IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
June 29, 2009
UNITED STATES OF AMERICA,
JOHN P. KAROLY, JR., JOHN J. SHANE, JOHN P. KAROLY, III AND HEATHER J. KOVACS
The opinion of the court was delivered by: Stengel, J.
The government has filed a motion (Document #69) seeking to videotape the deposition of Anna Glisson, an elderly and ill trial witness, which would be taken in Williamsburg, Virginia and then shown to the jury at trial. Defendant John P. Karoly has asked this court to deny the government's motion (Document #73). At a hearing in open court on Thursday, June 4, 2009, the government provided a letter from one of Ms. Glisson's treating physicians. Because the government has now shown that exceptional circumstances exist, the motion to preserve Mrs. Glisson's testimony by videotaping her deposition in Williamsburg will be granted. In order to present the videotaped deposition at trial, however, the government will need to demonstrate that Mrs. Glisson is unavailable under Fed.R.Evid. 804(a).
II. LEGAL STANDARD
Fed. R. Crim. P. 15(a) provides that "A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice."
The rule distinguishes between civil depositions and their limited, disfavored use in criminal cases. Criminal depositions are not for discovery purposes, but only to preserve the testimony of a prospective trial witness who would be called by one's own party. United States v. Ismaili, 828 F.2d 153, 159 (3d Cir. 1987) (citing United States v. Cutler, 806 F.2d 933, 935 (9th Cir. 1986)). Under Rule 15, depositions in criminal cases require court authorization and the moving party bears the burden of demonstrating that it is necessary to preserve the prospective witness' deposition. See Id. (citing United States v. Adcock, 558 F.2d 397, 406 (8th Cir. 1977)).
The rule was amended in 1975 in two relevant ways. First, prior to 1975, the government was not permitted to request depositions in criminal cases. See Charles Alan Wright, 2 Fed. Practice & Procedure, § 241, 13, n. 17 (3d ed. 2000) (quoting F.R.Cr.P. 15 (1944)); Ismaili, 828 F.2d at 158-59.
Second, before 1975, this rule contained three explicit conditions that have now been replaced with "exceptional circumstances." These conditions were that "a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice." F.R.Cr.P. 15.
The cases interpreting Rule 15(a), both in this circuit and others, indicate that these conditions from the prior version of the rule remain factors in assessing whether "exceptional circumstances" exist. See, e.g., Ismaili, 828 F.2d at 159 ("Notwithstanding the 1975 amendment to Rule 15(a), it nevertheless has been established that when the district court exercises its discretion in ruling on a Rule 15(a) motion, considerations of materiality (of the testimony) and unavailability (of the witnesses) remain critical") (citing United States v. Johnson, 752 F.2d 206, 209 (6th Cir. 1985); United State v. Bello, 532 F.2d 422, 423 (5th Cir. 1976); United States v. Sun Myung Moon, 93 F.R.D. 558 (S.D.N.Y. 1982)).
Materiality and unavailability are not the only factors; the revised rule "emphasizes the use of discretion by the district court." Ismaili, 828 F.2d at 159.
The government suggests that Mrs. Glisson and her doctors are comfortable with her testimony being preserved by means of a videotaped deposition in an attorney's office near her home in Williamsburg, Virginia. The defendants contend that the requisite showing under F.R.Cr.P. 15 has not been made, but this court's review of the caselaw shows otherwise.
In 1992, another court in this district permitted the preservation of a witness' testimony because that witness had (1) material testimony, (2) a complicated pregnancy that required a surgical birth, and, (3) was located in Los Angeles. United States v. Coker, 1992 WL 59156, 1 (E.D. Pa. Mar. 18, 1992) (Waldman, J.). The government's motion to depose that witness was granted after the presentation of a letter from the witness' doctor. Id. The deposition was held in a courtroom and the defendants and their counsel were present and each had an opportunity to cross-examine the witness. Id.
In 2007, another court in this district granted the government's motion to depose witnesses who were outside the subpoena power of the United States and whose testimony was found to be material. United States v. Fleet Management, 2007 WL 2463364, 2 (E.D. Pa. Aug. 28, 2007) (Padova, J.). As in those cases, exceptional circumstances warrant the preservation of Mrs. Glisson's testimony: she is located some distance from Philadelphia, she is elderly and ill, and her testimony is likely to be material.
