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United States v. Aleman

United States District Court, N.D. Georgia, Atlanta Division

March 1, 2017

UNITED STATES OF AMERICA,
v.
BLAS ALEMAN, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Blas Aleman's (“Aleman”) Objection to Order Concerning Deposition of Dr. Leocadio Carbajal Abonsa (“Dr. Carbajal”) [295] (“Objections”).

         I. BACKGROUND

         In July 2016, Aleman moved, pursuant to Federal Rule of Criminal Procedure 15, for leave to take pre-trial depositions of various alibi witnesses in Mexico. ([246], [259]-[261]). The purpose of the depositions was to obtain information concerning Aleman's whereabouts at the times the conduct alleged in the indictment occurred. Magistrate Judge Catherine M. Salinas granted the motion, and authorized the deposition of various individuals, including Dr. Carbajal, a medical doctor Aleman contends treated him in Mexico during the relevant time period. ([262], [264]). Because of safety concerns in the area of Mexico in which the deponents reside, the Magistrate Judge required that the depositions be conducted in Mexico City, which is approximately a six-hour drive from the town in which the witnesses live. (Id.).

         On January 10, 2017, defense counsel and counsel for the Government traveled to Mexico City and deposed five witnesses. Dr. Carbajal did not appear for his deposition. Dr. Carbajal sent a written statement, dated January 6, 2017, indicating that health issues precluded him from traveling to Mexico City for the deposition. ([287.1] (the “January 2017 Statement”)). The statement also indicated that he had recently undergone surgery and was on post-surgery bed rest for ninety (90) days. (Id.).

         On January 29, 2017, Aleman filed his Second Motion to Take Deposition of Dr. Carbajal [287] (“Second Carbajal Motion”), again seeking permission to take Dr. Carbajal's deposition, this time in the town of Cutzamala de Pinzon, in Guerrero, Mexico. ([287] at 5). Aleman argues that Dr. Carbajal's testimony is particularly crucial to Aleman's defense because of their doctor-patient relationship and the fact that Dr. Carbajal prescribed medication for Aleman's gastritis in March and April 2008. (Id. at 2). Aleman seeks to obtain evidence regarding Dr. Carbajal's medical treatment of Aleman during the relevant period, and he seeks to authenticate certain prescriptions that he believes Dr. Carbajal issued to Aleman. (Id.).

         On February 1, 2017, the Magistrate Judge held a telephone conference with counsel to discuss the motion. During the conference, defense counsel reiterated that, despite the Magistrate Judge's earlier ruling regarding the location of the deposition, he seeks to take the deposition in Cutzamala de Pinzon. The Magistrate Judge stated that she would not order a deposition there due to the safety concerns she previously articulated. The Magistrate Judge also stated that, before requiring the Government to respond to Aleman's motion, she required assurances that Dr. Carbajal would cooperate in setting up and attending a deposition, and she required information regarding whether Dr. Carbajal had treated Aleman in person during the relevant time period. The Magistrate Judge allowed defense counsel two weeks to provide the required information.

         On February 11, 2017, defense counsel notified the Magistrate Judge that he had been unable to obtain any of the information that the Magistrate Judge required. Defense counsel stated that he had made inquiries to Dr. Carbajal but had received no response.

         On February 13, 2017, the Magistrate Judge issued her Order [294] denying Aleman's Second Carbajal Motion. The Magistrate Judge found that Aleman failed to meet his burden to show that exceptional circumstances warrant deposing Dr. Carbajal, including because he did not present any evidence to show that Dr. Carbajal provided Aleman in-person treatment during the relevant time period and because Aleman failed to present any assurances that Dr. Carbajal would submit to questioning even if the Court granted permission to take his deposition in Guerrero. The Magistrate Judge noted also that Dr. Carbajal's proposed testimony would be cumulative of the testimony of those deposed in January 2017.

         On February 14, 2017, Aleman filed his Objections. Aleman argues that there is, in fact, evidence that Dr. Carbajal personally saw Aleman and provided in-person treatment to him during the relevant time period. He points to an unsworn written statement provided by Dr. Carbajal several months earlier, in which Dr. Carbajal states:

I have treated Blas Aleman Castillo . . . for sinus problems and gastritis. I first saw Blas Aleman sometime in 2006. I saw Blas frequently in 2008 for sinusitis and gastritis. I gave him prescriptions for these ailments. . . I gave him those prescriptions in person, in my office . . . .

([254.4] (the “August 2016 Statement”)). Aleman also argues that Dr. Carbajal's surgery and subsequent bed rest are reasonable explanations for Dr. Carbajal's inability to attend his previously-scheduled deposition, and Aleman objects to the Magistrate Judge's characterization that Dr. Carbajal is “not currently cooperating with the defense.” The Government contends that, even if Dr. Carbajal's statement is evidence that he could provide exculpatory testimony at a deposition, the testimony is cumulative of the five other depositions taken in Mexico City.

         II. DISCUSSION

         A. Le ...


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