1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

MICHAEL BAILEY 

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 

 nathaniel.walters@usdoj.gov 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Scott Daniel Warren, 

 Defendant.

CR-18-00223-RCC (DTF) 

GOVERNMENT’S RESPONSE: MOTION 

TO ADMIT PRIOR TESTIMONY 

(Doc. 340) 

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

response to the defendant’s Motion to Admit Prior Testimony. Dr. Edgar McCullough is 

not unavailable under Federal Rule of Evidence 804, and exceptional circumstances do not 

exist to conduct a video deposition under Federal Rule of Criminal Procedure 15. For the 

following reasons, the defendant’s motion should be denied. 

I. LAW & ARGUMENT 

On October 4, 2019, the defendant filed a Motion to Admit Dr. McCullough’s 

testimony since he will be “out of town and unavailable to come to court to testify between 

mid-October 2019 and January, 2020.” Doc. 340 at 2. “In every trial the testimony of 

witnesses must be taken in open court, unless otherwise provided by a statute or by rules 

adopted under 28 U.S.C. §§ 2072-2077.” Fed. R. Crim. P. 26. 

/// 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

a. Dr. McCullough is Not Unavailable Under Rule 804. 

In this case, Dr. McCullough is not “unavailable” under Rule 804. Rule 804 

explicitly sets out criteria for when a declarant may be unavailable. A declarant may be 

unavailable if the declarant asserts a particular privilege, refuses to testify despite a court 

order, is unable to remember the subject matter of the testimony, cannot be present because 

of a sickness or a “then-existing infirmity, physical illness, or mental illness,” or the 

defendant has not been able to procure the witness’ appearance at trial. Fed. R. Crim. P. 

804(a). 

Here, the defendant glosses over any analysis of whether Dr. McCullough is 

unavailable under Rule 804(a). As a matter of law, a witness is not unavailable because he 

is “out of town” and finds appearance at court inconvenient. Likewise, the defendant has 

failed to show any steps taken to procure Dr. McCullough’s appearance at trial. Fed. R. 

Crim. P. 804(a)(5). 

The defendant’s reliance on Rule 804(b)(1) is unavailing. See Doc. 340 at 2. Under 

Rule 804(b)(1), former testimony of a witness may be used in limited circumstances if the 

declarant is unavailable. As discussed above, Dr. McCulluogh is not unavailable under 

Rule 804, and the defendant has failed to allege anything other than mere inconvenience 

Based on the vague information proffered by the defendant, the Court cannot find 

Dr. McCullough unavailable for trial testimony under Rule 804.1 Since the defendant has 

entirely failed to show Dr. McCullough is unavailable within the meaning of the Rule, his 

motion should be denied in its entirety. 

b. The Defendant Has Not Demonstrated Exceptional Circumstances. 

The defendant has not demonstrated exceptional circumstances to allow for video 

depositions under Rule 15. Any “party may move that a prospective witness be deposed in 

order to preserve testimony for trial.” Fed. R. Crim. P. 15(a)(1). However, the Court should 

 

1 The defendant notes the United States “declined to provide its position on the matter.” 

The United States requested specific details about why Dr. McCullough was unavailable 

to testify, and the defense did not respond. Without these crucial details, the United States 

was unable to give its position. 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

only grant a motion for video depositions if exceptional circumstances exist and a 

deposition is in the interest of justice. Id. Although a showing of unavailability is not 

required to meet the criteria of Rule 15, it is a factor to be considered when determining 

whether exceptional circumstances exist. United States v. Zuno-Arce, 44 F.3d 1420, 1425 

(9th Cir. 1995). 

Here, the defendant cannot show Dr. McCullough is unavailable, much less show 

exceptional circumstances that would allow for video depositions. The defendant only cites 

Dr. McCullough’s plan to be “out of town,” which suggests Dr. McCullough could be at 

trial, but it would be inconvenient. This is not an exceptional circumstance within the 

meaning of Rule 15, and Dr. McCullough’s irrelevant testimony is not required in the 

interests of justice. Finally, in light of Dr. McCullough’s unavailability beginning in midOctober, it is unclear “whether the deponent would be available” for a deposition. United 

States v. Olafson, 213 F.3d 435, 442 (9th Cir. 2000). As such, the defendant’s motion 

should be denied in its entirety. 

II. CONCLUSION 

The defendant fails to show Dr. McCullough is unavailable for trial or that 

exceptional circumstances warrant Dr. McCullough’s deposition. For the foregoing 

reasons, the United States respectfully requests that this Court deny the defendant’s motion.

 Respectfully submitted this 8th day of October 2019. 

MICHAEL BAILEY

United States Attorney 

 District of Arizona 

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

 ANNA WRIGHT &

 NATHANIEL J. WALTERS 

 Assistant U.S. Attorneys 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Copy of the foregoing served electronically or by 

other means this 8th day of October 2019, to:

All ECF participants