Prosecutors can be described as the “chief law enforcement officer[s]” of their
jurisdiction, and they are afforded extremely broad discretion to conduct investiga-
tions and bring prosecutions.
To a large extent, this “discretion is unbridled,” and
in deciding to pursue criminal charges, a prosecutor’s “decision is unassailable.”
Prosecutors may also be active participants in coordinating police investigations—
especially in large cities.
In conducting investigations, there are many creative
and atypical ways that prosecutors obtain the evidence necessary to make their
case, from supplying ingredients for drug operations,
to using docking facilities to
catch those involved in smuggling operations.
Taking their creativity to a new level, some prosecutors began using sham
subpoenas—subpoenas that have no legal foundation—as another tool to gather evi-
dence in their investigations.
Prosecutors started using these sham subpoenas by giv-
ing them to undercover informants who would then show them to the targets of
ongoing investigations in order to elicit incriminating responses from the targets.
Similarly, prosecutors use sham subpoenas as tools to maintain informants’ cover.
In 2017, the press uncovered sham subpoena use in New Orleans, Louisiana;
Gretna, Louisiana; and Nassau County, New York.
The publications alleged that
1. JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT: LAW, PROCEDURE, FORMS §§ 1.09, 1.14 (4th ed. 2019).
3. Id. § 1.13 (describing the role that prosecutors should have in helping to coordinate police investigations).
United States v. Russell, 411 U.S. 423
, 431–32 (1973) (holding that an undercover agent supplying
suspected drug manufacturers with phenyl-2-propanone, an essential ingredient of methamphetamine, did not
violate the Due Process Clause of the Fifth Amendment).
United States v. Ward, 793 F.2d 551
, 552–53 (3d Cir. 1986) (determining that the Drug Enforcement
Administration’s (“DEA”) involvement in an undercover operation involving drug manufacturing and
distribution, which included the DEA selling the drugs to the defendants, did not violate fundamental fairness or
United States v. Martino, 825 F.2d 754
, 760 (3d Cir. 1987) (discussing whether the prosecutor issued a
“sham subpoena” to an undercover informant when he issued a subpoena under the informant’s pseudonym). The
word “sham” is defined as “[a] false pretense or fraudulent show,” or “[s]omething that is not what it seems.”
Sham, BLACK’S LAW DICTIONARY (11th ed. 2019). The way that courts have identified and labeled subpoenas as
“sham” aligns with the Black’s Law Dictionary definition; however, the Third Circuit explained that using the
word “sham” to describe a subpoena does not necessarily bear weight in analysis of a prosecutor’s actions,
especially in the undercover informant context. See Martino, 825 F.2d at 760 (explaining that a subpoena under
an informant’s pseudonym “[is] ‘sham’ in the same sense that any undercover agent using a false name or
purporting to be someone s/he is not is ‘sham,’” and thus, characterizing a subpoena as “‘sham’ does not aid in
the analysis of its propriety”).
7. See, e.g
., United States v. Hammad, 858 F.2d 834
, 838–40 (2d Cir. 1988) (concluding that the federal
prosecutors violated New York’s ethical rule when they gave a “sham subpoena” to an undercover informant to
show to a target of an investigation, who was represented by counsel in the matter).
United States v. Ryans, 903 F.2d 731
735–39 (10th Cir. 1990) (analyzing whether prosecutors
Oklahoma’s ethical rule when they issued a subpoena to an undercover agent’s alias).
9. Charles Maldonado, Jefferson Parish Prosecutors Used Fake Subpoenas Similar to Those in New Orleans,
THE LENS (Apr. 27, 2017) [hereinafter Maldonado, Jefferson Parish], https://thelensnola.org/2017/04/27/
prosecutors-in-jefferson-parish-have-used-fake-subpoenas-similar-to-those-in-new-orleans/; Charles Maldonado,
Orleans Parish Prosecutors are Using Fake Subpoenas to Pressure Witnesses to Talk to Them, THE LENS (Apr. 26,
2017) [hereinafter Maldonado, Orleans Parish], https://thelensnola.org/2017/04/26/orleans-parish-prosecutors-are-
2020] SHAM SUBPOENAS AND PROSECUTORIAL ETHICS 3