REDACTED

 

FE.ED\\IITH
BECUF|H'Y
10
UNITED S'I`ATES DlS'I`RlC'l` COURT
FOR 'I`HE DIS'I`R|CT OF COLUMBIA

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UNI'I`ED STATES OF AMERlCA l
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] _

v. ] No. 09-CR-l58 (ESH)

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ANI)REW WARREN, l
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Deft:ndont. )

 

MEMORANDUM OP}NION AND ORDER
Defeiidant Andrew Wa.rreii, a former einployee of the United States Central intelligence
Agency ("the Agency"), was previously assigned to the United States Embassy in Algicrs,
Algeria. I'le has been charged with sexual abuse in the special maritime and territorial
jurisdiction ofthe United States, 18 U.S.C. §§ 7(9), 2242(2), stemming from an alleged incident
in February 2008. Victii:n 2,] an Algenan national and acquaintance of Warren, claims that while
visiting defendant’s residence in Algiezs, he placed a chemical substance in tier drink, causing
her to become incapacitatcd, and had sexual intercourse with her without her consent
Defendsnt has moved to tieposc'tlirer: witnesses pursuant to Rule 15 of the Federa| Rules

of Criminal Procedure, which allows courts to grant such motions "because of exceptional
circumstances and in the interest ofjustice.“ Fed. R. Criin. P. 15(21)(]). Dei`eiidatit maintains
that the witnesses lie seeks to depose are unavailable for trial but will provide testimony that is

material to his defense and necessary to prevent s failure of justices Defendant has also

1 l’ursuatit to the government’s motion in limine to allow certain oi`its witnesses to testify using
pseudonynts and in order to bc consistent with itlentii`iers used in earlier briefing the Court refers
to the alleged victim as Victiin 2. Victiin l is being called by the government under Fed. R,
Evid. 404(b) to testify that defendant also clicntically incapacitated her and had sexual
intercourse with her without her consent

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requested letters rogatory, as the witnesses he seeks to depose are foreign nationals who are

beyond the jurisdiction of this Court.

The Court held a liearing on dei`endant`s motion on Noveinber 2, 2009. Based on
arguments by eourtsel, the Court continued the liearing and requested specific proffers as to the
substance and materiality of the requested testin‘lony. 'I`lle hearing resumed on February l 9,
2010. At the conclusion of arguments, the Court took del`endant‘s inotion for Rule 15
depositions and letters rogatory under advise:rnent. Having now reviewed the al'gum BI\IS, |¢¢BHF

znernoraiida, and relevant law, the Court denies deiendant's rnotion.

FAC.'I`UAL BACKGRGUND

On Septeinber IS, 2008, Victirn 2 made a statement to an einployee at the United States
Erribassy in Algeria, alleging that Wa.n'en had sexual intercourse with her without her consent on
or about February 1?, 2008. According to Victiin 2, she had been acquainted with Warren for
some time prior to the alleged incident, having met him at a United States Embassy function in
Cairo, Egypt, Viotirn 2 claims that in February 2008, she went to Warren‘s home in Algiers at
his invitation and consumed two drinks prepared by him, whereupon she became ill. As she
passed in and out of consciousness and became unable to inove, victim 2 remembers warren
u.ndressiiig her and, ultiinately, having sexual intercourse with hcr. She awoke sometime later in

his bed, but did not understand what had happcned, and she does not reinernber dressing and

returning to her horne.

Viotiin 2 states that she told her husband and her psychologist of the events et Wairen`s
residence on the day t]'ié)`!'oct`:iir'i"'e`d"'ziii'ci  lai.'ei';'slie sent  tent message to Warreii,
accusing him ot` abusing her. However, Vietiin 2 did not inform anyone at the United States

Errthassy of the alleged iiicidelit until Septeinbcr ZUOS. Approxiniately ten days after Victim 2

......._a.-s»-»....._t.q.`_i-,,.. .2._...,........-.... -. .,._.  

spoke with nn ernployee of the Esnbassy, an agent from the Diplomatic Security Service ("DSS")
of the State Departincttt took her Slatement.

Warren maintains that the sexual contact between himself end Victim 2 'was consensual
and was initiated by victim 2. However, he states that afterward, Victim 2 expressed remorse
over the encounter because of` her marital status. He also claims that he and Victim 2
communicated via text rnessuging in the days following February- 1 '?, 2008, and that Victim 2
requested that warren contact her so that they could resolve the situation. Aceording to Warren,
he was alarmed by the request and declined to meet with Victim 2.

Warren now.seel<s to depose three witnesses-Witness A, witness B, and WiLness C--
who he argues can provide testimony that is material to his defense but who are unavailable to
testify at trial. warren contends that the witnesses have indicated to him that they are unwilling
to testify at defendant‘s trial but would sit for a deposition if they are subpoenaed to do so. (Feb.

l 9, 2010 Hr'g Tr. Exceq:)t [2!19!10 Tr. Excerpt] at 9:12-16.)

witness A is a iforeigii national f

laird that he and Wan'en discussed the possibility that Victirn 2 was part oi` such an
operstion, known as a "ltoney trap," alter she accused him of abusing her and requested a

meeting with him to resolve thc situan`on.

