United States v. Sanford, Ltd., Criminal Case No. 11–cr–352 (BAH).

• Citation: 860 F.Supp.2d 1
• Decision Date: 10 April 2012
• Docket Number: Criminal Case No. 11–cr–352 (BAH).
• Parties: UNITED STATES of America, v. SANFORD, LTD., et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

860 F.Supp.2d 1

UNITED STATES of America,
v.
SANFORD, LTD., et al., Defendants.

Criminal Case No. 11–cr–352 (BAH).

United States District Court,
District of Columbia.

April 10, 2012.

[860 F.Supp.2d 2]

Frederick Walton Yette, Kenneth E. Nelson, U.S. Attorney's Office, Washington, DC, for United States of America.

Michael G. Chalos, Chalos, O'Connor & Duffy, Port Washington, NY, for Defendants.

MEMORANDUM OPINION
BERYL A. HOWELL, District Judge.

Pending before the Court is the defendants' Motion to Depose Unavailable Witnesses, ECF No. 70, which requests the Court to authorize, pursuant to Fed.R.Crim.P. 15(a)(1), the pre-trial depositions of five witnesses who are allegedly unavailable to testify at trial. The defendants requested expedited consideration of this motion since three of the witnesses they seek to depose are employed aboard the F/V San Nikunau, a fishing vessel that will depart from New Zealand for

[860 F.Supp.2d 3]

deep sea fishing in the third week of April. After this ship departs New Zealand, the defendants contend that they “do not know when or where [they] may be able to depose [the witnesses].” Defs.' Mot. Expedite, ECF No. 65, at 1. Accordingly, the Court granted the defendants' motion to expedite the Court's consideration of their motion to depose witnesses. Minute Order dated Mar. 28, 2012. For the reasons explained below, the defendants' motion to depose unavailable witnesses is DENIED in part and GRANTED in part.

I. BACKGROUND

On January 5, 2012, a grand jury returned a superseding indictment charging three Defendants–Sanford Ltd. (“Sanford”), a shipping company that owns and operates the fishing vessel F/V San Nikunau; and two individuals, James Pogue and Rolando Ong Vano, who served at different times as the Chief Engineer of the ship—with violating federal criminal laws when they allegedly discharged oil-contaminated sludge and bilge waste into the ocean and falsified records relating to these discharges. The investigation that led to these charges arose from a United States Coast Guard inspection of the F/V San Nikunau at Pago Pago, American Samoa in July 2011. The government has now charged the defendants, in seven counts, with conspiracy, in violation of 18 U.S.C. § 371; failing to maintain an accurate oil record book, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2 and 33 C.F.R. 151.25; falsification of records, in violation of 18 U.S.C. § 1519; obstruction of justice, in violation of 18 U.S.C. §§ 1505 and 2; and unlawful discharge of oil waste, in violation of 33 U.S.C. §§ 1907(a) and 1908(a), 18 U.S.C. § 2 and 33 C.F.R. 151.10(b).

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 15(a)(1) provides that a party may move to depose witnesses “in order to preserve testimony for trial.” The purpose of Rule 15, however, is “not to provide a method of pretrial discovery.” United States v. Straker, 567 F.Supp.2d 174, 180 (D.D.C.2008) (quoting United States v. Kelley, 36 F.3d 1118, 1124 (D.C.Cir.1994)). “There is a distinct preference for having witnesses in criminal trials present for the jury to view, to assess, themselves confront. The concept of having depositions is an inferior technique for presenting these witnesses to a jury.” United States v. Ismaili, 828 F.2d 153, 156 (3d Cir.1987) (quoting unpublished district court opinion and affirming the district court's decision denying motion for pre-trial depositions); see alsoFed.R.Crim.P. 15 Advisory Committee's Note to 1975 Amendment (explaining that the Advisory Committee “narrowed” the definition of “unavailable” because it “does not want to encourage the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the stand.”). For this reason, depositions are permitted in criminal matters under Rule 15(a)(1) only if the proponent of the deposition demonstrates “exceptional circumstances” and that the deposition is “in the interest of justice.” ¹Fed.R.Crim.P. 15(a)(1); Straker, 567 F.Supp.2d at 180 (quoting Kelley, 36 F.3d at 1124);see also United States v. Warren, 713 F.Supp.2d 1, 3 (D.D.C.2010) (“ Rule 15 permits depositions in a criminal case to preserve testimony, not to foster discovery, and only in exceptional situations.”).

