United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on DEFENDANT'S MOTION FOR
LEAVE TO TAKE RULE 15 DEPOSITIONS (ECF No. 35) (the
"Deposition Motion"), seeking leave to depose Josue
Giron ("Giron"),  Elmer Lopez ("Lopez"),
and Yeris Hernandez Ordondez ("Yeris"), the
Defendant's brother. For the reasons set forth below, the
motion will be denied.
Hernandez Ordonez ("Ordonez") is charged with
Conspiracy to Commit Murder in Aid of Racketeering, in
violation of 18 U.S.C. § 1959(a)(5), Murder in Aid of
Racketeering, in violation of 18 U.S.C. §§ 1959(a)
and 2, and Use of a Firearm During a Crime of Violence
Causing Death to Another, in violation of 18 U.S.C.
§§ 924(c)(1)(A), (j) and 2. Trial is scheduled for
May 15, 2017.
charges were brought by way of an Indictment (ECF No. 7) that
has now been superseded. The Superseding Indictment (ECF No.
73) (hereinafter SSI) makes no substantive changes to the
counts alleged against Ordonez. A summary of the facts that
form the basis for the charges provide the context necessary
for resolving the Defendant's Deposition Motion.
begin, it is alleged that, at the time of the offenses in
July 2014, Ordonez (a/k/a "Probador") was a member
of a gang, La Mara Salvatrucha, commonly known as MS-13.
MS-13 allegedly operates in the United States by way of
"cliques" or "sets" run by the
"First Word" whose assistant is the "Second
Word." (SSI at ¶ 7) . The Government alleges that,
in order to secure membership in MS-13, an aspiring recruit
must be subject to a violent beating by other gang members
while one gang member counts to 13. (SSI at ¶ 3).
Violence, including murder, was used as a means of punishing
rival gang members or "chavalas, " as well as MS-13
members who cooperated with law enforcement.
basis of all charges against Ordonez arise out of an alleged
agreement that he made with other MS-13 members and MS- 13
recruits to kill Osbin Hernandez-Gonzales, who was thought to
be cooperating with and a member of a rival gang. Ordonez and
other MS-13 members allegedly confronted Gonzales about his
gang membership at a house rented by Ordonez. Gonzales fled
but was located at a park near the James River. Ordonez and
other MS-13 members drove to the park in Ordonez's van to
kill Gonzales. When they located Gonzales, he again fled, but
Ordonez chased him and, after reassuring him that all was
well, lured Gonzales to an area in the park where others
MS-13 members waited to kill him. Gonzales was then shot to
death by members of MS-13.
briefing papers disclose that, as part of his defense,
Ordonez intends to offer evidence that he was not a member of
MS-13. To that end, defense counsel represents that two of
the witnesses to be deposed, Giron and Lopez, rented a house
with Ordonez, the house where, on July 11, 2014, MS-13
members allegedly confronted Gonzales about his affiliation
with the other gang. This is also the alleged location at
which the murder of Gonzales was planned and was set in
motion. According to defense counsel, Giron and Lopez will
testify about the "circumstances surrounding (1)
Defendant's renting the house, (2) the departure of
Defendant and themselves from the house;(3) the circumstances
by which the members of the Sailor Set came to meet Defendant
and his two roommates and conduct clique activities at the
house; and (4) Defendant's departure from the  house
and from Richmond." (Def's Motion, ECF No. 35, 2).
Both witnesses will testify "that Defendant never had
associated with MS-13 members prior to his renting the
it is represented that Yeris, the third witness to be
deposed, will testify as to «(1) the circumstances
under which Defendant came to rent the house; (2) that
Defendant had never associated with MS-13; (3) that Defendant
complained about the MS-13 members hanging out in his house;
and (4) the circumstances of Defendant's departure from
the house and from Richmond.'7 (Def's Motion, 2). All
of this testimony is asserted to be relevant to the defense
theory that Ordonez simply was not a member of MS-13. Also,
the defense represents that Yeris will testify that he was
unfamiliar with the Sailor Set before Ordonez moved into the
house and thatwDefendant told [Yeris] they [the
Sailor Set] were always threatening him and he was
depressed", that the members controlled Defendant, used
his car, and called him constantly. (Def's Reply, ECF No.