Witncss B is also a  reign national
Warrett contends that Witn_ess B, like

if iWitness B would also testify that, sometime after February l 7,

2008, warren told him that lie suspected that the Algerian government had attetuptecl to use a

t'eniale agent against him,

witness C is an Algerian national whom Warren dated for much of his time in Algieis.
Acoording to Warren, she would testify that she believed that Victim 2 was an agent of the
Aigerian govemment with the goa_loi` compromi_sirig defendant in order to obtain ioforn~iation,
money, or favors from ltim. Warreii maintains that Wimess C would testify that she personally

knew Aigerian women who acted as “honey traps" to manipulate Ameiica.u officials

ANALYSIS
l. LEGAL STANDARD
Rule 15 permits depositions in a criminal case to preserve testiinoriy, not to foster

discovery, and only in exceptional situations Unt':ad Srat‘es v. Ke{ley, 36 F..'id l 1 18, l 124 (D.C.
Cir. 1994); see also U.'u'ted .S'tates v. Muelier, 74 F.3d l152, 1156 (l lth Cir. l996) ("Depositions,
particularly those taken in foreign Foo'iintn§s: are generally disfavored in criminal cases.”). A
party seeking such a deposition "bears the burden oi" demonstrating that exceptional
circumstances necessitate the preservation of testimony though a deposition," Ke¢'l'ey, 36 F.?»d at
l 124 (quotation ontitted}. l.n meeting this burtien, the defendant must derrionstrate: I] the

materiality of the testimony', and 2] the unavaila'l')iliry- of the witness to testify al trial. Ia'. at

l 125. Tlie defendant must also make "st'.-rne showing, beyond unsubstantiated speculation, tiiat
the evidence e);eulpates [liini]." Id, (quotation o\tiitted).

"Utiavai|ability is defined by reference to Federal Rule of Evidenoe 804(:1), which
provides, in relevant part, that a witness is unavailable il`he or she is ‘absent from the iiearing
and the proponent of o statement has been unable to procure the declarant`s attendance . . , by
process or other reasonable iiieans."` United .S‘!orc:s v_ .S`traker, 56? F. Supp. 2d 174, 180 (D.D.C.
ZUUS) (quoting Uni`ted Srate.s v, Agirilar‘-Tanioyo, 300 F.Bd 562, 565 {Sth Cir. 2002}). A witness
who resides abroad and outside the reach oi` a eout“t’s subpoena power is not automatically
"unavailab]e" \vithout a fi.lrther showing that he or she will not testify in court. !d. Additional]y,
"tlie text and structure of Rule 15, as weil as judicial opinions interpreting the rule, distinguish
between the availability of a deposition and the eventual admissibility of the deposition
ioootoooy or cooi_" Uono}r s¢o¢oo'§§. lsj‘»o§§, No_`iislios, 2007 WL 15?6309, at *1 (o.o.c. Moy
30, 2007). As such, "when the question is close a court inay allow a deposition in order to
preserve a witness’ testirnony” and leave until trial the question of adinissibility. Id. (quoting

Uni£ed Stales v. Mann, 590 F.Zd 361, 366 (lst Cir. ]978]). Bu! see Unitea' States v. Drogou!. 1

` F_sd 1546, 1555 n tro cti~. 1993) r"'i'ho"'ooort oooo tior,' or too oooi o'fomo ooo moooy, oogogo to

an act offutiiity by authorizing depositions that clearly will be inadmissible at trial.").
A defendant must also: l) dcinonstrate that the testimony to be offered by those witnesses

is tnaterial, and 2) make “some showing, beyond unsubstantiated spcculation, that the evidence

" "' .'_\"

[tho witness will pr-ovioo]"o.~tootpotos isro." J<oizoy, se F.ao ot i 125 (qoororioo oooiiod;~, zyoog,
2007 WL |5?()3{}9, at *'l. Testirnony that offers only “general observations," as opposed to

direct or circumstantial evidence, is not considered material or excuipatory. See .S`!raker, 567 F.

..,..__._

Supp. 2d at 181-82 ("general observations" about location of alleged meetings and "plausibility"
of defendants working together to commit crime are not tnaterial].
II. UNAVAlLABILITY

The fact that the three witnesses defendant seeks to depose live abroad and outside of the
reach ofa subpoena does not iieoessarily render them “unavailable" to testif)'. See ‘S`£roi"ter, _")6?
F. Supp. 2d at ISU. The b`urden is on defendant to procure their attendance by “rt:asoiiable
ineans" and resort to relief under Rule 15 if his procurement attempts fail. .l'd. I-Iere, defendant
asserts that witnesses A, B, and C have refused to testify at trial but are willing to be deposed if
properly sununoned.