[860 F.Supp.2d 4]

The Federal Rules of Criminal Procedure provide no definition for either condition of “exceptional circumstances” or “in the interests of justice” for the grant of pre-trial depositions in a criminal case. Based upon the evolution of changes to Rule 15, courts have construed these conditions as requiring a defendant seeking depositions to “(1) establish that the testimony sought is material, (2) prove that the witnesses are unavailable to testify at trial, and (3) make some showing, beyond unsubstantiated speculation, that the evidence exculpates him.” Straker, 567 F.Supp.2d at 180 (quoting Kelley, 36 F.3d at 1125) (internal quotation marks omitted); see also Ismaili, 828 F.2d at 159 (“[A]lthough witness availability and the immateriality of proposed testimony to be obtained through depositions are not rigid or automatic grounds for the denial of a 15(a) motion as they once were, it is nonetheless evident that the post-amendment case law defining ‘exceptional circumstances' and ‘interests of justice’ still focuses on those considerations.”); United States v. Njock Eyong, No. 06–cr–305, 2007 WL 1576309, at *2 (D.D.C. May 30, 2007).

A witness's unavailability in the context of Fed.R.Crim.P. 15(a)(1) is “defined by reference to Federal Rule of Evidence 804(a), which provides, in relevant part, that a witness is unavailable if he or she is ‘absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance ... by process or other reasonable means.’ ” Warren, 713 F.Supp.2d at 4 (quoting Straker, 567 F.Supp.2d at 180);see also United States v. Aguilar–Tamayo, 300 F.3d 562, 565 (5th Cir.2002). “A witness who resides abroad and outside the reach of a court's subpoena power is not automatically ‘unavailable’ without a further showing that he or she will not testify in court.” Warren, 713 F.Supp.2d at 4. “Unavailability is to be determined according to the practical standard of whether under the circumstances the [party seeking to take the deposition] has made a good-faith effort to produce the person to testify at trial.” United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir.1984).

Rule 15 further requires that the evidence provided by an unavailable witness, whom a defendant seeks to depose pre-trial, be material and exculpatory. In assessing these requirements, courts have applied the standards for material and exculpatory information developed in the caselaw interpreting Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See, e.g., United States v. Jefferson, 594 F.Supp.2d 655, 667 (E.D.Va.2009) (“In the Rule 15 context, ‘materiality has the same meaning the Supreme Court gave the term in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, namely, that the evidence or testimony must be exculpatory, and not corroborative or cumulative of other evidence,’ ” quoting United States v. Rosen, 240 F.R.D. 204, 209 (E.D.Va.2007) (internal quotations and citations omitted)); United States v. Hajbeh, 284 F.Supp.2d 380, 383–84 (E.D.Va.2003) (same); see generally United States v. Ionia Mgmt. S.A., No. 03:07–cr–134, 2007 WL 2325199, at *10 (D.Conn. Aug. 9, 2007). Under Brady, the government's failure to disclose material exculpatory evidence to a defendant violates that defendant's right to due process. Smith v. Cain, ––– U.S. ––––, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012). “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. (quoting Cone v. Bell, 556 U.S. 449, 469–70, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009)); United States v. Moore, 651 F.3d 30, 99 (D.C.Cir.2011). “A

[860 F.Supp.2d 5]

reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.” Smith, 132 S.Ct. at 630 (internal quotation marks, alterations, and citations omitted).

III. DISCUSSION

The defendants seek leave to depose five witnesses: three crewmembers of the F/V San Nikunau who were aboard the vessel at the time of its last voyage; and two chief engineers who were previously employed by defendant Sanford, Ltd. and served aboard the vessel. All five of these individuals are foreign nationals and reside abroad. Consequently, they are beyond the reach of this Court's subpoena power.

The government argues that the Court should not permit depositions of these witnesses, despite the fact that the Court cannot subpoena them to testify, because the defendants have failed to demonstrate that the witnesses are unavailable for trial, or that their potential testimony is material or exculpatory. As explained below, the Court agrees that the defendants have failed to demonstrate the “exceptional circumstances” necessary to allow deposition of two of the proposed witnesses: Messrs. Alejandro Braceras and Raymond Ian Scott. The remaining three witnesses whom the defendants seek to depose—Messrs. Larry Verbe Baguinben, Manual Gulliman, and Moana Tai Eric Fredricsen—however, are unavailable to testify at trial and may provide material, exculpatory information. Accordingly, the Court will permit the pre-trial depositions of these three individuals but under certain conditions as outlined below.

A. Deposition of Three F/V San Nikunau Crewmembers

The defendants seek to depose F/V San Nikunau crewmembers Larry Verbe Baguinben, Manual Gulliman, and Moana Tai Eric Fredricsen, all of whom were aboard the vessel at the time the defendants allegedly discharged oil-contaminated sludge and...