Depositions

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Farfan-Carreon, 935 F.2d 678 (5th Cir. 1991)

The defendant was caught smuggling drugs into the country. He claimed that he was set up by a Mexican who asked him to drive the truck across the border. On the morning of trial, the defendant moved to take the deposition of the Mexican, in Mexico. The trial court erred in denying the defendant’s motion to take the deposition pursuant to Rule 15(a).

United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987)

The government introduced two videotaped depositions of government witnesses in this prosecution for illegal transportation of aliens. The court holds that this violated the defendant’s right of confrontation. Immediately following the signing of the depositions by the witnesses, the witnesses were released from Mexico and were present in the country at the time of trial.

United States v. Wang, 964 F.2d 811 (8th Cir. 1992)

When arrested, the defendant was charged with conspiracy to harbor illegal aliens. Prior to deporting the aliens, their depositions were taken with defendant and her counsel present. The defendant was later indicted on charges of harboring the aliens – but not with conspiracy. Using this deposition at trial was improper and the trial court properly granted a new trial. Taking a deposition while one charge is pending and using it during a trial on other charges violates the defendant’s right to confrontation.

United States v. Miguel, 111 F.3d 666 (9th Cir. 1997)

During a deposition taken pursuant to 18 U.S.C. §3509 (a deposition of an alleged child molestation victim), the arrangement provided for the defendant to speak with his attorney only during breaks. The statute provides that arrangements must be made for “contemporaneous communication” between the accused and his counsel. The procedure in this case violated the terms of the statute. Harmless error.

Guam v. Ngirangas, 806 F.2d 895 (9th Cir. 1986)

The Ninth Circuit holds that the trial court has discretion under Rule 15(a) to permit the taking of the deposition of a fugitive. The Court rules that although a fugitive may not invoke the protection of the criminal justice system, a defendant should not be deprived of evidence simply by virtue of the fact that a witness is a fugitive.

United States v. Ramos, 45 F.3d 1519 (11th Cir. 1995)

The trial court erred in denying the defendant’s motion to take a deposition in Colombia. The trial court’s conclusion that the deposition would be dangerous for the prosecutor to attend was not a sufficient basis to deny the defendant’s request. The three factors which the court should consider in determining whether to grant a Rule 15 motion to take a deposition are, (1) whether the witness will be unavailable to testify at trial; (2) whether injustice will result because testimony material to the movant’s case will be absent; (3) whether there are countervailing factors which render taking the deposition unjust to the nonmoving party. The witness, who had been deported prior to trial, was clearly unavailable. Though the court could not determine what the materiality of the witness’s testimony was, because the government conceded this prong, it was assumed that the witness’s testimony was material. None of the countervailing factors cited by the government were sufficient to deny the motion to take the deposition, including the fact that the witness would not face exposure to a perjury prosecution if he lied under oath; the danger to the prosecutor of traveling to Colombia; the time constraints for taking the deposition; and the lack of proof that the testimony would be relevant or admissible.