UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. No. 22-cr-392 (DLF) ABU AGILA MOHAMMAD MAS’UD KHEIR AL-MARIMI,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court are sealed motions by the United States to depose three witnesses pursuant
to Federal Rule of Criminal Procedure 15. Dkts. 129, 130, 131. The government seeks to depose
all of whom reside outside of the United States. While
the government initially moved to conduct all three depositions abroad, it now believes that
may be able to travel to the United States for their depositions. For the
following reasons, the Court will grant the motions, subject to the procedures outlined below.
I. LEGAL STANDARDS
Under Rule 15, a party “may move that a prospective witness be deposed in order to
preserve testimony for trial.” Fed. R. Crim. P. 15(a)(1). The Court “may grant the motion because
of exceptional circumstances and in the interest of justice.” Id. “To demonstrate that ‘exceptional
circumstances’ necessitate a Rule 15 deposition, the party seeking the deposition must show:
‘(1) the materiality of the testimony; and (2) the unavailability of the witness to testify at trial.’”
United States v. Trabelsi, No. 06-cr-89 (RDM), 2023 WL 4341429, at *2 (D.D.C. Apr. 5, 2023)
(quoting United States v. Cooper, 947 F. Supp. 2d 108, 112 (D.D.C. 2013); United States v. Kelley,
36 F.3d 1118, 1125 (D.C. Cir. 1994)). II. ANALYSIS
The pa11ies agree that the Com1 should "pe1mit depositions to be taken of all three
witnesses to prese1ve their testimony" for trial, Dkt. 136 at 1, but the defendant objects to any
deposition occmTing outside his physical presence, id. at 1- 2. Because the government has not
yet dete1mined whether any of the witnesses are miable to travel to the United States for trial, the
Comi will not decide that issue.
The Comi will, however, grant the government's motion to depose the witnesses before
trial. The government has satisfied its burden in showing that the testimony of these witnesses is
material. And the Court has provisionally dete1mined that the witnesses are substantially likely
not to be available to testify at trial. 1 See United States v. Mann, 590 F.2d 361, 366 (1st Cir. 1978).
A.
First, materiality. "In assessing whether testimony is material for Rule 15(a)(l) purposes,
com1s have used the standards developed for applying and interpreting Brady v. Maryland, 373
U.S. 83 (1963)." United States v. Vo, 53 F. Supp. 3d 77, 81 (D.D.C. 2014). "Evidence is material
1 This Order authorizes only the talcing of these three depositions. The Comi defers any decision on the admissibility of the depositions until a date closer to trial. See Fed. R. Crim. P. 15(f). At this time, the Com1 does not make any final dete1mination that the witnesses are unavailable for trial, a decision the Com1 will also defer until a date closer to trial. Nor does the Comt address the parties' arguments concerning the defendant's rights under the Confrontation Clause. The Comt will request supplemental briefing on these issues as necessa1y.
2 within the meaning of Brady when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different." Id. (citation modified).
Second, the government argues that I I is substantially likely to be unavailable for trial. The government "need not prove conclusively that the prospective deponent will be
unavailable to testify at trial." Cooper, 947 F. Supp. 2d at 11 3 (citing United States v. Drogoul, 1
F.3d 1546, 1553 (11th Cir. 1993)). For pmposes of Rule 15, the Comt may make a provisional
dete1mination that the witness is substantially likely not to testify at trial and defer a final
dete1mination of unavailability at trial. See Mann, 590 F.2d at 366 ("When the question is close a
comt may allow a deposition in order to prese1ve a witness' testimony, leaving until trial the
question of whether the deposition will be admitted as evidence."). The Comt focuses on the
witness's ''unavailability 'for trial' and not [on] whether they have actually consented to make
themselves available for the deposition." United States v. Vilar, 568 F. Supp. 2d 429, 439
(S.D.N.Y. 2008).
-- 3 Finally, because I I testimony will prese1ve critical evidence for trial and because the defendant will be present for the deposition, the Court concludes that - -deposition is
in the interest of justice.
The Comt will authorize - - deposition under Rule 15. - has expressed a
present willingness to travel to the United States, and the government "will continue to make
effo11s to secme . . . . appearance in the United States for a deposition." Dkt. 139 at 1.
Accordingly, the deposition shall take place at the U.S. District Comt for the District of Columbia,
in the presence of the defendant.
B. -
....
