Federated States of Micronesia v Wainit [2005] FMSC 27; 13 FSM Intrm. 301 (Chk. 2005) (28 June 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Wainit, [2005] FMSC 27; 13 FSM Intrm. 301 (Chk. 2005)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TADASHI WAINIT and KERSON RIZAL,
Defendants.

_________________________________________

CRIMINAL CASE NO. 2004-1512

MEMORANDUM OF ORDER CONCERNING DEPOSITIONS

Martin Yinug
Associate Justice

Hearing: June 27, 2005
Decided: June 27, 2005
Memorandum Entered: June 28, 2005

APPEARANCES:

For the Plaintiff:
Matthew L. Olmsted, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (Wainit):
Peter J. Stelzer, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

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HEADNOTES

Criminal Law and Procedure - Depositions
There are three elements a party in a criminal case seeking to take a deposition must satisfy - 1) there must be exceptional circumstances, 2) it must be in the interest of justice, and 3) it must be the party’s own prospective witness whose testimony is to be preserved for use at trial. The movant has the burden of showing whether exceptional circumstances exist. What must be shown is that the witness is unavailable to attend the trial, that the witness’s testimony would be material, and that such testimony would be for the moving party’s benefit or in some other way in the interest of justice. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 304 (Chk. 2005).

Criminal Law and Procedure - Depositions; Criminal Law and Procedure - Discovery
Rule 15 allows a party, in exceptional circumstances, to depose his own material witness to preserve testimony for trial. It is not, however, a method of pretrial discovery. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 304 (Chk. 2005).

Criminal Law and Procedure
Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ decisions, the court may look to U.S. sources for some help in interpreting the rule when FSM cases do not provide a full answer. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 304 n.1 (Chk. 2005).

Criminal Law and Procedure - Depositions; Criminal Law and Procedure - Right to Confront Witnesses
An accused has a constitutional right to be confronted with the witnesses against him. Both the Constitution and the criminal rules contemplate trial by live testimony, not by deposition. This is in part because of the desirability of having the factfinder observe the witnesses’ demeanor. Exceptional circumstances are thus required for depositions in criminal cases. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 304 (Chk. 2005).

Criminal Law and Procedure - Depositions; Criminal Law and Procedure - Discovery; Evidence - Witnesses
A defendant may obtain a witness’s statement in the government’s hands either through Rule 16 discovery or through Rule 26.2(a) procedures. It is not obtainable by deposition. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 304-05 (Chk. 2005).

Criminal Law and Procedure - Depositions
Rule 15 only allows depositions to be taken to preserve testimony for use at trial. It does not permit a witness who is available to attend trial to be deposed beforehand. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 305 (Chk. 2005).

Criminal Law and Procedure - Depositions
Rule 15 does not allow a deposition to be taken to discover evidence to be used solely to support a defendant’s allegations in one of his pretrial motions on a collateral matter concerning matters that occurred within the Department of Justice after the date the offenses charged occurred. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 305 (Chk. 2005).

Criminal Law and Procedure; Evidence - Witnesses
A non-party under subpoena may move to quash the subpoena directed to him. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 305 (Chk. 2005).

Criminal Law and Procedure - Depositions
A criminal defendant may depose his own witness, even an adverse or hostile witness, in the interests of justice if exceptional circumstances exist. Exceptional circumstances may exist when the potential witness would be unavailable for trial. Unavailability for trial is defined by FSM Evidence Rule 804(a). FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 305 (Chk. 2005).

Criminal Law and Procedure - Depositions
A witness is unavailable if he is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A foreign resident’s attendance at trial cannot be secured by process since the FSM Supreme Court’s subpoena power does not extend into other countries. Merely being resident in a foreign country does not necessarily mean the witness is unavailable, but when the travel expenses are burdensome or when the witness unwilling to return for trial testimony, a possibility that may be more likely when he is an adverse, or even hostile, witness, a foreign resident may be considered unavailable and a deposition warranted. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 305-06 (Chk. 2005).

