Summary
The United States District Court for the District of Columbia grants the government’s sealed motions under Federal Rule of Criminal Procedure 15 to depose three witnesses before trial. The Court finds the testimony material and provisionally determines that the witnesses are substantially likely to be unavailable for trial, while deferring final admissibility and unavailability determinations. The depositions are ordered sealed and generally must occur in the defendant’s physical presence, with scheduling and status-report requirements imposed.
Topics
Practice areas
Questions Presented
- Whether the government established exceptional circumstances and the interest of justice under Federal Rule of Criminal Procedure 15 to depose three prospective witnesses before trial.
- Whether the depositions should occur in the physical presence of the defendant, including whether one deposition could proceed abroad with the defendant participating by videoconference.
- Whether the depositions and related docket activity should be sealed pending further order.
Holdings
- The government satisfied Rule 15 by showing that the witnesses’ testimony was material and that the witnesses were provisionally substantially likely to be unavailable to testify at trial; the depositions were therefore authorized in the interest of justice.
- The depositions were authorized only to the extent that they take place in the physical presence of the defendant. The court did not authorize the defendant’s absence from the overseas deposition and required the government to continue efforts to facilitate his physical presence.
- The depositions and related docket activity were ordered sealed until further order of the court.
Key quotations
“To demonstrate that ‘exceptional circumstances’ necessitate a Rule 15 deposition, the party seeking the deposition must show: ‘(1) the materiality of the testimony; and (2) the unavailability of the witness to testify at trial.’” (p. 1)
“When the question is close a court may allow a deposition in order to preserve a witness’ testimony, leaving until trial the question of whether the deposition will be admitted as evidence.” (p. 2)
“The Court will therefore order that the depositions be sealed until further order of the Court.” (p. 6)
Factual background
The government sought to preserve the testimony of three witnesses who reside outside the United States. The witnesses’ testimony was deemed material, and the court provisionally found that the witnesses were substantially likely to be unavailable to testify at trial. One witness had expressed a present willingness to travel to the United States, while the government had not yet determined whether all witnesses could travel for trial. The defendant was in federal custody and objected to participating in one deposition remotely rather than being physically present.
Procedural history
The United States filed sealed motions to depose three witnesses residing outside the United States. The parties agreed that the testimony should be preserved, but disputed the defendant’s physical presence and the location and manner of one deposition. The district court granted the motions subject to procedures requiring the defendant’s physical presence, directing further efforts concerning an overseas deposition, and ordering the deposition materials sealed.