FI LLED
D
1 CLERK QI:
OF COURT
2 2025 SEP 2025 SEP 1117AMIN8:8:4Ia3 1 3 7\
SUPERIOR COURT SUFERIOR COURT(j t
4 OFGUAP~ OF GUAM
a
5 J
6 IN THE SUPERIOR COURT COURT OF
OF GUAM
GUAM
7
8 PEOPLE OF GUAM, GUAM,
CRIMINAL CRIMINAL CASE
CASE no.
NO.CF0678-23
CF0678-23
9
vs.
10 DECISION DECISION AND ORDER
111l JUSTIN PETER BENAVENTE BENAVENTE
112 2 SCOTT DUENAS 111, III,
13 Defendants. Defendants.
14
15 INTRODUCTION
116 This This matter
matter came
came before the Honorable Honorable Vernon
Vernon P.
P. Perez
Perez on June 27,
27, 2025,
2025, for
for hearing on
17 Defendant Scott Duenas Defendant Scott Due fasIll's III's ("Defendant fas") Motion ("Defendant Duenas") Motion for Order Order to
to Take
Take Depositions,
Depositions,
18 joined joined by by Defendant
Defendant Justin
Justin Peter
Peter Benavente ("Defendant Benavente").
Benavente ("Defendant Benavente"). Present Present were
were Assistant
Assistant
19 Attorney General General Grant Olan on behalf of of the
the People of Guam ("the
("the Governlnent"),
Government"), Defendant
Defendant
20 Due fas with Duenas with counsel, counsel, Gloria
Gloria A.L.
A.L. Rudolph,
Rudolph,and
andDefendant
Defendant Benavente
Benavente with
with counsel,
counsel, Joaquin C.
21 Arriola, Jr. Arriola, Jr. Having Havingreviewed
reviewedthe
thepleadings,
pleadings,the
thearguments
argumentspresented,
presented, and
and the record, the Court
22 now issues the following issues the following Decision Decision and Order.
and Order.
23 BACKGROUND
24 Defendants Defendants are charged
chargedwith
with Third
Third Degree
Degree Criminal
CriminalSexual
SexualConduct
Conduct(As
(AsaaSecond
Second Degree
25 Felony). 1 (Superseding Felony).1 Indictment, Mar.
(Superseding Indictment, Mar. 7, 7, 2025).
2025). The
Thecharges
charges stem
stem from
from allegations
allegations that
that
26
I1 Defendant Defendant Benavente
Benavente is charged with one count of Third Third Degree
Degree Criminal
Criminal Sexual
Sexual Conduct
Conduct (As
(As aa Second
Second Degree
27 Felony) Felony) and and Defendant
Defendant Due fas is charged Duenas charged with
with two counts of Third
Third Degree
Degree Criminal
Criminal Sexual
Sexual Conduct
Conduct (As
(As aa Second
Second
28 Degree Degree Felony). (Superseding (Superseding Indictment, Mar. 7, 2025).
2025).
People v. Benavente Benavente & Due fas
Duenas
Case No. CF0678-23 Case No. Decision Decision and and Order
Page Page 1 of7
f
r
1 Defendants engaged engaged in sexual
sexual penetration
penetration with
with T.F.
T.F. (DOB:
(DOB: 10/19/1989)
10/19/1989) on or about August 25, 2 2023, when they knew 2023, when knew or or had
had reason
reason to
to know
know that
that she
shewas
wasmentally
mentallyimpaired,
impaired, mentally
mentally
3 incapacitated, or physically incapacitated, or helpless. Id physicallyhelpless. Id
4 On April 16, 16, 2025, Defendant Due fas filed Defendant Duenas filed the the instant
instant Motion.
Motion. On
On April
April 30,
30, 2025,
2025,
5 Defendant Benavente filed Defendant Benavente hisJoinder filed his Joiner in
in the
the Motion.
Motion. On
On May
May19,
19, 2025,
2025, the
the Government filed
Government filed
6 its Opposition. No No reply
reply was
was filed by either Defendant.
7 On June 27, 2025, the Court heard arguments on the Motion and subsequently placed the
8 matter under advisement.
9 On July 24, 2025, the Government filed a Notice Re: Witness Availability for for Trial for
10 10 the time period between the end of2025 of2025 and
and early
early2026,
2026, as
as requested
requested by
by the
the Court
Court at
at the June 27,
11 2025 hearing.
