United States v. Ordonez, Criminal No. 3:16cr137

• Decision Date: 17 March 2017
• Docket Number: Criminal No. 3:16cr137
• Citation: 242 F.Supp.3d 466
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Yerwin Hernandez ORDONEZ, Defendant.

242 F.Supp.3d 466

UNITED STATES of America

v.Yerwin Hernandez ORDONEZ, Defendant.

Criminal No. 3:16cr137

United States District Court, E.D. Virginia, Richmond Division.

Signed March 17, 2017

Andrew L. Creighton, US Attorney's Office, Alexandria, VA, Stephen Wiley Miller, Office of the U.S. Attorney, Richmond, VA, for United States of America.

Gerald Thomas Zerkin, Attorney at Law, Amy Leigh Austin, The Law Office of Amy L. Austin, Richmond, VA, for Yerwin Hernandez Ordonez.

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

This matter is before the Court on DEFENDANT'S MOTION FOR LEAVE TO TAKE RULE 15 DEPOSITIONS (ECF No. 35) (the "Deposition Motion"), seeking leave to depose Josue Giron ("Giron"),¹ Elmer Lopez ("Lopez"), and Yeris Hernandez Ordondez ("Yeris"), the Defendant's brother. For the reasons set forth below, the motion will be denied.

BACKGROUND

Yerwin Hernandez Ordonez ("Ordonez") is charged with Conspiracy to Commit Murder in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a) (5), Murder in Aid of Racketeering, in violation of 18 U.S.C. §§ 1959(a) and 2, and Use of a Firearm During a Crime of Violence Causing Death to Another, in violation of 18 U.S.C. §§ 924(c)(1)(A), (j) and 2. Trial is scheduled for May 15, 2017.

The charges were brought by way of an Indictment (ECF No. 7) that has now been superseded. The Superseding Indictment (ECF No. 73) (hereinafter SSI) makes no substantive changes to the counts alleged against Ordonez. A summary of the facts that form the basis for the charges provide the context necessary for resolving the Defendant's Deposition Motion.

To begin, it is alleged that, at the time of the offenses in July 2014, Ordonez (a/k/a "Probador") was a member of a gang, La Mara Salvatrucha, commonly known as MS–13. MS–13 allegedly operates in the United States by way of "cliques" or "sets" run by the "First Word" whose assistant is the "Second Word." (SSI at ¶ 7). The Government alleges that, in order to secure membership in MS–13, an aspiring recruit must be subject to a violent beating by other gang members while one gang member counts to 13. (SSI at ¶ 3). Violence, including murder, was used as a means of punishing rival gang members or "chavalas," as well as MS–13 members who cooperated with law enforcement.²

The basis of all charges against Ordonez arise out of an alleged agreement that he made with other MS–13 members and MS–13 recruits to kill Osbin Hernandez–Gonzales, who was thought to be cooperating with and a member of a rival gang. Ordonez and other MS–13 members allegedly confronted Gonzales about his gang membership at a house rented by Ordonez. Gonzales fled but was located at a park near the James River. Ordonez and other MS–13 members drove to the park in Ordonez's van to kill Gonzales. When they located Gonzales, he again fled, but Ordonez chased him and, after reassuring him that all was well, lured Gonzales to an area in the park where others MS–13 members waited to kill him. Gonzales was then shot to death by members of MS–13.

The briefing papers disclose that, as part of his defense, Ordonez intends to offer evidence that he was not a member of MS–13. To that end, defense counsel represents that two of the witnesses to be deposed, Giron and Lopez, rented a house with Ordonez, the house where, on July 11, 2014, MS–13 members allegedly confronted Gonzales about his affiliation with the other gang. This is also the alleged location at which the murder of Gonzales was planned and was set in motion. According to defense counsel, Giron and Lopez will testify about the "circumstances surrounding (1) Defendant's renting the house, (2) the departure of Defendant and themselves from the house; (3) the circumstances by which the members of the Sailor Set came to meet Defendant and his two roommates and conduct clique activities at the house; and (4) Defendant's departure from the [ ] house and from Richmond." (Def's Motion, ECF No. 35, 2). Both witnesses will testify "that Defendant never had associated with MS–13 members prior to his renting the house." Id.

