Defendants facing supervised release revocation have a due process right that includes an "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Put even better by the Ninth Circuit, the right requires "that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order to 'assure that the finding of a [supervised release] violation will be based on verified facts.'" United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993), quoting Morrissey, 408 U.S. at 484.
This due process right can be fulfilled by utilizing the subpoena powers under Fed.R.Crim.Pro. 17. Courts have found that Rule 17 subpoenas can be used for post-trial motions and sentencing. See U.S. v. Winner, 641 F.2d 825, 833 (10th Cir.1981) (“Although Rule 17 subpoenas are generally employed in advance of trial, we see no reason why their use should not be available for post-trial motions and sentencing.”); U.S. v. Boender, 2010 WL 1912425 *1 (N.D.Ill.2010) (“Although the structure of the federal rules as well as Rule 17's plain language suggest that the rule was meant to apply only before trial, courts have held that Rule 17 affords parties the ability to subpoena evidence for post-trial matters.”); see also U.S. v. Reaves, 194 F.3d 1315, 1999 WL 824833 (6th Cir.1999) (unpublished) (applying Rule 17 in the context of a sentencing hearing); 2 Wright & Miller, Federal Practice & Procedure § 272 (4th ed. 2011) (Rule 17 is not limited to subpoenas for the trial. A Rule 17 subpoena may be issued for a preliminary examination, a grand jury investigation, a deposition, for a pre-trial motion, and for a post-trial motion.); United States v. Reid, No. 10-20596, 2011 WL 5075661, at *2 (E.D. Mich. Oct. 26, 2011).
