Appeal from a judgment of civil contempt entered in the United States District Court for the Eastern District of New York, by Edward R. Neaher, J . Reversed.
Before Meskill and Kearse, Circuit Judges, and Dooling,*fn* District Judge.
On May 30, 1979, appellants William P. Cassese and Saul Duarte Diaz were indicted in the Eastern District of New York, along with Manuela Fernandez and David Yemzow, in a three count indictment charging the four defendants with possessing with intent to distribute cocaine, importing cocaine, and conspiring to import and distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 960(a)(1) and 963 and 18 U.S.C. § 2. Cassese, Diaz and Fernandez each pleaded guilty to one count of the indictment after the government agreed to request dismissal of the remaining counts at the time of sentencing; Yemzow elected to go to trial.
At the time of their pleas both Cassese and Diaz indicated to the government that they would not testify against any accomplices. After the acceptance of the pleas by the district court, the government, seeking what had not been obtained in plea negotiation, moved under 18 U.S.C. § 6003 for an order compelling the testimony of Cassese and Diaz at Yemzow's trial through a grant of use immunity under 18 U.S.C. § 6002.*fn1 Judge Neaher, of the United States District Court for the Eastern District of New York, granted the government's motion.
Subsequently, after learning that appellants might refuse to testify at Yemzow's trial despite the district court's grant of immunity, the government moved for an order under Fed.R.Crim.P. 15 authorizing the government to depose appellants before the commencement of Yemzow's trial. At the urging of the government, this motion was granted before appellants were sentenced.
Before the date set by Judge Neaher for the depositions, Cassese requested and received a stay of the district court's order, to allow him to file in this Court a petition for a writ of mandamus directing that the deposition order be vacated. After Cassese's petition was denied by this Court, without opinion, Judge Neaher again ordered that the deposition proceed, with sentencing to follow shortly thereafter. Cassese and Diaz both refused to testify at the deposition and Judge Neaher held them both in contempt, ordering them confined pursuant to 28 U.S.C. § 1826.*fn2 Cassese, later joined by Diaz, filed a notice of appeal in this Court and moved for an order staying the contempt citation pending this appeal. Subsequently, the government represented to this Court that any time served by appellants under the contempt citation would be credited toward their eventual sentences if this appeal were successful and the stay were denied as moot.
After hearing oral argument of this appeal, we directed, by order dated November 1, 1979, that the contempt citations be vacated and the order for depositions be reversed, noting that a written opinion would follow.*fn3 We have been informed by the parties that since the filing of our order appellants have been sentenced and the outstanding counts against them have been dismissed. In addition, the indictment against Yemzow, the only defendant now remaining in the case, has been dismissed without prejudice.
The issue before us is extremely narrow and our holding is intended to be no broader. The novel question raised by the sequence of events just recounted is whether the district court properly ordered that appellants be deposed before they were sentenced.
Rule 15(d), which governs the taking of depositions in criminal cases, provides in pertinent part:
Subject to such additional conditions as the court shall provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that (1) in no event shall a deposition be taken of a party defendant without his consent . . . .
Appellants argue that prior to sentencing they remained "party defendants" within the meaning of Rule 15(d) and, as such, were not subject to being deposed absent their consent. The United States Attorney for the Eastern District of New York has taken the position that only under a "hyper-technical" reading of this language could appellants be considered party defendants between the time of their pleas and the time of their sentencing.
In our view the government's argument is its own best refutation. The only reason proffered by the government for seeking a Rule 15 order prior to sentencing is their desire to capitalize on appellants' status as unsentenced party defendants. The government admittedly sought to increase the pressure on appellants to submit to depositions by adding ...