12 12 DISCUSSION 13 13 Defendants move the Court to permit them to take the depositions of of ten (10) witnesses,
14 14 including the alleged victim, arguing that it is necessary to to the
the preparation
preparation of their defense and 15 15 the investigation of of the allegations made against them. See generally, generally, Mot. Deposition, Apr. 16, 16 16 2025; Joiner, 2025, Apr.30, Joinder,Apr. 30,2025.
2025. Eight
Eightofofthe
theten
tenwitnesses
witnesses are
are designated as expert
designated as expert witnesses.
witnesses. Id
Id
17 17 The Court previously denied Defendant Benavente'
Benavente'ss Motion
Motion to
to Depose the alleged victim, finding 18 18 he had "not presented any special circumstances circumstances that
that would
would justify
justify deposition."
deposition." (Dec.
(Dec. & Order
19 19 at 7, May 29, 2024). 20 20 Under Guam law: 21 Whenever due to special circumstances of Whenever of the case it is is in
in the
the interest
interest of
ofjustice that
any person
person be ordered to appear at a specified specified time and place to be examined under 22 22 oath, the court may, upon noticed motion ofof any party, party, order
order such person to appear 23 23 so that that his
his testimony
testimony may be
be taken
taken byby deposition
deposition andand further further order
order that any
designated book, paper, designated book, paper, document, record, recording document, record, recording or or other material material not
not
24 24 privileged, be produced at the same time and place.
25 88 G.C.A.
G.C.A. §§ 70.50.
70.50. "One
"One crucial
crucial difference
difference between
between the
the Rules
Rules of
of Civil
Civil Procedure
Procedure and
and the Rules of
the Rules of
26 26 Criminal Criminal Procedure ...
...isisthat,
that,under
underthe
the Rules
Rules of
ofCivil
Civil Procedure,
Procedure, parties have the general ability 27 to depose potential witnesses.
witnesses. In
In criminal
criminal cases,
cases, aa party may
may only
only depose
depose aa person under special 28
People People v. Benavente & Due fas Duenas
Case No.
No. CF0678-23
Decision Decision andlOrder and·
Page 2 of7
of 7
1 circumstances pursuant to 8 GCA 70.50 (2005)." People v.
v. Orallo,
Oralla, 2006 Guam 8 11 12 n.
,i 12 n. 22 (J.
2 Tories, concuning) (internal Torres, concurring) (internal citation citation omitted).
3 Defendants seek seek to depose the following following witnesses
witnesses::
4 1. Guam GuamPolice
PoliceDepartment
Department Detective
Detective Angel Santos
5 2. T.F.
T.F.(DOB:
(DOB: 10/19/1989)
10/19/1989)
6 3. Athena AthenaDue fas, Substance
Duenas, Substance Users
Users Program
Program Supervisor,
Supervisor, Guam Behavioral Health and 7 Wellness Center -- Expert Witness 8 4. Keng-Cin Keng-CinSue,
Sue,M.D.,
M.D.,Office
Office of
ofthe
the Chief
Chief Medical
Medical Examiner - Expert Witness Examiner-Expert
9 5. Reina ReinaSanchez,
Sanchez,Clinical
ClinicalAdministrator,
Administrator,Guam
Guam Behavioral
Behavioral Health
Health and
and Wellness Center
10 - Expert Expert Witness
11 6. Stephanie StephanieHill,
Hill,Forensic
ForensicExaminer,
Examiner,Federal
FederalBureau
BureauofofInvestigation .-. Expert Witness Investigation-
12 12 7. Amanda AmandaDel
DelRosario,
Rosario, M.D.,
M.D., Healing
Healing Hearts
Hearts Crisis
Crisis Center
Center-- Expert
Expert Witness
13 13 8. William WilliamWeare,
Weare,M.D.,
M.D., Healing
HealingHearts
Hearts Crisis
Crisis Center - Expert Witness Center-Expert
14 14 9. Arthur ArthurPerez,
Perez,Criminalist,
Criminalist,Guam
GuamPolice
Police Department
Department .-- Expert Witness 15 15 10. Zenobia Lynn, Criminalist, Guam Police Department-Expert Department Expert Witness
16 16 (Duenas fas Mot.
