United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Leshanda Hunte's
Motion to Suppress Evidence  (“Motion”) and
the Government's Motion In Limine to Take Two Pretrial
Depositions for Use at Trial Pursuant to Rule 15 .
8, 2017, a federal grand jury returned a six-count indictment
 charging Defendants Menard and Hunte with conspiracy and
theft of government money. The indictment alleges that in
September and October 2012, Defendants deposited, into their
personal bank accounts and for their own use, federal tax
refund checks issued to other people. (). Defendant Menard
pled guilty to Count 1 on January 11, 2018. Defendant
Hunte's trial is scheduled to begin on February 12, 2018.
Court considers the pending motions and sets out below
certain additional background information related to the
Defendant Hunte's Motion to Suppress
about March 13, 2013, federal agents went to AMLI at
Perimeter Place apartments to gather information about the
defendants and their occupancy at the apartment complex.
( at 1). Defendant Hunte alleges the agents were told
“the defendants left the apartment complex in November
2012” before their leases expired. They left items in a
storage unit that the management considered, under
Defendants' lease terms, as abandoned. (Id.).
The agents took two boxes from the storage unit which
contained dismantled hard drives, a sales order book and a
prepaid turbo tax Visa debit card in the name of Basheir
Carr. (Id. at 2). Defendant Hunte argues that
entering the storage unit and taking possession of the two
boxes and their contents constituted a warrantless search of
the unit and violated Defendant Hunte's Fourth Amendment
rights. (Id.) The evidence seized, and any fruits of
it are, Defendant Hunt argues, required to be suppressed.
Government advises that it does not intend to introduce the
seized property at trial unless Defendant testifies.
([52-1]). The Government argues, should Defendant Hunte
testify, the seized items may be admissible as an impeachment
exception to the rule that the evidence is excludable.
See United States v. Havens, 446 U.S. 620, 627-28,
100 S.Ct. 1912, 1916-17 (1980). Thus, Government argues the
motion is moot. (Id.).
well established that “[f]or illegally seized evidence
to be admissible for impeachment it must impeach the
defendant who has testified.” ((Id., citing
United States v. Havens, 446 U.S. 620, 627-628, 100
S.Ct. 1912, 1916-17 (1980)). The Government agrees the
evidence must constitute impeachment to be admitted.
the circumstances here, Defendant Hunte's motion is
denied as moot, without prejudice to Defendant Hunte
objecting to the introduction of the evidence at trial if
Defendant Hunte contends it is not proper impeachment.
The Government's Motion to Take Depositions Under
Rule 15 of the Federal Rules of Criminal Procedure
Government seeks to take two depositions for use at trial
pursuant to Fed. R. Crim. P. 15. Defendant Hunte does not
oppose the motion.
Rule of Criminal Procedure 15 provides that the Court may
authorize depositions in a criminal case based on
“exceptional circumstances and in the interests of
justice.” Fed. R. Cr. P. 15(a); see United States
v. Ramos, 45 F.3d 1519, 1522 (11th Cir. 1995);
United States v. Drogoul, 1 F.3d 1546, 1551-52 (11th
Cir. 1993). Three factors guide the Court's determination
of whether “exceptional circumstances” exist for
purposes of a Rule 15 deposition: “whether (1) the
witness is unavailable to testify at trial; (2) injustice
will result because testimony material to the movant's
case will be absent; and (3) countervailing factors render
the taking of the deposition unjust to the nonmoving
party.” Ramos, 45 F.3d at 1522-23 (citing
Drogoul, 1 F.3d at 1554). A potential witness is
unavailable for purposes of Rule 15(a) when a
“substantial likelihood exists that the proposed
deponent will not testify at trial.” Drogoul,
1 F.3d at 1552. This showing can be made through affidavits
or otherwise and “need not be conclusive before a
deposition can be taken.” Id. at ...