IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-374 (JHG) v. :
:
:
xxxxxxxxxxxxxxxxxxx, :
:
:
Defendant. :
MOTION FOR CONTINUANCE AND TO PERMIT
TAKING OF FOREIGN DEPOSITIONS
Defendant xxxxxxxxxxxxxx, through undersigned counsel, respectfully moves the court for a continuance of the trial of this case, which is presently scheduled for April 15, 1997, and for leave to take depositions of certain essential defense witnesses in Cuba. As grounds for this Motion, Mr. xxxxxxx shows the court:
1. Mr. xxxxxxx is charged by indictment with air piracy. Trial is scheduled to commence on April 15, 1997.
2. In order to adequately present a defense to the charge of air piracy, which carries a mandatory minimum sentence of twenty years imprisonment upon conviction, Mr. xxxxxxx requires the presence of certain defense witnesses. Two of those witnesses have previously been identified to the court and to counsel for the government. Based upon counsel's ex parte representations to the court, the court has determined that the two witnesses are material to Mr. xxxxxxx's defense.
3. Pursuant to an order previously entered by the court in this case, the government has assisted the defense in efforts to procure the presence of two essential defense witnesses, Mr. xxxxxxx's wife and one of his sons. On Thursday, April 10, 1997, counsel for the government advised undersigned counsel and the court that the Cuban government had not responded to the government's requests to make these witnesses available for the trial of this case. Moreover, the government advised the court that the Cuban government had withdrawn permission for the government witnesses to leave the country so as to be present in this jurisdiction for the trial of this case on April 15, 1997 and that it was possible that the government would not be ready for trial as scheduled.(1)
4. Counsel for Mr. xxxxxxx are seeking a continuance of the trial in order to request that the Cuban government allow the two defense witnesses to be deposed in Cuba.(2) Although the government has represented to the court that it opposes a continuance, the reality is that the government is not ready for trial because its Cuban witnesses are not present. Therefore, the government cannot be prejudiced by this request for continuance.
5. Additionally, the defense requests that this court order the depositions of the two defense witnesses previously named. Pursuant to Fed. R. Crim. P. 15(a), this court has the authority to order depositions when in exceptional circumstances it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at trial. Depositions of foreign nationals, who cannot come to the United States to testify, and who have relevant testimony to offer, are allowed under the rule. See, United States v. Sensi, 879 F.2d 888 (D. C. Cir. 1989); United States v. Tamura, 694 F.2d 591, 600 (9th Cir. 1982).
6. In a meeting with Mr. xxxxxxx on Friday, April 11, 1997, undersigned counsel obtained his consent to move for this contiuance in order to obtain the depositions of essential defense witnesses.
WHEREFORE, for the foregoing reasons, it is respectfully requested that this Motion be granted.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Teresa Alva
Reita Pendry
Assistant Federal Defenders
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. In further communications on Friday, April 11, 1997, undersigned counsel was advised by the government that its witnesses would not be present in the country for the trial of this case on April 15.
2. Because counsel's request to travel to Cuba to investigate this case and to interview other potential defense witnesses has not been acted upon, counsel has not requested that the court assist in securing the attendance of any witnesses other than Mr. xxxxxxx's wife and son. However, if counsel is permitted to travel to Cuba to conduct interviews, counsel believe that there are other witnesses whose testimony would support Mr. xxxxxxx's defense and counsel would attempt to depose these witnesses as well.