61, 4-5). Giron, it is said, will testify that the MS-13
members kept Ordonez's car and on the night the MS-13
memberswjumped the two young men into the gang,
Defendant never left the house." Id. Lopez will
testify that they "did not like the MS-13 members
hanging out at the house, [but] there was nothing they could
do about it." Id.
Deposition Motion is based on the representation of defense
counsel that the three prospective witnesses, Giron, Lopez,
and Yeris, have advised that they are illegally in the United
States and that they believe that, wif they come
to court to testify, they will be arrested, they will likely
be prosecuted, and they will be deported." (Def.'s
Motion, 2). To show that those apprehensions are well-founded
and reasonable, such that Rule 15 depositions are proper,
Ordonez cites to several newspaper articles that discuss the
arrest of illegal immigrants and the asserted general
apprehension of illegal immigrants in the wake of
governmental statements about future enforcement of the
nation's immigration laws.
Government has pointed to additional facts that, in its view,
are significant to resolving the Deposition Motion. First,
the Government explains that all three witnesses are subject
to compulsory process by way of subpoena and that no
subpoenas have been either issued or served. The defense does
not dispute this point, but says that the witnesses have said
they will not respond to a subpoena.
the Government advises that its agents know the location of
Lopez and have been to an address believed to be the
residence of Yeris. Agents have communicated with both Lopez
and Yeris and, according to the Government, Lopez has
informed its agents that he is willing to attend trial and to
testify.The Government thinks it significant that, although
it has been in communication with Lopez and Yeris for months,
it has not arrested them. In a telephone conference, the
Government represented that the prosecution team (consisting
of members of the Office of the United States Attorney for
the Eastern District of Virginia, the Department of Justice,
Homeland Security Administration, and the FBI) has neither
the plan nor the intention to arrest any of the three
prospective witnesses if they appear to testify in this
case. Nor, says the Government, are any of the
prospective witnesses encompassed within the enforcement
activity by the Homeland Security Administration, which the
defense asserts to have given rise to the apprehension that
the witnesses claim to have. The defense has not shown
foregoing is the factual context in which the Deposition
Motion must be assessed and to which the applicable law must
in criminal proceedings, unlike their civil counterparts, are
the exception not the rule; they are in other words,
disfavored." United States v. Rosen, 24 0
F.R.D. 204, 208 (E.D. Va. 2007). Nonetheless, Fed. R. Crim.
P. 15, provides, in relevant part, that "[a] party may
move that a prospective witness be deposed in order to
preserve testimony for trial. The court may grant the motion
because of exceptional circumstances and in the
interest of justice." Fed.R. Crim. P. 15(a) (1)
United States v. Rosen, the Court explained that:
The "exceptional circumstances" and "interests
of justice" limitations in the Rule's text are
usefully elucidated in the Advisory Committee Note, which
states that courts should grant depositions only "if
it appears that (a) the prospective witness will be unable to
attend or be prevented from attending the trial, (b)
the prospective witness' testimony is material,
and (c) the prospective witness' testimony is necessary
to prevent a failure of justice." Rule 15,
Fed.R.Crim.P., Advisory Committee Note. Unless these
conditions are met, Rule 15 depositions are not appropriate,
whether in the U.S. or abroad. But if these three criteria
are satisfied, the depositions should be ordered, assuming
appropriate compulsory process is available.
240 F.R.D. 204, 208 (E.D. Va. 2007) (emphasis added) .
Although these three requirements are important to the
analysis required by Rule 15, they do not "exhaust the
'meaning of exceptional circumstances.'"
United States v. Jefferson, 594 F.Supp.2d 655, 625
(E.D. Va. 2009) (citing United States v. Fuentes-
Galindo, 929 F.2d 1507, 1509 (10th Cir. 1991)). That
is because courts are required to exercise their
«»discretion in determining whether a deposition
should be taken under the particular circumstances
presented.'" id. In so doing, courts will
"ensure that Rule 15(a) depositions are permitted only
in the rare instances or exceptional circumstances
contemplated by the Rule." United States v.
Jefferson, 594 F.Supp.2d at 665.
[O]rdinarily, exceptional circumstances exist within the
meaning of Rule 15 (a) when the prospective deponent is
unavailable for trial and the absence of his or her ...