Opinion
Case No. 4:01 CR 207
March 8, 2002
ORDER NUNC PRO TUNC TO 7 MARCH 2002 (CLERICAL ERROR)
Before the Court is the government's oral motion of 5 March 2002 to depose a witness on videotape for use at trial. The government seeks to depose David Manevich on videotape in the Youngstown area because the witness is unable to travel to Cleveland due to physical illness. Defendant Traficant has no objection to such a deposition. (3/5/02 Tr. at 2046-47).
On the morning of 5 March 2002, the government presented a letter from Mr. Manevich's physician, Dr. Franco. In the letter, Dr. Franco indicated that Mr. Manevich's recent heart surgery prevents him from traveling to Cleveland to testify.
Later that day, a telephonic conference was held with Dr. Franco, the parties, and the Court. Dr. Franco explained that Mr. Manevich had a quadruple bypass four weeks ago and that he should not sit for extended periods of time. According to Dr. Franco, if Mr. Manevich were to sit in one place for longer than one hour, his health could be endangered. Dr. Franco advised that his patient should not sit in a car for the 90 to 120 minute ride from his home to Cleveland.
For the reasons that follow, the government's unopposed oral motion to depose Mr. Manevich by videotape is granted.
Analysis
Rule 15(a) provides, "Whenever due to exceptional circumstances of the case it is in the interests of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place."
In this case, there are exceptional circumstances, and it is in the interests of justice that the parties depose Mr. Manevich by videotape. This situation is similar to that of United States v. Campbell, in which the Sixth Circuit Court of Appeals upheld a District Court's ruling that elderly witnesses with health-related problems preventing them from traveling to the Court House in Cincinnati constituted an uexceptional circumstance" that justified the use of deposition testimony at trial. 845 F.2d 1374, 1377-78 (6th Cir. 1988). Mr. Manevich's severe health problems prevent him from traveling from the Youngstown area to Cleveland in order to testify. Thus, he is unavailable to testify at trial because of physical illness.
Moreover, Mr. Manevich's' testimony would be material. The government represents that "Mr. Manevich is an essential witness" who will testify that he "built a large deck and a two-story addition and other wooden structures on the back of the Congressman's house in connection with the Bucheit situation." (3/5/02 Tr. at 2045, 2046). This testimony would be material to the RICO charge of Count Ten.
A videotaped deposition is appropriate under the Federal Rules of Criminal Procedure. Rule 15(d) states that depositions in criminal cases "shall be taken and filed in the manner provided in civil actions." Rule 30(b)(4) of the Federal Rules of Civil Procedure contemplates depositions recorded by video camera. Unlike stenographic depositions, videotaped depositions provide the jury with an opportunity to consider the demeanor of a witness.
Conclusion
The government's unopposed oral motion to depose Mr. Manevich by videotape is granted.
IT IS SO ORDERED.