Evidenee that a witness specifically refuses to testify at trial is "potent proof of
unavailability for purposes oi`Rule IS(a),“ Drogoul, 1 F.Sd at ]553, although it is unclear what
efforts defendant has made to procure these witnesses‘ attendance at trial, beyond asking whether
they would be willing to testify. For example, defendant does not state whether lie offered to pay
for their travel to the United States. See, e.g., United S!ates v. Isma£lt', 828 F.Zd '153, 160 {Iid Cir.
193'?) {"[T]he unwillingness of a witness to travel to this country unless his expenses are paid
does not iieeessarily mean that he is unavailable."]. However, defendant represents that the
unwillingness of witnesses A and B to testify arises from theirlhipositions
and the possibility of sanctions from their respective governments if they testify voluntarily. 2

And, defendant claims that Witness C has stated that she will not testify at trial because she fears

tit ts fair to assume that Witnesses A and B would also be instructed
by their respective governments not to sit for depositions in this ease, even were they to receive
letters rogatory, and that the issuance of such letters would thus be futile

for her safety due to the hight y publicized and tiegative nature of this case in the Algerian press,’
Arguabty, these explanations suggest that witnesses A, B, and C would remain unwilling to
testify regardless of ctetendant‘s eft`orts, and as a restitt, the Court will proceed to the second

prong ot`llule l$`s snalysis.

lI1. MATERIALI'I`Y AND EXCULPA']`ORY NATURE

Bnsed on the record before the Court, defendant has failed to meet his burden ofsliowing
that extraordinary circumstances warrant depositions in this case. Althougli evidence regarding

the use of “honey traps" ~is arguably relevant to Warrcn’s defense,

the Courl finds that general descriptions of such tactics, without any connection to defendant or
any competent evidence as to who employed them and when, is not inaterial to defendant’s case

or exculpatot'y. Simply put, evidence that female operatives have been t.lsed__ l

 

_*[before does not tend to prove that one was used to target defendant Moreover,

defendant has provided no information as to the bases for the expected testiinony of any of his

proposed witnesses Thene has been no indication that the witnesses’ testimonyt

_ is based on first-hand knowledge and not inadmissible

hearsay. Likewise, Witness B’s conjecture that

~‘ This position is highly suspect since Witness C’s purported fear of reprisal is inconsistent with
her apparent willingness to appear et a deposition pursuant to a letter rogatory, which would
notify the Algerian government of her identity and the subject other testirnony. (2!] 9»'10 Tr.
Exeerpt ut 9:4-] l.) However, the Court will credit defense counsel‘s representations that
Wititess C has refused to testify ut defendant’s trial and, as sueh, will proceed on the assumption
that defendant has shown that witness C is unavailable .$`ee Drogouf, l F.3d at 1553.

1 ¢._

l_ ' is, without further evidence to support his tl'leory, "uttsubstantiated speculation."

Kel'i'c+_y, 36 F.Sd at 1 }25; see also .S'rro!cer, 568 F. Supp. 2d al 13]-82.

Testi mony from Witnesses A and B regarding their conversations with Warren a‘Fter the

alleged assault ofVictim 2 and witness B’s speculation that|

isimilat‘ly fails to exculpate defendant 'l`l'tere is no suggestion

that those witnesses know anything about dei`endant's interactions with Victin't 2 other than what
they learned from defendant, and this would likely be inadmissible at trial on the grounds of
hearsay. 'I`hc Court need not allow depositions in order to preserve testiinony where the question
of admissibility is not a close one and the evidence at issue is unsupported conjecture that does
not exculpate defendant .S`ee Uru'ted .S'zazes v. Tol'e'z`ver, 61 F.Bd 1189, 1206 (Sth Cir. 199 5)
(district court was witliirl its discretion when it detennined that exceptional circumstances did not
exist where testimony was ot` "questionable value to the defense case” and "there [was] no
showing that, had thc clcposit`i`c`in`béeri"tia`lceia,` it"i$c`i`uld have been admissible at t.rial"), vacated on
other grounds sub nom. Stcrh'ng v. Unifed S!a£es, 516 U.S. 1105 (1996); Drougol, 1 F.3d at
]555.

Witness C’s testimony that she “`oelieved" that victim 2 was an agent of the Algerian
government with the goal 'oi` eoii'i"i'b'n'iisiiiig`,"cie'i`éitdaiit directly 'ii`nplicates the parties and events
at issue in this case However, defendant offers no foundation or background inl'orniation to
support witness C‘s alleged opinions As such, her testimony, like that of Witness B, is
unsupported conjecture and is insufficient to meet the requirements of Rule 15. .S`ee Kef!ey, 36
F.3d at l 125 [requiring showiii?“t_z*eybn`d"dii§ubstlaniiatc;d 'speiiul`atibn'”'t']iat evidence exculpates

4 As made apparent by information provided by the government to the Court and defense counsel
subset]nent to the filing of defendant’s Rule IS_motion (rcf`erred to by the Court as "Exhibit A“_,__
there ts a serious question as to whether Witness B has any firsthand knowledge of the l

l

dcf`endant), As such, defendant has failed to meet his burden of derm)nslrating extraordinary

 

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circumstances lhul wan'ulll dcposiliuns of Wilnesses A, B, and C in this cuse.

CONCLUSION

For the f`oregoing reasons, defcndant’s motion for Rulc: 15 depositions and letters

rogatory is DEN|ED.

)'s/
EI_.LEN SEGAL HUVEI_,LE
United States Dis£rict }udge

DATE: Apxil 8, 2010

