Ex Parte Motion to Produce Documents, Information, or Objects in a Criminal Case — United States v. Bhakta

Summary

Ex Parte Motion to Produce Documents, Information, or Objects in a Criminal Case under Duces Tecum Rule 17 (c), filed September 25, 2024, by John D. Kirby for Defendant Denny T. Bhakta in Case No. 21-CR-03352-JLS-1. The motion asks for leave to allow the clerk's office to issue thirteen subpoenas for information related to the Defendant. The listed requests include receipts, payments, communications between 2020-2024, and documents used to obtain investor accreditation certificates, directed to individuals including Patrick Duffy and Susan Duffy, Nihar Bhatt, and Bank of America. It states that the requested subpoenas are narrowly drawn in terms of time and scope.

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“Ex Parte Motion to Produce Documents, Information, or Objects in a Criminal Case — United States v. Bhakta.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-s-d-cal-no-3-21-cr-03352-dkt-95-s-d-cal-a98886ba5c/, SHA-256 192e17fe6f35dabb80f3da8ade58809c4fcfe63afd03ebdfc584c8483cacd7c3.

Full text

Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.447 Page 1 of 8

1
JOHN D. KIRBY
CA Bar No. 149496
2 The Law Office of John D. Kirby
3 401 West A Street, Suite 1150
San Diego, CA 92101
4 Tel (619)557-0100
5
Attorney for Defendant Denny T. Bhakta
6
7 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
8
(HONORABLE JANIS L. SAMMARTINO)
9
10
UNITED STATES GOVERNMENT, ) Case No. 21-CR-03352-JLS-1
11
)
Plaintiff, ) EX PARTE MOTION TO PRODUCE
12
vs. ) DOCUMENTS, INFORMATION, OR
13
) OBJECTS IN A CRIMINAL CASE
DENNY T. BHAKTA ) UNDER DUCES TECUM
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Defendant ) RULE 17 (c)
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)
)
16 )
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18 Comes now Defendant Denny T. Bhakta (“Defendant”) moving this Court
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to for leave to allow the clerk’s office to issue thirteen subpoenas for
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21 information related to the Defendant. The list of individuals and the documents
22
23
needed are the following:
24 1. Patrick Duffy and Susan Duffy
25
• 2016 cash receipt for $66,000 from Denny/Fusion
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• 2016 vehicle purchase contract at the BMW San Diego dealership.
27
28 • 2018 receipts for Cartier jewelry from the Wynn Las Vegas
29 • All financial documents used to obtain investor accreditation
30 certificate from CPA Andrew Smith dated April 1, 2020.

U.S. v. BHAKTA
1
Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.448 Page 2 of 8

1
2 2. Nihar Bhatt
3 • All payments received from Denny Bhakta, Fusion Hotel
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Management, Fusion Hospitality Corporation, True Vine Hospitality
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and TurboRes between 2015-2021 including checks, wire transfers and
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cash.
7
8 • All payments to Arun Pandit, Chaitanya Desai, and Tejas Desai
9 between 2015-2021.
10 • All financial documents used to obtain investor accreditation
11 certificate from CPA Dylan Brennan dated January 30, 2019.
12
3. Oscar Gutiérrez and Angelica Gutiérrez
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• Cleared check payments from Fusion between 2015-2017.
14
15 • Cash receipts for payments between 2016-2017 from Fusion:
16 o $57,500 on September 11, 2016.
17 o $7,500.00 on October 27, 2016.
18 o $7,500.00 on November 23, 2016.
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o $7,500.00 on December 29, 2016.
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o $15,000.00 on February 3, 2017.
21
4. Sonal A. Patel
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23 • All communications with Jayant “Jay” Patel between 2020-2024.
24 • All communications with Avanindrakumar “Andy” Patel between
25 2020-2024.
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• All communications with Vishal Patel between 2020-2024.
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• All communications with Mukesh Patel between 2020-2024.
28
29
• All communications with Denny Bhakta for transportation to and from
30 physical therapy sessions at Scripps Hospital Encinitas in 2020.

