United States District Court, D. Arizona
ORDER
Honorable Jennifer G. Zipps United States District Judge
Pending
before the Court is the Government's Motion for Rule 15
Depositions of nine witnesses who are foreign nationals
residing Bosnia. (Doc. 39.) Defendant filed a Response (Doc.
44) and the Government filed a Reply. (Doc. 46.) The Court
will grant the Motion.
Defendant
Sinisa Djurdjic is a citizen and national of Bosnia and
Herzegovina who entered the United States in 2000 with a
refugee visa and later became a lawful permanent resident in
the United States. (Doc. 39 at 1-2.) In 2017, Defendant was
charged with fraud and misuse of visas, permits, and other
documents in violation of 18 U.S.C. § 1546(a) (Count 1);
attempted unlawful procurement of citizenship or
naturalization in violation of 18 U.S.C. § 1425(a)
(Count 2); and attempted unlawful procurement of citizenship
or naturalization in violation of 18 U.S.C. § 1425(b)
(Count 3). (Id. at 2-3; Docs. 1, 4.) The government
asserts that the requested depositions will yield testimony
relevant to Counts 2 and 3 regarding allegations that
Defendant made material misrepresentations in his N-400
Application for Naturalization and other documents submitted
to the United States, including his initial refugee
application. (Doc. 39 at 3-4.) According to the government,
the witnesses “claim to have direct knowledge regarding
certain aspects of the defendant's activities when he was
a service member in the Bosnian War that are material to the
charges in this case.” (Id. at 5; see
also Doc. 46 at 2 (“the witnesses' expected
testimony . . . is at the heart of the allegations in the
indictment . . . .”).) The government submitted with
its motion a sealed proffer of the witnesses' expected
testimony.[1] (Doc. 41.) With regard to the nine
prospective deponents' willingness to travel to the
United States to testify at trial, the government indicates
that one is unable, one is unwilling, two are willing
depending on their health, and there no is information as to
the remaining five on this topic. (Id.) Information
about the witnesses' availability is from reports
prepared in 2017. (Doc. 44 at 6; Doc. 46 at 2.)
The
government's motion is made pursuant to Rule 15(a)(1),
Fed. R. Crim. P., which provides that “[a] party may
move that a prospective witness be deposed in order to
preserve testimony for trial. The court may grant the motion
because of exceptional circumstances and in the interest of
justice.” “The district court retains broad
discretion in granting a Rule 15(a) motion, and considers the
particular circumstances of each case to determine whether
the exceptional circumstances requirement has been
satisfied.” United States v. Omene, 143 F.3d
1167, 1170 (9th Cir. 1998) (internal quotation marks and
citations omitted). “Ordinarily, exceptional
circumstances exist when the prospective deponent is
unavailable for trial and the absence of the testimony would
result in an injustice.” United States v.
Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998).
“The principal consideration guiding whether the
absence of a particular witness's testimony would produce
injustice is the materiality of that testimony to the
case.” United States v. Drogoul, 1 F.3d 1546,
1552 (11th Cir. 1993).
Defendant
opposes the government's motion, arguing that the
government fails to show that the witnesses are unavailable,
especially because the information the government relies upon
is from reports prepared in 2017. Defendant also opposes the
motion on the ground that the government has not shown the
absence of a treaty between the United States and Bosnia
through which the United States can request the Bosnian
government to compel its residents to attend a trial in the
United States. Defendant does not challenge the materiality
of the expected testimony or the government's proposed
procedures for conducting the depositions.[2]
The
Court finds that the government has met its burden of showing
exceptional circumstances exist such that allowing the
depositions is in the interest of justice. While
unavailability of a witness underlies the Rule 15(a)
analysis, see Sanchez-Lima, 161 F.3d at 548, a
conclusive showing of unavailability is not required to allow
a deposition to be taken so that the testimony can be
preserved for possible use at trial. Omene, 143 F.3d
at 1170; see also United States v. Sines, 761 F.2d
1434, 1439 (9th Cir. 1985) (“It would be unreasonable
and undesirable to require the government to assert with
certainty that a witness will be unavailable for trial months
ahead of time, simply to obtain authorization to take his
deposition.”). Here, the government has shown that all
the witnesses are beyond the subpoena power of the Court.
Further, according to the government's Reply, there is no
treaty under which the United States can request the Bosnian
government to compel the witnesses to attend trial in the
United States. (Doc. 46 at 2.) Even though two of the
witnesses are willing to attend trial depending on their
health, they nonetheless remain beyond the subpoena power of
the United States courts. Thus, “[t]he possibility
remains that they could change their minds, in which case it
would be impossible for the government to present their
testimony.” Drogoul, 1 F.3d at 1557
(permitting depositions even though witnesses, who were
beyond the court's subpoena power, were willing to attend
trial). The same conclusion applies to the five witnesses for
whom there is no information about their willingness to
travel. Even if they were willing, they remain beyond the
Court's subpoena power and could change their minds at
any time rendering it impossible for the government to
present their testimony. See id. In sum, while all
nine witnesses are expected to present evidence critical to
the government's case, two have expressed an
unwillingness to travel and, in any event, there is no way to
compel any of them to testify at trial.
The
Court rejects Defendant's argument that the Court should
deny the motion because the information presented by the
government as to witness availability is stale. The
government seeks to depose foreign nationals who live in
Bosnia. The depositions will be conducted in Bosnia. Because
the witnesses are beyond the subpoena power of the court and
because it appears that they cannot otherwise be compelled to
testify at trial, more recent information would not change
the Rule 15(a) analysis.[3]
Accordingly,
IT IS ORDERED that the Government's Motion for Rule 15
Depositions (Doc. 39) is GRANTED and that the foreign
deposition of government's Foreign Witnesses shall be
taken and preserved for use in the trial of this case;
IT IS
FURTHER ORDERED that:
1. Counsel for both the government and the defendant shall
agree to a scheduled date for each deposition;
2. Counsel for both the government and the defendant shall be
physically present with the witnesses in Bosnia. Counsel
shall conduct questioning at a predetermined location in
Bosnia;
3. The deposition shall be simultaneously transmitted by
video technology to the United States, where the defendant,
with his additional counsel, will be physically present to
see and hear the witnesses and consult with defense counsel
as to any questions he wants to ask the witnesses;
4. An accredited court reporter shall be physically present
in the respective foreign country for the deposition and
shall create a contemporaneous record of the witnesses'
testimony. The witnesses shall take an oath or affirmation to
tell the truth. United States' counsel and the Defendant
through counsel shall be permitted to pose questions directly
to the witnesses. The depositions shall be videotaped in
their entirety. If necessary, a certified translator shall
provide translation of questions and answers.
5. All the depositions shall be governed by the Federal Rules
of Evidence and Criminal Procedure to the extent the
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