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ELIZABETH A. STRANGE 

First Assistant United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

State Bar No.: 029708 

405 West Congress, Suite 4800 

Tucson, Arizona 85701-5040 

Telephone: (520) 620-7300 

E-mail: anna.wright@usdoj.gov 

E-mail: nathaniel.walters@usdoj.gov 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Caitlin Persis Deighan, 

Zoe Ellen Anderson, 

Logan Thomas Hollarsmith, and 

Rebecca Katie Grossman-Richeimer, 

 Defendants.

17-mj-00340-N/A-BGM 

GOVERNMENT’S RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

SECOND MOTION FOR VIDEOTAPED 

DEPOSITION PURSUANT TO RULE 15 

The United States of America, by and through its undersigned attorneys, hereby 

respectfully responds in opposition to the defendants’ request to either take Jorge DuarteRodriguez’s testimony by video, either through a pretrial deposition or at trial. Doc. 157. 

The government respectfully requests that the Court deny the motion because there are no 

exceptional circumstances to justify the request, and the defendants have not made timely 

good faith efforts to secure his presence at trial. 

I. Video Deposition 

Rule 15 allows for the pretrial deposition of a trial witness if there are “exceptional 

circumstances and [it is] in the interest of justice.” Fed. R. Crim. P. 15(a). Exceptional 

circumstances exist if there is reason to believe that the witness will be unavailable for trial, 

the witness’s testimony would be favorable to the moving party, and the moving party has 

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made a “good faith effort to obtain the witness’s presence at trial.” United States v. ZunoArce, 44 F.3d 1420, 1425 (9th Cir. 1995); see also United States v. Sanchez-Lima, 161 F.3d 

545, 548 (9th Cir. 1998). 

Courts analyze the witness’s potential unavailability for trial under Federal Rule of 

Evidence 804(a). See United States v. Olafson, 213 F.3d 435, 441 (9th Cir. 2000). As 

relevant here, Rule 804 allows for the introduction of hearsay if a witness is unavailable 

because he “cannot be present or testify at the trial or hearing because of death or a thenexisting infirmity, physical illness, or mental illness,” or he “is absent from the trial or 

hearing and the statement’s proponent has not been able, by process or other reasonable 

means, to procure” the witness’s attendance. Fed. R. Evid. 804(a)(4), (a)(5)(A). 

In addition to demonstrating that exceptional circumstances exist, the moving party 

must also “give every other party reasonable written notice of the deposition’s date and 

location.” Fed. R. Crim. P. 15(b)(1). Notice is not reasonable if it is given close in time to 

trial, especially if the moving party could have given notice sooner. See United States v. 

Omene, 143 F.3d 1167, 1169 (9th Cir. 1998). 

As an initial matter, Mr. Rodriguez-Duarte’s residence in Mexico is not an 

exceptional circumstance under Federal Rule of Criminal Procedure 15. Under Rule 804, 

Mr. Rodriguez-Duarte is clearly available to testify at trial, since the defendants could 

secure his presence at trial through “process or other reasonable means.” While there is no 

information about what steps, if any, the defendants have taken to secure Mr. RodriguezDuarte’s presence at trial, the defendants could potentially secure his presence by applying 

for his parole into the United States for the sole purpose of testifying at trial. As such, the 

defendants have failed to show that Mr. Rodriguez-Duarte is unavailable within the 

meaning of Rule 804 or that they have made good faith efforts to secure his presence. 

In addition, the defendants’ choice to wait until the eve of trial to give insufficient 

notice is not reasonable. The defendants have been aware of Mr. Rodriguez-Duarte’s 

potential testimony at least since their counsel noticed him as a witness in the related matter 

on January 2, 2019. See Doc. 141 at ¶ 14 in United States v. Hoffman, 17-MJ-339-N/ACase 4:17-mj-00340-N/A-BPV Document 167 Filed 02/07/19 Page 2 of 4
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BPV. In addition, the defendants also failed to comply with Rule 15’s other notice 

requirements related to naming the time and place of the deposition, as well as providing 

the witness’s address. The defendants’ untimely and insufficient notice causes an unfair 

prejudice to the government by requiring the government to conduct a portion of the trial 

before the date set by the Court and without having received any disclosure as to Mr. 

Rodriguez-Duarte’s potential testimony. In addition, the government cannot, in the month 

before trial, travel to Mexico to unnecessarily depose a witness. 

There are no exceptional circumstances to justify a pretrial deposition of Mr. 

Rodriguez-Duarte, and the defendants have not made timely or good faith efforts to secure 

his presence at trial. For these reasons, and to avoid unfair prejudice to the government, the 

Court should deny the defendants’ request for a pretrial video deposition. 

II. Video Testimony 

Similarly, the Court should not allow video testimony at trial by Mr. RodriguezDuarte because the defendants have not made good faith and timely efforts to secure his 

presence at trial, and video testimony raises concerns not present with in-person testimony.

Testifying at trial in the physical presence of the Court has a “profound [truth-inducing] 

effect upon a witness,” United States v. Carter, 907 F.3d 1199, 1207 (9th Cir. 2018) 

quoting Coy v. Iowa, 487 U.S. 1012, 1020 (1988), such that face-to-face confrontation is 

the preferred method of taking testimony. For instance, given the limitations of video 

testimony, it will be difficult to ensure the identity of the witness, and that the witness is 

not improperly referencing documents during his testimony, or being influenced or 

coached. See Carter, 907 F.3d at 1207. In addition, the consequences for contempt or 

perjury are remote at best for a witness testifying by video from outside the jurisdiction of 

the United States. Accordingly, the Court should deny the defendants’ request to allow Mr. 

Rodriguez-Duarte to testify at trial by video as untimely, unnecessary and not in the 

interests of justice. 

/// 

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III. Conclusion 

The defendants have not made good faith and timely efforts to secure Mr. 

Rodriguez-Duarte’s presence at trial. Accordingly, the Court should deny the defendants’ 

untimely request to conduct a pretrial video deposition of Mr. Rodriguez-Duarte or to take 

his testimony by video. 

 Respectfully submitted this 7th day of February, 2019. 

 ELIZABETH A. STRANGE

First Assistant United States Attorney 

 District of Arizona 

 /s/ Anna R. Wright & Nathaniel J. Walters

ANNA WRIGHT &

 NATHANIEL J. WALTERS 

 Assistant U.S. Attorneys 

Copy of the foregoing served electronically or by 

other means this 7th day of February, 2019, to: 

All ECF participants 

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