201 F. Supp.2d 169 (2002) | Cited 0 times | D. Maine | April 22, 2002


Defendant Philip Bunnell has moved to take the deposition of apotential witness, Jean Kemp. (Docket No. 19.) The United States has fileda memorandum in opposition (Docket No. 36) and Bunnell has filed reply(Docket No. 42). I now DENY Bunnell's motion.

Rule 15 of the Federal Rules of Criminal Procedure permits a districtcourt to authorize a deposition in a criminal case when exceptionalcircumstances exist. The moving party bears the burden of showing thatexceptional circumstances exist to warrant the deposition. United Statesv. Olafson, 203 F.3d 560, 567 (9th Cir. 2000); United States v. Drogoul,1 F.3d 1546, 1551-52 (11th Cir. 1993); United States v. Ferrera,746 F.2d 908, 912 (1st Cir. 1984). In analyzing whether the circumstancesare sufficiently exceptional, the Eleventh Circuit has formulated a testthat considers whether: (1) the witness is likely to be unavailable attrial;1 (2) injustice will otherwise result without the materialtestimony that the deposition could provide; and (3) countervailingfactors would make the deposition unjust to the nonmoving party. UnitedStates v. Ramos, 45 F.3d 1519, 1522-23 (11th Cir. 1995). The NinthCircuit has cautioned that in deciding whether to grant a Rule 15(a)motion the district court should also consider whether the deponent wouldbe available at the proposed location for deposition and would be willingto testify. Olafson, 203 F.3d at 567. I will apply these factorsin determining whether to grant the motion, as there does not appear to beany relevant First Circuit formulation on this issue. See Ferrera, 746F.2d at 912-13 (undertaking a totality-of-the-circumstances type analysisvis-à-vis a defendant's motion for a telephonic deposition);United States v. Mann, 590 F.2d 361, 365-66 (1st Cir. 1978) (addressingthe propriety of granting a motion by the United States to take adeposition of a juvenile foreign national, asking whether thecircumstances at hand were sufficiently exceptional so that the interestof justice was served, stating that Rule 15 required "an overall weighingof justice to the witness, to the defendant, and, in some cases, to thepublic," highlighting confrontation clause concerns, and concluding thatthe district court abused its discretion in granting the government'smotion). In the present case, on the record before me, I conclude thatthe defendant has not met his burden of demonstrating exceptionalcircumstances.

Jean Kemp was employed at the University of Maine in Machias during theSpring 2000 semester. Bunnell is charged with possession of childpornography and offers as part of his defense that he possessed thepornography in connection with a course he took at the University, HUSA233 "Incest and Sexual Abuse." According to Bunnell, "Jean Kemp willpresent specific and factual information regarding her knowledge of thecourse, the Defendant's involvement therewith and related informationthat is critical to the factual background, as part of the defense inthis case." He never explains what the specific and factual informationmight be. It is undisputed based upon what has been presented to me thatMs. Kemp did not teach this course. It has not been made clear to me whatposition she held at the University or what involvement she had with thedefendant.

Based upon the proffer made by both the United States and the defendantit does appear that Ms. Kemp is likely to be unavailable as a witness.Apparently she is currently residing in St. Louis, Missouri with a familymember and is suffering from a degenerative and debilitating braindisorder.2 Also there is no reason to believe that ordering thedeposition would cause any serious injustice to the United States. Thusthe Ramos prongs (1) and (3) have been satisfied, but defendant hasfailed to make the requisite showing of materiality under prong (2).Bunnell asserts, "Ms. Kemp possesses critical information regarding thecircumstances surrounding the HUSA 223 course." This assertion is nothingmore than a conclusory statement without any supporting facts. Ms. Kempwas involved in some unspecified way in allowing the defendant tocontinue the course and authorizing the grade of "L," which means leftthe course. The materials I have before me reveal that the defendantcan, in his own words, prove these facts based on "information which isfound on his transcript [that] contradicts Professor Lacey," the courseinstructor. Bunnell has not shown the materiality of Kemp's testimony andit is his burden to do so before this court will issue an orderpermitting her to be deposed. See Ferrera, 746 F.2d at 913 (concludingthat the district court's denial of a defendant's Rule15 motion for atelephonic deposition was not an abuse of discretion, noting, among otherthings, "the somewhat tangential focus and generalized character of theoffer of proof"). Motion DENIED.

1. The First Circuit has commented that the 1975 amendments toRule 15 "dropping the explicit requirement of unavailability from Rule 15(a)indicates that the inquiry is more properly confined to the decisionwhether to admit the deposition as evidence." United States v. Mann,590 F.2d 361, 366 n. 5 (1st Cir. 1978). However, Mann was postured sothat the First Circuit had before it both a dispute about the granting ofthe motion and a dispute about its admission at trial pursuant to FederalRule of Evidence 804(a)(5). It seems that though the time for crossingthe availability bridge must certainly be at the trial stage, it must atleast be mapped out at the pre-trial Rule 15 juncture, otherwisedepositions of witnesses in a criminal matter would have become the norm(as in the civil arena) rather than the exception. See In re UnitedStates, 358 F.2d 624, 626 (1st Cir. 1965). The 1975 amendments cannot beread to work such a far sweeping change to the pre-trial process in acriminal case.

2. Defendant has made no showing regarding Ms. Kemp's availability andwillingness to testify at a deposition, presumably in St. Louis. TheUnited States asserts that her brain condition has resulted in a loss ofmemory and that she would essentially not be able to testify. Without anaffidavit from someone with knowledge one way or the other, I am unableto make a reasoned conclusion about the proposed deponent's physical andmental condition.

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