United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION FOR
VIDEOTAPED DEPOSITION UNDER FED R. CRIM. P. 15
N. PARRISH, UNITED STATES DISTRICT COURT JUDGE
Judge Jill N. Parrish On July 31, 2019, the Defendant moved
the court under Rule 15 of the Federal Rules of Criminal
Procedure for an order permitting the video-taped deposition
of Sezgin Baran Korkmaz (“Mr. Korkmaz”), a
foreign witness residing in the Republic of Turkey, to be
taken in London and preserved for use at trial. The court may
only grant a motion for a Rule 15 deposition “because
of exceptional circumstances and in the interest of
justice.” Fed. R. Crim. P. 15(a)(1). And if a
deposition is to be taken outside the United States without
the Defendant present, the court must also make certain
case-specific findings. Specifically, the court must find:
(A) the witness's testimony could provide substantial
proof of a material fact in a felony prosecution;
(B) there is a substantial likelihood that the witness's
attendance at trial cannot be obtained.
(C) the witness's presence for a deposition in the United
States cannot be obtained;
(D) the defendant cannot be present because:
(i) the country where the witness is located will not permit
the defendant to attend the deposition;
(ii) for an in-custody defendant, secure transportation and
continuing custody cannot be assured at the witness's
(iii) for an out-of-custody defendant, no reasonable
conditions will assure an appearance at the deposition or at
trial or sentencing; and
(E) the defendant can meaningfully participate in the
deposition through reasonable means.
Fed. R. Crim. P. 15(c)(3).
motion is unopposed by the Government.
Exceptional Circumstances & Interest of Justice
court may only grant a motion for a Rule 15 deposition
“because of exceptional circumstances and in the
interest of justice.” Fed. R. Crim. P. 15(a)(1). In
deciding whether a case presents “exceptional
circumstances, ” Tenth Circuit law directs the court to
consider if: “(1) the witness' testimony [is]
material; (2) the witness [will] be unavailable to testify;
and (3) taking the deposition [is] necessary to prevent a
failure of justice.” United States v.
Fuentes-Galindo, 929 F.2d 1507, 1509 (10th Cir. 1991).
The court first addresses these requirements and then turns
to the additional case-specific inquiries ...