Opinion
No. CR06-0322-PHX-EHC.
April 17, 2006
ORDER
On April 14, 2006, Defendant filed his "Motion Objecting to Video Tape Depositions of Material Witnesses and to Release of Material Witnesses." The material witness depositions were originally set for April 13, 2006, but were continued at Defendant's request until April 19, 2006. The six material witnesses in this case have been in custody since March 16, 2006.
Defendant's arguments have been considered and, to the extent they are inconsistent with General Order 05-34, rejected by this Court in its attempt to balance the interests of defendants versus the rights of the material witnesses. Although the charge in this case is serious and may become more serious, the circumstances about which the material witnesses could be expected to testify are straightforward about their immigration status and their eye-witness accounts of a vehicle roll-over. To the extent the depositions produce information that suggests that the deposition process is not fair to Defendant's opportunity to cross-examine these witnesses, any such information can be raised with the Court at the status hearing following the material witness depositions. It is at this time that the Court would consider, as set forth in the General Order, whether further detention is necessary to prevent a failure of justice.
The Court notes that Defendant's Motion states that the government has obstructed the General Order's provisions with respect to interviews of the material witnesses. The General Order provides that "[t]he Attorney for a defendant . . . shall have three working days . . . within which to interview a detained material witness. . . ." The General Order contemplates that defense counsel shall have access to the detained material witness for the purpose of an interview and does not suggest that government counsel has a right to be present for this interview.
IT IS ORDERED DENYING Defendant's Objections without prejudice to Defendant raising any objection with the Court at the status hearing which will follow the material witness depositions.
IT IS ORDERED DENYING Material Witnesses' Motion to Continue and AFFIRMING the material witness depositions for April 19, 2006 at 9:30 a.m. and AFFIRMING the status hearing regarding the continued detention of the material witnesses for April 19, 2006, at 4:30 p.m. before Magistrate Judge Duncan.
IT IS FURTHER ORDERED that the United States shall comply with its discovery obligations pursuant to Rule 15(e)(3), F.R.Cr.P., by making available to the defendant ". . . any statements of the witness being deposed. . . ."
IT IS FURTHER ORDERED that the U.S. Marshal arrange for defendant who is in custody to appear in street clothes not in jail uniform. cc: Tyrone Mitchell, Attorney for material witnesses via facsimile (602-258-5233)