The United States has filed a motion to quash Defendant Steven Sann's subpoena commanding United States Attorney General Eric Holder to appear and testify at the August 6, 2012, hearing on the pending motions in this matter. Defendant Sann opposes the motion, and argues that the Attorney General's testimony is necessary to allow him to develop a factual record in support of his motions to dismiss based on the doctrines of official misleading, promissory estoppel, and judicial estoppel. For the reasons that follow, the motion to quash is granted.
Rule 17(c)(2) of the Federal Rules of Criminal Procedure allows for a motion to quash or modify a subpoena if compliance would be unreasonable or oppressive.*fn1 Heads of government agencies are not generally subject to subpoena, Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979), and they may only be compelled to appear and testify under narrow circumstances. The test requires the party seeking to compel the official's testimony to show that "the agency head possesses particular information necessary to the development or maintenance of the party's case, which cannot be reasonably obtained by another discovery mechanism[.]" American Broadcasting Companies, Inc. v. United States Information Agency, 599 F. Supp. 2d 765, 769 (D.D.C. 1984). Extraordinary circumstances must be present before an agency head may be compelled to testify regarding the reasons for taking official actions. United States v. Morgan, 313 U.S. 409, 422 (1941). The Court will therefore grant the motion to quash unless Defendant Sann can demonstrate that the Attorney General possesses particularized information containing facts that are necessary to the presentation of Sann's motions to dismiss, and that the same facts cannot be obtained through any other means. Although the following analysis requires the Court to consider the elements of Defendant Sann's various dismissal theories, nothing contained herein should be taken as an indication of the Court's view of the merits of the pending motions to dismiss, the resolution of which will occur after the Court hears the parties' arguments at the August 6, 2012, hearing.
1. Estoppel by Official Misleading Statement
Defendant Sann first argues that the Attorney General's testimony is necessary to support his motion to dismiss based on estoppel by official misleading statement, also referred to in the Ninth Circuit as entrapment by estoppel. United States v. Batterjee, 361 F.3d 1210, 1217 n.6 (9th Cir. 2004). The defense requires the accused to show that "(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of all the relevant historical facts, (3) affirmatively told him the proscribed conduct was permissible, (4) that he relied on the false information, and (5) that his reliance was reasonable." Id. at 1216 (internal quotations and citations omitted).
Stated briefly, Sann's argument for estoppel by official misleading is that he reasonably relied on public statements made to the press or to Congress by then-Senator Obama and his campaign spokesman, and later by President Obama's White House spokesman and United States Attorney General Eric Holder, as well as the guidance memorandum issued by the Deputy Attorney General David Ogden (the "Ogden Memo"), all of which Sann says constituted a promise to him that he would not be subject to federal prosecution for operating a medical marijuana dispensary in conformity with state law.
Defendant Sann maintains that the Attorney General is uniquely positioned to offer testimony on the following subjects relative to his estoppel by official misleading statement defense:
1. Whether President Obama personally authorized the Attorney General to make the misleading statement that what President Obama had promised during his campaign was now "American Policy" and, if so, what President Obama said when he authorized the statement;
2. Whether the Attorney General was personally aware of the historical context and facts relevant to his statement and, if so, what was the scope and nature of the Attorney General's knowledge, including, without limitation, his knowledge related to the practice of past Presidential administrations, the number of states which had medical marijuana laws, the nature of those laws, what the media was reporting [the] Attorney General as saying, and the extent of his knowledge of the phenomenon noted in the media as the "Green Rush" in reaction to the Attorney General's statements;
3. Whether the Attorney General personally authorized AUSA Quinlivan, as his legal counsel, to make the representations AUSA Quinlivan made to Judge Fogel and to enter into the stipulation, both of which favorably affected Judge Fogel's decision to dismiss a civil case against the Attorney General, and, if so, the extent of the Attorney General's authorization; and,
4. Whether the statements attributed to the Attorney General or someone acting on his behalf in newspaper and periodical articles, video recordings, and congressional and judicial transcripts, are true and complete recitations of what the person stated or wrote and, if not, what the person actually said or wrote.
Response Brief (Doc. No. 280) at 14-15.
None of these reasons satisfies the test for compelling the testimony of a high-ranking federal official. As to the first matter, it is irrelevant whether any of the Attorney General's statements were authorized by President Obama. There can be no serious dispute that the Attorney General of the United States is "an authorized government official" for purposes of the test set forth in Batterjee. Moreover, discussion of any statements from the President to the Attorney General would ...