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
31, 2019, the United States of America moved the court under
Rule 15 of the Federal Rules of Criminal Procedure for an
order permitting the video-taped deposition of Katirina
Pattison (“Ms. Pattison”) to be taken and
preserved for use at trial. The motion is unopposed by 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 addresses these requirements below.
court first addresses whether Ms. Pattison's testimony is
material. Defendant is under federal indictment for multiple
felonies, see the Second Superseding Indictment (the
“Indictment”), for allegedly conspiring to
defraud the United States. The alleged conspiracy centered
around a scheme pursuant to which the Defendant, along with
other co-conspirators, claimed renewable fuel tax credits
administered by the IRS that were available only to blenders
of biodiesel mixtures (“B99”). B99 is produced by
mixing pure biodiesel (“B100”) with at least 0.1%
of regular diesel fuel. Producers that blend the mixture are
entitled to a $1.00 credit for every gallon of B100 used to
produce the biodiesel mixture. Defendant was allegedly part
of a scheme whereby the conspirators purchased B99 and other
products not eligible for refundable fuel tax credits,
falsified records to disguise the B99 as B100, then resold
the B99 and claimed the fuel tax credits.
Government asserts that Ms. Pattison will testify about
meetings that she had with the Defendant where they discussed
purchasing B99 from Ms. Pattison's company, CIMA Green,
so that the Defendant's co-conspirators could
fraudulently claim tax credits on the fuel and sell it at a
below-market rate to the Defendant. The court agrees that Ms.
Pattison's proffered testimony would be highly probative
as to the existence of the fraud. The court therefore finds
that Ms. Pattison's testimony is material.
court next turns to the issue of Ms. Pattison's
availability. The court may order a deposition under Rule 15
only if the government can establish that “a
substantial likelihood… exists that the proposed
deponent will not testify at trial.” United States
v. Drogoul, 1 F.3d 1546, 1553 (11th Cir.
1993). In this case, the Government has asserted that Ms.
Pattison will not be available to testify at trial because of
pregnancy-related travel restrictions. The Government has
indicated that Ms. Pattison's doctor has advised Ms.
Pattison that any travel she undertakes should be completed
by the week of August 12, 2019. This trial is scheduled to
begin on September 9, 2019-more than two weeks after Ms.
Pattison has been advised to refrain from travel. Thus, the
Court finds that Ms. Pattison would be unavailable for trial.
Interests of Justice
court must next consider whether allowing the deposition is
in the interest of justice. Tenth Circuit cases do not
specifically address this inquiry. But the Eleventh Circuit
has addressed the issue in United States v. Drogoul,
1 F.3d 1546, 1552 (11th Cir. 1993). The Eleventh Circuit held
that “[t]he principal consideration guiding whether the
absence of a particular witness's testimony would produce
injustice is the materiality of that testimony to the
case.” This court has already found that Ms.
Pattison's testimony is material and highly probative.
But that materiality must still be balanced against
“countervailing factors which would render the taking
of the deposition unjust.” Id. at 1552.
Government argues that Ms. Pattison's testimony is
“critical to establishing Defendant Lev Dermen's
knowledge of the false tax claims… which is directly
probative of the mens rea elements of all charged
counts.” Docket No. 462. The court agrees with this
assessment. The court therefore concludes that holding a
deposition to preserve Ms. Pattison's testimony is in the
interest of justice because it is material to this case and
because her testimony directly relates to the charged
court finds that there are exceptional circumstances
justifying the need to record and preserve for trial the
deposition testimony of Katirina Pattison, and that ...