Mot. Deposition
Deposition at
at 1-2).
l-2). Defendant
Defendant Due fas argues that:
Duenas
17 17 special circumstances circumstances exist in this case which require him to take the deposition deposition
testimony of the intended testimony intended deponents, most of whom have been deponents, most been designated designated as
18 18 "Expert Witnesses," as
as his review
review of
of the discovery and
and the court file herein herein indicate
19 19 that each has information that necessary to information necessary to Defendant Defendant to to ascertain ascertain inin order
order to be
20 prepared to defend against the charges against him at trial, and whose depositions 20 are required in order for Defendant Defendant to obtain
obtain rebuttal
rebuttal and
and expert
expert Witnesses.
witnesses.
21 Id. at 2. rd.
22 Although both defendants, at the Motion Hearing, placed at issue the Guam Legislature's LegislatUre's
23 use of "special circumstances" rather than "exceptional "exceptional circumstances"
circumstances" as
as set
set forth in the Federal
24 Rules of Criminal Procedure Procedure l5(a),
15(a), the Court
Court notes that section
section 70.50 was "based on policies 25 reflected in proposed reflected in Federal Rule proposed Federal Rule 15 and ABA, ABA, Project
Project on
on Standards
Standards for
for Criminal
Criminal Justice
Justice
26 26 Discovery Discovery and Procedure before and Procedure before Trial Trial §2.5."
§2.5." 88 G.C.A.
G.C.A. §§70.50, Note.
Note. The
The 1971 preliminary draft 1971 preliminary draft
27 of proposed changes to the criminal proposed changes criminal rules (including (including FRCP 15),
15), included
included the phrase "special 28
People People v, v. Benavente & Due fas
Duenas
Case No. CF0678-23 Case No. Decision Decision and and Order
Page Page33 of 7 1 circumstances."
circumstances." See See Committee
Committee on
on Rules of
ofPractice
Practice and
and Procedure,
Procedure, 52 F.R.D.
F.R.D. 409,438
438 (1971).
2 The proposed amendments for Rule 15 depositions provided amendments for provided in in relevant
relevant part:
part: __
. .
3 . (a)
(a) WHEN TAKEN. If it appears Ifit appears that a prospective prospective witness
1.vitness may
may bebe unable
unable to attend .
or or prevented
prevented fromfrom attending attending aa trial
trial or
orhearing,
hearing, that
that his
his testimony
testimony is is material
materialand and that
4 it is
is necessary
necessary to to take
take his deposition
deposition in order
order to to prevent
prevent a failure
failure of of justice,
justice,
5 Whenever Whenever due due toto special circumstances of of the case case it is in the interest of of justice justice that
6 the testimony
testimonyof ofaprospective prospective witness
witness ofof aparty
partybe betaken
taken andpreservedfor
and preserved for use use at trial, the court at any any time after the the filing an an indictment
indictment or information may upon 7 motion of of a defendant such partyparty andand notice toto the the parties
parties order
order that hishis
testimony
8 of such witness witness be takentaken by deposition deposition andand that
that any
any designated
designated books, papers, papers, documents documents or or tangible tangible objects, book, paper, paper, document, record,recording, document, record, recording or other other 9 material not privileged, be be produced produced at the same same timetime and and place.
place. IfIf a witness
witness isis
10 committed for for failure failure to
to give
givebail
bailtotoappear
appeartoto testify
testifyatataatrial
trialor
orhearing,
hearing, the
the court
court
on written motion
motion of ofthe
the witness
witness andand upoN
upon notice to to the
the parties
parties may direct
direct that
that his
11 ll deposition deposition be taken.taken. After After·the
the deposition
deposition hashas been
been subscribed
subscribed the the court court maymay
12 discharge the witness.
13 13 Id. at at 438-39
438-39 (alterations
(alterations in
in original).
original). The
Theadvisory
advisorycommittee
committeenotes
notes reflect
reflect that:
that:
14 14 Subdivision (a) is Subdivision is revised revisedtotoprovide
providethatthatthe
the government
government as as well
wellasas the
the defendant
defendant
is entitled
entitled to take
take a deposition. The The phrase phrase "whenever
"whenever due due to special special circumstances
circumstances
15 15 of ofthe
the case it is in
in the interest of ofjustice,"
justice,"isisintended
intendedtoto make
make clear
clear that the decision
that the decision
16 16 by the court as to whether to to order the the taking
taking of
of a deposition
deposition shall
shall be made in in the
17 17 context ofof the the circumstances
circumstances of of the particular particular case.
case.An
An obviously important
important factor
is whether a deposition will willexpedite, expedite,rather
ratherthan
than cause, delay in in the administration 18 18 of of criminal
criminal justice.
