IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 13-0117-CG

 )

YAMAN SENCAN, DAVID PETERSEN, )

and STEPHEN MERRY, )

 )

Defendants. )

ORDER

This matter comes before the Court on the Government’s “Motion for a Maryland v. 

Craig Hearing to Permit Victim-Witness Testimony via Video Teleconference” (doc. 57). The 

Motion was filed on November 22, 2013. In the last five days, the parties have submitted

multiple additional filings concerning this Motion, including the Government’s Supplemental 

Brief (doc. 60) and defendant David Petersen’s “Opposition to Government’s Motion to Permit 

Victim-Witness Testimony via Video Teleconference” (doc. 63).

The premise of the Government’s Motion is that it wishes to introduce testimony at trial 

from a person named I.K., who is purportedly a victim of the alleged fraudulent financial scheme 

underlying the criminal charges pending against defendants. I.K. lives in Honolulu, Hawaii, and 

suffers from a serious medical condition called aplastic anemia, which subjects him to a 

heightened risk of infection. When the Government notified I.K. in or around October 2013 that 

it intended to call him as a witness at trial, I.K.’s treating physician submitted a letter dated 

October 23, 2013, outlining his condition, stating that I.K. had been advised “to limit public 

exposure and avoid strenuous activity,” and indicating that the physician had advised I.K. to 

“limit travel out of state.” (Doc. 57, Exh. A.) The physician also wrote that “[t]his memo is to 

support his request to allow his deposition to be taken in Hawaii.” (Id.)

No request was made by the Government to schedule a Rule 15 deposition of I.K. in 

Hawaii in October 2013. Instead, the Government (with knowledge of I.K.’s medical issues and

the October 23 physician’s note) issued a trial subpoena for I.K., and worked with him to arrange 

his travel to Mobile for trial in a manner that would accommodate his medical condition. All of 

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this was evidently done with I.K.’s approval, as the Government represents that he expressed 

willingness to testify live at trial “despite the grave personal risks.” (Doc. 57, at 7.) 

Circumstances apparently changed sometime last week, when I.K.’s physician “reiterated the 

serious danger such travel could cause.” (Id.) There is no suggestion that I.K.’s physician 

revealed any new information or altered the tenor of his advice to I.K. at that time, nor does it 

appear that I.K.’s condition materially worsened in the interim. Rather, the physician simply 

“reiterated” what he had already told I.K. and the Government.

On November 22, 2013, the Government filed the instant Motion, wherein it seeks to 

have I.K. testify at trial via two-way videoconference pursuant to Maryland v. Craig, 497 U.S. 

836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). In an en banc decision, the Eleventh Circuit has 

opined that before allowing such a procedure and to safeguard a defendant’s Confrontation 

Clause rights, “[t]he court generally must: (1) hold an evidentiary hearing and (2) find: (a) that 

the denial of physical, face-to-face confrontation at trial is necessary to further an important 

public policy and (b) that the reliability of the testimony is otherwise assured.” United States v. 

Yates, 438 F.3d 1307, 1315 (11th Cir. 2006). All three defendants in this case have declined to 

waive their Confrontation Clause rights with respect to I.K.’s testimony. Pursuant to Yates, then, 

the Government “requests a Maryland v. Craig hearing to determine whether I.K. can testify via 

two-way video teleconference at trial.” (Doc. 57, at 14.)1

The difficulty with the Government’s Motion lies in the Craig requirement “that 

furtherance of the important public policy make it necessary to deny the defendant his right to a 

physical face-to-face confrontation.” Yates, 438 F.3d at 1316. Much like the circumstances 

present here, the Yates majority found that “the availability of a Rule 15 deposition demonstrates 

that, in this case, it was not necessary to deprive the Defendants of face-to-face meetings with 

their accusers.” Id. at 1316 n.8. The majority went on to reason that “Rule 15, properly utilized, 

protects a defendant’s confrontation rights by affording the defendant an opportunity to be 

present at the deposition” and that “there is no evidentiary support for a case-specific finding that 

 1 The Court has not conducted an evidentiary hearing, but it has raised specific 

concerns and afforded the Government an opportunity to address them via supplement to its 

Motion. Nothing in that supplemental filing identifies the existence of evidence that the 

Government might produce at such a hearing that would alter or affect the reasoning and result 

herein.

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the witnesses and Defendants could not be placed in the same room for the taking of pre-trial 

deposition testimony pursuant to Rule 15.” Id. at 1317. The Yates reasoning applies with equal 

force here; therefore, the Government’s bid to have I.K. testify live at trial via two-way 

videoconferencing fails for want of evidentiary support for a case-specific finding that 

furtherance of a public policy renders it necessary to deny defendants their constitutional right to 

confront I.K. face-to-face when he testifies against them.2 The Government’s Motion is denied

insofar as it seeks leave to allow I.K. to testify at trial via videoconferencing.

