The government was investigating suspected illegal oil discharges from a ship and possible related crimes, and it identified the ship's owner/operator and Chief Officer as targets. Witness 1 and Witness 2 were crew members with material information about the alleged discharges and related statements or conduct, and the court had already deemed them material witnesses. Although not jailed, they were required by court order to remain in Delaware and not leave the United States while the investigation continued. After months in the United States without charges being filed or grand jury testimony being taken, they sought depositions so they could be repatriated.
Issue
When material witnesses subject to Rule 15(a)(2) seek pre-indictment depositions, must they satisfy Rule 15(a)(1)'s exceptional-circumstances standard, or instead the standard incorporated from 18 U.S.C. § 3144? Applying the correct standard, should the court order the depositions immediately and discharge the witnesses?
Rule
For a motion under Rule 15(a)(2), the court applies the standard incorporated from 18 U.S.C. § 3144, not Rule 15(a)(1)'s exceptional-circumstances requirement. The court asks whether the witness's testimony can adequately be secured by deposition and whether further detention is necessary to prevent a failure of justice, with materiality and unavailability remaining critical considerations.
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A federal grand jury in Miami is investigating suspected environmental crimes aboard a cargo vessel. Lina Ortega, a cook from Peru, has been designated a material witness and released on conditions requiring her to remain in southern Florida and surrender her passport; she moves under Rule 15(a)(2) to be deposed so she can return home.
What standard should the court apply to Lina's motion?
Explanation. A motion by a material witness under Rule 15(a)(2) is governed by the standard incorporated from § 3144, not Rule 15(a)(1)'s exceptional-circumstances test. The court must assess whether the testimony can adequately be preserved by deposition and whether continued detention is necessary to prevent a failure of justice. The majority reasoned that material witnesses are differently situated from parties because they are detained or functionally detained without being charged. (Derived from In re Grand Jury Proceedings (n.d.).)