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United States v. Abu Khatallah

United States District Court, District of Columbia

October 12, 2017

AHMED SALIM FARAJ ABU KHATALLAH, also known as “Ahmed Abu Khatallah, ” also known as “Ahmed Mukatallah, ” also known as “Ahmed Bukatallah, ” also known as “Sheik, ” Defendant.



         The 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.

         I. Background

         Defendant 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).

         In 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 trial:

(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.

         Memo. 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.

         While 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.

         The 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.

         II. Legal Standards

         The 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. 804(a)(5)(A).

         Because 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 (1965)).

         III. ...

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