United States District Court, District of Columbia
OPINION AND ORDER
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
Government has moved to admit the pre-trial deposition of a
witness designated as “W-234.” The deposition was
conducted abroad by videoconference in July 2017 pursuant to
Federal Rule of Criminal Procedure 15. The Defendant argues
that the Court should not admit the deposition because W-234
is not unavailable for trial, and because he did not have
adequate opportunity to cross-examine the witness. For the
reasons that follow, the Court will grant the
Government's motion to allow admission of the deposition.
Ahmed Salim Faraj Abu Khatallah was charged in 2014 with
eighteen offenses stemming from the September 2012 attack on
United States facilities in Benghazi, Libya. The Government
moved in February 2015 to take the deposition of a witness
designated as “W-234” pursuant to Federal Rule of
Criminal Procedure 15. ECF No. 38. Relying on an affidavit
from a supervisory FBI Special Agent, the Government
explained that W-234 is a Libyan national working in eastern
Libya as the commander of a military unit, and that there was
a substantial likelihood that W-234 would be unavailable to
testify at trial. See Decl. of Special Agent Victor
E. Camaya (ECF No. 39).
March 2015, the Court granted the Government's motion. As
the Court explained, several facts, in combination,
established that the witness would likely be unavailable for
(1) he is a foreign national living in a country without an
extradition treaty with the united States; (2) he resides in
eastern Libya, an extremely dangerous region currently in the
throes of a civil war; (3) militant groups in eastern Libya
have threatened to kill any individual who cooperates with
the United States; and (4) there have been specific threats
and attacks targeting W-234 and his family because of his
position as a Libya military commander.
Op. & Order 5 (March 12, 2015) (ECF No. 48). The Court
deferred ruling on the Defendant's arguments that the
deposition would violate his rights under the Confrontation
Clause, explaining that those arguments “can better be
addressed if and when the government seeks to introduce the
deposition at trial.” Id. at 7.
the Government had initially sought to conduct the deposition
that month in Washington, D.C., it filed a supplemental
motion in June 2017 requesting that the deposition occur
abroad, citing W-234's inability to travel to the United
States. Gov.'s Supp. Mot. Misc. Relief (ECF No. 228). The
Court granted that motion, and the deposition ultimately took
place on July 28, 2017 in Cairo, Egypt. Opinion & Order
(July 7, 2017) (ECF No. 240). The Court oversaw the
deposition and ruled on objections by videoconference from
its courtroom in Washington, D.C., where Abu Khatallah was
present with defense counsel. The Defendant and his counsel
in Washington were able to view the proceedings in Cairo and
to communicate by telephone with his counsel there. The
deposition was video recorded in full. W-234 testified under
the pseudonym “Khalid Abdullah, ” but defense
counsel were provided with his real name in April 2015. The
deposition lasted all day, with three and a half hours
allotted for each party. Abu Khatallah's counsel
conducted about three hours of cross-examination.
Government now seeks to admit the video deposition into
evidence. In an Opinion and Order dated October 10, 2017, the
Court indicated that it would allow the deposition to be
admitted and ruled on the parties' objections to certain
portions of W-234's testimony.
admissibility of a Rule 15 deposition at trial is governed by
Federal Rule of Evidence 804. Rule 804(b)(1) provides that,
notwithstanding the general rule against hearsay, the Court
may admit “former testimony” given at a
“lawful deposition” so long as (a) “the
declarant is unavailable as a witness” at trial and (b)
the adverse party had “an opportunity and similar
motive to develop” the testimony through
cross-examination. A declarant is considered
“unavailable” if he “is absent from the
trial or hearing and the statement's proponent has not
been able, by process or other reasonable means, to procure .
. . the declarant's attendance.” Fed.R.Evid.
the Government seeks to introduce this Rule 15 deposition
against a criminal defendant, its introduction implicates the
Confrontation Clause of the Sixth Amendment, which provides
constitutional backing for Rule 804(b)'s requirements.
Specifically, the Confrontation Clause bars the introduction
of an absent witness's prior testimony “unless the
prosecutorial authorities have made a good-faith effort to
obtain his presence at trial.” Barber v. Page,
390 U.S. 719, 725 (1968). The Clause further requires that
the defendant have “a complete and adequate opportunity
to cross-examine” the declarant during the deposition.
California v. Greene, 399 US. 149, 165-66 (1970)
(quoting Pointer v. Texas, 380 U.S. 400, 407