Criminal Law and Procedure - Depositions
When a defendant has made no showing how a witness’s testimony would be beneficial to him, but, it is a short time before the witness departs the FSM, and when the defendant has made a minimal showing it may be in the interests of justice and thus managed to meet his burden to show exceptional circumstances, the witness can be deposed although technically the witness might not be unavailable until he has actually left the FSM. The deposition should be limited to trial testimony and not to be used for discovery, or for collateral matters, or for matters that could not be considered trial testimony. FSM v. Wainit, [2005] FMSC 27; 13 FSM Intrm. 301, 306 (Chk. 2005).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

This came before the court on Matthew Crabtree’s Motion to Quash and on Tadashi Wainit’s Motion to Depose Emilio Musrasrik or in the Alternative to Strike His Affidavit. On June 27, 2005, a telephonic hearing was held on both motions and the court, from the bench, denied the motion to depose Musrasrik and effectively granted in part and denied in part the motion to quash. This memorializes and enters that order.

I. Parties’ Contentions

Counsel for defendant Tadashi Wainit wanted to take depositions of two persons, Matthew Crabtree and Emilio AMusrasrik, on June 27, 2005. Crabtree is a former FSM Assistant Attorney General who was an eyewitness to the events on September 6, 2002 that are the basis of the offenses charged in this case and who is scheduled to depart the FSM shortly. Musrasrik is a current FSM Assistant Attorney General. Crabtree sought to quash the subpoena issued to take his deposition, which the court’s oral June 23, 2005 order (entered in writing June 25, 2005) permitted. The government opposed Wainit’s motion to take Musrasrik’s deposition.

In support of his motion to quash, Crabtree contended that he was available to be called as a witness for trial, that he would appear for trial if the appropriate travel arrangements were made, and that his evidence would not be helpful to defendant Wainit so Wainit had not established his testimony’s materiality to Wainit’s case.

Wainit questioned whether Crabtree even had standing to challenge the subpoena directed to him. Wainit asserted that Crabtree cannot hide behind the right against self-incrimination and that he would have prosecutorial immunity anyway. Wainit noted that it is not a witness’s decision to make whether that witness had evidence that is favorable to a defendant; it is the defendant’s. Wainit noted that even if Crabtree says he is available to return to the FSM for trial, once he has left the FSM, the defendant and the court have no way to compel him to return, and that even if Crabtree were still willing to return, it would be a big financial burden for the Public Defenders’ Office to bring him back.

II. Rule 15 Depositions

The applicable rule of criminal procedure concerning depositions reads:

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 and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. . . .

M >FSm. Ri 15(a)15(a). There are thus three elements a party in a criminal case seeking to take a deposition must satisfy - 1) there must be exceptional circumstances, 2) it must be in the int of je, anit must must be t be the pahe party’s own prospective witness whose testimony is to be preserved for use at trial. The movant has the burden of showing whether "exceptional circumstances" exist. Wolfe v. FSM, [1985] FMSC 17; 2 FSM Intrm. 115, 122 (App. 1985). What must be shown is that the witness is unavailable to attend the trial, that the witness’s testimony would be material, and that such testimony would be for the moving party’s benefit or in some other way in the interest of justice. Id.

Rule 15 thus allows a party, in exceptional circumstances, to depose his own material witness to preserve testimony for trial. It is not, however, a method of pretrial discovery. United States v. Hutchings, [1985] USCA8 56; 751 F.2d 230, 236 (8th Cir. 1984)^[1] (Rule 15's stated objective is "the preservation of evidence for use at trial"; "rule does not have as its purpose to provide a method of pretrial discovery"), cert. denied, 474 U.S. 829 (1985); United States v. Fischel, [1982] USCA5 1017; 686 F.2d 1082, 1091 (5th Cir. 1982) ("Depositions are not discovery tools in criminal cases."); United States v. Rich, [1978] USCA9 867; 580 F.2d 929, 933-34 (9th Cir.) (in criminal cases, unlike civil cases, "depositions are not allowed merely for the purpose of discovery"; "defendant may depose a witness only if the witness is unable to attend trial"), cert. denied, 439 U.S. 935 (1978); United States v. Bynum, [1978] USCA5 119; 566 F.2d 914, 924 (5th Cir.) (when abundantly clear that purpose of proposed deposition was for discovery and not perpetuation of testimony since witness was available to be called as an adverse witness, trial court did not err in denying deposition), cert. denied, 439 U.S. 840 (1978); United States v. Adcock, [1977] USCA8 369; 558 F.2d 397, 406 (8th Cir.) (Rule’s principal objective is the preservation of evidence for use at trial; not to provide a method of pretrial discovery), cert. denied, 434 U.S. 921 (1977); United States v. Varbaro, 597 F. Supp. 1173, 1181 (S.D.N.Y. 1984) ("Rule 15 depositions are not to be used for discovery but for the preservation of testimony"); United States v. Gruberg, 493 F. Supp. 234, 253 (S.D.N.Y. 1979) ("depositions are not allowed merely for the purpose of discovery").

