Summary
ordering a post-indictment material witness deposition, pursuant to Rule 15, and noting that the "Material Witnesses have been in the country against their will for over six months, with little end in sight. They have done nothing wrong. They are charged with no crimes. Their families ache for their return, but because the Government retains their passports, they are precluded from leaving the country. Enough is enough."
Summary of this case from In re Grand Jury Proceedings [Redacted]Opinion
CRIMINAL NO. 09-130.
March 18, 2009
OPINION AND ORDER
Pending before this Court is a motion for depositions, pursuant to Fed.R. Cr. P. 15(a)(2), filed by several material witnesses (hereinafter, "Material Witnesses"). Defendants Panagiotis Stamatakis ("Stamatakis"), Dimitrios Papadakis ("Papadakis"), and Dalnave Navigation, Inc. ("Dalnave") have submitted papers outlining their respective positions. Finally, the United States has submitted a brief in opposition. Having evaluated all of the submissions, the Material Witnesses' motion is GRANTED. I. History
The motion was originally filed on behalf of Suahepi Djako, Noldy Palandeng, and Vasly Granych by their attorneys — Michael A. Baldassare, Esq., Michael N. Pedicini, Esq., and John A. Azzarello, Esq., respectively. Subsequent to the filing of the present motion, four other material witnesses sent correspondence indicating a desire to join in the original motion. Those witnesses are Arsyad Baco, Muhammad Chelly, Suardi Daru, and Kasim Karia, represented by Maria D. Noto, Esq., James Patton, Esq., Gary Mizzone, Esq., and David A. Holman, Esq. The Court grants each of these remaining four witnesses permission to join in the original motion and thus evaluates the motion on behalf of all seven material witnesses.
On February 19, 2009, a federal grand jury returned an eight-count Indictment against Dalnave, Papadakis, and Stamatakis, charging them with, inter alia, anti-dumping violations of the 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (collectively, "MARPOL"). Following return of the Indictment, the Government moved for post-indictment material witness warrants, which were signed and issued by The Honorable Esther Salas, United States Magistrate Judge, on February 23, 2009. Finally, the defendants were arraigned before the Honorable Peter G. Sheridan, U.S.D.J., on March 6, 2009. For the Material Witnesses, however, this was far from their first encounter with this country's legal system.
On or about September 8, 2008, the M/V Myron N ("Myron N") docked at the port of Newark, New Jersey. The Material Witnesses were crew members aboard the Myron N. The Coast Guard eventually granted departure clearance to the Myron N, but only after its owner ("Naldvin") and operator ("Dalnave") posted a surety bond in the amount of $500,000. Naldvin and Dalnave also agreed to provide accommodations, meals, and salaries for the Material Witnesses, who were to remain in the District of New Jersey for questioning. The Material Witnesses were neither signatories nor parties to the agreement between Naldvin, Dalnave, and the Government. Notably, that agreement expired on February 11, 2009. The Government has taken over the obligation of paying the Material Witnesses a stipend and of paying their lodging expenses.
Additionally, since the Material Witnesses originally landed on United States soil, several other events have taken place. On December 23, 2008, this Court appointed new counsel for Djako, Granych, and Palandeng, finding that original counsel operated under an incurable conflict of interest. On January 28, 2009, the above-referenced witnesses filed a motion before this Court to vacate their material witness warrants. The Court reserved decision on that motion, upon the oral contention by their attorneys that a motion for Rule 15 depositions would be timely filed. Finally, on March 2, 2009, the present motion was filed.
As to the other four witnesses, Magistrate Judge Patty Shwartz appointed individual counsel for each of them, a decision that was upheld on appeal by this Court.
II. Analysis
The Material Witness statute, 18 U.S.C. § 3144, states as follows:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. (Emphasis added.)
Federal Rule of Criminal Procedure 15(a)(2) works in conjunction with 18 U.S.C. § 3144, providing that a material witness "who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a written motion and giving notice to the parties. The Court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript."
No one objects that the Material Witnesses either have not filed the appropriate written motion or have not given "notice to the parties."
The Government and Material Witnesses spar over the meaning of the word "detained" and whether or not it applies to this particular situation. The Material Witnesses, lodged at a hotel with no passport, no transportation, little knowledge of English, and limited knowledge of the customs and mores of this country, articulate their long-held desire to return home to their families and to their countries. They argue that in every sense of the word, they are detained. The Government, meanwhile, makes the technical argument that Fed.R. Cr. P. 15(a)(2) specifically refers to the Bail Reform Act, codified at 18 U.S.C. § 3142. Under 18 U.S.C. § 3142, the Government argues that detention means imprisonment. Thus, the Government's position is that the Material Witnesses, though they are holed up at a hotel without their consent and without the ability to leave the country, are not detained. At least one court, in circumstances nearly identical to these, has held that the witnesses were "functionally detained." United States v. Maniatis, 2007 U.S. Dist. LEXIS 47543, at *3 (E.D. Cal. June 20, 2007). In the Third Circuit, the issue is one of first impression.
The Court, however, need not reach the merits of the issue, because the Government concedes that "it is within the discretion of this Court to direct the parties to participate in depositions in order to preserve the witnesses' testimony for trial, and thereby facilitate their speedy return home." (Gov't Br. 2.) The Government takes the position that the optimal solution is to direct that trial commence within seventy days, thereby creating a firm end-date for the Material Witnesses stay in this country. This Court, however, disagrees. Given that the Government is willing to concede this Court's discretionary authority to order depositions — even in the absence of actual detention under Rule 15(a)(2) — the Court finds that the circumstances of this case warrant immediate depositions.
The Material Witnesses have been in the country against their will for over six months, with little end in sight. They have done nothing wrong. They are charged with no crimes. Their families ache for their return, but because the Government retains their passports, they are precluded from leaving the country. Enough is enough.
The deposition of the first of the seven material witnesses shall commence no later than Wednesday, April 1, 2009. Thus, Defendants are afforded ample time to wade through the discovery and to prepare themselves for cross-examination of the Material Witnesses. The parties have two weeks within which to complete all depositions. As the deposition of each witness is completed, that witness should immediately be released to go home. By April 15, 2009, all depositions shall be completed. Each such deposition shall be conducted in conformity with the Federal Rules of Evidence, and all appropriate objections shall be lodged at the time of deposition.
The parties are, of course, free and encourage to commence these depositions earlier. Given the stress that the Material Witnesses have been under for the past six months, the Court encourages the parties to begin earlier.
Thus, for the reasons set forth above:
IT IS on this 18th day of March, 2009,
ORDERED that depositions of the Material Witnesses shall be commence no later than Wednesday, April 1, 2009 and shall be completed by April 15, 2009; and it is further
ORDERED that each Material Witness shall be immediately released following the completion of his deposition.