United States District Court, Eastern District of New York
MEMORANDUM AND ORDER
Sandra L. Townes United States District Judge
Ali Yasin Ahmed, Madhi Hashi, and Mohamed Yusuf (“Defendants”) have been charged with crimes relating to their alleged support of a foreign terrorist organization. Defendants are charged with “providing material support or resources to” and “receiving military-type training from” al-Shabaab, a “designated foreign terrorist organization, ” in violation of 18 U.S.C. §§ 2339B and 2339(D), conspiring to provide and attempting to provide material support to al-Shabbab, in violation of 18 U.S.C. § 2339B, and using a machine gun in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1). Trial in this case is presently scheduled to commence on February 2, 2015. Currently before the Court are two motions. First, the Government moves, pursuant to Rule 15(c)(3) of the Federal Rules of Criminal Procedure, for leave to take depositions of two cooperating witnesses abroad and outside the presence of Defendants. Second, the Government seeks to adjourn the trial until May 18, 2015. For the following reasons, the Government’s motion is granted in its entirety.
A. Rule 15(c)(3) Depositions
Rule 15(c)(3) of the Federal Rules of Criminal Procedure requires this Court to make certain “case-specific findings” prior to permitting depositions to take place abroad and outside the presence of Defendants. Fed. R. Crim. P. Rule 15(c)(3). Prior to permitting such depositions to take place, the Court must find “all of the following:”
(A) the witness’s testimony could provide substantial proof of a material fact in a felony prosecution;
(B) there is a substantial likelihood that the witness’s attendance at trial cannot be obtained;
(C) the witness’s presence for a deposition in the United States cannot be obtained;
(D) the defendant cannot be present because:
(i) the country where the witness is located will not permit the defendant to attend the deposition;
(ii) for an in-custody defendant, secure transportation and continuing custody cannot be assured at the witness’s location; or
(iii) for an out-of-custody defendant, no reasonable conditions will assure an appearance at the deposition or at trial or sentencing; and
(E) the defendant can meaningfully participate in the deposition through reasonable means.
Fed. R. Crim. P. Rule 15(c)(3). Additionally, under the Sixth Amendment’s Confrontation Clause, a criminal defendant must have “a meaningful opportunity to cross-examine witnesses against him in order to show bias or improper motive for their testimony.” Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008).
Upon consideration of the parties’ submissions, including the Government’s affidavits, the Court hereby authorizes the requested depositions after making the following case-specific findings: The testimony of the proposed witnesses could provide substantial proof of material facts in this prosecution because the witnesses have personal knowledge of the conduct of one or more of the defendants and that knowledge bears on the offenses charged in the Superseding Indictment. At this time, despite the considerable efforts of the Government’s attorneys, there is a substantial likelihood that the Government will be unable to secure the witnesses’ presence in the United States, for either depositions or to testify at trial. This is because (1) the witnesses are currently in the custody of foreign governments and those governments will not authorize the witnesses to travel to the United States for the purposes of testifying, and (2) due to their criminal convictions, the United States may not permit the witnesses to enter the United States. Likewise, the defendants cannot be present at the depositions abroad because secure transportation and continuing custody cannot be assured at the witnesses’ locations. Finally, the Court finds that the defendants can meaningfully participate in the depositions through reasonable means, as outlined in the Government’s November 26 and December 12, 2014 letters. Specifically, as in US v Ahmed Omar Abu Ali, 528 F.3d 210 (4th Cir. 2008), the depositions will take place abroad in secure locations; the witnesses will testify under oath; counsel for each of the defendants’ will physically attend the depositions; defendants will “virtually” participate via contemporaneous live-streaming video; each of the defendants will sit with one of ...