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United States v. Dermen

United States District Court, D. Utah

August 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LEV ASLAN DERMEN, a/k/a Levon Termendzhyan, Defendant.

          MEMORANDUM DECISION & ORDER GRANTING MOTION FOR VIDEOTAPED DEPOSITION UNDER FED R. CRIM. P. 15

          JILL N. PARRISH, UNITED STATES DISTRICT COURT JUDGE

         District 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 location; or
(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).

         The motion is unopposed by the Government.

         DISCUSSION

         A. Exceptional Circumstances & Interest of Justice

         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). 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 ...


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