A. Mrs. Glisson May be Unavailable at Trial
In support of its contention that Mrs. Glisson may be unavailable at trial in July 2009, the government states that she is "elderly and ill," seventy-seven years old, and a resident of Williamsburg, Virginia. Further, Mrs. Glisson's doctor believes it "would be overwhelming and cause undo-stress" for her to testify at trial in Philadelphia, Pennsylvania (more than five hours' drive from her home), that she was diagnosed with CMML, a form of leukemia, more than two years ago in February 2007, and that another doctor does "not advise her to travel long distances or be in stressful conditions that may exacerbate her condition."
In a hearing in open court on Thursday, June 4, 2009, the government supplemented the arguments made in its motion to depose Anna Glisson in Williamsburg, Virginia with a four-paragraph letter from Dr. Tara A. Khoshnaw, M.D. dated May 22, 2009. In the letter, Dr. Khoshnaw lists Ms. Glisson's ailments: "chronic myelomonocutic [sic] leukemia,"*fn1 a "history of breast cancer,"*fn2 "stage III chronic kidney disease," "atrial fibrillation," "chronic obstructive pulmonary disease," and "divroticulosis." While there is no statement on record, by Mrs. Glisson or her doctor or anyone else, as to the gravity of these conditions or the ramifications or likely prognosis, I find that an elderly person who suffers from at least five conditions and a history of cancer is sufficiently likely to be unavailable at trial in this case to warrant preserving her testimony.
B. Mrs. Glisson's Testimony Appears to Be Material
The defendants are charged with fraud relating to 2006 wills allegedly signed by Peter Karoly, deceased, and by his wife, Lauren Angstadt, also deceased. The government has made a showing that Ms. Glisson's testimony is likely to be material: Mrs. Glisson received a bequest under the questioned 2006 wills and her name was misspelled on the 2006 will even though she was a friend of the deceased couple, the realtor who helped them purchase their Williamsburg, Virginia home and their property's caretaker.
Further, Mrs. Glisson previously has stated that she was surprised about the bequest to her of the couple's Vermont Castings grill because the couple had never discussed the grill with her and because it would barely fit on Mrs. Glisson's deck (a fact the deceased would have known). Additionally, Mrs. Glisson was surprised that defendant Dr. John J. Shane would have witnessed Dr. Angstadt's will because Dr. Angstadt did not trust him and had been upset with him for about a year.
Finally, the government states that Mrs. Glisson has talked about a phone call she received from one of the defendants in this case on the day before the 2006 will was found. The government believes Mrs. Glisson would testify that she received a phone call (the only one she had ever received although she knew Dr. Shane socially) on February 19, 2007 from Dr. Shane in which he described the airplane crash that killed Dr. Angstadt and Mr. Peter J. Karoly and in which he may have referenced the couple's 2006 will.
The primary factual issue in this case is whether the 2006 wills of Peter Karoly, Esq. and Dr. Lauren Angstadt are genuine. Mrs. Glisson was a friend of the deceased and a beneficiary under the will. She had contact with at least one of the defendants in this case regarding the couple's death and their property in the days following the plane crash.
Therefore her testimony is sufficiently likely to be material to warrant preservation.*fn3
C. If the Deposition is Shown at Trial, Mrs. Glisson Must be Unavailable
Rule 15(f) states that "A party may use all or part of a deposition as provided by the Federal Rules of Evidence." The Federal Rules of Evidence require a party to be unavailable in order for their testimony to be presented via deposition. F.R.E. 804. Therefore, prior to playing any portion of the videotaped deposition at trial, the offering party will be required to establish that Mrs. Glisson is "unavailable" as defined in F.R.E. 804(a).
At trial, "whatever latitude exists to permit the taking of depositions to preserve testimony for use at trial, disappears when the deposition is sought to be introduced at trial." Ismaili, 828 F.2d at 162, n. 7 (citing United States v. Mann, 590 F.2d 361, 367 (1st Cir. 1978)). Therefore, the introducing party will need to make a new and different showing of unavailability during trial.*fn4
For the foregoing reasons, the government's motion to take a videotaped deposition*fn5 of prospective witness Anna Glisson will be granted. The deposition testimony may be used at trial under F.R.Cr.P 15(f) if the government shows that Ms. Glisson is unavailable as a witness within the meaning of F.R.E. 804(a).*fn6
An appropriate order follows.