Opinion
Criminal Action Number 02-062, Section "L" (5)
October 28, 2002
ORDER REASONS
Before the Court is the motion of the United States for an Order for the Rule 15 Deposition of Krzystof Lukaszuk. After consideration of the Government's motion, the Defendants' motion in opposition, and applicable law, the motion is GRANTED for the foregoing reasons.
The criminal trial in this matter was originally scheduled to begin with jury selection on October 7, 2002 and opening statements on Friday, October 11, 2002. However, due to the Defendant Sudeen's medical condition, the trial was continued until Monday, October 28, 2002. On Thursday, October 24, 2002, the Court voir dired the jury to determine if the jurors would be able to continue to sit without hardship in light of the continuance and re-scheduling of the three week trial. After hearing from the jurors, the Court declared a mistrial based on the Defendant Sudeen's medical condition and/or the unavailability of the jurors because of the extended trial date. The Court reset the trial for Monday, December 2, 2002.
In the its motion, the Government has requested that the Court order a Rule 15 deposition of one of their witnesses, Krzystof Lukaszuk. The Government asserts that Mr. Lukaszul is one of the investors that the defendants executed a scheme to defraud of $450,000. The Government represents that he is an important government witness whose testimony supports two counts of the indictment. In addition to explaining the importance of Mr. Lukaszuk's testimony, the Government contends that the witness is 72 years old, is in poor health, and resides in Poland. According to the Government, it is necessary for Mr. Lukaszuk to travel with a nurse who cares for him on a full time basis, and he has difficulty traveling on the long flight from Poland to the United States because of his poor health. Mr. Lukaszuk is currently scheduled to fly out of the United States to Poland on October 31, 2002, and is unwilling to stay in New Orleans until December or fly back to the United States in December to testify. The Government notes that in Poland, Mr. Lukaszuk is beyond the reach of subpoena power.
Under the Federal Rules of Criminal Procedure, "whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition. . ." Fed. Rules Crim. Proc. Rule 15 (2002).
In their opposition to the Government's motion, the Defendants argue that it is questionable whether in fact Mr. Lukaszuk lives in Poland because he has previously filed a lawsuit in New York claiming to be a resident of New York. Also, the Defendants argue that the Sixth Amendment right of confrontation requires the presence of the witness unless he cannot be secured by the offering party. According to the Defendants, the Government has not met the burden of proving exceptional circumstances in this case justifying the taking of Mr. Lukaszuk's deposition. The Defendants cite Stoner v. Sowders, 997 F.2d 209 (6th Cir. 1993), which indicates that the mere assertion of poor health as a reason for a witness being unavailable is not sufficient to justify exceptional circumstances for a Rule 15 deposition, and under the Sixth Amendment, such a deposition is not a desirable substitute for in court testimony. However, the Stoner case is distinguishable from the facts of this case, because not only is Mr. Lukaszuk's poor health an issue, but in addition he is returning to Poland prior to the trial date and has indicated that he is unwilling to return to the United States for the trial.
Under Fifth Circuit jurisprudence interpreting Federal Criminal Procedure Rule 15, "the word `may' signifies that the district court retains broad discretion in granting a Rule 15(a) motion and that the court should review these motions on a case by case basis, examining whether the particular characteristics of each case constitute `exceptional circumstances.'" United States v. Dillman, 15 F.3d 384, 388 (5th Cir. 1994) (citing United States v. Bello, 532 F.2d 422, 423 (5th Cir. 1976)). In Dillman, the Fifth Circuit indicated that when a witness is an unservable deponent unlikely to return to the United States, extraordinary circumstances exist to justify the Rule 15 deposition of that witness. 15 F.3d at 388. See also United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993) (holding that when witnesses were foreign nationals located outside the United States beyond the subpoena power of the court and were unwilling to travel to the United States for trial, extraordinary circumstances existed to allow a Rule 15 deposition of the witnesses).
Considering the facts that Mr. Lukaszuk is currently scheduled to return to Poland on October 31, 2002, has indicated that his poor health and long flight make it unlikely he will attend trial in December, and the unavailability of process to compel his appearance at trial, the Court finds that exceptional circumstances do exist for the Government to take Mr. Lukaszuk's deposition under Rule 15. The Court reserves its ruling on whether such testimony will be admissible at trial.
Accordingly, the motion of the Government for an order for the Rule 15 deposition of Krzystof Lukaszuk is GRANTED.