Free Order - District Court of California - California

Case 3:08-cr-00611-JM

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Filed 04/15/2008

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1 MARILYN B. GUNNER, ESQ. SB# 149540 P.O. Box 605 2 La Mesa, Ca. 91944-0605 Telephone: (619) 461-8716 3 Fax: (619) 461-6795 4 Attorney for Material Witnesses 5 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) Case No. 08cr0611 JM ) Mag No. 08mj8148 PCL ) ) ORDER FOR VIDEOTAPE DEPOSITION ) AND RELEASE OF MATERIAL ) WITNESSES ) ) ) Judge: Lewis ) Hearing Date: April 1, 2008 ) Time: 1:30 p.m. ORDER 1. The Material Witnesses in the case of UNITED STATES v.

7 UNITED STATES OF AMERICA, 8 9 Plaintiff,

v. SERGIO ANGEL DIAZ (1), 10 JASMINE MARIE AYALA (2), 11 Defendants. 12 13 14

15 SERGIO ANGEL DIAZ and JASMINE MARIE AYALA shall be deposed on 16 April 22, 2008 at 10:00 a.m. The deposition will be held

17 at the U.S. Attorney's Office.

An employee of the U.S. Attorney's The witnesses to be

18 Office shall serve as videotape operator.

19 deposed pursuant to this Order are Material Witnesses ADOLFO VARGAS20 GUTIERREZ, ("MR. VARGAS"), JESUS ANTONIO VILLANUEVA-GUTIERREZ("MR. 21 VILLANUEVAO"), and JOSE LUIS ESTRADA-VASQUEZ ("MR. ESTRADA"),

22 collectively the "Material Witnesses". 23 2. All parties shall attend the deposition. If the Defendants

24 are in custody, they shall be brought separately to the deposition 25 and a marshal shall remain present during the entire proceeding. 26 3. The United States Attorney's Office shall provide a

27 videotape operator and arrange for a court-certified interpreter to 28 be present for the Material Witnesses.
US V. DIAZ
ET.AL.

ORD. FOR VIDEOTAPE DEPO.

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4.

The cost of the interpreter for the Material Witnesses will See 28 U.S.C. ' 1827(c)(2).

2 be borne by the United States. 3 5.

If the defendant needs an interpreter independent of the

4 Material Witness interpreter, defense counsel will arrange for a 5 court-certified interpreter to be present. The cost of a separate

6 interpreter for the defendant shall be paid by the court. 7 6. The U.S. Attorney's Office shall arrange for a certified reporter to be present. The court reporter shall

8 court

9 stenographically record the testimony and serve as a notary and 10 preside at the deposition in accordance with Rule 28(a), Fed. R. Civ. 11 Proc. The cost of the court reporter shall be borne by the U.S.

12 Attorney's Office. 13 7. The deposition shall be videotape recorded. Prior to the

14 conclusion of the deposition, the deponent, or a party, may elect to 15 have the deponent review the videotaped record of his/her deposition 16 to note any changes. Any errors or changes, and the reasons for

17 making them, shall be stated in writing and such writing shall be 18 signed by the deponent. 19 8. The videotape operator shall select and supply all equipment

20 required to videotape the deposition and shall determine all matters 21 of staging and technique, such as number and placement of cameras and 22 microphones, lighting, camera angle, and background. He/she shall

23 determine these matters in a manner that accurately reproduces the 24 appearance of the witness and assures clear reproduction of both the 25 witness' testimony and the statements of counsel. 26 9. The deposition shall be recorded in a fair, impartial, The videotape equipment shall be focused on the

27 objective manner.

