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Law Offices of Matthew H. Green

130 W. Cushing Street

Tucson, AZ 85718

(520) 882-8852

Fax (520) 882-8843

Email: matt@arizonaimmigration.net

Matthew H. Green

Arizona Bar No. 020827

Attorney for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SINISA DJURDJIC,

Defendant.

 CR17-01658-JGZ(DTF)

 DEFENDANT’S RESPONSE TO THE 

GOVERNMENT’S MOTION FOR

RULE 15 DEPOSITIONS

 

 

 

 (HONORABLE JENNIFER G. ZIPPS )

Defendant Sinisa Djurdjic (“Mr. Djurdjic”), by and through undersigned counsel,

submits the following response to the government’s Motion for Rule 15 Depositions. The 

defense requests this Court to deny the government’s request for depositions for the reasons 

stated below.

RESPECTFULLY SUBMITTED this 17th of April, 2019.

LAW OFFICES OF MATTHEW H. GREEN

/s/Matthew H. Green

 Attorney for Defendant

Case 4:17-cr-01658-JGZ-DTF Document 44 Filed 04/17/19 Page 1 of 7
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MEMORANDUM OF POINTS AND AUTHORITIES

I. Facts and Procedural History:

The government requests the district court to order depositions of certain foreign 

individuals who may have information and testimony relevant to the present prosecution. The 

government request is made pursuant to Rule 15(a) and (c)(3) of the Federal Rules of Criminal 

Procedure (“Rule 15”). Paragraph I of the government’s Rule 15 motion states that the defense 

is unwilling to stipulate to any depositions. The defense has engaged in negotiations with the 

government in good faith on how such depositions might properly be held for specific witnesses. 

However, the parties have not been able to agree on how to deal with several fundamental points 

that are raised in Rule 15, mainly concerning whether sufficient information exists that each 

individual witness is unavailable for trial. 

The government’s motion for depositions states that the principal reason for the requested 

depositions is to preserve testimony regarding whether Mr. Djurdjic was a member of a military 

organization when he is alleged to have committed various human rights abuses. The 

government posits that all of the potential witnesses sought to be deposed have either witnessed 

first-hand and/or directly experienced physical abuse or persecution by Mr. Djurdjic. 

II. Legal Analysis:

“Whether to grant or deny a motion to depose a proposed witness in a criminal trial is 

discretionary.” Furlow v. United States, 644 F.2d 764, 767 (9th Cir. 1981). “The district court 

retains broad discretion in granting a Rule 15(a) motion, and considers the particular 

circumstances of each case to determine whether the ‘exceptional circumstances’ requirement 

has been satisfied.” United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998) (quoting 

United States v. Farfan-Carreon, 935 F.2d 678, 679 (5th Cir. 1991)). Although “the textual 

words of Rule 15 do not expressly require ‘materiality,’ it is emphatically clear . . . that the 

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words ‘in the interest of justice’ call for the deposition to offer evidence that is material.” United 

States v. Dillman, 15 F.3d 384, 389 (5th Cir. 1994). The dual textual limitations - because of

exceptional circumstances and in the interest of justice - "are usefully elucidated in [an] 

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.'" United States v. Ordonez, 242 F. Supp. 3d 466, 472 

(E.D. Va. 2017) (quoting United States v. Rosen, 240 F.R.D. 204, 208 (E.D. Va. 2007) (quoting, 

in turn, FED. R. CRIM. P. 15 advisory committee's note, 1975 Enactment)).

The exceptional circumstances argued by the government in its motion for depositions 

consists of its claim that some of its prospective witnesses have expressed an unwillingness to 

travel to the United States. The government notes that it is not clear whether other listed 

witnesses are willing to travel to the US for a deposition or trial and that the question about 

willingness to travel to the US for purposes of this criminal prosecution has not been asked. 

The government lays out the general standard that exceptional circumstances exist when 

a desired witness is unavailable and that the testimony of the desired witness is material. Mr.

Djurdjic’s position is that depositions should not be ordered unless the government, as the 

moving party, shows that exceptional circumstances exist. 

In support of its argument, the government cites United States v. Drogoul, 1 F.3d 1546, 

1552 (11th Cir. 1993). In Drogoul, the government sought depositions of several foreign 

nationals living in Italy pursuant to Rule 15. The district court denied the government’s request 

noting “the government has failed to procure the affidavits of any of the witnesses themselves 

indicating that they are unwilling to travel to the United States...” Drogoul, 1 F.3d at 1550. The 

Drogoul Court explained that:

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In response to the district court’s concerns regarding the prospective deponents’

availability, the government enlisted the assistance of the Government of Italy to 

ascertain more conclusively the witnesses’ willingness to testify in the United 

States. Pursuant to a treaty request lodged with the Italian government, an Italian 

judicial officer interviewed the thirteen potential witnesses as to whether they 

would travel to the United States to testify at Drogoul’s trial. Six of the witnesses

declared they would be willing to testify in the United States; seven declared they 

would not....” 

Id., 1 F.3d at 1550.

In Drogoul, the issue on the first appeal was whether significant new information caused 

a motion for reconsideration to be timely. Id. at 1551. A second appeal concerned the district

court’s continued denial of the government’s Rule 15 on constitutional grounds. Id.