justice. Also
Also important
important is is the
the presence
presence or absence
absence of of factors
factors which
which
19 19 determine the use use ofof a deposition deposition at at the
the trial, such
such as the
the agreement
agreement of of the parties to the the use
use ofof the
the deposition,
deposition; the the possible possible unavailability
unavailability of of the the witness,
witness; or thethe
20 20 possibility possibilitythat
that coercion
coercionmay maybe beused usedupon
upon the
the witness to induce
induce him
him to change
change his
21 testimony testimony or or not
nottototestify.
testify. See
Seeproposed
proposedrule rule16(a)(l)(vi)
l6(a)(1)(vi) (January
(January 1970).
1970).
22 Id. at at446.
446. Ultimately,
Ultimately;the
theversion
versionofofRule
Rulel5(a) enacted
15(a) enactedbybycongress congressinin1975
1975included
includedthe
the phrase
phrase
23 "exceptional "exceptionalcircumstances"
circumstances"rather
rather than circumstances." 22 "special circumstances."
than "special
24 2 FRCP Rule 15 provides in relevant part 25 2 FRCP Rule 15 provides in relevant part:
A party
party may
may move
move that
that a prospective witness be deposed deposedin in order
orderto
topreserve
preservetestimony
testimonyforfor trial.
trial.
26 26 The court court may
may grant
grant the
the motion
motion because
because of exceptional
exceptional circumstances circumstances andand in
in the
the interest
interest ofof
justice. If the court orders the deposition to be taken, it justice. If the court orders the deposition to be taken, it may may also require require the deponent to produce 27 at the deposition any designated material that designated material that isis not not privileged,
privileged, including any book, paper, paper,
28 document, record, recording, or data.data.
People People v. Benavente & Due Benavente & fas
Duenas
Case No. CF0678-23 Case No. Decision Decision and and Order
Page Page4 of7 1 Defendants have not presented Defendants have the Court presented the Court with any any authority
authority showing that
that the
the Guam
Guam
2 2 Legislature specifically specificallyintended
intended to deviate from
from the
the federal rule's
rule's use
use of
of the
the phrase "exceptional
phrase "exceptional
. . . .
3 circumstances."
circumstances." Accordingly, Accordingly,the
the Court
Courtdeclines
declines to
tofind
findthe
thefact
factthat
thatGuam's
Guam'sstatute
statute uses
uses the
4 4 phrase "special circumstances" rather than phrase "special than"exceptional "exceptional circumstances" requires it to not consider
5 federal federal case case law
law examining
examining "exceptional
"exceptional circumstances"
circumstances" in
in evaluating
evaluating whether
whether aa deposition
deposition
6 should should occur.
occur. See,
See, Ag.,
e.g., Sum itomoConstr.
Sumitomo Conslr Co.,
Co., Ltd
Ltd v.
v. Zhang
Zhong Ye,
Ye, Inc.,
Inc., 1997
1997 Guam ,r 7
Guam 88 11
7 ("Generally, ("Generally, when when aa legislature
legislature adopts
adopts a statute
statute which
whichisis identical
identicalor
or similar
similarto
to one
one in
in effect
effect in
8 another jurisdiction,.
jurisdiction, it is
is presumed the adopting presumed that the adopting jurisdiction jurisdiction applies the construction placed
9 on the statute by the statute by the originating originating jurisdiction.
jurisdiction. This
This mle
rule of
ofconstruction
construction iS
is useful
useful in helping the
10 10 judiciary interpret statutes adoptedfrom statutes adopted fromfederal federal acts.").
acts.").
11 11 "Under the the present rule [15,]
present rule [l5,] references references to
to the
the materiality
materiality of
ofthe
the testimony
testimony and
and the
the
12 12 unavailability of unavailability of the the witness
witness have
have been
been replaced
replaced with
with the
the phrase,
phrase, 'exceptional
'exceptional circumstances.'
circumstances.'
13 13 This change change was effectuated
effectuated to ensure
ensure that the trial
that the trial court
court exercised its discretion in determining
14 14 whether a deposition deposition should
should be
be taken
taken under
under the
the particular
particular circumstances
circumstances presented."
presented." United
United
15 15 States States v. Fuentes-Galindo, Fuentes-Galindo, 929 F.2d F.2d 1507,
1507,1509
1509(10th
(10thCir.
