The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the Motion to preclude the Government from admitting the deposition of the material witness at trial filed by the Defendant Raymundo Isreal ReyesChacon (Doc. # 50).
On March 26, 2008, a federal grand jury returned a three count indictment against the Defendant charging one count of bringing in an illegal alien into the United States for financial gain in violation of 8 U.S.C. §1324(a)(2)(B)(ii), one count of bringing in an illegal alien into the United States without presentation in violation of 8 U.S.C. §1324(a)(2)(B)(iii), and one count of fraud and misuse of entry documents in violation of 18 U.S.C. §1546(a).
On April 25, 2008, United States Magistrate Judge Battaglia granted the motion to conduct a video taped deposition filed by the material witness Juan Mejorado-Pena. The Court ordered the deposition to take place on April 29, 2008 and ordered the Government to produce discovery regarding the material witness to defense counsel. (Doc. # 17 and Doc. # 19). Prior the deposition, the Government produced discovery regarding the material witness to defense counsel.
Shortly before the deposition on April 29, 2008, the prosecutor and a representative of the United States Customs and Border Protection met with the material witness and the attorney for the material witness. At this meeting, the material witness stated for the first time that he believed that he could identify the man he believed was the driver of the vehicle inside which he had been concealed. The material witness described the circumstances prior to being placed in the vehicle and described the driver to be quite tall, with glasses, a moustache and dark hair with some grey. This statement by the material witness purporting to incriminate the Defendant was different from his post arrest statement at the border.
At the conclusion of this meeting, the prosecutor had Customs and Border Protection agents prepare a six-pack photographic lineup to present to the material witness which included a photograph of the Defendant. The prosecutor informed defense counsel that the deposition was delayed because the material witness had indicated that he would be able to identify a photograph of the man he believed to be the driver and that the description of the man given by the material witness incriminated the Defendant. The prosecutor informed defense counsel that a photographic line up was being performed by Customs and Border Protection agents, using standard procedures and that no attorneys would be present. Defense counsel did not request the deposition be rescheduled.
The photographic line up conducted by the Customs and Border Protection agents was recorded on a mini-cassette tape by the same videographer who recorded the recorded the deposition. Counsel for the Government did not inform defense counsel that the photographic line up conducted by the Customs and Border Protection agents had been recorded. The Government did not provide a copy of the recorded statement to the defense prior to the deposition. The deposition of the material witness was conducted as scheduled. During the deposition, the material witness picked the Defendant out of the photo lineup as the driver and identified the Defendant in person as the driver.
A couple of weeks prior to trial, the mini-cassette tape containing both the video of the initial photographic line up and the deposition of the material witness was transferred onto DVD and the DVD was produced as discovery to defense counsel.
Defense counsel first became aware of the videotape of the initial photographic line up at the time of trial while questioning the Customs and Border Patrol agent regarding the photographic identification. Pursuant to the defense motion, the Court declared a mistrial.
CONTENTIONS OF THE PARTIES
Defendant moves the Court to preclude admission of the deposition of the material witness on the grounds that the deposition was not taken in compliance with law as required by Rule 15 of the Federal Rules of Criminal Procedure. Defendant contends that the Government was in possession of a videotaped statement of the material witness prior to the deposition which purported to incriminate him and failed to disclosed the statement to the defense until months after the deposition was completed and the material witness had returned to Mexico. Defendant asserts that the videotaped deposition of the material witness is hearsay and that no exception to the hearsay rule applies to allow its admission.
The Government admits that it failed to comply with Fed. R. Crim. P. 15. The Government asserts that it acted in good faith and that defense counsel knew the substance of the photographic line up prior to the deposition of the material witness. The Government asserts that the Defendant ...