28 witness; however, the videotape operator may from time to time focus
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1 upon charts, photographs, exhibits or like material being shown to 2 the witness during the deposition. 3 10. Before examination of the witness, the notary shall state (a) his/her name and address; (b) the date,

4 on the video record:

5 time and place of the deposition; (c) the name of the witness and the 6 caption of the action; and (d) the identity of the parties and the 7 names of all persons present in the deposition room. 8 shall then swear the witness on the video record. The notary

Further, at the

9 beginning of the examination by each counsel, the counsel shall 10 identify himself/herself and his/her respective client on the record. 11 If more than one videotape is used, the notary shall repeat items 12 (a), (b) and (c) at the beginning of each new tape. 13 11. The videotape operator shall not stop the video recorder

14 after the deposition commences until it concludes, except, however, 15 that any party may request a cessation for a brief recess, which 16 request will be honored unless another party objects and states the 17 basis for said objection on the record. Each time the tape is

18 stopped or started, the operator shall announce the time on the 19 record. If the deposition requires the use of more than one tape,

20 the end of each tape and the beginning of the next shall be announced 21 orally on the video record by the operator. 22 12. Testimonial evidence objected to shall be recorded as if the had been overruled and the court shall rule on the The

23 objection

24 objections prior to admitting that portion of the deposition.

25 party raising the objection(s) shall be responsible for having a 26 transcript prepared for the court to consider. All objections to the 27 evidence presented shall be deemed waived unless made during the 28 deposition.
US V. DIAZ
ET.AL.

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13.

If requested by a party, the deposition testimony, if other than for impeachment, may be presented in

2 offered

3 nonstenographic video format, in which case no transcript need be 4 prepared in advance of trial, unless otherwise ordered by the Court. 5 See Fed.R.Civ.P. 32(c). 6 14. Copies of all exhibits utilized during the videotaped

7 deposition shall be marked for identification during the deposition 8 and filed along with the videotape. 9 15. At the conclusion of the deposition, the Government and

10 defense attorneys will advise the material witness attorney if they 11 intend to object to the release of the MATERIAL WITNESSES. If the 12 parties do not object to the witnesses' release, the Government and 13 defense attorney will immediately approve an order for the witnesses' 14 release from custody. At the conclusion of the deposition, the

15 Government will provide the witness with a subpoena for the trial 16 date, a travel fund advance letter, and written authorization to 17 enter the United States to testify at trial. 18 16. If any party objects to the release of the MATERIAL

19 WITNESSES, the objecting party must request a hearing on the issue 20 before the District Court, said request to occur within four business 21 hours after the deposition has concluded. Failure of the objecting

22 party to request this hearing shall be deemed a waiver of the 23 objection to the release of the MATERIAL WITNESSES, and a Release 24 Order shall be submitted for approval at the end of the four hour 25 period. If a hearing is requested, at the hearing, the objecting

26 party must be prepared to show why release of the material witness 27 is not appropriate under 18 U.S.C. ' 3144. If, after the hearing,

28 the Court decides to release the material witness, the material
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1 witness attorney shall file the witness release order immediately. 2 Again, the Government must serve the material witness with a trial 3 subpoena, a travel fund advance letter and written authorization to 4 legally enter the United States to testify at trial, before the 5 material witness is released from custody. 6 17. Upon request by either party, the videotape operator shall

7 provide a copy of the videotaped deposition to the requesting party 8 at the requesting party's expense. After preparing the requested

9 copies, if any, the videotape operator shall turn the original 10 videotape over to the notary along with a certificate signed by the 11 videotape operator attesting that the videotape is an accurate and 12 complete record of the recorded deposition. 13 18. The notary shall file the original videotape, along with any

14 exhibits offered during the deposition, with the Court in a sealed 15 envelope marked with the caption of the case, the name of the 16 witnesses and the date of the deposition. To that envelope, the

17 notary shall attach the sworn statement that the videotape is an 18 accurate and complete record of the recorded deposition and a 19 certification that the witnesses were duly sworn by the officer. 20 19. To the extent that the procedures set forth herein for

21 videotaping vary from those set forth in Rules 28 and 30 F.R.Civ.P., 22 these variations are found to be good cause shown as allowed by F.R. 23 Civ. P. 29. 24 25 26 27 28
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20.

Unless waived by the parties, the notary must give prompt

2 notice to all parties of the filing of the video record of the 3 deposition with the Court pursuant to Fed.R.Civ.P. 30(f)(3). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
US V. DIAZ
ET.AL.

IT IS SO ORDERED:

April 14, 2008 DATE

HON. PETER C. LEWIS, C. LEWIS, LE UNITED STATES MAGISTRATE JUDGE MAGISTRAT

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08MJ8148 PCL, 08CR0611 JM