U.S. v. BHAKTA
2
Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.449 Page 3 of 8

1 • Receipts for all nights stayed at Pechanga Resort in Temecula between
2 2019-2020.
3 5. Divyesh Das
4
• All payments received from Denny Bhakta, Fusion Hotel Management
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and Fusion Hospitality Corporation.
6
7
• All ownership documents for entities used to transfer money to Denny
8 Bhakta, Fusion Hotel Management and Fusion Hospitality
9 Corporation, such as Palace Inn, Bayou City Lodging LLC, and
10 Greatwood Lodging Group LLC.
11
• All financial documents used to obtain investor accreditation
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certificate from Attorney Parul Das dated 2/01/2018.
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6. Adena Hebdon
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15 • Investor Accreditation Certificate pursuant to Section 2 of TurboRes
16 Subscription Agreement executed on April 28, 2021.
17 • 2020-2021 Bank statements showing required net worth or income as
18 basis for accreditation, as defined by the SEC.
19
• Copies of Series 6 and Series 7 Investment licenses (indicated in 302).
20
• Receipts for accommodations at Hotel Del Coronado Beach Villas
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22 between 2019-2021.
23 7. Paralee Munoa
24 • All documents showing that her daughter Pamela Bush and son-in-law
25 John Bush were executors of her finances (as indicated in her
26
promissory note).
27
• Cleared check payments from Fusion.
28
29 • All communications with Pamela Bush and John Bush regarding her
30 capital with Fusion.

U.S. v. BHAKTA
3
Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.450 Page 4 of 8

1 8. John Bush
2 • Cleared check payments from Fusion.
3 • All communications with Paralee Munoa regarding her capital with
4
Fusion.
5
• All donations received from Denny Bhakta.
6
7
9. Amit Hasolkar

8 • All financial documents used to obtain investor accreditation
9 certificate from CPA Houman Hasid dated 3/11/2020.
10 • Receipts for nights stayed at Hotel Del Coronado in 2021.
11
10. Bank of America
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• Checks regarding Account # 325127007205
13
14
• Checks: 01/09/20 #991, 01/13/20 #993, 01/13/20 #994, 01/13/20
15 #2028, 01/21/20 #1049, 01/27/20 #1046, 01/28/20 #1050, 01/31/20
16 #105.
17 11. Patrick O’Sullivan
18
• All financial documents used to obtain investor accreditation
19
certificate from your CPA on 10/21/2020.
20
• All receipts for hotel nights at Wynn Las Vegas, Aria, and
21
22 Cosmopolitan between 2016-2021.
23 I.
24
FACTS SUPPORTING THIS REQUEST
25
26 The above-mentioned individuals and entities repeatedly had interactions
27
with the Defendant and the information exchanged is in connection to this
28
29 criminal case.
30

U.S. v. BHAKTA
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Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.451 Page 5 of 8

1 MR. BHAKTA IS ENTITLED TO REQUEST SUBPOENAS DUCES
2
TECUM
3
4 Under Federal Rules of Criminal Procedure, Rule 17(c), a "subpoena may
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. . . command the person to whom it is directed to produce the books, papers,
6
7 documents or other objects designated therein." Under Local Rule of Practice for
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the United States District Court for the Southern District of California ("Local
9
10 Rules"), Rule 73.5, a subpoena in a criminal case may require the production of
11
documents at a date, time and place other than the date, time and place for trial if
12
13 the court enters an order under "Rule 17(c) . . . authorizing the issuance of such
14
subpoena."
15
16 Motions for early return of a subpoena under Rule 73.5 must be made to
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the "Magistrate Judge assigned to criminal duty at the time of the filing of the
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19 motion and must be supported by an affidavit showing:
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(1) The documents or objects sought are evidentiary and relevant; (2) that
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22 the documents or objects sought are not otherwise reasonably procurable in
23
advance of the trial, hearing or proceeding by exercise of due diligence; (3) the
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25 moving party cannot properly prepare for trial without such production and
26
27
inspection in advance of trial and failure to obtain such inspection may tend
28 unreasonably to delay the trial, and (4) that the application is made in good faith
29
30 and is not intended for the purposes of general discovery.”