Additionally, it is represented that Yeris, the third witness to be deposed, will testify as to "(1) the circumstances under which Defendant came to rent the house; (2) that Defendant had never associated with MS–13; (3) that Defendant complained about the MS–13 members hanging out in his house; and (4) the circumstances of Defendant's departure from the house and from Richmond." (Def's Motion, 2). All of this testimony is asserted to be relevant to the defense theory that Ordonez simply was not a member of MS–13. Also, the defense represents that Yeris will testify that he was unfamiliar with the Sailor Set before Ordonez moved into the house and that "Defendant told [Yeris] they [the Sailor Set] were always threatening him and he was depressed", that the members controlled Defendant, used his car, and called him constantly. (Def's Reply, ECF No. 61, 4–5). Giron, it is said, will testify that the MS–13 members kept Ordonez's car and on the night the MS–13 members "jumped the two young men into the gang, Defendant never left the house." Id. Lopez will testify that they "did not like the MS–13 members hanging out at the house, [but] there was nothing they could do about it." Id.

The Deposition Motion is based on the representation of defense counsel that the three prospective witnesses, Giron, Lopez, and Yeris, have advised that they are illegally in the United States and that they believe that, "if they come to court to testify, they will be arrested, they will likely be prosecuted, and they will be deported." (Def.'s Motion, 2). To show that those apprehensions are well-founded and reasonable, such that Rule 15 depositions are proper, Ordonez cites to several newspaper articles that discuss the arrest of illegal immigrants and the asserted general apprehension of illegal immigrants in the wake of governmental statements about future enforcement of the nation's immigration laws.

The Government has pointed to additional facts that, in its view, are significant to resolving the Deposition Motion. First, the Government explains that all three witnesses are subject to compulsory process by way of subpoena and that no subpoenas have been either issued or served. The defense does not dispute this point, but says that the witnesses have said they will not respond to a subpoena.

Second, the Government advises that its agents know the location of Lopez and have been to an address believed to be the residence of Yeris. Agents have communicated with both Lopez and Yeris and, according to the Government, Lopez has informed its agents that he is willing to attend trial and to testify. The Government thinks it significant that, although it has been in communication with Lopez and Yeris for months, it has not arrested them. In a telephone conference, the Government represented that the prosecution team (consisting of members of the Office of the United States Attorney for the Eastern District of Virginia, the Department of Justice, Homeland Security Administration, and the FBI) has neither the plan nor the intention to arrest any of the three prospective witnesses if they appear to testify in this case.³ Nor, says the Government, are any of the prospective witnesses encompassed within the enforcement activity by the Homeland Security Administration, which the defense asserts to have given rise to the apprehension that the witnesses claim to have. The defense has not shown otherwise.

The foregoing is the factual context in which the Deposition Motion must be assessed and to which the applicable law must be applied.

ANALYSIS

"[D]epositions in criminal proceedings, unlike their civil counterparts, are the exception not the rule; they are in other words, disfavored." United States v. Rosen , 240 F.R.D. 204, 208 (E.D. Va. 2007). Nonetheless, Fed. R. Crim. P. 15, provides, in relevant part, 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 ." Fed. R. Crim. P. 15(a)(1).⁴

In United States v. Rosen , the Court explained that:

The "exceptional circumstances" and "interests of justice" limitations in the Rule's text are usefully elucidated in the Advisory Committee Note, which states that courts should grant depositions only "if it appears that (a) the prospective witness will be unable to attend or be prevented from attending the trial, (b) the prospective witness' testimony is material, and (c) the prospective witness' testimony is necessary to prevent a failure of justice ." Rule 15, Fed.R.Crim.P., Advisory Committee Note. Unless these conditions are met, Rule 15 depositions are not appropriate, whether in the U.S. or abroad. But if these three criteria are satisfied, the depositions should be ordered, assuming appropriate compulsory process is available.

240 F.R.D. 204, 208 (E.D. Va. 2007) (emphasis added). Although these three requirements are important to the analysis required by Rule 15, they do not "exhaust the ‘meaning of exceptional circumstances.’ " United States v. Jefferson , 594 F.Supp.2d 655, 665 (E.D. Va. 2009) (citing United States v. Fuentes–Galindo , 929 F.2d 1507, 1509 (10th Cir. 1991) ). That is because courts are required to exercise their " ‘discretion in determining whether a deposition should be taken under the particular circumstances presented.’ " Id. In so doing, courts will "ensure that Rule 15(a) depositions are permitted only in the rare instances or exceptional circumstances contemplated by the Rule." United States v. Jefferson , 594 F.Supp.2d at 665.

[O]rdinarily, exceptional circumstances exist within the meaning of Rule 15 (a) when the prospective deponent is unavailable for trial and the absence of his or her testimony would result in an injustice.

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When a prospective witness is unlikely to appear at trial and his or her testimony is

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