4 The Court will therefore authorize I I deposition under Rule 15. Because he has expressed a present willingness to travel to the United States and because the government "will
continue to make eff01ts to secure appearance in the United States for a deposition," Dkt.
139 at 1, the deposition shall take place at the U.S. District Com1 for the District of Columbia in
the presence of the defendant.
C.
- - - testimony is material for the reasons stated by the government. 1111111111111
The Comt will also make the provisional finding that - is unavailable for trial for
the reasons given by the government, with which the defendant agrees. Dkt. 136 at 15.
5 The Court will therefore authorize I I deposition under Rule 15.
The paiiies disagree over the defendant's location during the deposition. The government
contends that the defendant, who is in federal custody, "cannot travel to . . . .,, because it
lacks the authority to maintain custody over the defendant in a foreign com1tty. Dkt. 130 at 13-
14. The government notes that the Department of Justice's Office of International Affairs (OIA)
believes that- authorities ai·e "unlikely to accept custody of the defendant," but that "OIA has
asked the - authorities for their position directly, and the government will file a notice when
it receives the- response." Dkt. 139 at 3-4. Invoking Rule 15(c)(3), the govemment proposes
that the defendant pruticipate in the deposition by videoconference from the United States. Dkt.
130 at 13-14. The defendant objects and argues that the government has offered insufficient
grounds to establish that it cannot make him available for a deposition in. . . .. Dkt. 136
at 6--8.
Although the Comt will authorize- - deposition in _ _ , at this juncture, it
will not authorize the defendant's absence.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. No. 22-cr-392 (DLF) ABU AGILA MOHAMMAD MAS’UD KHEIR AL-MARIMI,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court are sealed motions by the United States to depose three witnesses pursuant
to Federal Rule of Criminal Procedure 15. Dkts. 129, 130, 131. The government seeks to depose
all of whom reside outside of the United States. While
the government initially moved to conduct all three depositions abroad, it now believes that
may be able to travel to the United States for their depositions. For the
following reasons, the Court will grant the motions, subject to the procedures outlined below.
I. LEGAL STANDARDS
Under Rule 15, a party “may move that a prospective witness be deposed in order to
preserve testimony for trial.” Fed. R. Crim. P. 15(a)(1). The Court “may grant the motion because
of exceptional circumstances and in the interest of justice.” Id. “To demonstrate that ‘exceptional
circumstances’ necessitate a Rule 15 deposition, the party seeking the deposition must show:
‘(1) the materiality of the testimony; and (2) the unavailability of the witness to testify at trial.’”
United States v. Trabelsi, No. 06-cr-89 (RDM), 2023 WL 4341429, at *2 (D.D.C. Apr. 5, 2023)
(quoting United States v. Cooper, 947 F. Supp. 2d 108, 112 (D.D.C. 2013); United States v. Kelley,
36 F.3d 1118, 1125 (D.C. Cir. 1994)). II. ANALYSIS
The pa11ies agree that the Com1 should "pe1mit depositions to be taken of all three
witnesses to prese1ve their testimony" for trial, Dkt. 136 at 1, but the defendant objects to any
deposition occmTing outside his physical presence, id. at 1- 2. Because the government has not
yet dete1mined whether any of the witnesses are miable to travel to the United States for trial, the
Comi will not decide that issue.
The Comi will, however, grant the government's motion to depose the witnesses before
trial. The government has satisfied its burden in showing that the testimony of these witnesses is
material. And the Court has provisionally dete1mined that the witnesses are substantially likely
not to be available to testify at trial. 1 See United States v. Mann, 590 F.2d 361, 366 (1st Cir. 1978).
A.
First, materiality. "In assessing whether testimony is material for Rule 15(a)(l) purposes,
com1s have used the standards developed for applying and interpreting Brady v. Maryland, 373
U.S. 83 (1963)." United States v. Vo, 53 F. Supp. 3d 77, 81 (D.D.C. 2014). "Evidence is material
1 This Order authorizes only the talcing of these three depositions. The Comi defers any decision on the admissibility of the depositions until a date closer to trial. See Fed. R. Crim. P. 15(f). At this time, the Com1 does not make any final dete1mination that the witnesses are unavailable for trial, a decision the Com1 will also defer until a date closer to trial. Nor does the Comt address the parties' arguments concerning the defendant's rights under the Confrontation Clause. The Comt will request supplemental briefing on these issues as necessa1y.
2 within the meaning of Brady when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different." Id. (citation modified).
