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U.S. v. CHEN

April 11, 2003


The opinion of the court was delivered by: Richard Seeborg, United States Magistrate Judge


The United States moves to take the depositions of detained material witnesses pursuant to Fed.R.Crim.P. 15. Defendants oppose the motion. The material witnesses have not, through their respective counsel, taken a position on the government's motion. The parties appeared for oral argument on April 9, 2003. Based on the briefs submitted and the arguments of counsel, the United States' motion is granted.


The defendants in this case, Lai Fa Chen and Zong Xian Lin, are charged with illegal alien smuggling in violation of 8 U.S.C. § 1324(a)(2)(B). On October 21, 2002, crew members from a fishing vessel reported that they had been hijacked by ten nationals from the People's Republic of China ("PRC").

The Coast Guard responded and found the two defendants on the vessel. Defendants reported that ten PRC nationals had taken over command of the boat and had then fled to shore. The PRC nationals who fled the vessel maintain that they had paid money to be smuggled into the United States, had been hidden in the cargo hold of the fishing boat during the journey, and then had taken control of it after defendant Chen demanded more money to bring them to their intended destination.

On October 24, 2002, a criminal complaint was filed in this matter. On February 12, 2003, this Court issued arrest warrants under 18 U.S.C. § 3144 upon the determination that the ten PRC nationals who fled the vessel were material witnesses for the purposes of this case. At hearings held for each of the material witnesses upon arrest, their respective counsel objected to continued detention. Seven PRC nationals are currently being detained without release conditions under material witness warrants.*fn1 They have been in custody as material witnesses since at least February 12, 2003. The United States now moves to take the depositions of the seven material witnesses currently in custody.


The motion by the United States to take material witness depositions implicates the interplay between Fed.R.Crim.P. 15, which permits depositions in criminal cases when certain condition have been fulfilled, and 18 U.S.C. § 3144, which governs detention of material witnesses. Rule 15 provides in pertinent part:

(a) When taken.

(1) In General. 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. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.
(2) Detained Material Witness. A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript.
Under 18 U.S.C. § 3144, No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.

Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

A party seeking to take a Rule 15 deposition must make a showing of "exceptional circumstances" as required by Rule 15(a)(1). Where a material witness, instead, moves for a Rule 15 deposition, he need not show such "exceptional circumstances." Fed.R.Crim.P. 15(a)(2).

18 U.S.C. ยง 3144 prohibits detention of material witnesses if their testimony can be secured by deposition, regardless of which party brings the motion to take the deposition. Besides its specific provisions regarding detention, Section 3144 also provides that once the court authorizes the arrest of a material witness, that witness is to be treated in ...

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