U.S. v. BHAKTA
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Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.452 Page 6 of 8

1 Rule 17(c) permits defendants to subpoena information in criminal
2
discovery. In Bowman Dairy Co. v. United States, 341 U.S. 214 (1951), the
3
4 Supreme Court considered a 17(c) subpoena for documents in the government’s
5
possession and held that a 17(c) subpoena is not intended to provide discovery
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7 in a criminal case. In United States v. Nixon, 418 U.S. 683, 698-700, 702 (1974)
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the Supreme Court followed Bowman Dairy Co. when considering a prosecution
9
10 subpoena for documents.
11
In United States v. Fields, 663 F.2d 880 (9th Cir. 1981), the court applied
12
13 the test in United States v. Nixon, 418 U.S. 683, 698-99 (1974) and held that “we
14
see no basis for using a lesser evidentiary standard merely because production is
15
16 sought from a third party rather than from the United States.” Id. at 881. The
17
Field Court, therefore, held that Rule 17(c) subpoenas must demonstrate that the
18
19 materials are “evidentiary and relevant.” The Field court, therefore, reversed the
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pretrial production of impeachment material. Id.
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22 Other courts have applied a different standard for Rule 17(c) subpoenas,
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such as the one in this case, that are from a defendant and to a third party. See,
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25 e.g., United States v. Tomison, 969 F. Supp. 587, 593 n. 14 (E.D. Cal. 1997)
26
27
(Nixon standard does not apply to subpoenas to third parties and government has
28 no standing to object); United States v. Nachamie, 91 F. Supp. 552, 563
29
30 (S.D.N.Y. 2000) (The government has no standing to object to a third party

U.S. v. BHAKTA
6
Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.453 Page 7 of 8

1 subpoena and lower standard applies to third party subpoenas); United States v.
2
Tucker, 249 F.R.D. 58, 67 (S.D.N.Y. 2008) (Requiring heightened Nixon
3
4 standard is inappropriate in connection with subpoena to third party by defense
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and may violate Confrontation Clause.).
6
7 Using any analysis, all the requirements of Rule 73.5 have been met, and
8
this Court should order the issuance of the subpoenas, ordering the production of
9
10 the requested documents. Although Mr. Bhakta believes that applying a strict
11
Nixon analysis to deny this motion would violate the Confrontation Clause, the
12
13 Fifth Amendment (see, e.g. Chambers v. Mississippi, 410 U.S. 284 (1972) [state
14
may not interpret rules in a way to deny defendant a defense] , and the Sixth
15
16 Amendment (see, e.g. Washington v. Texas, 388 U.S. 14 (1967) [defendant has a
17
right to present witnesses in his favor]), in this case even under Nixon his
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19 subpoena requests are proper.
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A. The Requested Documents Are Evidentiary And Relevant
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22 The requested documents are both evidentiary and relevant. (Declaration
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Of John D. Kirby In Support Of Motion For Issuance Of Subpoena Duces
24
25 Tecum Requiring Production Of Documents ("Kirby Decl."), ¶ 4.) The
26
27
documents and materials:
28 Thus, all the subpoenas as for material that is both relevant and
29
30 "evidentiary."

U.S. v. BHAKTA
7
Case 3:21-cr-03352-JLS Document 95 Filed 09/25/24 PageID.454 Page 8 of 8

1 B. The Requested Documents Are Not Otherwise Reasonably
2
Procurable In Advance Of Trial
3
4 Mr. Bhakta has no access to any documents within the possession,
5
custody and control of the subpoenaed party. This Court should therefore order
6
7 the production of those documents pursuant to the requested subpoenas.
8
B. Mr. Bhakta Cannot Properly Prepare For Motions In Advance
9 Of Trial And The Failure To Grant This Motion May Tend
10 Unreasonably To Delay The Trial
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As noted above, much of the defense at trial and in motions will involve
12
13 the subpoenaed materials. Thus, trial may be delayed if Mr. DEFENDANT is
14
given that information on the day of the motion hearing.
15
16 C. This Application Is Made In Good Faith And Is Not
17 Intended For General Discovery
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The requested subpoenas are narrowly drawn in terms of time and scope.
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20 Thus, this Court should grant this motion.
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II.
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23 CONCLUSION
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For the foregoing reasons, this Court should grant the above motions.
25
26
27
28
Dated: 9/25/2024 /s/JOHN D. KIRBY
29 John D. Kirby
30

U.S. v. BHAKTA
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