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									Case 1:10-cr-00118-PAB Document 99                Filed 09/21/10 USDC Colorado Page 1 of 6

                            IN THE UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLORADO

Criminal Action No. 10-CR-00118-PAB







            Jace Larson moves pursuant to Federal Rule of Criminal Procedure 17(c)(2) to quash the

subpoena issued by Defendant Christopher Bartkowitz to Larson, an investigative reporter

employed by Multimedia Holdings Corp. d/b/a 9News (“9News”). Bartkowitz’s own

contentions demonstrate that Larson has no information relevant to Bartkowitz’s defense that is

not already publicly available. Even if Larson did possess such information, Bartkowitz cannot

make a sufficient showing of need to overcome Larson’s First Amendment newsgathering

privilege, recognized in this circuit by Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.

1977). Larson’s vitally important First Amendment interests make it essential that the Court

quash this subpoena.


            On September 17, this Court denied Bartkowitz’s motion for issuance of subpoena

“seek[ing] certain audio and video recordings and background material relating to the defendant

that is in the possession of a local news organization,” referring to 9News. [Doc. 91 at 1.] This

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Court found that “[t]here has been, in short, no attempt to make even a minimal showing that the

subpoena meets the Nixon requirements [for issuance under Federal Rule of Criminal Procedure

17(c).]” Id. at 2. Nonetheless, on September 20, Bartkowitz served a subpoena ad testificandum

on Larson, the 9News reporter responsible for gathering the “audio and video recordings and

background materials” for which this Court declined to authorize a subpoena.

       After consulting with Bartkowitz’s counsel, it is Larson’s understanding that Bartkowitz

will seek to question Larson regarding “several hours of on camera interviews of the Defendant”

that were not ultimately broadcast as part of Larson’s 9News story about Bartkowitz. [Doc. 90

(Defendant’s Response to Government’s Motion In Limine) ¶ 7.] Bartkowtiz seeks this

testimony in connection with his defense of selective prosecution. Id.

                                      LEGAL STANDARD

       Under Federal Rule of Criminal Procedure 17(c)(2), “the court may quash or modify [a]

subpoena if compliance would be unreasonable or oppressive.”


I.     Larson Has No Information Relevant to Bartkowitz’s Defense of Selective
       Prosecution That Is Not Already Publicly Available

       Bartkowitz can make out a defense of selective prosecution only if he shows (1) that he

has been singled out for prosecution while others similarly situated have not, and (2) that the

Government’s decision to prosecute him was “invidious or in bad faith and was based on

impermissible considerations such as the desire to prevent the exercise of constitutional rights.”

United States v. Furman, 31 F.3d 1034, 1037 (10th Cir. 1994) (citation and quotation marks

omitted). Bartkowitz argues that the Government is selectively prosecuting him in retaliation for

his exercise of his First Amendment rights, namely, being interviewed in a news report prepared

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by Larson and broadcast on 9News. [Doc. 90 ¶ 8 (“Defendant is distinguishable from the scores

of individuals growing marijuana with impunity … only by the fact that he exercised his First

Amendment Right to Free Speech in giving an interview to Channel 9 News.”).] Bartkowitz

alleges that Government agents saw Larson’s news report and associated published internet

content, and decided based on that information to prosecute Bartkowitz. [Doc. 90 ¶¶ 6-8.]

       Bartkowitz alleges that the Government acted entirely on information that was publicly

broadcast by 9News, or published on its website. Therefore, information that Larson may have

that was not publicly broadcast or put on the internet cannot be relevant to this defense.

Bartkowitz has made no allegation that the Government communicated with Larson, or that

Larson provided any non-publicly-available information to the Government. Therefore, the

Court should quash the subpoena because Larson possesses no non-public information relevant

to Bartkowitz’s claim.

II.    Bartkowitz Cannot Make the Required Showing to Overcome Larson’s First
       Amendment Newsgathering Privilege

       A reporter’s newsgathering activities are protected under the First Amendment.

