United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT HAROLD LASHAWN NERO'S
MOTION FOR ORDER ALLOWING DEPOSITION OF DEFENSE WITNESSES
A. Goldsmith, United States District Judge
matter is before the Court on Harold Lashawn Nero's
motion for an order allowing deposition of defense witnesses
(Dkt. 293). Nero seeks to conduct several pretrial
depositions of defense witnesses who he fears will be
unavailable at trial due to their dangerous and itinerant
lifestyles. The Government filed a response opposing
Nero's motion (Dkt. 300), and Nero filed a reply brief in
support of his motion (Dkt. 301). For the reasons stated
below, Nero's motion will be denied.
criminal case involves multiple defendants, all of whom were
indicted by a grand jury on charges stemming from their
alleged roles in a large human trafficking and drug
distribution conspiracy at the Victory Inn Hotel on Michigan
Avenue in Detroit, Michigan. During discovery, the Government
disclosed video footage containing three “suspicious
incidents” that it says supports the charges of sex
trafficking and conspiracy to distribute narcotics against
Nero. Nero Mot. at 5. Defense counsel investigated the
incidents and has located witnesses who he believes will help
prove Nero's innocence. Id. at 6. However,
defense counsel says that the witnesses identified have no
permanent homes, they are addicted to heroin and live
lifestyles that are troubled, itinerant, and dangerous.
of deposition testimony in criminal cases is highly
disfavored, primarily because it impairs the factfinders'
ability to observe a deponent's demeanor, and because
such use tends to diminish a defendant's Sixth Amendment
confrontation rights. United States v. Drogoul, 1
F.3d 1546, 1552 (11th Cir. 1993); United States v.
McKeeve, 131 F.3d 1, 8 (1st Cir. 1997). A party must
show “exceptional circumstances . . . in the interest
of justice” to depose a prospective witness and to use
that deposition testimony at trial. Fed. R. Crim. P.
15(a)(1). Physical unavailability is “but one factor in
determining whether exceptional circumstances in the
interests of justice exist.” United States v.
Johnson, 752 F.2d 206, 209 (6th Cir. 1985) (internal
marks omitted) (citing 2 Wright, Fed. Prac. & Proc.:
Crim. 2d, § 242 (1982)). Other factors include
considering whether “injustice will otherwise result
without the material testimony that the deposition could
provide, ” and whether “countervailing factors
would make the deposition unjust to the nonmoving
party.” United States v. Thomas, 62 F.3d 1332,
1341 (11th Cir. 1995).
argues that the witnesses he seeks to depose are material to
his defense, but that they have itinerant and dangerous
lifestyles that make it uncertain whether they will appear to
testify at trial. Nero Mot. at 12-13. However, even assuming
that all of these witnesses are material to Nero's
defense and that there would be no prejudice to the
Government in taking a pretrial deposition, speculation that
witnesses may become unavailable in the future does not
constitute exceptional circumstances, United States v.
Patrick, No. 16-CR-20390, 2017 WL 1036092, at *5 (E.D.
Mich. Mar. 17, 2017).
must be more than mere doubt that a material witness will be
unavailable to warrant a pretrial deposition. For example,
exceptional circumstances exist where a witness is outside
the country, and therefore beyond a court's subpoena
power, and is unlikely to voluntarily cross an international
border illegally to attend trial. United States v.
Farfan-Carreon, 935 F.2d 678, 680 (5th Cir. 1991).
Exceptional circumstances may also exist where a witness
refuses to testify due to safety concerns, Johnson,
752 F.2d at 208, or witnesses are of advanced age such that
physical infirmities make it impossible to testify at trial,
United States v. Keithan, 751 F.2d 9, 12 (1st Cir.
1984). By contrast, courts have denied pretrial depositions
where a witness speculates that he may have work commitments
in a foreign country during trial, United States v.
Kassar, 572 F.Supp.2d 375, 377 (S.D.N.Y. 2008), or a
witness will have brain surgery on the first day of a
six-week trial and “may” lose her ability to
testify later in the trial, United States v.
Daniels, 194 F.R.D. 700, 702 (D. Kan. 2000).
the trial is expected to last several months. Although some
of Nero's witnesses are difficult to locate, there will
be time to find them both before and during trial. Nero has
not met his burden of showing exceptional circumstances to
warrant pretrial depositions of defense witnesses. Therefore,
Nero's motion is denied.
reasons stated above, Nero's motion for an order allowing
deposition of ...