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denying defendant's motion for depositions in part because defendant had not submitted affidavits from prospective witnesses but had instead provided only "expectations as to what these witnesses would say if examined"
Summary of this case from U.S. v. JeffersonOpinion
00 Crim. 0263 (LAK)
September 27, 2000
ORDER
Defendant was indicted on March 15, 2000 for three counts of wire fraud and one of interstate transportation of stolen goods. Trial was set for June 20, 2000. The Court subsequently adjourned the trial twice at defendant's request, ultimately until October 12, 2000.
The indictment was superseded on September 14, 2000 to add a count charging him with engaging in receiving deposits without authorization.
On September 6, 2000, after the case had been pending for nearly six months and less than five weeks before trial, defendant moved for an order, pursuant to Fed.R.Crim.P. 15, for leave to take videotaped depositions of two prospective defense witnesses in Sofia, Bulgaria. The government opposes the motion.
Rule 15(a) restricts depositions in criminal cases to situations in which "due to exceptional circumstances . . . it is in the interest of justice that the testimony . . . be taken and preserved for use at trial. . . ." In order to meet that standard, the party seeking a deposition must establish that the witness' testimony is material and that the witness is unavailable to testify at trial. See United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984), cert. denied, 469 U.S. 1075 (1984).
In this case, most of the defendant's submission, with leave of the court, was filed under seal. The government therefore understandably is handicapped in meeting defendant on the issue of materiality. But this much is clear. The application comes late in the day. The defendant has not submitted an affidavit from either prospective witness as to the testimony the witness would give. In each case the basis for the claim of unavailability for trial is an unsworn statement by defense counsel in a memorandum of law that the witness will not come to the United States to testify. Motions to conduct depositions in criminal cases must be made promptly and certainly are denied properly where the depositions sought would delay the trial. See 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 242, at 12 (1982). Here the motion is made remarkably and without any explanation for the delay. While it cannot be said with certainty that granting the motion would delay an October 12 trial, that certainly is a possibility, and it seems quite likely that a trip to Bulgaria for depositions would deprive the government of at least one of the remaining weeks of trial preparation. Accordingly, the Court would deny the motion as untimely even if that were the only objection to it. But the Court need not rely on that ground alone.
The burden is on the moving party to establish that extraordinary circumstances exist for taking a deposition in a criminal case, which includes establishing the unavailability of the prospective witness to testify at trial. See, e.g., United States v. Whiting, 308 F.2d 537, 541 (2d Cir. 1962), cert. denied, 372 U.S. 909 (1963) and 372 U.S. 919 (1963). Conclusory statements of unavailability by counsel are insufficient. See id. at 541; United States v. Rosenstein, 474 F.2d 705, 715 (2d Cir. 1973); United States v. Figueroa, No. 95 Cr. 0823 (EHN), 1996 WL 68529, at *1 (E.D.N.Y. Feb. 1, 1996); United States v. Merritt, No. 90 Cr. 767 (JSM), 1991 WL 79235, at *4 (S.D.N.Y. May 7, 1991). And that is all that is offered here. There certainly is no affidavit of either witness explaining why he will not come to trial here.
Finally, defense counsel has given the Court only their expectations as to what these witnesses would say if examined. They have not submitted affidavits from the witnesses. Indeed, they have not even suggested that they sought but were unable to obtain affidavits. Moreover, if the witnesses were unwilling to give affidavits, there is no reason to suppose that they would voluntarily appear at the United States Embassy in Bulgaria to submit to depositions.
In all the circumstances, the application is denied. Moreover, the Court would deny the application on any of the three grounds relied upon above, even absent the others.
SO ORDERED.