Cir.1991)
l99l) (citing
(citing Notes of the
the Advisory
16 16 Committee to Rule 15). "Prior "Priortotothe
the1975
1975amendments,
amendments, aa deposition depositioncould
couldbe
betaken
takenpursuant
pursuant
17 17 to Rule l5(a)
15(a)under
under the
the following
followingcircumstances:
circumstances: (1)
(1)the
the witness'
witness' testimony
testimony was material;
material, (2) the
18 18 witness would be unavailable to testify;
testify, and
and (3) taldng
taking the
the deposition
deposition was
was necessary
necessary to prevent a
19 19 failure of justice."
failure justice." Id Id atat1509
1509 (quoting United States v.v. Whiting, United States Writing 308 F.2d F.2d 537
537(2d
(adCir.
Cir.1962)).
l962)).
20 20 "Depositions "Depositions generally
generallyare
are disfavored
disfavoredin
incriminal
criminalcases.
cases. Their
Theironly
onlyauthorized
authorized purpose
purpose is
21 to preserve evidence, evidence, not
notto
toafford
afforddiscovery."
discovery." United
United States v.v. Drogoul, Drogoul, 1I F.3d 1546,
1546,1551
1551(11th
(nth
22 Cir. 1993)
1993) (citations and internal internalquotation
quotationmarks
marksomitted).
omitted). "Nevertheless,
"Nevertheless, the
the Federal
Federal Rules
Rules of
of
23 23 Criminal Procedure Procedure expressly authorize authorize parties
parties to take
take depositions
depositions and use them at trial, and use trial, when
24 doing so doing so is is necessary
necessary to
to achieve
achieve justice
justice and
and may
may be
be done
done consistent
consistent with
with the
the defendant's
defendant's
25 constitutional rights."Id constitutional rights." Id "All "Allthat
thatisisnecessary
necessary to take depositions is a showing showing that
that'exceptional
'exceptional
26 26
27 27
28 Fed.
Fed. R.
R. Crum.
Crim. P.p. 15(a)(l).
15(a)(1).
People v. Benavente & Duenas Benavente & fas
CaseNo. Case No. CF0678-23 CF0678-23
Decision Decision and and Order
Page 5 of7
of
1 circumstances'
circumstances' exist and thatjustice and that justice would
would be
be served
served by
by preserving
preserving the
the deposition testimony."
testimony."
2 Id. at at 1557
1557 (emphasis in original).
(emphasis in original).
. . .
3 In In the ordinary case, exceptional circumstances circumstances do do not exist when the the prospective deponent has
has declared
declaredthat
thathe
heor
orshe
sheisiswilling
willing toto testify atat trial. This This isis because
because the
4 only proper
proper use of
ofaa deposition
deposition in
inaa criminal
criminalcasecase isis as
as substitute
substitute testimony when when a 5 material witnessisisunavailable material witness unavailableforfortrial trial. ... [I]f
[I]fthere
thereisisvery
verylittle
littlechance
chance that
that aa
6 deposition will be deposition will be admissible-if admissible-if the the witnesses witnesses are are available available to to testify
testify live,
live, for
example-the example-thedistrict
districtcourt
courtneed
neednot
notengage
engage in in the
the wasteful
wasteful practice of of authorizing authorizing
7 useless depositions.
depositions.
8 8 Id. "It "Itisiswithin
withinthe
thesound
sounddiscretion
discretion of
ofthe
thetrial
trialcourt
court to
to grant
grant or
or deny
deny aa motion
motion to
to depose
depose a
9 proposed witness witness in
in a criminal
criminal trial."
trial." People v.
v. Ngirangas,
Ngirangas, 806 F.2d 895
895 (9th
(9th Cir.
Cir. 1986)
1986) (citing
(citing
10 th Cir. l976)). "The burden is on the moving party United United States v.
v. Nichols,
Nichole, 534 F.2d 202,204 202, 204(9(9th
Cir. 1976)). "The burden is on party 111 to establish exceptional exceptional circumstances circumstancesjustifying
justifying the
the taking
taking of
of depositions."
depositions." Drogoul, lI F.3d F.3d at
at
12 1552 1552 (citation omitted). Courts Courtshave
havefound
found exceptional
exceptionalcircumstances
circumstances existing where where a`witness
a ·witness
13 13 is ill, see, see, Ag.,
e.g., United
United States
States v.
v. Singleton,
Singleton, 460 F.2d 1148 (2d Cir.
