WA: Trial court erred in dismissing CP case because feds wouldn’t cooperate with defense counsel

The trial court abused its discretion in dismissing a child pornography case made by federal agents who turned the case over to the state just because the state did not produce the agents for interviews about the search. The party wanting the federal witness has to comply with 28 C.F.R. §§ 16.21-16.22. State v. Vance, 2014 Wash. App. LEXIS 2859 (December 9, 2014):

II. State Trial Court is Without Authority to Order Federal Agents to Submit to Interviews in State Court

¶22 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. Soriano-Jarquin, 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.

¶23 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

¶24 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 information he sought and explaining its relevance to the proceeding.

¶25 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 by the plain language of 5 U.S.C § 301. Boeh, 25 F.3d at 763-64. Sections 16.21 and 16.22 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).

¶26 The regulations relied on by the DOJ and Agent Burney are “‘validly promulgated and [have] the force of law.’” Fed. Bureau of Investigation 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.