The Drogoul opinion offers an on-point discussion of the issues raised by the 

government’s Rule 15 motion in the present matter. First, the government must make a showing 

that a prospective witness is unavailable. The moving party may demonstrate the probable 

unavailability of a prospective deponent “through affidavits or otherwise”. Id. at 1553 (citing 

United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir. 1988)). 

Drogoul makes clear that a potential witness is unavailable for purposes of Rule 15(a)

whenever a substantial likelihood exists that the proposed deponent will not testify at trial. Id. In 

Drogoul, the Eleventh Circuit Court of Appeals noted that the government had made a strong 

showing that seven of the thirteen potential deponents were substantially unlikely to be available 

to testify at trial. Id. In the present case, the government has made no such showing. 

Another key issue is whether the US has a similar treaty with Bosnia as existed in 

Drogoul:

[U]nder a treaty between the United States and Italy, potential witnesses may be 

ordered by the Italian government to testify in the United States, but one who 

refuses to do so may not be removed to this country (the US). The government 

has proffered a letter from an Italian judicial officer ...certifying that the seven 

witnesses have declared in open court their unwillingness to testify in the United 

States. This evidence is potent proof of unavailability for purposes of Rule 

15(a). 

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Id. at 1553 (citing Treaty of Mutual Assistance in Criminal Matters, Nov. 9, 1985, U.S.-Italy, art. 

15, 24 I.L.M. 1539, 1541; U.S. v. Sindona, 636 F.2d 792, 803 (2nd Cir. 1980). (Emphasis added.)

The requirement of potent proof is particularly important in the present matter. The 

prospective witnesses herein have all been repeatedly interviewed regarding abuse and war 

crimes for the past three decades. A cursory search of law review articles on the use of foreign 

witnesses in the manner sought by the government against Mr. Djudjic reveals a large number of 

scholarly concerns. (Winter 2003): Practioner’s Comment Waiving a Red Flag in Court: 

Obtaining and Using Witness Testimony from the Former Soviet Union, 39 Stan. J. Int’l 99 

(2003) Stanford Journal of International Law.

1

However, the most concerning failure of the government to establish the requisite 

showing of “exceptional circumstances” is discernible from the information contained in the 

attachment to the prosecution’s motion. The following table summarizes the information that 

purportedly supports the government’s showing of exceptional circumstances:

Potential Witness Reasons Provided by Government in Support of Purported 

“Exceptional Circumstances”

No. 1 (S.B.) The potential witness “indicated he is not mentally able to travel to 

the United States to testify.”

No. 2 (I.S.) “There is no information regarding [the potential witness’]

willingness or ability to travel to the United States.”

No. 3 (I.H.) The potential witness “indicated he is willing to travel to the 

United States depending on his health.”

No. 4 (A.S.) “There is no information regarding [the potential witness’]

willingness or ability to travel to the United States.”

No. 5 (R.S.) “[The potential witness] indicated he was not willing to travel to

the United States.”

 

1 The Drogoul opinion is again instructive on this point. Because Rule 15 requires the prosecution to provide a 

sufficient showing of unavailability, the government ought to be required to establish whether a treaty exists which 

governs foreign depositions in the present matter. The fact that Bosnia (Yugoslavia) is part of the former Soviet 

Union are several significant countervailing factors which would render the taking of depositions at this point 

unjust to the accused, Mr. Djurdjic.

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No. 6 (S.S.) “There is no information regarding [the potential witness’]

willingness or ability to travel to the United States.”

No. 7 (H.S.) “[H.S.] indicated that he was willing to travel to the United States a 

also that his health was failing and he was often in hospitals.”

No. 8 (O.C.) “There is no information regarding [the potential witness’]

willingness or ability to travel to the United States.”

No. 9 (M.S.) “There is no information regarding [the potential witness’]

willingness or ability to travel to the United States.”

First, it is important to note that, upon information and belief, all of the information 

provided by the Government in support of its position comes from the disclosure in this case. 

Specifically, the information comes from reports of investigation that were prepared in 2017. 

Assuming the understanding of undersigned counsel is correct, Mr. Djurdjic respectfully submits 

that the information provided by the prosecution is stale, and therefore insufficient for the 

government to demonstrate exceptional circumstances. Furthermore, there is simply no 

information, and therefore no showing whatsoever of exceptional circumstances, as to the ability 

of five of the prosecution’s nine potential witness’ ability to travel to the United States. The lack 

of any information at all surely cannot qualify as sufficient for the government to persuasively 

demonstrate exceptional circumstances.

III. Conclusion:

Although the government certainly has the means to present reliable information that 

could potentially satisfy its requirement of demonstrating “exceptional circumstances” sufficient 

for this Court to order depositions under Rule 15, it has not provided information of that quality 

as to any of the potential witnesses it seeks to depose in Bosnia. For that reason, Mr. Djurdjic 

opposes the prosecution’s motions for Rule 15 depositions, although he is amenable to 

reconsidering his opposition, on an individual basis, if the government is able to produce 

additional information that is current and more reliable.

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RESPECTFULLY SUBMITTED this 17th day of April, 2019

LAW OFFICES OF MATTHEW H. GREEN

By: s/ Matthew H. Green

 Matthew H. Green

 Attorney for Defendant

Electronic copy to:

U.S. Attorney’s Office

Erica Seger

Kevin Hakala

405 W. Congress

Tucson, Arizona 85701

Matthew McGuire

Case 4:17-cr-01658-JGZ-DTF Document 44 Filed 04/17/19 Page 7 of 7