Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Ramon VENEGAS, Jose Ramon Ruiz-Madrid, Andres Fontes-Lopez,Defendants-Appellants.

Nos. 90-10278, 90-10279 and 90-10374.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 1991.^* Decided June 19, 1991.

Before SCHROEDER and FARRIS, Circuit Judges, and DUMBAULD,^**  District Judge.

MEMORANDUM^*** 

The case at bar presents three questions: (1) Did the trial court abuse its discretion under Rule 15 FRCrP in refusing to order deposition (to be used for impeachment of informers' testimony) of a witness in Mexico who was a participant in the drug offenses involved in the case at bar and who was unwilling to enter the United States to testify? (2) Was it abuse of discretion to exclude an unintelligible recording of that participant's ex parte testimony given to defense counsel at a restaurant in Mexico near the U.S. border? (3) Was it a violation of Art. I, Sec. 9 of the Constitution prohibiting ex post facto laws to sentence appellants under an amendment to the sentencing Guidelines formulated after the date of the offense but before sentencing, as required by 18 U.S.C. 3553(a) (4)?

Taking the last point first, as it is dispositive, we note that the United States (Brief, p. 20) agrees and concedes that the case should be remanded for resentencing under the Guidelines in effect on the date of the offense.

To obviate further litigation following resentencing, it is probably useful by way of quasi-dictum to comment on the other two points raised by appellant.

Rule 15 F.R.Cr.P. provides:

(a) When Taken. 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 ...

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(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness' deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it which is relevant to the part offered and any party may offer other parts.

Under Rule 15(a) the controlling criterion is that it be "in the interest of justice" that the testimony of a prospective witness be taken and preserved for use at trial.

It is also essential that such conclusion be "due to exceptional circumstances."

Under paragraph (e) of the Rule, relating to use at trial (which as appellant emphasizes is a distinct question separate from whether the deposition should be taken at all) the witness must be "unavailable" and the deposition may be used "for the purpose of impeaching the testimony of the deponent as a witness." In the case at bar it is sought to be used for impeaching the testimony of the government's witnesses, the informers. But it could probably come in for that purpose under the language "so far as otherwise admissible under the rules of evidence."

In U.S. v. Hernandez-Escarsega, 886 F.2d 1560, 1569-70 (9th Cir. 1989) this Court pointed out that the determination of what is "in the interest of justice" must be made on a case-to-case basis and that depositions are to be granted only "in exceptional situations."

While we recognize that it is, in a sense, " 'unjust' to allow a fugitive, who flouts the legal system, to participate in that system with special dispensation, i.e., without the check of perjury sanctions," we concluded that it is at times "more unjust to deprive a defendant of what may be crucial exculpatory testimony."¹  Id. Thus, the facts of each case must be separately considered to determine whether the exceptional circumstances contemplated by Rule 15(a) exist, justifying the deposition of even those individuals who consciously hold themselves beyond the reach of the law.

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When Rule 15(a) was adopted, " [i]t was contemplated that in criminal cases depositions would be used only in exceptional situations." Fed. R. Crim. P. 15 note. Applying the appropriate legal standard, the district court determined that exceptional circumstances were not present in this case. We have reviewed the record and cannot conclude this decision constitutes an abuse of discretion.

In the case at bar the District Judge said, in denying appellant's motion:

If you are a drug dealer, the idea that dealers can stay in Mexico and testify about drug deals in such a way to try to help some people who allegedly were mules in the operation, to say he can do that without subjecting himself or herself to the jurisdiction of the court, that doesn't seem to be in the interest of justice.

Lastly, I just think from a security standpoint, I'm just not going to do that.² 

Moreover, the defense witness would himself have been subject to impeachment. [U.S. Brief, pp. 11, 14]. The record would merely have been rendered more voluminous, and the jury perhaps confused by irrelevant data.

We are inclined to regard the District Court's evidentiary rulings as harmless error at worst, not substantially affecting the crucial issues in the case.

Hence the judgment of the District Court is affirmed, and the case remanded for resentencing.

AFFIRMED and REMANDED.