1148 (2d Cir. l1972),
972), in military service 14 overseas, see, see, Ag.,
e.g., State
State v. Stark
Stark, 222
222 N.E.2d
N.E.2d 794 (Ohio Ct.
Ct. App.
App. 1966),
1966), of
ofadvanced
advanced age, see,
15 15 Ag., e.g., United United States
States v. Hagedorn, 253 F.Supp.
v. Hagedorn, F.Supp.969 969(S.D.N.Y.
(S.D.N.Y. 1966),
l966), or
or a fugitive from
from justice,see,
see,
16 16 Ag., e.g., United United States
States v. Wilson,
Wilson, 601
601 F.2d 95
95 (3d
(ad Cir. 1979).
17 17 The Court Court considers
considers the witnesses
witnesses in this
this case.
case. At this At this time,
time, the
the Court
Court only
only has
has
18 18 information specific to witness availability as set forth forth in
in the
theGovernment's
Government'sNotice.
Notice. Defendants
Defendants
19 19 do not do not specifically specifically set
set forth
forth facts
facts reflecting witness availability reflecting witness Motion and their Motion in their
availability in and Joinder.
Joiner.
20 20 Although two of ofthe
the witnesses have identified identified specific
Although specific dates dates they will be
be unavailable to
to testify
testify on,
21 the Court notes that thatthe
thedates
datesare
arefor
forshort
shortperiods
periodsof
of time,
time, with
with several of the dates identified identified as
as
22 singular days. (Notice singular days. (Notice at at 3,
3, Jul.
Jul. 24, 2025).
2025). The
Theonly
onlywitness
witness currently
currently located
located off
off island
island is
23 23 3 None of the other witnesses who reside Stephanie Hill Hill from
from the
the Federal Bureau of
of lnvestigation.
Investigation.3 None of the other 24 on Guam have have been
beenidentified
identified as
ashaving
havingto
torelocate
relocateoff
off island within
within the
thenext
nexteight
eight months.
months. The
The
25 Government's Notice Government's Notice also also clarifies
clarifiesthat
that Ms.
Ms. Due fas will
Duenas not be
will not be called
called as
as an
an expert
expert witness,
witness; Dr.
26 26
27 3 The Court also notes that while Witness Hill resides off island, it does not mean that she is beyond the subpoena 3 The Court also notes that while Witness Hill resides off island, it does not mean that she is beyond the subpoena power of of the
the Government
Government or or Defendant.
Defendant. See
See 8 G.C.A.
G.C.A. Chapter
Chapter 164,
164, Unu'orm
Uniform Act
Act to
to Secure
Secure the
the Attendance
Attendance of
28 Witnesses fromwithout without aa State
StateininCriminal
Criminal Proceedings.
Witnesses from Proceedings.
People v. Benavente & & Due fas
Duenas
Case No.
No. CF0678-23
Decision Decision and and Order
Page 6 of7
of
Sue will not be called to testify as either an expert witness or fact witness; and Ms. Sanchez will i not .be called as an expert witness ... Id. Defendants have not shown that any of the ten witnesses 3 they se~k to depose will be unable to testify at trial -or refuse to testify at trial. 4 Accordingly, the 4 Court finds Defendants have not met their burden and. denies the Motion for Order to Take 5 Depositions. 6 CONCLUSION 7 For the foregoing reasons, the Court hereby DENIES the Defendants' Motion for Order 8 to Take Depositions. Parties shall return for a Status Hearing on October 3, 2025 at 8:30 a.m.
. . ~
9
IT IS SO ORDERED this \ 1 day of September, 2025.
11
12
13 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 14
15
16
17
18
19
20 SERVRCE VD.A IE-MAIL
21 I acknowledge that an electronic copy of the original was e-mailed to:
22 AGi, (-.t.,.Jo.si ~: wr:,,II+, /!;rr ro /.d. .
23 Date:9 /, '1P5'fime: tfJfJ~,
l
24
25
26 4 "A potential witness is urtavailable for purposes of Rule 15(a) ... whenever a substantial likelihood exists that the 27 proposed lieponent will not testify at trial. In that situation, justice usually will be served by allowing the moving party to take the deposition, thereby preserving the party's ability to utilize the testimony at trial, if necessary."
28 Drogoul, 1 F.3d at 1553.
People v. Benavente & Duenas Case No. CF0678-23 Decision and Order
Page7 of7