United States District Court, N.D. California, San Jose Division
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR RULE 15 DEPOSITION
LUCY H. KOH, District Judge.
On August 6, 2014, Defendant Alondra Nayali Torre-Sanchez ("Defendant") moved to depose a witness located in the Dominican Republic pursuant to Federal Rule of Criminal Procedure 15. ECF No. 189 ("Mot."). The government filed an opposition on August 20, 2014. ECF No. 193 ("Opp'n"). Defendant filed a reply on August 27, 2014. ECF No. 195 ("Reply"). The Court finds this matter suitable for decision without oral argument, and accordingly VACATES the hearing on this motion set for September 17, 2014, at 11 a.m. Having considered the submissions of the parties and the relevant law, the Court DENIES Defendant's motion without prejudice.
On February 28, 2013, a grand jury returned a second superseding indictment charging Defendant with one count of conspiracy to possess with intent to distribute methamphetamine and to distribute methamphetamine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (Count 1), and one count of distribution of methamphetamine and aiding and abetting the distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 5). ECF No. 69 at 3-5 (Indictment).
The government alleges that Defendant conspired with others to distribute methamphetamine in San Jose during the summer of 2012. The government alleges that in April 2012, John Hidalgo ("Hidalgo") met with undercover agents from the DEA and the Royal Canadian Mounted Police to discuss the sale of methamphetamine and the transportation of drugs from Canada to Mexico. Mot. at 2. Hidalgo told the agents that his coordination of drug distribution was done through use of a program called Pretty Good Privacy ("PGP") which could not be traced by law enforcement. Id. On April 27, 2012, Hidalgo provided undercover agents a sample of methamphetamine and arranged to meet the agents at a restaurant in Toronto, Canada on May 24, 2012. Id. at 2-3. On May 24, 2012, Hidalgo arrived with a female, later identified as Defendant. Id.; Opp'n at 3. Hidalgo introduced Defendant as his business partner and the daughter of his girlfriend, Alma Sanchez. Mot. at 3. Hidalgo and Defendant discussed drug supplies with the agents and met again with the agents on May 25, 2012 to continue the conversation. Mot. at 3; Opp'n at 3. Defendant then told the agents that she could give the agents methamphetamine in either San Jose or Los Angeles. Opp'n at 3.
Thereafter, between June 2012 and September 2012, additional meetings occurred between Hidalgo, Defendant, and the agents. Mot. at 3. The government alleges that in June 2012 Hidalgo provided one agent Defendant's PGP address. Id.; Opp'n at 3. Throughout the summer of 2012, Hidalgo and Defendant communicated various times with that agent via PGP concerning the sale of drugs, including the coordination of the sale of four pounds of methamphetamine in San Jose, California that occurred on August 9, 2012, which is charged in Count 1 and Count 5. Mot. at 3; Opp'n at 3-5.
Defendant's federal criminal trial is set to begin on January 5, 2015. ECF No. 180. In support of her defense, Defendant now moves to take the deposition of Hidalgo before trial pursuant to Rule 15, arguing that it is necessary "in the interest of justice" to preserve Hidalgo's testimony, who cannot attend trial. Defendant notes how Hidalgo was arrested in January 2013 for drug trafficking in the Dominican Republic and remains in custody in Rafey Prison in Santiago De Caballeros in the Dominican Republic pending criminal charges and is therefore unavailable to testify at Defendant's trial in San Jose, California. Mot. at 3. Defendant notes that "the projected duration of Hidalgo's case in the Dominican Republic is unknown and that Hidalgo has been unable to post bail. Id. Defendant "anticipate[s] that Hidalgo will remain in custody in the Dominican Republic for the foreseeable future." Id. The government opposes Defendant's motion, arguing Defendant has not shown that preservation of Hidalgo's testimony is necessary "because of exceptional circumstances and in the interests of justice, " as required by Rule 15. Fed. R. Crim. P. 15(a). The government further argues Defendant has failed to articulate Hidalgo's probable testimony and has failed to establish the materiality of the anticipated testimony. Opp'n at 7.
II. LEGAL STANDARD
In criminal cases, "depositions are not allowed merely for the purpose of discovery." United States v. Rich, 580 F.2d 929, 933-34 (9th Cir. 1978). However, "[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). The movant has the burden of proof on a Rule 15 motion. United States v. Olafson, 213 F.3d 435, 442 (9th Cir. 2000). "The district court retains broad discretion in granting a Rule 15(a) motion, and considers the particular circumstances of each case to determine whether the exceptional circumstances requirement has been satisfied." United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998) (internal citation and quotation marks omitted). "Rule 15(a) only requires that the trial court find that due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness be taken and preserved for possible use at trial." Id. However, "[t]he exceptional circumstances requirement of Rule 15 means that only in extraordinary cases will depositions be compelled.'" United States v. Moalin, 2012 WL 3637370, at *1 (S.D. Cal. Aug. 22, 2012) (citation omitted).
While the Ninth Circuit has not required consideration of these factors, courts often consider the following factors when considering whether to grant a Rule 15 motion: (1) the unavailability of the witness at trial; (2) the good faith effort by the movant to obtain the witness's presence at trial; and (3) a demonstration by the movant that the expected testimony would be favorable and material. See United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir. 1995); United States v. Trumpower, 546 F.Supp.2d 849, 853 (E.D. Cal. 2008); Moalin, 2012 WL 3637370, at *2. The Ninth Circuit has also held that before granting a Rule 15 motion, a court must consider the willingness of the witness to be deposed and whether the safety of United States officials would be compromised by traveling to the foreign location. Olafson, 213 F.3d at 442.
Below, the Court considers various factors in order to assess whether exceptional circumstances exist such that it is in the interest of justice to allow Defendant to depose Hidalgo before trial. Given the limited information before the Court at this time, and for the reasons explained below, the Court DENIES Defendant's motion without prejudice.
A. Unavailability of the witness at trial and good faith effort to obtain the witness's presence at trial
One factor courts consider in evaluating a Rule 15 motion is whether the witness to be deposed will be unavailable at trial. Moalin, 2012 WL 3637370, at *2. Here, Defendant notes, and the government concedes, that Hidalgo is incarcerated in the Dominican Republic for an unknown period of time pending trial. Mot. at 6; Opp'n at 7. Therefore, because Hidalgo is not subject to the subpoena power of this Court and because it appears likely that he will be unable to voluntarily appear for Defendant's trial in California in January 2015, the Court finds that Hidalgo is "unavailable" for trial. See United States v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998) ("[T]he Canadian witnesses were unavailable for trial because they were beyond the subpoena power of the United States[.]"); United States v. Sines, 761 F.2d 1434, 1439 (9th Cir. 1985) (holding that district court did not abuse its discretion in granting motion for deposition of witness in foreign country because the witness was going to soon be incarcerated in Thailand and would not be permitted to leave that country to testify in defendant's trial); United States v. Jinian, 2010 WL 3910138, at *2 (N.D. Cal. Oct. 5, 2010) (holding that because witness was located in Mexico, he was not "subject to the subpoena power of this Court" and thus was unavailable for trial). Hidalgo's unavailability is one factor that weighs in favor of granting Defendant's motion. Courts also consider whether the movant has made good faith efforts to obtain the witness's presence at trial. Zuno-Arce, 44 F.3d at ...