d at

1094 ( internal        quotation marks omitted).              Where an agency has not waived its immunity to suit,

the state court lacks jurisdiction to proceed against a federal employee acting pursuant to agency

direction. Cromer, 159 F. 3d              at   879 ( citing Boron Oil, 873 F. 2d         at   69). "   Congress has not expressly

waived sovereign immunity in cases in which state courts seek to compel government employees

to   submit    to   subpoenas or court orders."              Fed. Bureau ofInvestigation, 507 F. Supp. 2d at 1094.

Thus, a state court lacks jurisdiction to compel a federal employee to testify in a state court action

to which the United States is not a party, concerning information acquired during the course of his

or   her    official   duties.    Cromer, 159 F. 3d           at   879 ( citing Boron Oil, 873 F.2d            at   69 -71);   see also




State   v.   Youde, 174 Wn.        App. 873,       882, 301 P. 3d 479 ( 2013) ( " A state court cannot enforce a state


subpoena issued to an agent of the Federal Bureau of Investigation. ").


             Here, the trial court attempted to compel Agent Burney and Agent Peay to submit to

depositions         and   to   provide    Vance     with     information regarding their investigations.                   Under the


doctrine of sovereign immunity, the state trial court lacked jurisdiction to subpoena the federal

agents or to order them to submit to depositions and to provide information.

             Other federal       courts   that have     addressed          this issue   are   in   accord.   See, e. g., In re Elko

County Grand Jury,             109 F.3d 554 ( 9th Cir. 1997) ( state court lacked jurisdiction to compel a forest


service employee to appear and testify before grand jury in contravention of USDA regulations);

Houston Bus. Journal, Inc. v. Office of Comptroller of Currency, 86 F. 3d 1208 ( D. C. Cir. 1996)

 state court lacked jurisdiction to compel production of records from comptroller general when

production was            in violation    of   agency   regulations);        Edwards v. United States Dep' t ofJustice, 43

F. 3d 312 ( 7th Cir. 1994) (             state court had no authority to compel discovery of FBI surveillance

tapes      after   Justice Department denied          production pursuant          to 28 C. F. R. § 16. 26( b)( 5));      In re Boeh,




                                                                      12
44761 -4 -II




25 F. 3d 761 ( FBI agent cannot be held in contempt for refusing to testify absent permission of the

Justice Department,    pursuant   to 28 C. F.R. § 16. 22( a)); Louisiana v. Sparks, 978 F. 2d 226 ( 5th Cir.


1992) (   state court subpoena issued to federal parole officer quashed on sovereign immunity

grounds).    Thus, we hold that the trial court lacked jurisdiction to issue subpoenas and court orders


compelling federal Agents Peay and Burney to appear, provide testimony, and disclose records.

          Based on the foregoing, the trial court abused its discretion by finding that the State violated

its   discovery   obligations under   CrR 4. 7( c)( 1),   and by issuing subpoenas and orders to compel

federal Agents Burney and Peay to appear and testify. Because the trial court abused its discretion,

we reverse the dismissal and remand to the trial court with instructions to reinstate the charges


against Vance.




We concur:




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