Silkwood, 563 F.2d at 436-37. “[W]ithout some protection for seeking out the news, freedom of

the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (White, J.,

plurality op.). “[C]ompulsory disclosure in the course of a ‘fishing expedition’ is ruled out in the

First Amendment case.” Silkwood, 536 F.2d at 438. “To overcome the newsperson’s privilege

under the First Amendment, the party seeking information from a reporter has the burden of

showing that 1) the information sought is centrally relevant, and 2) the information is unavailable

from other sources.” Re/Max Int’l, Inc. v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911

(D. Colo. 1994). The privilege applies beyond merely protecting confidential sources: “[t]he

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compelled production of a reporter’s resource materials is equally as invidious as the compelled

disclosure of his confidential informants.” Id. (quoting Loadholtz v. Fields, 389 F. Supp. 1299,

1302-03 (M.D. Fla. 1975)). Cf. C.R.S. § 13-90-119(3)(a)-(c) (requiring, under Colorado law,

that any party seeking to subpoena a reporter establish (1) that the information is “directly

relevant to a substantial issue,” (2) that it “cannot be obtained by any other reasonable means,”

and (3) that the party’s interest in seeking the subpoena outweighs the reporter’s First

Amendment interest).

       Bartkowitz has made neither showing required by Silkwood and its progeny. First, he

cannot demonstrate that the information sought—information regarding what Bartkowitz told

Larson that was not broadcast on 9News or published on its website—is centrally relevant to his

claim of selective prosecution. Bartkowitz claims that the Government elected to prosecute him

based entirely on the publicly available information disseminated by 9News; his claim is thus

exactly the opposite of one in which Larson’s testimony might be centrally relevant. Second,

Bartkowitz cannot show that the information is unavailable from other sources. It is the very

essence of his claim that the Government made its prosecution decision based on Bartkowitz’s

public statements. Even if Bartkowitz’s non-public statements to Larson were relevant,

Bartkowitz himself could testify to those statements and thus would be a readily available

alternative source of the information that he seeks to elicit from Larson. Therefore, Bartkowitz

cannot overcome Larson’s newsgathering privilege.

       Subpoenas like this one pose a serious threat to the ability of reporters like Larson to

gather news information. Every time a reporter testifies in a criminal case, it deters some news

sources from talking to that reporter and even to other reporters. It is essential to journalists’

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ability to gather news that they be — and are perceived to be — independent of the Government,

the courts, and the criminal justice system. As recognized in Branzburg and Silkwood, this right

not to be compelled to testify is constitutionally protected and is not to be invaded without a

strong justification. Here, there is no basis for compelling Larson to testify, and the subpoena

should be quashed.


       Because Larson’s testimony regarding non-publicly-available interviews is not relevant

to Bartkowtiz’s claim of selective prosecution, and because Bartkowitz cannot make out the

showing required under Silkwood to defeat Larson’s newsgathering privilege, Jace Larson asks

the Court to quash the subpoena under Federal Rule of Criminal Procedure 17(c)(3).

 Dated: September 21, 2010

                                                   s/ Andrew M. Low
                                                  Andrew M. Low
                                                  DAVIS GRAHAM & STUBBS LLP
                                                  1550 Seventeenth St., Suite 500
                                                  Denver, CO 80202
                                                  Telephone: (303) 892-9400
                                                  Facsimile: (303) 893-1379
                                                  Email: andrew.low@dgslaw.com
                                                  Attorney for Jace Larson

Case 1:10-cr-00118-PAB Document 99           Filed 09/21/10 USDC Colorado Page 6 of 6

                              CERTIFICATE OF SERVICE

       I hereby certify that on September 21, 2010, I electronically filed the foregoing JACE
LARSON’S MOTION TO QUASH SUBPOENA with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to the following counsel:


                                                         s/ Judy Terranova

Case 1:10-cr-00118-PAB Document 99-1       Filed 09/21/10 USDC Colorado Page 1 of 1

                         FOR THE DISTRICT OF COLORADO

 Criminal Action No. 10-CR-00118-PAB






       Jace Larson’s Motion to Quash Subpoena is hereby GRANTED.

  Dated: __________________

                                            The Honorable Phillip A. Brimmer
                                            United States District Judge

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