Alternatively, the Government requests in its Supplemental Brief filed on November 25, 

2013 that an order be entered allowing a Rule 15 deposition of I.K. to be taken in Honolulu, 

Hawaii during the week of December 2, 2013. Such a request may be granted “because of 

exceptional circumstances and in the interest of justice.” Rule 15(a)(1), Fed.R.Crim.P. “The 

moving party bears the burden of showing that exceptional circumstances exist to warrant the 

deposition.” United States v. Thomas, 62 F.3d 13432, 1340 (11th Cir. 1995). In evaluating 

whether a movant has met that burden, the Eleventh Circuit considers whether “(1) the witness is 

unavailable; (2) injustice will otherwise result without the material testimony that the deposition 

could provide; and (3) countervailing factors would make the deposition unjust to the nonmoving 

party.” Id. at 1341.

Assuming (without deciding) that I.K.’s medical condition renders him “unavailable” for 

purposes of Rule 15, the second and third factors weigh heavily against the Government’s 

eleventh-hour request to take his deposition in Hawaii. As for the second consideration, the 

Government maintains that I.K.’s testimony is material and details the nature of his anticipated 

 2 In its Supplemental Brief, the Government urges the Court not to erect a 

“procedural bar to this motion” and not to find “a threshold requirement that a Rule 15 

deposition be not possible before a Craig test analysis can begin.” (Doc. 60, at 3 n.1.) But this 

case does not necessitate the making of global pronouncements about the broad implications of 

Yates and whether the en banc majority intended to engraft an absolute, unflinching prerequisite 

to the Craig analysis that no Rule 15 deposition be possible. The undersigned need not and does 

not reach this question. Instead, it suffices to conclude, and the Court does conclude, that the 

circumstances of this case are materially indistinguishable from those in Yates, and that (just as 

in Yates) the Government has made no case-specific showing that allowing I.K. to testify at trial 

via two-way videoconferencing is necessary to further an important public policy.

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testimony.3 But the Government does not show that injustice would result without I.K.’s 

testimony. In opposing the Government’s request, defendant David Petersen maintains that 

I.K.’s anticipated testimony is cumulative to that of at least four other purported victims of the 

alleged fraud and that there is no indication that I.K. has anything unique to add to the trial 

testimony of other Government witnesses. The Government has not addressed this issue at all, 

and has not even attempted to make a showing that I.K. is a critical witness, that his testimony 

would not be redundant or cumulative, or that the Government would suffer prejudice to its casein-chief without the testimony of I.K. At most, the Government suggests that I.K.’s testimony 

“is critical to the case” (doc. 60, at 5), but does not elaborate as to why this might be so.

Furthermore, with respect to the third factor, Petersen persuasively argues that the 

Government has unreasonably delayed and that setting I.K.’s Rule 15 deposition at this late date 

would compromise defendants’ trial preparations and likely delay the trial. Trial of this action is 

set to begin on December 12, 2013. The record shows that the Government was informed of 

I.K.’s physician’s concerns about his travel to Mobile for trial on or about October 23, 2013; 

however, the Government did not move for a Rule 15 deposition until November 25, 2013, more 

than a month later and barely two weeks before the anticipated start of trial, with an intervening 

Thanksgiving holiday weekend to boot. As a practical matter, setting I.K.’s Rule 15 deposition 

for next week, as the Government requests, would effectively deprive defense counsel of at least 

three days of trial preparations, given the distances involved for travel to Honolulu. “There can 

be no question that both the moving party’s diligence and the timing of the prospective 

depositions are relevant considerations to be weighed under Rule 15(a).” United States v. 

Drogoul, 1 F.3d 1546, 1556 (11th Cir. 1993) (declining to adopt a per se rule against delay in the 

 3 Among other things, the Government indicates that this witness’s anticipated 

testimony will be that I.K. invested in the alleged fraud scheme based on certain 

misrepresentations by defendants, that he received statements from defendants purporting to 

show that the investment was flourishing, that he sent defendants $25,000 in proceeds from the 

sale of his automobile with the expectation that it would be invested in his behalf, that 

defendants sent him statements showing that those funds had been invested and were earning a 

profit, that defendants never invested those funds, that he lost the vast majority of this 

investment, and that the loss has devastated him.

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Rule 15 context).

4 The Government has seriously delayed in requesting a Rule 15 deposition for 

I.K. after being informed of his medical condition and his treating physician’s concerns about 

him traveling to Alabama to testify. And that delay would work injustice on defendants if the 

Rule 15 deposition were allowed now, by interrupting their final trial preparations and depriving 

them of crucial final days needed to ready their defense for the December 12 trial. Petersen’s 

position is that he will be forced to move for a continuance of the trial if the Rule 15 deposition 

is permitted. The Government has neither addressed nor rebutted these significant concerns 

raised by defendant Petersen.

In light of the foregoing, the Court finds that the Government has not met its burden of 

showing that conducting the Rule 15 deposition of I.K. next week would be justified by 

exceptional circumstances, or that it would serve the interests of justice. Accordingly, the 

Government’s request for Rule 15 deposition subsumed within its Supplemental Brief is denied.

DONE and ORDERED this 27th day of November, 2013.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 4 See also Yates, 438 F.3d at 1318 n.11 (citing with approval district court’s 

assessment that Government’s serious delay in requesting videoconference testimony of foreign 

witnesses “would likely typify the kind of delay warranting the denial of a Rule 15 deposition”); 

United States v. Jefferson, 594 F. Supp.2d 655, 673 (E.D. Va. 2009) (“Although Rule 15 is silent 

on when a motion for a deposition is to be made, courts have rejected as untimely motions that 

will delay the trial.”). 

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