United States v. Strong

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 23 2024
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 23-1780
                                                D.C. No.
             Plaintiff - Appellee,              9:22-cr-00028-DLC-1
 v.
                                                MEMORANDUM*
JACOB ISRAEL STRONG, AKA Jacob
Israel Guill,

             Defendant - Appellant.

                   Appeal from the United States District Court
                            for the District of Montana
                   Dana L. Christensen, District Judge, Presiding

                           Submitted August 20, 2024**
                               Portland, Oregon

Before: CHRISTEN and NGUYEN, Circuit Judges, and EZRA, District Judge.***

      Jacob Strong appeals his conviction following a jury trial for international

parental kidnapping in violation of 18 U.S.C. § 1204(a). We have jurisdiction


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
under 28 U.S.C. § 1291, and we affirm.

      1. Strong argues that the district court violated his constitutional right to

present a defense when it denied his application for a pretrial subpoena seeking his

son’s medical records.1

      We review a court’s decision to deny an application for a pretrial subpoena

under Federal Rule of Criminal Procedure 17(c) for abuse of discretion. United

States v. Mackey, 647 F.2d 898, 901 (9th Cir. 1981). “The Supreme Court has

made it clear that a party seeking production of materials under a Rule 17(c)

subpoena must demonstrate to the court ‘(1) relevancy; (2) admissibility; [and] (3)

specificity.’” United States v. Sleugh, 896 F.3d 1007, 1012 (9th Cir. 2018) (citing

United States v. Nixon, 418 U.S. 683, 700 (1974)).

      The district court did not abuse its discretion in denying Strong’s application

because Strong failed to present any explanation for why the records were relevant,

what records he wanted, and how they would be admissible. On appeal, Strong

relies primarily on his own trial testimony to demonstrate that he was concerned

about his son’s safety. Strong does not dispute, however, that his bare-bones

application failed to articulate the relevancy of his son’s medical records to his


1
  The parties dispute whether the affirmative defense under § 1204(c)(2)—that the
defendant was “fleeing an incidence or pattern of domestic violence”—requires a
showing of domestic violence against the child or whether abuse of the defendant
alone is sufficient. We do not decide that issue here, because Strong did not meet
the Rule 17 requirements under either theory.

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defense. Therefore, he failed to meet the requirements for the issuance of the

subpoena.

      2. Strong alternatively argues that his trial counsel was ineffective by failing

to explain the need for his son’s medical records, and because the application for

the Rule 17(c) subpoena was submitted ex parte, “no strategic reason could have

exited for counsel to have withheld” such information.

       “Claims of ineffective assistance of counsel are generally inappropriate on

direct appeal.” United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000). Because

the record is insufficient “as to what counsel did, why it was done, and what, if

any, prejudice resulted,” Id. (citing United States v. Pope, 841 F.2d 954, 958 (9th

Cir. 1988)), we decline to decide this issue on direct appeal.

      AFFIRMED.




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