Second, the government argues that I I is substantially likely to be unavailable for trial. The government "need not prove conclusively that the prospective deponent will be
unavailable to testify at trial." Cooper, 947 F. Supp. 2d at 11 3 (citing United States v. Drogoul, 1
F.3d 1546, 1553 (11th Cir. 1993)). For pmposes of Rule 15, the Comt may make a provisional
dete1mination that the witness is substantially likely not to testify at trial and defer a final
dete1mination of unavailability at trial. See Mann, 590 F.2d at 366 ("When the question is close a
comt may allow a deposition in order to prese1ve a witness' testimony, leaving until trial the
question of whether the deposition will be admitted as evidence."). The Comt focuses on the
witness's ''unavailability 'for trial' and not [on] whether they have actually consented to make
themselves available for the deposition." United States v. Vilar, 568 F. Supp. 2d 429, 439
(S.D.N.Y. 2008).
-- 3 Finally, because I I testimony will prese1ve critical evidence for trial and because the defendant will be present for the deposition, the Court concludes that - -deposition is
in the interest of justice.
The Comt will authorize - - deposition under Rule 15. - has expressed a
present willingness to travel to the United States, and the government "will continue to make
effo11s to secme . . . . appearance in the United States for a deposition." Dkt. 139 at 1.
Accordingly, the deposition shall take place at the U.S. District Comt for the District of Columbia,
in the presence of the defendant.
B. -
....
4 The Court will therefore authorize I I deposition under Rule 15. Because he has expressed a present willingness to travel to the United States and because the government "will
continue to make eff01ts to secure appearance in the United States for a deposition," Dkt.
139 at 1, the deposition shall take place at the U.S. District Com1 for the District of Columbia in
the presence of the defendant.
C.
- - - testimony is material for the reasons stated by the government. 1111111111111
The Comt will also make the provisional finding that - is unavailable for trial for
the reasons given by the government, with which the defendant agrees. Dkt. 136 at 15.
5 The Court will therefore authorize I I deposition under Rule 15.
The paiiies disagree over the defendant's location during the deposition. The government
contends that the defendant, who is in federal custody, "cannot travel to . . . .,, because it
lacks the authority to maintain custody over the defendant in a foreign com1tty. Dkt. 130 at 13-
14. The government notes that the Department of Justice's Office of International Affairs (OIA)
believes that- authorities ai·e "unlikely to accept custody of the defendant," but that "OIA has
asked the - authorities for their position directly, and the government will file a notice when
it receives the- response." Dkt. 139 at 3-4. Invoking Rule 15(c)(3), the govemment proposes
that the defendant pruticipate in the deposition by videoconference from the United States. Dkt.
130 at 13-14. The defendant objects and argues that the government has offered insufficient
grounds to establish that it cannot make him available for a deposition in. . . .. Dkt. 136
at 6--8.
Although the Comt will authorize- - deposition in _ _ , at this juncture, it
will not authorize the defendant's absence. The government shall continue to make efforts to
facilitate the defendant's physical presence in . If those effo1is are unsuccessful, the
Comt will decide whether the I I deposition can occur outside the United States with the defendant pruticipating by videoconference from the United States.
D. Sealing
The government argues that the depositions and related docket activity should be sealed
and closed to the public "unless and lmtil [deposition testimony] is offered at trial or another public
proceeding." Dkt. 129 at 17; Dkt. 130 at 14; Dkt. 131 at 28; see Fed. R. Crim. P. 15(e) (noting
6 that a Rule 15 deposition “must be taken and filed in the same manner as a deposition in a civil
action”); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (“[P]retrial depositions . . . are
not public components of a civil trial.”). The defendant agrees. Dkt. 136 at 1. The Court will
therefore order that the depositions be sealed until further order of the Court.
Accordingly, it is
ORDERED that the government’s sealed motions to take depositions under Federal Rule
of Criminal Procedure 15, Dkts. 129, 130, 131, are GRANTED, to the extent that the depositions
take place in the physical presence of the defendant and according to the procedures outlined
above. It is further
ORDERED that the parties shall meet and confer and propose a schedule for the
depositions. The Court will schedule these depositions during the period October 20, 2025, to
November 14, 2025. It is further
ORDERED that the parties shall file a joint status report on or before August 29, 2025,
and every 14 days thereafter, updating the Court on the government’s ability to comply with the
directives in this Order. It is further
ORDERED that the depositions and related docket activity shall be sealed.
SO ORDERED.
________________________ DABNEY L. FRIEDRICH United States District Judge August 19, 2025