Rule 15's result may be constitutionally required. The accused has a constitutional right "to be confronted with the witnesses against him." FSM Const. art. IV, §&#16Both theh the Constitution and the criminal rules contemplate trial by live testimony, not by deposition. United States v. McKeeve, [1997] USCA1 319; 131 F.3d 1, 8-10 (1st Cir. 1997) (when testimony pres by deposition reasonable eble efforts to facilitate defendant’s presence at deposition must be taken); United States v. Wilson, [1979] USCA3 494; 601 F.2d 95, 97-98 (3d Cir. 1979) (although attendance at trial is favored method of presenting testimony in criminal cases, deposition in foreign country of fugitive with relevant exculpatory evidence should have been permitted). This is in part because of the desirability of having the factfinder observe the witnesses’ demeanor. Exceptional circumstances are thus required for depositions in criminal cases.

III. Musrasrik Deposition

Emilio Musrasrik was not alleged to be present when the events in this case took place. Wainit asserts that Musrasrik may have evidence for use at trial concerning whether witness Crabtree made a statement to the prosecution that has not been disclosed. A defendant may obtain a witness’s statement in the government’s hands either through Rule 16 discovery or through Rule 26.2(a) procedures. FSM v. Walter, [2005] FMSC 26; 13 FSM Intrm. 264, 267-68 (Chk. 2005). It is not obtainable by deposition.

Wainit does not claim that Musrasrik was present before or when the September 6th events took place. There has been no showing that Musrasrik will be unavailable for trial. Wainit thus does not seek to preserve Musrasrik’s testimony for use at trial. Rule 15 only allows depositions to be taken to preserve testimony for use at trial. It does not permit a witness who is available to attend trial to be deposed beforehand.

Moreover, Wainit mostly sought to delve into the FSM Department of Justice’s internal workings to discover evidence to be used solely to support Wainit’s allegations in one of his pretrial motions on a collateral matter concerning matters that occurred within the Department of Justice after September 6, 2002. Rule 15 does not allow Musrasrik’s deposition to be taken for such a purpose. Cf. Wolfe, 2 FSM Intrm. at 123 (not error to deny defendant opportunity to depose witness in California when that proposed witness was not present in Truk when the defendant made the misrepresentations which led to his convictions and thus had no information which might have influenced the trial court’s findings); In re Wolfson, 453 F. Supp. 1087, 1096 (S.D.N.Y. 1978) (Rule 15(a) can only be used to preserve known evidence; it cannot be used to ascertain evidence to support a collateral petition for writ of coram nobis). The motion to depose Musrasrik was therefore denied.

IV. Crabtree’s Deposition

Matthew Crabtree sought to quash the subpoena directed to him. Wainit contended that since Crabtree is not a party to this case, he has no standing to contest the subpoena for his deposition. A non-party under subpoena may move to quash the subpoena directed to him. Cf. AHPW, Inc. v. FSM, [2001] FMSC 35; 10 FSM Intrm. 420, 423, 426 (Pon. 2001) (non-party’s motion to quash subpoena considered and protective order issued); In re Nwamu, 421 F. Supp. 1361, 1365 (S.D.N.Y. 1976) (a witness always has a meaningful opportunity to challenge a subpoena’s validity before a judge); In re Patriarca, 396 F. Supp. 859, 862-63 (D.R.I. 1975) (persons named in subpoenas had standing to move to quash); In re Iaconi, 120 F. Supp. 589, 590 (D. Mass. 1954) (person not named in subpoena had no standing to sue to quash).

