United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Blas Aleman's
(“Aleman”) Objection to Order Concerning
Deposition of Dr. Leocadio Carbajal Abonsa (“Dr.
Carbajal”)  (“Objections”).
2016, Aleman moved, pursuant to Federal Rule of Criminal
Procedure 15, for leave to take pre-trial depositions of
various alibi witnesses in Mexico. (, -). 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. (, ). 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.
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.).
January 29, 2017, Aleman filed his Second Motion to Take
Deposition of Dr. Carbajal  (“Second Carbajal
Motion”), again seeking permission to take Dr.
Carbajal's deposition, this time in the town of Cutzamala
de Pinzon, in Guerrero, Mexico. ( 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
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.
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.
February 13, 2017, the Magistrate Judge issued her Order
 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.
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