SDNY Judge Grants Government’s Eleventh Hour Request to Take Depositions in the UK

A trip to the United Kingdom to take depositions might be a welcome diversion for many lawyers, but not during the weeks leading up to a major, document-intensive, white collar criminal trial.  In United States v. Vilar, 05 CR 0621 (RJS), 2008 WL 2944654 (S.D.N.Y. July 31, 2008), previously blogged about here and here, the trial had been scheduled to begin on September 8, 2008.  On July 21, 2008, almost three years to the day after the indictment had been returned, the government moved to take the depositions of four witnesses in the U.K., claiming it had only just learned the witnesses were unwilling to testify at a U.S. trial.  The defendants opposed, pointing out that the government had inexplicably dragged its feet on this matter for too long, and conducting foreign depositions at this stage would unfairly prejudice their ability to prepare for trial.  Granting the motion as to two of the proposed witnesses as well as a two-week adjournment (in part to ensure the depositions could be completed without disrupting trial preparation), the court’s decision is an interesting spotlight on this rarely-used mechanism in criminal cases.

Requirements for Rule 15 Depositions

The court held that, as to two witnesses, all the requirements for depositions under Fed.R.Crim.P. 15 were met here: (1) they were unavailable (they were outside the subpoena power of the court, and refusing to testify, despite the government’s promise of an all expenses paid trip), (2) their testimony was material (it was “highly relevant” to one of the defendant’s alleged knowledge of and participation in the fraudulent schemes at issue, and to both defendants’ alleged misrepresentations), and (3) their testimony was necessary “to prevent a failure of justice” (a requirement usually satisfied when the first two are met, and here, the government’s delay did not represent such “as serious lack of due diligence” as to justify denying the motion). 

Showing Necessary to Succeed on Rule 15 Motion

Notably, in reaching its decision, the court rejected the defendants’ demand that in order to evaluate the availability prong, the government be directed to provide affidavits from the witnesses themselves confirming that they would not travel to the U.S, and in particular, that the government confirm that it had advised one of the witnesses that he himself may be a target in the case, which may impact his willingness to participate in any deposition.  In addition, the court rejected a similar demand that in order to satisfy the materiality prong, the government must produce affidavits from the witnesses as to their proposed testimony, or at a minimum, produce all of the notes and memoranda of the witness interviews.

Timing of Rule 15 Motion

Also noteworthy is the court’s rejection of the defendants’ argument that in considering whether the government had engaged in “unexcused delay,” the court should take into account the government’s failure to seek these depositions during the three-year period following the indictment.  “[T]hese prior periods of delay are simply unrelated to the issue of whether conducting the proposed depositions at this time would unfairly prejudice defendants . . . More importantly, defendants have failed to cite any order that the government violated by failing to bring a Rule 15 motion at an earlier date or any authority indicating that the government’s failure to file a Rule 15 motion prior to the two previously scheduled trial dates constituted a waiver of its ability to file such a motion at this time.”

Comment

This case is an interesting counterpoint to United States v. Mason, discussed here, where the court precluded evidence due to a late Rule 16 disclosure rather than adjourn a firm trial date in a multi-defendant case.  Of course, Rule 16 disclosures, unlike Rule 15 notices, have timing constraints: they are to be made upon request, and newly obtained Rule 16 materials are to be “promptly” disclosed before trial.  Moreover, in Vilar, unlike Mason, the only prejudice the defense could identify was disruption of trial preparation.  There was no suggestion that the depositions themselves might open a hornet’s nest requiring additional investigation or a severance.  Finally, the defendants’ laches claim might have had more traction if Mr. Vilar wasn’t simultaneously seeking his own adjournment of the trial until November. 

12/29/2008 Update: Suddenly, there is a crop of Rule 15 decisions.  See these additional two decisions in United States v. Kassar, 07 cr 354 (JSR): 2008 WL 3822792 (SDNY August 18, 2008) (denying defense motion for Rule 15 depositions where defense failed to establish genuine unavailability of witnesses); and 2008 WL 4735269 (SDNY October 27, 2008) (granting application, where change in circumstances made Rule 15 testimony more material, but with proviso that deposition occur within strict time limit).