Crabtree was an eyewitness to the September 6th events from which the charges against Wainit stem. Wainit apparently contends that he would call Crabtree as an adverse witness and Wainit conceivably could use his testimony at trial. Wainit may depose his own witness, even an adverse or hostile witness, in the interests of justice if exceptional circumstances exist.

Exceptional circumstances may exist when the potential witness would be unavailable for trial. Crabtree, reportedly, is leaving this week to resume permanent residence in the United States. Wainit contends that Crabtree would thus be unavailable for trial. Unavailability for trial is defined by FSM Evidence Rule 804(a). FSM Crim. R. 15(e). Under Evidence Rule 804(a)(5) (the only part of Rule 804 that would apply in the present circumstance) a witness is unavailable if he "is absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by proce other reasonablenable means." A foreign resident’s attendance at trial cannot be secured by process since the FSM Supreme Court’s subpoena power does not extend into other countries.

Merely being resident in a foreign country does not necessarily mean the witness is unavailable. E.g., Wolfe, 2 FSM Intrm. at 122 (no clear showing that California resident was unavailable for trial or that he was precluded from coming to Truk for trial); United States v. Birrell, 276 F. Supp. 798, 822-23 (S.D.N.Y. 1967) (Rule 15 is not a mandatory automatic provision requiring court to order deposition of any foreign witness; that Toronto Stock Exchange members unwilling to come to New York at their own expense not enough to show that they are unable to attend trial). But when the travel expenses are burdensome, a foreign resident may be considered unavailable and depositions warranted. United States v. Johnpoll, [1984] USCA2 618; 739 F.2d 702, 709-10 (2d Cir. 1984) (when foreign national witnesses not amenable to U.S. process and their demands for expenses to travel to U.S. were burdensome, they were unavailable for trial and their depositions could be taken); United States v. Sun Myung Moon, 93 F.R.D. 558, 560 (S.D.N.Y. 1982) (witnesses are unavailable and depositions may be taken when travel costs to bring witnesses to U.S. would be excessive).

Thus the expense to bring Crabtree back from the U.S. mainland (where he would not be subject to FSM process) could meet the exceptional circumstances requirement even if he asserts he is willing to attend trial. Also once he has returned to the U.S. mainland Crabtree may become unwilling to return for trial testimony. A possibility that may be more likely since he is an adverse, or even hostile, witness to Wainit. Preserving testimony by deposition for use at trial would also be warranted in such circumstances. United States v. Stroop, 121 F.R.D. 269, 271 (E.D.N.C. 1988) (depositions of foreign residents warranted to preserve testimony for trial when foreign resident not subject to U.S. subpoena power and unwilling to come to U.S.).

Wainit has made no showing how Crabtree’s testimony would be beneficial to him. But, considering the short time before Crabtree’s departure from the FSM, Wainit has made a minimal showing it may be in the interests of justice and thus managed to meet his burden to show exceptional circumstances. Crabtree could thus be deposed.

Wainit also sought to depose Crabtree concerning Wainit’s allegations in his motion to disqualify the entire FSM Department of Justice. Just as Wainit cannot depose Musrasrik to support his allegations in pretrial motions or to conduct discovery, Wainit cannot depose Crabtree on those same matters.

Although technically Crabtree might not be unavailable until he has actually left the FSM, under the exception circumstances present in this case, Crabtree’s deposition was permitted to go forward, but limited to testimony that may be used at trial - that relates to the offenses charged - because the sole purpose of allowing a deposition in a criminal case is only to preserve testimony for trial. The deposition was ordered not to be used for discovery, or for collateral matters, or for matters that could not be considered trial testimony - in essence, not for any matters that occurred after September 6, 2002.

V. Conclusion

Accordingly, the motion to depose Emilio Musrasrik was denied, the alternative motion to strike his affidavit was denied, and Matthew Crabtree’s deposition was permitted to go forward as scheduled, but was limited solely to the preservation of testimony to be used at trial.

[13 FSM Intrm. 308]

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^[1] Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ decisions, Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209, 214 (App. 1982), the court may look to U.S. sources for some help in interpreting the rule, see, e.g., Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984); FSM v. Fritz, [2004] FMSC 35; 13 FSM Intrm. 88, 90 (Chk. 2004), when FSM cases do not provide a full answer.